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CW.U.KS.
X576 i

^

■/i:/n^

A

T RE ATISE

ON

CRIMES

AND

INDICTABLE

MISDEMEANORS.

IN TWO VOLUMES. H ' ^ =r

VOL. I.

SECOND EDITION,

WITH CONSIDERABLE ADDITIONS.

By WILLIAM OLDNALL RUSSELL, Es^.

OF UNCOLN'8 inn, BAaRISTSE AT LAW.

LONDON:
JOSEPH BUTTERWORTH AND SON,

LAW-BOOMELLERS, 43, FLEET-STREET.

1836.

i, AND T. CLARKE^ PRINTERS^ 8T. JOHN-SQUARE^ LONDON*

TO

THE RIGHT HONOURABLE

ROBERT LORD GIFFORD,

MASTER OF THE ROILS,

4rc. ijfc, ^c.
THIS WORK

A SAfALL TRIBUTE

TO

HIS GREAT FROFESSIONAL ATTAINMENTS ;

TO

HIS DESERVED HONOURS ;

AND TO

THE AMIABLE AND EXCELLENT QUALITIES

BY WHICH

HIS CHARACTER
IS

DISTINGUISHED AND ADORNED.

r /

1 • If '^ • , • • • ' . •

■.111... J I

' ♦ ,

> ^

I I . ;

PREFACE

A Second Edition of this Treatise has long been
delayed by the pressure of professional engage-
ments^ and by the changes eflfected in the criminal
laws during several successive sessions of Parlia-
ment. It has of course been an object that it
should embrace, as far as possible, the statutes of
consolidation and improvement, for which the
country is so much indebted to the able and
judicious exertions of Mr. Peel.

'* The crime of high treason was not originally
included in the plan of this Work, on account
of the great additional space which the proper
discussion of that important subject would have
occupied ; and because prosecutions for that
crime, happily not frequent, are always so con-
ducted as to give sufficient time to consult the
highest authorities.*' These reasons, which were
given in the preface to the first edition, have
still been allowed to operate ; and the crime of
high treason is not, therefore, one of the sub-

C€
(<
CC

S

Vlll PREFACE.

jects discussed in the following pages. The law
upon all other indictable offences will, it is hoped,
be there found in an appropriate arrangement ;
and a chapter or book upon the law of Evidence
in criminal prosecutions, which formed a part of
the original plan of the Work, has now been sup-
plied by the kind assistance of my friend, Mr.
E. Vaughan Williams, whose professional attain-
ments abundantly assure the value of the addi-
tion. '

Wm. OLDNALL RUSSELL.

Lincoln's Inn, Majfy 1826.

i/

^ -T-"

TABLE

OF

CONTENTS

TO BOTH VOLUMES.

BOOK I.

or PERSONS CAPABLE OF COMMimNG CRIMES, OF PRINCIPALS
AND ACCESSORIES, AND OF INDICTABLE OFFENCES,

CHAP. PAGE

I. Of Persons capable of committing Crimes . , 1

II. Of Principals and Accessories . . .21

III. Of Indictable Offences . . . .42

BOOK 11.

OF OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, THE

PUBLIC PEACE, OB THE PUBLIC RIGHTS.

CHAP. PAGE

I. Of counterfeiting or impairing Coin. — ^Of importing
into the Kingdom Counterfeit or Light Money, — ^and
of exporting Counterfeit Money • • 53

b

ii TABLE OF CONTENTS TO VOL. 1.

CHAP. PAGE

IL Of Frauds relating to Bullion^ and of counter-
feiting Bullion . . .69

lU. Of the making, mending, or having in posses-
sion, any Instruments for Coining . . 7^

IV. Of receiving, uttering, or tendering, counterfeit

Coin . . . .78

V. Of receiving or paying for the current Coin any

more or less than its lawful value . . 89

VL Of serving, or procuring others to serve, Foreign

States • . . .91

VII. Of seducing Soldiers and Sailors to desert or

mutiny . • . . .97

VIII. Of Piracy . . . .100

IX. Of neglecting Quarantine, and of spreading con-
tagious Disorders, and of injury to the public
health .... Ill

X. Of Offences against the Revenue Laws relating

to the Customs or Excise . .117

XI. Of hindering the exportation of Corn, or pre-
venting its circulation within the kingdom . 126

XII. Of administering or taking unlawful Oaths . 129

XIII. Of misprision of Felony, and of compounding

Offences • • . . 135

XIV. Of Offences by persons in office . . 138
XV. Of buying and selling Offices . .148

XVI. Of Bribery . . . .156

XVII. Of neglecting or delaying to deliver Election

Writs . . . .162

XVIII. Of dealing in Slaves . . .164

XIX. Of Forestalling, Regrating, and Ingrossing, and

of Monopolies ^ . . . 169

XX. Of Maintenance and Champerty, and o{. buying

and selling pretended Titles . .176

XXI. Of Embracery, and dissuading a witness from

giving Evidence • • .183

XXII. Of Barratry, and of suing ia the Name of a ficti-
tious Plaintiff • . • 185

TABLE OP CONTENTS TO VOL 1. iii

tHAP. PAGE

XXIIL Of Bigamy . . . .187

XXIV. Of Libel, and indictable Slander . -.209

XXV. Of Riots, Routs, and unlawful Assemblies . 247

XXVI. Of Affrays . . . .270

XXVII. Of Challenging to Fight . . 275

XXVIII. Of Disturbances in Places of Public Worship 278

XXIX. Of Forcible Entry and Detainer . . 283

XXX. Of Nuisances .... 295

XXXI. Of obstructing Process, and of Disobedience to

Orders of Magistrates . . » 360

XXXII. Of Escapes . . . .367

XXXIII. Of Prison-breaking by the Party confined . 378

XXXIV. Of Rescue; and of actually aiding in an Escape,

or in an Attempt to Escape . . 383
XXXV. Of returning, or being at large after Sentence of
Transportation ; and of rescuing or aiding the
Escape of a Person under such Sentence . 393
XXXVI. Of Gaming . . . .406
XXXVII. Of Usury and illegal Brokerage . . 409
XXXVIII. Of Offences relating to Dead Bodies . 414
XXXIX. Of going armed in the night-time for the De-
struction of Game . • . 417

•wr-

BOOK III

OF OFFBNCES AGAINST THE PERSONS OP INDIVIDUALS.

CHAP. PACE

I. Of Murder, . . : 421

II. Of Petit-treason, ... 481

III. Of Manslaughter, . . . 485

IV. Of excusable and justifiable Homicide, . 538
V. Of destroying Infants in the mother's womb, . 553

b2

ir TABLE OF CONTENTS TO VOL. L

CHAP- PAGE

VI. Of Rape^ and the unlawful carnal knowledge of

Female Children, . • . 556

VII. Of Sodomy, . . ' . , .567

VIII. Of the forcible abduction and unlawful taking

away of Females 3 and of clandestine Marriages, 569
IX. Of Kidnapping and Child-stealing, . • 582

X. Of attempts to Murder^ of Mayhem or Maiming,
and of doing or attempting some great bodily
harm, ..... 585

XI. Of common and aggravated Assaults, . 604

XII. Of maiming, &c. by tbe.furious driving, &c. of

stage coachmen, . . , 627

XIII. Of setting spring guns, &c. . Add. Vol. 1, p. xix.

VOLUME II.

BOOK IV.

OF OFFBNCBS AGAINST PROPBRTT PUBLIC OR PRIVATB.
CHAP. PAGE

I. Of Burglary, . • . . 1

II. Of Sacrilege or of breaking into any church or

chapel and stealing therein, . . 45

III. Of House-breaking, . . • 47

IV. Of stealing in a dwelling House, any person

being therein put in fear . . 49

V. Of stealing in a dwelling house to the value of 5/.

or more, . . . .51

VI. Of breaking, &c. and stealing in a building within

the curtilage, . . . .55

VII. Of breaking, &c. and stealing in any Shop,

Warehouse, or Counting-houee, . . 60

VIII. Of Robbery from the person, . . 61

IX. Of Larceny, . . .92

X; Of stealing from the person, • • 182

TABLE OF CONTENTS TO VOL. U. t

«

CHAP. PAGE

XI. Of stealing Horses, Cows and Sheep, . .184

XIL Of stealing and destroying Deer, . • 18/

XIII. Of taking or killing Hares or Conies in a War-

ren, &c. .... 189

XIV. Of unlawful taking or attempting to take Fish, • 191
XV. Of stealing in any vessel in Port, or upon any Na-
vigable river, &c. or in any creek, &c. And of
plundering shipwrecked vessels, • • 194

XVI. Of Larceny by Servants, and Persons who have
the Custody as Servants, and not the legal
Possession .... 197
XVII. Of Embezzlement by Clerks and Servants . 207

XVIU. Of Embezzlements by Brokers, Factors^ and

other Agents . . . 219

XIX. Of Embezzlements of minor Importance . 222

XX. Of Embezzlement by Officers, and Servants of

the Bank of England, and by Public Officers 224
XXI. Of Larceny and Embezzlement by Persons in
the Post Office; of stealing Letters; and of
secreting Bags or Mails of Letters • 228

XXII. Of Larceny and Embezzlement of Naval and

Military Stores • • .241

XXIII. Of Larceny of Cloth, and other Articles in a

Process of Manufacture . . 244

XXIV. Of Larceny by Servants and Lodgers . 246
XXV. Of Embezzlements and Frauds by Bankrupts 248

XXVI. Of Embezzlements and Frauds by Insolvent

Debtors . . . .262

XXVII. Of receiving stolen Goods . . 253

XXVIII. Of taking a Reward for helping to the Dis-
covery of stolen Property . . 261

XXIX. Of unlawfully receiving or having possession of

Public Stores . . .264

XXX. Of unlawfully receiving Tackle or Goods cut
from or left by Ships ; and of receiving Goods
stolen on the River Thames . 279

vi TABLE OF CONTENTS TO VOL. IL

CHAP. PAGE

XXXL Of Cheats, Frauds, False Tokens, and False

Pretences .... 284
XXXIL Of Forgery . . . .317

XXXIII. Of the forging, altering, &c. of Records and

Judicial Process . . • 386

XXXIV. Of Forgeries relating to the Public Funds, and

the Stocks of Public Companies . • 388

XXXV. Of forging the Securities of the Bank of Eng-
land .... 396
XXXVI. Of forging the Securities of other Public Com-
panies .... 408
XXXVII. Of forging and transposing Stamps . . 410
XXXVIII. Of the Forgery of Official Papers, Securities,

and Documents . • • 428

XXXIX. Of the Forgery of Private Papers, Securities,

and Documents • . .451

XL. Of falsely personating Another . , 479

XLI. Of malicious Injuries to Property . . 484

XLII. Of Arson, and the burning of Buildings, Mines,

Ships, Corn, Trees, &c. . . 486

XLIII. Of maiming and killing Cattle . . 497

XLIV. Of injuring and destroying Trees, Shrubs, or

Underwood .... 600
XLV. Of destroying, &c. Plants, Roots, Fruits, and

Vegetable Productions . . 502

XLVI. Of cutting and destroying Hop-binds . 604

XLVII. Of breaking down, &c. Sea Banks, Locks, and

Works on Rivers, Canals, &c. . . 605

XLVIII. Of destroying the Dams of Fish-Ponds, &c.,
Mill-Ponds, and of putting noxibus Materials
into Fish-Ponds, &cJ . . . 606

XLIX. Of destroying or injuring Bridges, Turnpike-
Gates, &c. . . ' . 607
L. Of destroying Fences, Walls, Stiles, or Gates 609
LI. Of the destroying and damaging Mines and

Mine-Engines . . . 610

TABLE OF CONTENTS TO VOL. IL vii

CHAP. PAG*

Ul. Of defitroying and damaging Articles in a
Course of Mannfacture, and of destroying,
&c. Implements and Machinery • .511

ILflU. Of destroying and damaging Ships and other

Vessels, and Articles thereunto belonging 613

L«IV« Of wilful or malicious Damage to Real or Per-
sonal Property, not otherwise provided for . 516

BOOK V.

OF Of FSNCBS WHICH MAT AFFSCT THB PERSONS OF INDIVIDUALS

OR PROPERTY.

CHAP. PAGE

I. Of Peijury and Subornation of Perjury . 517

II. Of Conspiracy . • . • 553

IIL Of Threats, and Threatening Letters . 575

mmtamamaeam

BOOK VL

OF BVIOBNCE.

cnAP. PAttE

I. Of Witnesses. What Witnesses are competent
to give Evidence. What facts competent
Witnesses may disclose, and what are privi-
leged communications. How Witnesses are
to be examined. How the credit of Wit-
nesses may be impeached. How many Wit-

viii TABLE OF CONTENTS TO VOL. II.

CHAP. PAGE

negses are sufficient. And how the attend-
ance of Witnesses is to be compelled and re-
munerated .... 588
II. Of Confessions and Admissions. Of Examina-
tions before Magistrates. And of Depositions 644

III. Of what nature Evidence must be. Of Pre-

sumptive Evidence. Of the rule that the
best possible Evidence must be produced^ —
and of Hearsay Evidence. . . 665

IV. Of the proof of negative Averments. The Rule

that the Evidence must be confined to the
point in issue. What Allegations must be
proved^ and what may be rejected; and
therewith of Surplusage and Variance . 691

V. Of Written Evidence . . .719

TABLE

OF TUB

NAMES OF CASES CITED

IN BOTH VOLUMES.

Page

A.

Abbott t9. Plumb
AViDgdon, (LKird), Rex r

Abitbolv. Beneditto
Abrabam^s case
Abraham v. Bann

Absor V, French

Acerro v. Petroni

Adams's case

Rex V.

- r. Malkin

II. 726

I. 214,
216, 242

11.715
II. 329, 475

II. 546
' I. 309

II. 617
I. 597, II. 113

II. 160
II. 250
II. 720
I. 526
I. 105

Adamtbwaite o. S jDge
Adey's case
Admiralty case
Alckle's case I. 403, 405, II. 1 20,
122, 123, 333, 334, 677, 681, 723
Airey, Rex v. II. 306, 309

Akeharst's case II. 377

Akenbead, Rex v. I. 601, 602

Alexander's case II. 519

— V. Gibson II. 636

Alford, Rex v. II. 540, 713

Alice de Waldborongh's case I. 3

AU Saints, Worcester II. 605

AOea Vm Heame I. 159

, Rex V. I. 13, II. 674

V. Ormond I. 307

AJlisoo^ Rex V. 1. 201, 207

AbaoDy Rex v. h 236, 237

Alves o. Bunbury
Amarro, Rex v.
Amey v. Long,
Ami tie. Case of
Anderson, Rex v.

• and others, Rex v,

V, Hamilton

Page

II. 722

I. 109, 596

IL 613, 639

IL 601

L447

IL 176

II. 615

1.415

Andrews o. Cawthorn

Annesley and Redding, Rex r. I. 549

■ r. Lord Anglesea II. 614

Anonymous I. 24, 46, 320, 339, 340,

362, 363, 408, 456, 508, 534, 535,

562, 566, 597. II. 65, 96, 102, 145,

147, 150, 160, 162, 163, 275, 482,

493, 518, 545, 556, 653, 669

Apothecaries Company v. Bentley, IL

694
Appleton V. Lord Braybrook, II. 722

II. 652

IL 642

IL 674, 692

L267

II. 561

IL 690

L 9, 591

L457

IL 690

1.244

Appleby, Rex v,
Arding o. Flower
Argent, Rex v.
Arms, case of
Armstrong, Rex o.

©• Hewit

Arnold's case

Arrowsmith v. Le Mesurier

Arundel, Lord's, case

Asaph, (Dean of St.) case

Ashley's, (Sir Anthony,) case I. 248

V. Harrison I. 230

Askew, Rex v. 1 1. 574, 589

Aslett's case II. 145, 225

TABLE OF CASES CITED.

Aslett^s Sd case
Aspindall v. Brown
Ast ley's case
■ r. Younge

Atcheson v, Everitt
Athos'5 case
Atkins's case
— , Rex ▼.

Page

II. 224, 227

L329

XL 74, 75

1.213

11. 591, 592

L 497

L29

I. 51

Atkinson's case I. 597

— — , James and William, Rex r.

II. 117, 237

, Rex v. I. 16, 20, II. 201,

542
Attorney-General v. Parnther I. 13

■ V, Bowman 11. 703

V. Balpet II. 624

V. Davidson 11. 660

V. Le Marchant II.

676j 678
Atwell, O'Donnell and others, Rex v.

II. 255, 256
Atwood, Rex v II. 599

Audley's (Lord) case II. 606

Austin and King, Rex v. II. 445

Aveson and Kinnaird, Rex v» II. 605
Ayes, Rex r. I. 497

Aylett, Rex v. II. 518, 537, 540,

541, 543
Aziro, Rex v. II. 606

B.

Bacon, Rex v. I. 585

Badcock, Rex v. II. 595

and others, Rex v, II. 356

Bailey, Rex v. I. 109, II. 11, 12,

30
Baillie, Rex v. I. 232

Bainton, Rex v. IL 544

Bake and others. Rex v. I. 283

Baker's case 1.511. 522, 11.64, 67

Baker v, Townsend
Bakewell, Rex o.
Balcetti v. Serani
Baldney v. Ritchie
Baldwin's case
. Rex ©•

I. 136

II. 225

II. 695

1 1. 677

I. 38

IL 258, 269

1.85

Ball's case
Ball, Rex V. II. 385, 495, 589, 697
— r. Herbert I. 840

Balme, Rex v. I. 48, 49, 312, 364
Baltimore's (Lord) case I. 557

Bangor (Bishop of) Rex v. I. 255

Bank prosecutions, case of 1 1. 407

Banks, Rex v. II. 129, 132,275,

276
Barham's case II. 486

Barker's case I. 79

Page

Barker v. Sizie IL 60^

Barlow, Rex v, I. 14 1

Barnes, Rex v. IL 251, 727

Barnes o. Constanikie 1.186

Barnett, Smith and others, case of II.

174, 175
Barr, Rex v. I. 309

Barry v, Babbington II. 689

Bartholomew Neville, Rex v. I. 297

Bartlett v. Pickersgill IL 546, 60S
Bass's case II. 198

Basten v. Carew II. 618, 621

Baston v. Couch II. 520, 533

Bate V. Hill IL 635

Bath and Montague's case II. 600

Bathurst, Rex r. I. 283

Baude's case I. 289, 291

Bayley, Rex v. I. 232

Baynes, Rex v. I. 408

■ and others, Rex c. 1. 27

Bazeley's case - IL 34, 205

Beacall, Rex v. IL 166

Beach, Rex v. IL 361

Beale, Rex v. I. 149, 156

Beaney, Rex c. 11.709

Bear, Rex v. L 228, 235, II. 360
Beasley's case IL 482

Beaven, Rex v. 1 1. 602

Bedford, Reg. v. L 221

Beech's case IL 539

, Rex. V. I. 240

Beechy, Rex v. IL 211

Beckwith v, Sydebotham N. 622

Bedburn, ReH v. IL 675

Redder, Rex v. II. 600

Beeley v. Wingfield I. 136

Bell's case I. 74, 76, 86

Bellingham's case I. 11, n (u)

Belstead, Rex v. IL 154, 246

Belt, Rex p. 1.363

Bembridge and Powell, Rex v. I. 44,

143, IL 283
Bembridge, Rex v. I* 138

Benfield and Saunders, Rex o. L211,

610

Bennet, Rex v. II. 658
and another's case IL 5, 9

V. Clough II. 668

p. Filkins I. 322

V. Watson II. 638

Benson, Rex v. 11.711

, Rex V. IL 539, 549

Benstead's case I. 380, 384

Bentley v. Bishop of Ely IL 595

Berenger, De, and others. Rex v. II.

553, 559, 573, 617
Bernard, Rex r. 1. 147

TO BOTH VOLUMES.

XI

Page
Berryman v. Wise 11. 668, 681

Berthon o. Lroaghman II. 622

Bertie v. Beaumont 11. 22

Berwick's case' I. 191

Best, Reg. 17. IL 553, 555, 556, 561,

567, 568, 569
BeTeridge r. M inter II. 604

Beverley's case J. 6, 8

Bew, Rex ©. II. 247

Bidmead v. Gale I. 408

Bi^nold, Rexr. II. 544

Bill's case II. 246

Billinghurst, Rex c. I. 200

Bilmore and other's, case of II. 600
BiDghamo. Dickey If. 715

Bingley and others, Rex v.II. 357, 695
Binglose's case II. 6

Birch and Martin, Rex v, II. 361

Birkett and Brady, Rex v. II. 320,

362
y Rex V. . II. 353, 460, 462,

600
Birt V. Barlow I. 206, II. 723

Bishops, (the seven) case of I. 213,

II. 616, 240, 241
Black V. Lord Braybrook II. 722

Blackburn, Rex v» II. 285

Blackham's case II. 71

Blackmore, Rex v. II. 276, 277

Blake, Sir F. Delayal and Others,

Rexr. 11.564

Bland, Rex v. II. 277

Blaakard v. Galdy 1. 1 50

Blaxton V. Pye I. 408

Bligh V. Wellesley II. 675

Bloomfield, Rex v. I. 559

Bloxam v. Elsie II. 670

Bollands case II. 328, 329

Bodenham, Rex v. I. 334

Bones r. Booth I. 408

Bontien, Rex v. II. 337

Booth, Rex v. I. 84, 85, 142

Bootie, Rex v. I. 371, 374

Borthwick's case I. 22, 456, 458, 509
Bost, Du, o. Beresford I. 209, 21 1
Boston, Rex v. II. 374, 546, 603

Botham v. Swinder II. 608, 609

Bothe's case I. 32, II. 355

Boalter v. Clarke I. 608

Bower, Rex v. I. 50. n. (g) 69, II.

290
Bowes, Rex 9. II. 569

Bowler's case I. 10, n. (t)

Box, Rex V. II. 460

Bojal, Rex v. I. 48, 49, 579

Boyall, Rex v. h 374

Boyce, Rex v. I. 599

Boys, Rex o.
Bradbury's case
Bradford, Rex v,
Bradley v. Banks,
— — - V, Metheun

Page

1.141

II. 658

I. 51

1.470

1.211
Brady's case I. 117, II. 549

and othersjcase of I. 22,11. 356

Brain's case I. 435

Bramley, Rex 77. II. 155

Brampton, Rex v. I. 192, 205

Bramwellv. Lucas II. 612, 614

Brandon's case I. 46

Braid v. Ackerman II. 612, 614

Brasier, Rex v. II. 134

Brazier's case I. 565

Breeme's case II. 488, 491

Brereton and others, Rex v. II. 291
Breton V. Cope 11.723

'Brewer v. Palmer II. 670

Brewster r. Sewell II. 675

Brice, case of II. 24

Bridekirk, Rex 9. I. 332

Brideman v. Jennings II. 689

Bridges, Rex v, II. 278

Brigg's case I. 519

Brisac v. Scott II. 569

Broadfoot's case I. 508, 509

Brooke, Rex v. II. 620

Brom wick's case I. 443, II. 661

Broughton Rex v. 1. 145, 330, II. 546
Brown's case II. 4, 5, 20, 22, 73, 78,

246, 481
Brown, Rex v. I. 501, 571, 576, II. 238

X,. Beckley I. 407

V, Crashaw II. 595

Browning's case I. 509

Brace's case' L 107, 463

Brunswick, Rex x;. 11.154

Brunton, Rex v. II. 598

Bruton v. Morris I. 571

Bryan, Rex v. I. 50 N. (g) II. 294

V. Wagstaff II. 678

Buccleugh,(Duchess of)Reg. v. I. 325,

344
Buchanan v, Rucker II. 722

Buck, Rex 9. 1.49

Buckingham, (Marquis oQ Rex v. I.

343
Buckle, Rex v. I. 361

Buckler, Rex v. I. 470

Bucknall, Reg. v. I. 344

Buckner's case I. 488, 491, 493, 494
Bucks (inhab.) Rex v. I. 342, 343, 349
Bulbrooke o. Goodere I* 341

Bull's case 11.205

Bullock, Rex v. II. 250

Running's case I* 80

Xli

TABLE OF CASES CITED

Page
Banter o. Warre II. 608

Bunting, Rex v. II. 376

Burder, Rex v. I. 147

Burdett, Rex o. I. 146^ 146, 147,
234, 236, 240, 244, 245, 408,

411, II. 710
■ V. Abbott I. 519

Bnrdon v. Browning If. 603

Burgess's case II. 24

• and Others, Rex v, I. bb7

Barke, Rex v. II. 347, 348

Burlej, Rex v. II. 599, 645, 646

Burnand r. Nerot II. 720

Burnet, Rex o. I. 115

Barridge, Rex v. I. 374, 381, 384,

385, 393. II. 594, 596
Barrough v. Martin II. 622

Burrows, Rexr. I. 561

Burton's case I. b^7

— - — upon Trent, Rex r. I. 201

V. Paine IL 677

Bush, Rex v. II. 258

— c. Steinman I. 320
Bushbj V. Watson , I. 186
Bushel's case II. 544
Bushen V. Barrett 1 1. 593
Batcher, Rex v. II. 651
Butchers' Company o. Jones II. 608
Butler's case II. 247
^, Rex©. . I. 202, II. 691

r. Carver II. 608

Butterworth and Others, Rex v.

II. 44
Buttery and Mac Namara, Rex v* II.

339, 355, 721, 723
Byard, Rex v, I. 494

Byron, (Lord) Rex v. I. 496

C.

Cabbage, Rexo.
Caffus's case
Call V, Dunning
Callan's case
Calthorpe v, Axtell

IL 94

IL 375

IL 725

IL4, 5

1.^79

Calfert v. Archbishop of Canterbury,

II. 689
Cambridge, (Journeymen of ) Rex v.

IL 553, 554
Camfield and another, Rex r. II. 25
Campbell's case II. 53, 108

V. Twemlow IL 607

Canfield, (Great) Rex v. I. 330, 331
Cannon, Rex o« II* 87

Card V. Jeans IL 674

Carlisle, Rex v. I. 48, 49, 215, 218

r. Eady

IL 608

I

Page
Carpenter, Rex v. I. 358, IL 683
Carr, Rex v. I. 597, II. 209, 547,

548

V. Hood I. 230

Carrell's case, II. 29

Carroll, Rex v. II. 62

and King, Rex r. 588, 580,

590
Carson's case II. 71 0

Carter's case IL 361, 362

Cartwright, Rex v. I. 45, 125 II. 345

r. Green IL 103

Cary r. Pitt IL 379, 623, 726

Case, Rex v. I. 61

Casey and Cotter, case of IL 9

Cass's case IL 645

Cassano, Rex r. I. 46

Castell V. Bambridge and Corbett J.

459
Castell and Careinion, Rex v. II. 594
Castle's case I. 50

Castlehayen (Lord's) case I. 557,

562
Castlemain's (Lord) case II. 594

Castleton, Rex v. IL 675^ 676

Catapode, Rex v. 1 1. 477

Cates V. Hardacre II. 625

V, Knight I. 48

V. Winter IL 676

Caton, Rex v. I. 218

Cator, Rex v. I. 231, IL 380, 623,
Catt ». Howard II. 621

Cavan v. Stewart II. 722

Cave, Rex v, I. 559

Celier's case IL 593, 594

Chad v.* Tilsed I. 341

Chadderton, Rex v. I. 338

Chadwick v, Bunniug IL 722

Chalkley, Rex v. . IL 499

Chalkling and another, Rex o. IL 5, 6
Chamberlain, Rex v. II. 674

Chandler, Rex v, I. 50

Channeli's case II. 295

Rex r. I. 60

Chappel, Rex v. I. 276

Chappie's case 1 1. 277

Rex V. I. 147, II. 498

Charlewood's case II. 128

Charles worth's case II. 597

Chatfield v. Frier II. 688

Charand v. Angerstein II. 622

Cherry's case IL 96

Chester, case at I. 562, 597, 598

Chichester's, (Sir John) case L 528
Child V. Grace 1 1. 652

Childerston v. Barrett II. 642

Chipchase's case IL 202

Chisholm's case 1 1. 457, 458

TO BOTH VOLUME?.

• • •
XIII

Page
II. 109
1.212
II. 630
II. 685
I. 79, 82
II. 593
1.466. II. 713
1.416
II. 7, 147, 148, 233
I. 471, 473, 563. II.
629, 635, 682
9. Periam I. 302

V. Saifeiy
9. Shee

Chisser's case
Cbolmlej, Rex r.
Christian v» Combe
Christie, Rex v.
Cinran's case
Cbncey's case
Clark, Rex v.

, Reg. r.

Clarke's case
Clarke, Rex v.

Clay's case

Clay, Rex v.

Clay bum and another, Rex v.

Cbyton v. Jennings

Clegg V, Levy

Cleadon, Rex v.

Clerk, Rex o.

Cliflbrd V, Brandon

II. 618
II. 599
II. 230
II. 185
II. 56
1.408
II. 722
1.610
1.235
I. 248, 250, 274.
II. 560
Otfton, Rex v. I. 338, 354

Clifton (Inhab.) Rex v. 1.321, 322, 331
Clinch's case II. 239, 344, 473, 474
CliTiger, Rex v. II. 605

Clutterbuck v. Chaffers I. 236

CIq worth. Rex r. I. 335

Coalheaver's case I. 21, 28, 591, 592
CobbeU, Rex o. I. 225, 228

Cobden v. Kenrick II. 614

Cochrane, Lord, Rex v. II. 574

Cohen, Rex v. II. 520

and Jacob,Rex v. 1. 335. 1 1. 589

Coke and Woodbum, Rex^v. I. 481,

590, 624. II. 487
Cole's case L 477. II. 37, 275, 276
Cole, Rex v. II. 250, 277, 695

Coleman's case II. 306

Coleman, Rex v. II. 112

CoUett, Rex v. II. 28

Collicott's case II. 343, 346, 425, 427
ColKns o. Blantein I. 136

Coiner's case II. 43

Commerell and Ellis, Rex o. I. 338
Commings, Rex o. I. 140, 141

Coiopagnon and Martin, Rex o. II.

538, 547, 550
Compton, Rex v. I. 140

— — - and others, Rex v. II. 560
Conier's case I. 61

Coogan's case II. 389, 353, 371, 377
Cook's case I. 514, 520, 521. II.

185,308,713

Cook, Rex r. II. 172

V. Field I. 40

Cooke's case
Cooke V. Birt

Maxwell

Coombe, Rex v.

V. Pitt

Cooper, Rex v.

c. Gilbons

■■ V. Marsden

Cope and others, Rex 9.
Copeland o. Watts
Coppard, Rex v.
Corah, Rex v.
Corking v. Jarrard
Comforth, Rex v,
Cornwall's case
Cornwall, Rex r.
Corry, Rex v,
Corsen r. Dubois
Cosan's case
Coslet's case

Cottingham,(Inhab.) Rex v.
Cotton, Rex o. I. 333.

County, Rex v. I. 24. 11. 127, 175
Courteen o. Touse II. 617

Cowell V. Green II. 259

Cox's case I. 46. II. 493, 540

1.598

Page

II. 169, 626, 641

I. 521, 522

II. 594

I. 108, 466

I. 158, 159

I. 303

II. 679

II. 689

II. 571

II. 612

II. 713

II. 374

II. 609

1.578

11.10

1.477

1.143

II. 639

I. 124

II. 95
1.328

II. 688

Cox, Rex V.
— — V. Wirrall
Cramp, Rex v.
Cranagee, Rex r.
Craven's case
Craven, Rex v,
Crevey, Rex v.
Cresby, Sir P.'s case
Crespigny, Rex v.
Crighton, Rex o.
Crisp and others. Rex v.
— I?. Anderson

.1.502
II. 481
II. 717
II. 170
11.707
1.215,217
11.597
II. 518
II. 216
I. 137
II. 679

Crocker's case II. 318, 373, 375, 384,

385

Croft's case

Crohagan's case

Cromack v. Heathcote

Crompton v. Bearcroft

Crooke's case

Crooke v. Edwards

Cropley, Rex v.

Crosby's case

Cross, Rex v. I. 43, 50, 297, 305, 318,

319

1.17

1.221

II. 611

1.204

II. 338, 453

II. 250

II. 285, 723

II. 595

Crossley, Rex v.
Crow hurst. Rex v.
Crowther's case
Crnnden, Rex v.
Cuddington v. Wiikins
Culpepper, Rex v

II. 519, 537, 540

1.365

I. 141

1.44,302

II. 595

II. 680

Cumberland (Inbab.) Rexo. 1. 353,358

xiv

TABLE OF CASES CITED

Page
Cumberland (Inhab.) Reg. v. I. 353
Cummings and another, Rex v. I. 40.

II. 288
Cundell v. Pratt II. 676

Cunliffe v. Sefton II. 725

Curgenven v. Cuming I. 159

Curl, Rex v. I. 220. II. 725

Carrie v. Child II. 613

Curry v. Walter I. 214, 21 5

Curtis's case I. 512, 514, 518, 519

Curtis V. Hundred of Godlej I. 691
Cutts V. Pickering II* 613

D.

Dacre's (Lord) case I. 451

Dakin's case II. 717

Dalby, Rex v. 11. 546

Dale and others, Rex v. I. 476

Dalison v. Stark II. 671

Danellj and Vaughan, Rex v, I. 30,

36. IL 105

Darley, Rex v. L 6^6

Dam ford and Newton, Rex c. II. 90

Dartmouth (Lady) v. Roberts II. 721

Davy and another. Rex v»

Davies* case

Davies (alias Silk's) case

Davies and others, Rex v.
and Hall, Rex v,

Davis's case
Davis, Rex v.

and another, Rex o.

V. Williams

L297

IL 68, 341

II. 17, 20,

51

1.301

I. 22. II.

356

L 593, 617. II. 597

I. 48, 364. II. 12

L 141.
IL 6, 59
IL 721
I. 159
II. 600

Davy V. Baker
Dawber, Rex v.
Dawson's case II. 234, 320, 359, 710
DeBerenger and others. Rex r. II. 553,

559, 573, 617
De la Croix v. Thevenot I. 236

De Londo's case II. 515

De la Motte, Rex v. IL 676

De Ponthieu v. Pennyfeather I. 315
De Sailly v. Morgan IL 630

De Veaux and others, Rex v, IL 31 1
De Yonge, Rex v. L 89

Deakin's case II. 155, 338, 352

Deakins and Smith, Rex v. IL 159,

163
Dean's case I. 3

Dean of St. Asaph's case I. 244

Delaneyr. Jones I. 231

Delaval (Sir F. B.) and others. Rex v,

IL 564

Deraan, Reg. v.
D'Eon, Rex v,
Depardo, Rex v,
Derrington, Rex v.
Dethick's case
Devon (Inhab.) Rex r.
Dewsnap, Rex v.
Dibdin r. Swan
Dick's case
Dickenson, Rex v,

o. Slade

— ' V, Watson

Dickinson, Rex v.
Dicks, Rex v,
Digby's (Lord) case
Dingler's case
Dingley's case
D'Jsraeli v. Jowett
Dixon's case
Dixon, Rex v. I. 50. n. (g) 116, 299.
1 1. 286, 287, 290, 613, 667
Dixon et Ux., Rex r. L 17

Dixon and others. Rex v, II. 245

Page

IL540

I. 209, 232

I. 109, 464
II. 648

L279

L353

I. 295, 306

1.230

IL 456

L48

IL 621

I. 607

IL 98

I. 16

I. 191

IL 660, 686

II. 33, 34
IL 723

I. 509

V, Vale
Dobb's case
Dod, Rex r.
Dodd's (Dr.) case
Dodd V, Norris
Doe 0. Andrews

r. Cart Wright

V. Deakin
V. D urn ford
V. Grey
— 17. Griffin
©. Harvey
V. Jessou
V. Morris
V, Pearson
V. Perkins
V, Stephenson
V. Walker

V. Wood

Doker v. Hasler
Donally's case IL 64, 66, 67, 72, 78,

79,80
Donally and Vaughan, Rex v. II. 30,

36, 105
Donnevan's case IL 492

Dorand's case IL 496, 672

Domy, Rex v. I. 290

Dorrington's (Hannah) case L 80

Dorset (Inhab.) Rex v. I. 349

Douglass, Rex v. 1 1. 307, 308

Douse, Rex r. I. 49

Dover v. Maestaer II. 596

Dowlin, Rex v. IL 536, 541, 547

Polling and another, Rex r. IL 716

II. 625

IL 33

1.236

IL 361, 377, 599

II. 628, 635

IL 613,639

11.671,689

IL 667

II. 725

IL 678, 679

IL 667

IL 679

II. 667

IL 671

IL 671

1 1. 622

IL 635

IL 635

II. 622

II. 604

TO BOtH VOLUMES.

XV

Down^s case
DoxoQ V. HaigH
Dnbble 9. Donner
Dnke, Re|r. t>.
Dnyton Basset, Rex v.
Dn&eld, Rex tj.
Drtiikwater's case
Bnnnmond^s case
Ihi Bonne v. Levette
Dq Bost 9. Beresford
Dudley's case
Dnffin, Rex v.

Page I

II. 378, 383

II. 676

II. 678

II. 360, 361

I. 529

11.290

II. 261

II. 687

11.610,611

1.209,211

II. 352

1.559

Doffin and Marshall, Rex o.

o. Smith

I. 598.

II. 713

II. 613, 614

1.216

Dancan v. Thwaitps
Danklej and Others, Rex v. I. 620
Dunn's case II. 326, 328, 332, 333,

361
Donn and Another, Rex r.

II. 696,
698
II. 290
I. 565
II. 370
II. 479
II. 599

Donnage, Rex r.

Dnnnel, Rex v.

Dunnett's case

Dopee's case

Dorham, Rex o.

Durham (Bishop oQ ^* Beaumont

II. 635
Dnroare's case I. 593.

Dnrrell v. Bederlej
Dye, Rex v.
Dyer and Disttng, Rex o.

Dyson, Rex v.

II. 706
II. 622
1.411
II. 255,
256
I. 424, 431, 601

E.

Ealing, Rex v.

Eardisland, Rex o.

East Farleigh, Rex v.

East «u Chapman II*

EasUU, Rex v. II.

Ebsworth's case II. 319,

Eccles's case

Eccles and Others, Rex v.

Ecclesfield, Rex v. I. 323,

Eden, Rex v.
Edgecombe v. Rodd
Edmonds v. Rowe

V. Walter

Edmonson v. Stephenson
EdiDonton, Rex v.
Edsali's case
JCdtrards's case

II.

1.464

I. 333
II. 675

625, 626

158, 197

.368, 371

II. 568

II. 557

324, 332,

333, 344

538, 546

I. 136

II. 571

II. 618
1.231
1.202

II. 366
II. 289

Page
Edwards, Rex v. I. 46, 49, 184, 201,

482. II. 518, 628, 646

and Walker, Rex v. II. 172,

174, 706

and Others, Rex v, II. 561

Egerley, Rex r. I. 318

Egerton, Rex v. II. 87, 697

Egginton and others, Rex v. II. 58,

106

Elden v. Keddell
Eldridge^ Rex v.
Elkins, Rex v.
Eller's case
Ellins, Rex v.
Elliot's case
Elliott's case

, Rex p.

Ellis's case

, Rex V.

, Reg. V,

V. Raddle

El instead. Rex v.
Ellor's case
Else, Rex v.
Ely, Rex v.
Embden, Rex v.
Emmett v. Lyne
Em p son's case
EmpsoQ V. Batharst
England's case
Ennes v, Donesthorne

II. 721

II. 644

I. 363

II. 232

II. 233, 710

II. 342, 343

II. 318

I. 592

1.290

II. 546, 649, 696

1.250

I. 150

II. 86
II. 471

1.86

I. 363

II. 544, 548

1.605

I. 592

I. 145

II. 663

II. 683

Eriswell, Rex v. II. 655y 660, 661

Etherington, Rex v. II. 709

■ — and Brook, Rex v, II. 50

Essex (County), Rex v. I. 357

Justices, Rex v. I. 314

Evani, Rex v. II. 251

Evans's case I. 31, 32, 104

Evans, Rex v. I. 426. II. 710

1.27.

II. 13,48

II. 724

II. 677

II. 636, 721

II. 680, 724

1.5

and Finch, Rex v.

V. Phillips

V* Sweet

Ewer V. Ambrose
Eyre r. Palsgrave
Eyston and Steed's case

F.

Fabian's case
Fairman v. Ives
Falkner, Rex o.
Falmouth (Lord) v. Moss
Farewell, Rex v.
Farleigh, Rex v.

1.70

1.232

11.664

II. 610

I. 335

11.675

XT I

TABLE OF CASES CITED

Page

Farley's case

II. 179

Farr's case

II. 352

Farr and Chadwick's case

II. 131

Farre's case

II. 9, 21

Farrel's case

11.96

Farrell's case

11.63

Farrington, Rex v.

II. 668

Faulkner's case

1.49

Faantleroy, Rex v.

II. 456

Fawcett's case II. 285, 345, 352, 386
Feftrnlej, Rex v. I. 364, 366

Fearshire, Rex v. II, 663

Fell, Rex v. I. 369, 372, 374—376
Ferrers' (Lord) case I. 9, 13, 479

(Sir H.) case I. 512, 524

Ferrers, Rex r. II. 352

Field's case II. 422

Fteldhouse, Rex V. 1.291,610. II.

656
Fisher and Others, Rex v. I. 216

V. Heming II. 612

■ V. Samuda II. 680

Fishennan's case II. 65

Fitzgerald and Lee, Rex v. II. 344,

443
Fitzpatrick, Rex v. I. 403. II. 713
Flannegan, Rex o. II. 19

Flecknow, Rex v. I. 326

Fleet, Rex v. I. 216

Fleming and Windham, Rex v. I. 560.

II. 662
Fletcher's case I. 124

Fletcher, Rex v. I. 479. II. 600
■' V. Braddill L 241. II. 681

' ©. Ingram I. 147

Flindt V. Atkins II. 722

Flinty Rex v. II. 305, 306

Folkes V.Chad IL 380, 622, 623

Foote o. Hayne II. 611

Forbes, Rex v. II. 661

Ford's case I. 551

Ford, Rex v. I. 504. II. 593—596
Forsgate's case II. 160

Forster, Rex v. II. 520, 715

Forsyth's case I. 191. IL 261, 717,

719
Foster's case I; 17

Foster, Rex o. I. 174

Fountain v. Young II. 611

Fowler and Others, Rex o. II. 561
* ©. Sanders I. 295, 301

Fox, Rex V. II. 602

Foxley's case I. 17. II. 594

France v. Lucy II. 678

Francis, Rex v. II. 65, 66, 336, 337
Franklin's case I. 124

Page
Franklyn, Rex v. I. 224

Fray's case I. 489

Frank's case I. 82

Frederick and Another, Rex v.

II. 570, 604
Freeman, Rex v. I. 439

V. Askell IL 675

Freeth's case II. 303, 305

French, Rex v. II. 21

Friend and Robinson, Rex v. L 47,

48

et Ux., Rex c. 44

Frith, Rex v. IL 249

Frond, Rex r. II. 339, 472, 473

Frost V. Holloway II. 628

Fry, Rex o. 1.611. IL 169

Fuller's case I. 97. IL 17, 87, 88,

309
Fuller and Another, Rex v. I. 47,

48. 1 1. 668

©. Folch IL 724

Fulwood's case I. 570, 672, 676

Furly V, Newnham IL 640

Furneaux, Rex v. IL 215

Furnival, Rex o. IL 35

G.

IL 161
IL 395
II. 637
IL 611
I. 388, 329

Gaby, Rex v.
Gade's case
Gahagan's case
Gainsford v. Grammar
Gamingay, Rex v.

Gaoler of Shrewsbury, Rex v. I. 373
Gardiner, Rex v. I. 52

Gardner, Rex v. II. 592

Garland's case IL 36

Garnet v, Ferrand IL 661

Gamons o. Swift IL 680

Garrells v. Alexander IL 726

Gascoigne's case II. 69, 70

Gash and Another Rex v» I. 335, 365
Gastineanx's case I. 421, 592

Genge, Rex v. I. 147

Genner v. Sparks I. 522

George, Rex v. I. 51

Gibbon, Rex v. I. 390. IL lO

Gibbons, Rex o. IL 19, 644

■ ©. Pepper 1. 607

Gibbs, Rex v. I. 149, 156, 174.

IL 610, 648
Gibson's case IL 362, 446

Gibson, Mutton, and Wiggs, Rex o.

I. 691. IL 15

IN BOTH VOLUMES.

XVH

Page

1.174
II. 364, 366
1.408,411,413.
II. 610, 648, 710
Gin, Rex V. I. 50, 318. II. b(^7y

569

Gilbcft» Rex ©•
GilclirisCs case
GilbaB) flex v.

and Another, Rex d.

GilWs, Rex o.
(liUham, Rex v.
Giliow, Rex 17.
GiUon's case
Gimberto. Cojoey
Girdwood^s case
('Ubam, Rex v.

1.608
1.415
I. 147
I. 599

II. 496, 672, 728
1.511

II. 582, 583, 586
II. 608

Glamorgan (Inhab.), Rex o. I. 332,

343
Glamorganshire ( Justices), Rex o.

1.348
Glandfield's case JI. 494, 495
Glasbome Bridge case I. 343, 349
Glasses case I. 49
Glorer'scase II. 189
Goat's case II. 338
Goate's case II. 359
Godbolfscase 1.150
Goddard v. Smith I. 1 86
and Fraser, Rex v* II. 246

Godfrey r. Norris
Goddphin o. Tudor
Godson Vm Home
Goff, Rex 9.
Gofie's case
Gogerley, Rex v.
Goldstein, Rex v*
Goodbum o. Marley
GoodenoQgh, Rex v.
GoodhaO, Rex v.
Goodier v* Lake
Goodtitle v. Braham

c. Welford

Gordon's case I. 30.
Gordon, Rex v.

■^ Lord G. Rex o.

1.29.

II. 674, 726
I. 151
L243
II. 373
I. 529
IL 696
II. 360
L408
1.293
11.300
n. 680
IL 379, 380,
622, 623
IL 378
II. 668, 677
1.516
1. 333, 266.
II. 682, 699
^ Win. and Thos., Rex o.

I. 29, 30, 37
-, Lockart and Lomdoo, Rex v.

I. 576

Gore^scase
Gotky, Rex v.
Gosgfa, Rex V.
Gsoid'scase
Carets, Kex r.
Goirai's case

1.453
I. 137
IL 537
1.364. IL52
II. 292
IL488
IL 695

IL 468,

IL

L 125.

Graham's case
Graham v, Dyster
Grant's case
Gray's case
Green o. Brown

V, Goddard

Greeniff, RexOh

Grey, Rex 9. I.

, (Lord) and others, Rex

I. 570. IL Q^y
Griebe, Rex v»
Griepe, Rex o. IL 621, 522,
Grtffio, Rex v. II.

and others, Rex v.

' V, Parsons

Griffith and another, Rex v.
Grimes's case
Grindley, Rex v.
Groenvelt's case
Grove, Rex v*
Gully's case

Gulston and others, Reg. v.
Garney v.Langlands IL

Gwinnet v. Phillips
Gyles V. Hill
Gythin's case

H.

Page

471,708

IL 679

593, 650

IL 6, 35

IL 667

L609

1.390

461, 582

V,

564, 571

II. 542

543, 596

645, 651

1.230

1.607

1.290

IL 195

L8

II. 288

I. 186

IL 596

L267

380, 623

IL 712

IL 721

1.432

Ilabershon r. Troby 11.611

Hacker's case IL 609

Hadfield's case L 12. IL 327, 335
Haduett, .Rex v. I. 202

Haius, Rex v. IL 723

Haines and Harrison's case IL 3

Hales's case II. 293

Hales and Kennedy, Rex o. IL 352
Halifax's (Lord) case IL 692

Hall's case IL 3, 645, 657

HaU, Rexo. L 236, 304. IL 216,

727
and Cratchfield, Rex v. II. 369,

425

Hallard's case
Halloway's case
Halsell's case
Hamilton's case
Hamlyn, Rex o.
Hammersmith, Rex v,
Hammon's case
Hammond's case
Hammond, Rex v.
■ ■ V. Brewer

IL16

I. 440, 488

L329

II. 53, 179

L 146

L 331, 334

IL 202, 203

L 17. II. 93

1.329

L 327, 328,

330
and Webb, Rex v. IL 572

Xtill

TABLE OF CASES CITED

Page
HamworCh, (Inhab.) Rex v. I. 359
Hancock, Rex v. II. 58

Handcock v. Baker and others I. 266,

559

■ V. Sandham add others 1. 506
Handy, Rex v. I. 300
Hahkej, Rex v. 276
Hann and Price, Rex v. I. 140
Hannon, Rex v. I. 185. II. 294
Hanson's case II. 699
Hanson, Rex r. II. 693
Harding and others. Rex v, II. 200

■ V. Greening 1. 237
Hardwick, Rex v. II. 646
Hardwicke, Rex r. ^ I. 185
Hardy's case II. 572, 615, 618, 622,

699, 701
Harling, Rex v. II. 589, 595

Harman's case II. 66

Barman, Rex v. II. 276

©. Delanej I. 229

Harmnrood, Rex v. I. 5^60, 564

Harpar, Rex v. I. 147

Barring v. Walrond I. 302

Harrington v. Fry II. 727

Harris's case I. 593. II. 17, 488,

537

■ (aUas Hatton) case II. 78

■ Rex V. I. 47, 1 1 1, 294, 364,

513. II. 289, 543, 545, 703

and Minton, Rex u. I. 60

©.Hill 11.613

— V. Saunders II. 724

V. Tippet II. 626, 629

V. White II. 595

Hawkeswood's case
Hawkins's case

, Rex V.

Haydou's case
— — — , Rex V.
Haynes's case
— — , Rex t?.

Harrison's case I. 19. II. 369, 457,

463, 464, 660

, Rex V. I. 221

« V. Parker and another I. 350

Harrow, Rex r. I. 328

Hart's case II. 360

, Rex V. I. 233, 239, 240

Hartford, Rex v. I. 330

Bartley, Rex v. II. 209

« V. Hooker 1. 49

Harvey's case II. 109, 650

, Rex V. I. 223, 243. II. 467

— — V. Morgan II. 677

Hazy and Collins, Rex v. II. 673, 692
Haslam's case II. 259, 262

Hasliiig£eld (Inhab.) Rex v. I. 328
Hastings and Meharg, Rex v. I. 104
Haswell. Rex v. I. 380, 382

Hatfield', Rex v. I. 308, 324

Hathaway v. Barrow II. 603

Hawe V, Planner I. 609

Hays V. Bryant
Hay ward, Rex v
Haywood's case
Hazel's case
Headge, Rex v,
Healey, Rex t7«
Heath, Rex v.
Hedge, Rex v*-
Hemming's case
Hempstead, Rex v.
Bench's case
Hendricks, Rex v.
Hengham's (Justice) case
Henn's case
Henrey v. Adey
Henry v. Leigh
Herbert, Rex v.

and others^ Rex o.

Page

II. 232, 340

11.24

11. 9, 691

1.30

I. 158

II. 160, 163

I. 50 n. (^)
II. 295, 296

1.142

I. 305, 598

II. 499

I. 439, 489, 490, 53*2

II. 208, 212
II. 247, 705

1.46

II. 138

II. 585

11.54,311

II. 120

Herriott v, Stuart
Hestcott's case
Heston's case
Bevey's case

Hevey, Beatty, and M'CIarty, Rex v.

11.380,561,562,701

1.411
II. 386

1.325
II. 723
II. 676

I. 140
II. 560

L230

I. 145

11.594

II. 323, 324, 652

Heyden, Rex v.
Bickman's case

©. Dyer

Hicks's case
«. Gore

I. 158

IL 61, 80, 81

II. 705

1.275

I. 578

Biggins's case I. 45) 46

Biggins, Rex v. 1. 15. IL 371, 544
BigginsOn, Rex v. I. 300

Biggs V. Dixoa II. 726

Bighfield v. Peake II. 721

Bigham v. Ridgway II. 680

BiU, Rex V. I. 599, 500. II. 3 1 0,

3U, 710
, Darley, and others, Rex o.

1.408,413

and Dodd, Rex r.

and Others, Rex v»
V, Coombe

Bind, Rex v*
Bindmarsh, Rex o.
Binxman's case
Bobson's case
Hodges's case
Hodgson's case

1.372
11.710
II. 619

1.200

I. 467, 473

II. 656

IL217

II. 650

1.456

IN BOTH VOLUMES.

XIX

Page
Hodicsoo, Kelt o. I. 563. II. 697, 703

1.24

I. *i\3

II. 726

11. 210

1.471

II. 354

II. 406,

407

II. 626,

Bodgson and others. Rex o.

V. Scarlett •

Bodaet o. Foreman

Bo^ios, Rex v.

Bolero fty Rex o.

Bolden, Rex v.

and others, Rex r.

Holding and Wade, Rex v*

628
Holland, Rex o. I. 138, 142, 144,

365. II. 726
■ V. Forster I. 140

Hollingberr J, Rex v. II. 708

Holmes's case II. 487, 488, 489

Holmes v. Walsh I. 38, n. (/)

Holt's case I. 488

Holt, Rex V. I. 242, 243. II. 705,

706,719

r. Tyrrel 11.611

V. Ward I. 190

Boost's case II. 34i

Horde Tooke's case II. 572, 699

Horoe, Rex v. II. 613

V. Benthick 1. 213. II. 615

Homer's case II. 64, 68

Homer and others. Rex v. II. 123

V. Batt jn I. 457

©. Liddiard I. 202

Btfrtrtey, Rex 9. L 332

Hotham 9. East India Company I, 403
Hough, Rex v. II. 384, 697

Honski 9.' Barrow I. 513

Boustman v. Thornton II. 667

How r. Uall
H<jwatt's case
H#w^, Rex o.
Howell} Rex 9.
— i— — 9- Lock

Biie, Rex 9.

Biiksy Rex 9.

BUsou, Rex 9.

HirI^ V^eic 9.

B^flett. Rex 9.

Hoggfasudd Barnes, Rex 9.

11. 678

II. 235, 238, 239

II. 630

1.300

II. 607, 608, 609

I. 281, 282. II. 672

II. 637, 639, 687

I. 310, 324

II. 657, 701

I. 500, 523, 525

I. 459,

Hk^hes's case

H«^bes, Rex 9. I. 18.

and others. Rex 9.

Higill's case

Hnil, Rex 9.

Hangerford's case

lAfat's case

Akt, Rex V. I. 503, 601. II. 700,

460

II. 378

II. 358

11.11

11.245

I. 535

11.43

II. 371, 670, 679

Page
Hant and others. Rex 9. I. 241 , 254,

255, 268
Hunter's case II. 362, 464, 466

Hunter, Rex 9. I. 493. II. 363

Hard 9. Moring II. 613

9. Martin II. 714

Hutchinson's case I. 124, 125

Hutchinson, Rex 9. I. 472. II. 158,

687
Hutchinson 9. Birch and another I. 521
Hyde and others, Rex 9. II. 88

Hyman's case I. 38. II. 258

I.

Ilderton 9. Ilderton

lies, Rex 9.

Ince's case

Incledon, Rex 9. I

Ingham or Ingram (Justice)

Ingram (Sir Arthnr) case I.

Ingram, Reg. 9.

9. Dade

Ireland 9. Powell
Isaacs, Rex 9.
Isaac's case

J.

1.204

II. 549

I. 124

. 336, 339

case II.

386

150. II.

609

II. 708

II. 688

II. 667

I. 62.

II. 487

Jackson's case I. 460, 502

Jackson and others, case of I. 455, 466

, Rex 9. 1. 69, 332, 558. 11.

295
■ and another. Rex 9. I. 6 1 9.

II. 82, 85, 307
Jacob's case II. 656

Jacobs and Lazarus's case I. 80

Jacob 9. Lindsay II. 621, 671

701,708,709

Jacobs, Rex 9.
James's case
James, ex parte

, Rex 9.

Janson 9. Stuart
Jarvis, Rex 9.
Jeffreys 9. Walter
Jekyll 9. Sir John Moore
Jelfs 9. Ballard
Jenks's case
Jenkins, Rex 9.
Jennings, Rex 9.
Jenour, Rex 9.
Jepsou and Springett, Rex 9. II. 684,

686

I. 568

I. 49, 201

II. 251

II. 549, 691

I. 186, 302, 303

11.25

1.408

1.214

II. 692

11. 35, 707

II. 31, 652

1.472

1.211

t 8

XX.

TABLE OF CASES CITED

Page
Jobling, Rex v. II. 28

John's case II. 686, 687

Johnson's case H. g^ 170

Johnson, Rex v. I. 42, 125, «41. II.
171,213, 216,276^ 56«, 675

V. Bann I. 408

P. Leigh L 521, 522

Johnstone's case I. 593. If. 91, 705,

706
Joliife, Rex v. If. 557

Joiliffe, Rex v. II. 683

Jones's case I. 7. IL 152, 162, 289,
316, 345, 346, 363, 404, 475, 645
Jones's (alias Evans) case II. 76, 78,

Jones and Beaver's case II. 40, 42

and Longman's case II. 20

and Palmer's case II. 338, 353,

369, 467

— , R^ex V. I. 20, 51, 140, 147, 292,

320. II. 30, 547, 599, 600, 649, 652,

653, 658, 696

-, Reg. V. IL 294

r. Ashburaham I. 416

^- Clay I. 610

V. Edwards II. 678

V. Mason II. 597, 674, 726

V, Randall
V. Stroud

1L719
IL 622

Jordaine v. Lashbrook IL 590, 599
Jordan, Rex v. I. 190, 192

Journeymen of Cambridge, Rex v. IL

Judd's case II, 491

K.

Keates's ewe
Keite, Rex v.
Kelly, Rex v.

L 23.

Kempton o. Cross
Kensington v. Inglis
Kent (Inhab.) Rex v.
- — (Justices) Rex v.
Kernon, Rex r.
Kerrison, Rex v. L

Kettleworth, Rex o,
Kilderby, Rex v.
Kinder's case
King's case

King, Rex v. I. 43.

Kingmoor, Rex v.
Kingston, Rex v.
Kingston's (Dachess of)

IL

1.436
1.461,532
IL 257, 711,
712, 714
IL 7, 21
IL 674
L 350, 351
L 313, 314
IL 259
330, 352, 356
L 338, 339
L48
IL320
1.276
IL 257, 7^5
L334
IL59>6
ca^ L 190.
610,611,722

Page
Kingsfoa and others, Rex v. I. 302,

305, 366
Kinnersley, Rex v. I. 228

and Moore, Rex v. I. 45.

II. 567, 568
Kirk, Rex v. L 313

Kitchen, Rex v, L 596

Knell, Rex v. I. 241

Knevet (Sir E.) Rex v. L 613

Koewland and Wood, (case of) IL 76
Knight and Roffey, Rex v. II. 34, 35,

99
Knill, Rex 9.
Koster r. Reid
Kroehl and others. Rex t>.

IL545
IL667
IL 573,
620

L.

Lacon v. Higgins IL 7^3

Ladd, Rex v. I. 428, 469

I^de (Sir John) v- Shepherd L 309
Laing v. Barclay IL 613

Lake o. King I. 216

Lafoife and others. Rex o. IL 600

Lamb's case I. 235. IL lOl

Lambes's case II. 644, 045, 657, 068^

663

Lambert and Perry, Rex v, L 209,

210, 221 , 223, 224. II. 098, 099

Lancashire (Jastices of) Rex v. I. 337

Lane v. Degberg
Langley, Rex v.
Reg, V,

Lanure's case
Lapier's case
Lara, Rex v. IL 294, 295, 297, 306

I. 009

L5I

I. 228, 276

L487

IL 02, 03, 08, 96

Lannock v. Brown I. 51s

Lavender's ctse IL 201

LaTey and Parker, Rex v. I. 60

Law V. liflw L I60

Lawley (Lady's) case IL 0O6

Lawley, Rex v. I. 184

Lawrence v» Hedger I. 580

Layer's case 11. 697, 010, 020, 068,

071, 078
Le Gros o. Grosvenor
Le Mott's case
Leach, Rex 9.
Leader v. Barry
Ledbitter, Rex v,
Lee's case
Lee, Rex t>. I. 589.

and others, Rex 9.

IL09O
IL9
IL209
IL 725
IL202
IL 340, 425
IL 646, 67^,
608
I. 46, 210

IN DOTH VOLUMES.

XXI

Lm o. Rrrdl
— V, Gansel
— ^ t3u Ridson
Leech, Reg. v.
Leeds 9. Cook
Leefip, Rex v.

I'S

LegBtt V. Tollenrey
Leigh's case
LeniMTd's case
Lepeit 9. Brown
Lethbridge v. Winter
Levett's case
Levi's (Benjamin) case
hewj and others, Rex v,
Leward 9. Baseley

Lewis's (Anne) case IL 328, 334, 339
Lewis, Rex v. IL 290, 294, 636, 6^7j

628

■ 9. Clement
■ 9. Sapio

9. Walter

Page

II. 610

1.631. 11.29

IL 137

1.340

II. 679

IL 538, 547

IL708

IL290

II. 725

IL 132, 133, 195

L74

IL 714

1.310

L 20, 550

L84

IL 717

I. 608, 609

L216

II. 726

1.212,215

IL 680

IL 642

I. 380, 384

II. 538, 540, 713

liebman 9. Poolej

Lightfoot 9. Cameron

Lcmerick^s case

LiBooln, Rex 9.

Uadsey iii Lincolnshire, Rex r. I. 352

Lingate, Rex 9. IL 645

Little, Rex v. I. 13

Liverpool (Major of) Rex t, I. 321

Liaodilo District, Rex v. I. 327

Lloyd's case
Lkiyd, Rex 9.

V. Ptessingham

~*— 9. Sandilands
I^ock 9. Hay ton
Locker, Ilex 9.
Lockeit's case 1 1. 232, 307, 3^0, 330,

333, 468, 474, 475
I.4ickhart's case IL 650, 663

1 1. 585, 586

I. 296, 309

IL 629

L521

II. 600

11. 606

Lockyer and others, Rex 9«
LociKt and Villars, Rex 9.
Loggeo and others, Rex 9.

L408.

LoHtfy, Rex9*

liDBg, Rex 9.

fjBBgdeti, Rex t.

Lockup, Rex 9.

Lorkia, Rex 9.

fjoom and others^ Kex 9.

Lwal's (Lord) case IL 572, 596, 608

lofeW's case ^* ^^'^

Ijme, Rex v. [ >47

Idtwenv.Kajc ^- ^*«

IL 570
11.35

I. 138,
145, 146

I. 190
L 467
1.438

II. 550
1.467

IL 713

Page
Lacas 9. Notosiiteski IL 619

Lynall 9. Longhotham I. 407

Lynch v. Clarke IL 725

Lynn, Rex r. I. 414, 415. IL 557
Lyon's case I. 192. II. 360, 464,

466, 467
Lyon, Rex v. IL 339, 456

M.

M^Arthur, Rex 9. II. 548

M^Hride 9. M'Dride 1 1. 626, 627

MK^arthur, Rex 9. 11. 540

M^Carty, Rex 9. IL 657

M^Daniel, £gan and Berry, (case of)

I. 31, 39, 40
■ and others. Rex 9. II. 67

" - ■ Berry and Jones, Rex 9.

L427
M*Dermot, Rex 9. L 597. IL 71 3
M'Dougall 9. Claridge I. 231

McGregor's case 1 1. 214

M'Grt^gor 9. Thwaites I. 212, 216
M^Guire's case IL 379

Mcintosh's case IL 345, 468, 469,

475
McKay's case IL 456

M^Keron, Rex 9. 11. 541

M^Makin and Smith, Rex 9. II. 257
Macarty and Fordenbourgh, Rqx 9.

IL 291, 292, 479, 653,563

9. Wickford I. 150

Macauley's case IL 64, 67

Macclesfield's (Earl of) case I. 149
Machynlleth, Rex 9. I. 324, 325, 335,

345
Macdaniel and others, Rex 9. IL 554
Mackally's case IL 709, 711, 712

. , Rex 9. I. 432, 466, 467,

474, 512, 514, 515, 518, 523
Mackartney, Rex 9. II. 603

Mackey and Arrigoni, Rex 9* I. 589,

590
Madan's case I. 404

Maddocks's case IL 290

Maddox, Rex 9. II. 135, 196

Madison's (Lady) case I. 188

Major's case IL 584, 586

Malland, Rex 0. I. 49

Maloney v. Bartley I. 235. IL 625
Malton (Old) Rex 9. I. 335

Mann's case 11. 247

Rex 9. I. 335

Manning's case I. 488

Mansell and Herbert's case 1. 456

xxii

TABLE OF CASES CITED

Margett and others (case of)

Page

II. «5,

26

1.130

II. 359

1.592

233

II. 126

Marks, Rex o.

Ma riot's case

Marrour, Rex o.

MarsdeD, Rex v.

Marsh's case

Marsh and others, Rex o. II. 318, 386

V. Colnet II. 724, 725

Marshall, Rex v. II. 336

Martin's case I. 83. II. 150

Martin Leeser's case II. 708

Martin, Rex v. I. 143, 388. 11. 18,

288,481,724

V. Thornton II. 61 1

Marton, Rex 9. I. 331

Mason's case 1. 103, 442, 490. II.

359

Mason, Rex v.
Master v. Miller

II. 64, 67, 309
I. 177, 178. II.

319

Matthews, Rex v.
Matthew v. Ollerton
Maoley and Others, Rex v*

I. 612
1.608

I. 335,
336

I. 335,

Mawbej and Others, Rex o.

336. II. 518, 553, 554, 556, 558,
568, 589

, Rex V. II. 285

Mawgridge's case I. 445, 453, 493,

551
Mawson v, Hartsink II. 635

May's case II. 540

May, Bishop, and Others, Rex v.

I. 103
Maynard's case II. 24

Maynard, Rex v. I. 170, 477

Mayor of Northampton's case I. 228
Mazagora, Rex v. II. 354, 668

Mead and Another, Rex v. I. 510,

511
II. 687
II. 599, 724
II. 321
II. 642
II. 246
11.34
n. 209

•, Rex V,
V. Robinson
V. Young

Meekins o. Smith
Meere's case
Meers, Rex v.
Mellish, Rex v.
Mellor and Another, Rex v. II. 373
Melville's (Lord) case II. 588, 653,

718
Merceron, Rex v. II. 649

Meredith and Turner, Rex o. I. 141
Merle c. Moore II. 610

Merriman v. Skippenham (Hundred)

11.69

Meyer v. Sefton
Michael, Rex o.
Middlehorst, Rpx v.
Middlemore, Reg. v
Middle ton's case
Middleton, Rex o.

Page

II. 614, 621

1.84

II 709

1.269

1.189

1.241,244

Midwinter and Sims, Rex v, I- 28
Millard, Rex v. II. 385, 697

Miller's case I. 403, 404. II. 51 8
Miller, Rex v. IL 596

V. Kendrick II. 72S

Mills, Rex V. I. 588

Milne's case II. 170

Minify, Rex v. I. 363

Minister, &c. of St Botolph, Rex o.

II. 288
Minton's case II. 494, 705

Mitchell's case II. 232, 470, 474

Mitton, Rex 9. I. 368, 585

Moffatt's case II. 232, 344, 348, 394
Moise, Rex o. II. 609

Monk 9. Butler II. 691

Monroe o. Twisleton II. 604

Monteth's case I. 619

Moor's case ' I. 24, 579

Moor, Rex v. I. 579

Moore's case II. 67, 124, 125

Moore, Rex 9. 11.230

Moors, Rex v. II. 679

and Others, Rex ©. I. 132

Morfit and Another, Rex 9. II. 94
Morgan's case II. 172, 591

Morgan v, Brydges II. 620

Morley's (Lord) case I. 435, 486,491.

II. 660, 661
Morphew, Rex v, II. 664

Morris's case I. 32. II. 259, 357,

358
Morris, Rex o. I. 18, 40. II. 549

V. Miller I. 192, 206. II. 671

Morrison v. Kelly II. 725

Mortis's case I. 593

Morton's case II. 239, 340, 341

Morton, Rex r. 1. 201. II. 675,

676, 691
Mosey's case II. 650, 651

Mosley's case II. 685

Mosley and Another, Rex 9. I. 469
Moss and Others, Rex v. II. 43

Mott's case II. 498

Mott, Rex V. 11.378

Moyle's case ' '• 11.498

Mulreaty, Rex 9. I. 568

Munday's case II. 138

Mnnn r. God bold II. 680

Murphy's case II. -839

IN BOTH VOLUMES.

ZXUI

Page
HarpbjT (Mary and Bridget), Rex o.

1.27
Mumj's case II. 109
Morrej and Harris, Rex v. II. 18
Mascot, Rex o. II. 542, 545, 608
> Reg. «. II. 603

N.

Nipper, Rex v. II. 37

Nash, Rex v. 1.418

Neale^ Rex o* I. 329

Nehiiff 'a case II. 294

Nelbertong (Inhab.), Rex v. I. 321,

324, 345, 351
Neville (Bartholomew), Rex r.

1.297

(Samuel), Rex v. I. 297

Newgate (a case at) I. 500, 6 1 4

New land's case II. 376

Newman's case I. 493

Nibbs and Yearns, Rex v. IL 169
Nichol, Rex v. I. 606

Nicholas v. Parker II. 688

Nichols and BygraTe, Rex v. II. b^7
—I — ©. Dowding II. 617

Nichols, Rex v. 11. 574

Nicholson's case II. 123

NichoUoB, Rex v. I. 474. II. 169
, Jones, and Chappel, Rex o.

II. 112
Nield, Rex v. II. 679

Nightingale v. Stockdale I. 230

Noble 9. Adams 11.311

Norden's case II. 67

Ncrth's case II. 492, 494

North Bedbom, Rex v. II. 675

N<|rthamptonshire (Inhab.), Rex v.

11.702
Korthampton (Inhab.), Rex v. I. 343,

356
Northampton's (Mayor oQ case I. 228
Northfitld, Rex v. I. 203

Norton, Rex 9. 11.169,714

J^Vwicb, Rex V. I. 331, 332, 347,

355, 356, 358
Ji^fwland's case II* 602

Naeys and Galey, Rex v. II. 550

Nwes9 ftex v. II- ^46

Nptbrown's case II. 18, 19

Ntrew Rex v. II- 648

A'stt, Rex V. I. 221, 236, 243

' II. 588

Page

O.

O'Brian's case II. 352, 453

O'Coiglej and O'Connor, Rex o.

II. 627
OgiWie, Rexr. 11.708

Oldfield's case II. 360

Oldwright's case II. 636, 663

Oliver's case II. 122

Omealj v. Newell IL 285, 386, 523
Omichund v. Barker II. 591, 592

Oueby 's case I. 4 42, 444, 445, 446
Opie and Others, Rex x>, I. 183

Orbell, Rex o. II. 291

Orme, Rex o. I. 229

O shorn, Rex 9. I. 50

Osborne, Rex o. I. 230

Osmer, Rex r. I. 312

Owen's case IF. 53

Owen, Rexo. 1.23,223. 11.257
■ and Prickett, Rex ». IL 705
Outram v. More wood 1 1. 687

Oxford, Rex c. I. 76. IL 705

(Inhab.), Rex v. IL 589

Oxfordshire (Inhab.), Rex v. 1.321,

335,344,345,358,359
Oxley V. Flower and Another I. 607

P.

Packer's case IL 157
Paddle, Rex o. IL 585
Page, Rex v. I. 558. IL 251, 672
-^* and Harwood's case I. 26
©. Mann IL 727

Paine, Rex o.

Paget (Lord) and Others, Rex v.

II. 588
1.221,235,242.
IL 655,661
Palmer's case I. 81. IL 246, 422,

424
Palmer, Rex x>. I. 139

and Hudson, Rex r. I. 23.

IL 406
Palmerston's (I^rd) case IL 683

Pancras (St.), Rex t7. II. 720

Pankhurst, Rex v. 1.418

Pappineaa, Rex o. I. 296, 306, 335,

336
Papworth (Upper), Rex t>. I. 337
Paradice's case IL 198

Parcel's case I. 185

Parfait's case 1.618

Paris and Others,^ Rex o. IL 291

1

XXIV

TABLE OF CASES CITED

Parker's case
Parker, Rex v,
©• Patrick

Page

I. 9, 47
I. 32, 33, 560

II. 311
11.111

Parkes's case
Parkes and Brown, Rex v. II. 317,

321, 323, 353, 372
Parkhoose and Trimlet, Rex v.

II. 561
I'arkhurst v. Lowten II. 610

Parkin, Rex v. II. 174

Parkins, Rex t. II. 625

D. Cobbett II. 675

V. Hawksha^ ll. 611, 6i3

Parkinson, Ret o. I. 475

Partninter's case 11. 31

Parr's case II. S76y 381, 395

Parrls, Rex v. II. 603

Parry's case I. 462

Parsons and Another, Rex v, II. 571

and Others, Rex ©. II. 574

V. Bellamy II. 690

Partridge v. Coates II. 677

Pasley ». Freeman It. 554

Patches case ll. 123, 124

Pateman, Rex r. II. 346, 347

Patram's case II. 260

Patrick and Pepper, Rex v. II. 1 65
Paty's case II. 498

Peace, Rex v. II. 714

Peacock, Rex v. II. 337, 378

V. Sir G. Reynell I. 231

Pear's case II. 127, 128, 135, 284
Pearce's case II. 237

Pearce, Rex v. I. 239. II. 182, 677
Pearle's case II. 171

Peat's case
Peck's case
Pedley's case
Pedley, Rex v.
Peel, Rex v,
Pegge's case

1. 476. II. 62, 63

11.213

11.488, 518

11.41

II. 171

I. 617

Pelfryman and Randall, Rex v, II. 89

Peltier, Rex v. I. 209, 233, 242

Penderryo, Rex i7. 1.331,334

Pendock v, Mackendei* II. 594

t'enhallo, Rex r. I. 612

Penny, Rex v. I. 227

Pepys, Rex v. ll. 622, 546

Perchall, Rex v. I. 612

Perigal r. Nicholson 1 1. 607

Perrott, Rex v. II. 300, 542

Perry's case I. 577

I'erry, Rex v. it. 605, 607

•^ and Others, Rex v. I. ^24

Peterborough (case at) I. 540

Petrie's case tl. 53, 179

Page
Pew's case L 514

Peyton's case II. 24

Philips and another. Rex v* II. 536
Phillips and Strong's case II. 97, 98,

184

— , Rex V. I. 45, 76, 275, 531,

554, 555. 11.705,711
— — and another. Rex c. I. 73, 79*

II. 672

V, Earner II. 6*11

V. Hunter, L 204

Phipoe's case II. 62, 63, 147, 149,

172, 17S
dickering v. Noyes II. 619, 639

V. Rudd II. 1 1

Pickett's case II. 24

Pierson, Rex v. I. 299

Pike's case II. 246

Pike V. Badmering II. 630

Pinckuey's case II. 290, 293

Pitcher, Rex X). II. 628

Pitt and another, Rex v. L 156, 157,

158
Pitton V. Walker II. 721

Plestow, Rex v. II. 31 1, 713

Plumer, Rex I). 1.241. 11.234,687,

681, 702
Plummer's case I. 450

Plunkett V. Cobbett II. 610

Ply mpton's case 1.45,157

PoUman and others, Rex v. 1. 45, 148,
156. II. 557,558,571,575
Pomeroy v. Baddely II. 624

Ponthieu, De, v. Pennyfeather I. 315
Pool V. Sacheverell I. 220

Pooley's case II. 231, 233, 237, 238j

728

(second) case II. 239, 728

Pope's case II. 246

Porter's case I. 189

Post, Rex «. II. 320

Potts, Rex V. II. 482

Powell's case I. 5^5. II. 353, 359,

360,368,711
Powell D. Ford II. 727

V. Milbank II. 691

Prat V. Steam 1. 305

Preston v, Carr II. 61 3

Price, Rex t?. II. 666

Price a&a« Wright, Rex V. II. 550,551
Priestley v. Hughes I, 203

Prince v, Blackburn It. 726

Pringal v. Nicholson II. 690

Prltchard v. Symonds II. 677

Probert's case II. 4S7, 489

Prosser's case I. 39. II. 27

IN BOTH VOLUMES.

X%f

Page
Fngh V. Cai^nven 1. 158

Ponshon, Rex o. II. 250, 546

Pnrdy v. Stacy I. 150

Pyc's case I. 59S. II. 90, 705, 706
Powell and others, Rex v. II. 997,

505

Q.

Qaeeii*s case II. 591, 6«9, 650, 631,

633, 653, 7(H
Quick V. Coppleton I. 416

Radbooine's case

R.

1.482. II. Oft 1,
669
tUmbert v. Cohen II. 099

Rainpton's case I« 541

Ramsbottom, Rex v. II. 799, 794

Ramsden, Rex r. • II. 099

Randall, Rex v. II. 345, 470

and others, Rfex r. I. 695

Rands v. Thomas II* #94

Ranger's case II. 497

Ranson's case II» 147, 933

Ranall V. Stratton II. 537

RatcUflfe's case I. 578

V. Burton I. 691

Raven, altat Aston's caie II. 946

Rarenscroft, Rex V. tl. 469, 470

Rawlins's case II. 184, 185

Rayoer, Rex V. I. 993

Read, Rex «>. I. 98, 990

Reading's case II. 346, 363, 364, 371
Reane's casfe II« 67, 89, 83

Reason and Trailter,Rex©. 11.657,688
Reares's case II. 79

Recalist's case II. 939, 939, 341

Reddeard's case I. 31

Rpdford V. Birley I. 954, 968.

11.700

Redman's case II. 959

Reed t?. James II. 691

Reeves, Rex v. I. 993. II. 366, 375,

467
Reid V. Margison II. 791

Reilly's case H. 650

Remnant, Rex v. I. «19. II. 160,

694
Revel, Rex v. T. 997

Revetl V. Braham II. 693

Rew'i case !• 499

Re/nell, Rex v. I. 305, 335

ReyncMs, Rex o.
Rhodes and Cole, Reg. t»

*, Rex v»

Page
1.194
tl. 599.
536, 53d
ir. 375, 377, 443,
550, 681, 799, 794
Rhy nd v. Wilkinson 1 1. 680

Rice, Rex v. I. 975, 976, 443

Rich, Rex v. I. 379

Richards, Rex v. L 44, 48, 308.

II. 345, 470
« ■ ■ * V, Jackson II. 610

Richardsotf add Greenow, Rex v.

11.89

— - V. Allan II. 636

RIckett's, Rex v. I. 599. II. 443
Rickman's case II. 488, 494, 496,

666, 695
Ridgley's case I. 59, 75, 76

Ridley, Rex D. I. 44, 418, 605

Ring, Rex t). II. 638, 64d

Rioter's case II. 609

Rispall, Rex v. II. 553, 555, 569

Robert's (alias Chambers) case If. 11
Roberts, Rex tJ. I. 146. 11. 7(Xf

■■ ' ^ and others. Rex v. II. 569,

673
■ ■■ ' ' V. Camden II. 543

'■■ ■■ 0. Doxon II. 691

— V. Carr I. 310, 343

Robins's case II. 67

Robinson's case I. 75. II. 198, 343,

579, 589, 584, 587, 698, 714

Robinson, Rex v. I. 49, 140, 364»

II. 183

and others. Rex t>. II. 557

and Taylor, Rex v. II. 479

V. Bland I. 904 II. 456

V. Comyns I. 403

v» Jermyn I. 999

■■ ■ ■ ' t7. May II. 516

Robson's case II. 119

Robson and others^ Rex v. II. 193

v» Kemp II. 619, 613

Rodwell V. Hedge II. 668

Rogers's case 1.511. 11.13,99,30
Rogers, Rex v. II. 673, 674, 699

V. Cliftdn I. 931

Rogier and Humphrey, Rex v. I. 999
Rook wood's case II. 595

Roper, Rex v. II. 539

Rose's case I. 194

Rose 7). Blakemore II. 699

Rosier, Rex ©. II. 646

Rosinski, Rex v. I* 606

Rough's case II. 159

Ronrke, Rex v. II. 45

««*«.a^M**

■AMi^

XXTI

TABLE OF CASES CITED

Page
RoQse V. Barden I. 329, 3S0

Row, Rex V. II. 646

RowUnd and others, Rex v. IL 507

V. Ashbj II. 667

Rowley's case I. 430, 480

Rowley, Rex v. II. 307

Roy V. Eyres I. 145

Royce, Ilex o. I. 250, 251

Rudd, Rex v. II. 50S) 602

Rogby Charity o. Merry weather I. 300
Roshby, Rexv* L 171

Roshworth's case II. 471 , 472

Rassell's case II. 375

Rasseirs (Wm. Lord) case II. 572
Russell, Rex v. I. 310

— — ». Men of Devon I. 355

Rassen, Rex o. 1. 558, 550

Raston's case IL 500

S.

Sacheverell, Rex o. I. 230

Sadbury and others. Rex v. I. 267

Sadi aiid Morris^ Rex o. II. 171

Sainsbury and another, Rex o. I. 48,

130
Sainthill v. Bound IL 620

SaintiflT, Reg. o. I. 307

Salisbary, Rex v. L 214

— — — and others, Rex »• 1. 431,

400
Salmon's case I. 237

Salmon, Rex v. II. 404

Salop, (Inhab.) Rex v. I. 344

Sake V. Thomas IL 724, 725

Samuel Neville, Rex v. I. 207

Samuel r. Paine L 502, 504

Sanchar's (Lord) case L 37 — 40

Sanders's case I. 453

Savile v. Roberts II. 553, 503

Sawyer's case I. 424

Sawyer, Rex v. I. 465

Say and Scale's (Lord) case II. 610,

613
Sayer v. Kitchen IL 678

Scadding's case L .105^ 386

Schofield's case 1. 44—46. |L 488,

480
Scofield's case IL 179

Scoole, Rex v. IL 538

Scott's case II. 160, 161

Scott, Rex 0. L 562

— — and others, Rex v. L 267

— V. Jones ^ IL.678

^^— V. Shepherd I. 605

Searle ih Williams IL 504

Page
Sears's case IL 101, 102, 103

Searing's case 1 1. 1 53

Sedley, (Sir Charles) Rex o. I. 44,

220,302
IL14
L 426, 634
IL 691
1.519
IL 0, 119, 129, 130
II. 138

Sefton, Rex o.
SelPs case
Sells V. Hoare
Semayne's case
Sem pie's case
Senior's case
Serjeant, Rex v.
- ■ «. Tilbury
Serlestead's case
Sermon, Rex o.
Seven Bishops' case

IL 605, 606, 607

IL 7iO

IL 289

I. 50, 318

L 213, 240, 241.

IL 616

Severn and Wye Railway Company,
Rex V. I. 306

Sewell, Reg. r. IL 603

Sexton, Rex v. IL 645, 649

Shakespear, Rex o. IL 715

Sharpless, Rex v, II* 51

■ and Greatriz, Rex «• I.

118, 119
Sharpness, Rex o. L 339

Shavwin's case L 619

Shaw's case IL 233, 234

Bad others. Rex v. L 390, 391, IL

721
Shearman and Idle, Rex v*
Shebbeare's (Dr.) case
Sheen, Rei v*
Sheffield, (Inhab.) Rex v.
Sheffield, Rex v.
Sheldon's case
Shepherd's case
Sheppard's case

IL 600
L 321
IL 721
L 320
I. 330
IL 351
IL 231, 468
IL 332, 333
, Rex o. L 313, IL 354, 667
Sherrington and Bulkey, Rex o. II.

165
Sheridan, Rex v. I. 559

Sherwin's case I. 125

Shiles ex parte II. 249

Short o. Lovejoy L 605

Shrewsbury's (Earl of) case L 141

, (Gaoler oO Bex u.I. 373

. IL 308

L 159

IL02O

IL 702

I. 333

IL 021

11-72^ 73

IL-65

. IL 620

IL 05

Shukard, Rex v.
Sibly V. Cumming
Sideways v. Dyaon
Sidney's case
Silt crtos, Rex v.
Simmons, Rex v.
Simons's case
— — , Rex ©.
Simpson XK Smith
Simson's oase

IN BOTH VOLUMES.

XTTll

Page
Sinclair o. SteTenson II. 6^, 670, 677
Sbsinghnrst Hoase case 1. 45S, 480, 5 1 5
Sissons o. Dixon II. 668

Skerrett and others, Rex v. II. 291

Skioner, Rex v.
Skutl's case
Sbcfc V. Buchanan
Slaoghter, Rex v.
^ogliterlbrd's case
Sloaan o. Heme
Sloper^ case
8imll*8 case

1.996
11* «S7, «S8
II. 611
I. 140
I. 475
li. 610
JL 9S5
I. M, 69, II. 90, M,
' 260, 371
Sraidt's (Captain) case If. 378

(Efitab4th) Rex v. II. Km, 213
^ Rex 0.1.84, 85, 124, 303, 340
368, 418, 459, 475, li. 32, 2t0,
211, 613, 650, 659, 660, 661, 662,
666, 683, 694, 697, 721
— , Rego. 1.411

4ind others, Rcoc v. I. 48, 305
V. Beadnell II. 650

e. Bltedf II. 652

t&Prager II. 546, 601, 603

i- V, Rammers
V* Taylor
li Wood
^o« Yooag

II* 603
II. 712
I. 235
IL#n,677
Smollett, Rex v. I. 22$

Snape, Rex v. I. 109

Snoir, Rex o. L 499

Soanes and Others, Rex 9. I. 86

Soaaes, AtkioBon and Brtghton, Rex' o.

I. 32. II. 355, 356
Sofdj, Rex V. I. 509

Solej and others, Reg. v* I. 247, 249,

264, 267
Somerset's (Earl oO case I. 31

SomeiMt (inbab.) Rex o. 1.352

SoQter, Rex v. II. 544

Anthem, Rex v. . I. 418, 476

Southerton, Rex v. 1. 44, 137, II. 292,

576, 576

Spalding's case
Spark 9. Middletbn
Spai'kes, Rex v.
Spartow o. Reynold
Spdnr's case

Spdriceley o. Schali«befg
— Uo. DeWillot
Speboer's case '

'— U— , Rexo*
Spierektv. Barker
Spigamall's case
SpaAsonby's case
Spttggj R«x V*

II. 488
II. 609
II. 610

I. 150
II. 199, 360

II. 614

II, 632

II. 73, 74

II. 210, 722

II. 692
1.3

II. 377, 381
IL553, 554

Page
Spragg and Another, Rex r* II. 568

574
Spragge's case II. 677

Sqaire, Rex v. I. 16, II. 208

et Ux., Rex ©. 1. 44, 426

Squires v. Whisken I. 408

St. Andrews, Rex v. I. 331, 332

St. Asaph's (Dean of) case I. 244
St. Benedict, Rex v. I. 311, 321,

360
St. Botolph, Minister &c. of II. 288
St George's (Hanover Square) Rex o.

I. 320, 321
St. Giles's, (Cambridge) Rex v. I. 324
St. Pancras, Rex v. I. 323, 332, 333

II. 721
St. Peter's, (York) Rex v. I. 347

Stafford (Lord's) case II. 572, 663
Standley, Rex v. I. 24, II. 127

' and others. Rex v. II. 695

Stanley's (Sir Charles) case *I. 450

and others, Rex -e. I. 385, 386

Stanslie, (Sir Charles) and Andrews,

Rex V. I. 450, 517
Staple's case II. 80

Starling, Rex v. II. 559

Statham's case II. 167

Stanghton, Rex v. I. 326

Stead, Rex v. I. 304, 306, 336

Sted man's case 1. 436, 437

SteePs case I. 7

Steel V. Prickett and others I. 325

Steele V. Houghton and Ux. II. 100
Steining, (Inhab.) Rex v. I. 329

Sterling's case II. 339, 377

Sterne's case I. 27

Stevenson's case I. 513, 522

Steventon and others. Rex o. I, 184

II. 557
Steward's case II. 68

Stewart, Rex v. 1. 46

Stewart and Dickens, Rex p. II. 356
Stiles V. Nokes I. 214

Stimpson, Rex v» II. 624

Stock, Rex V. IT. 132, 201

— and another, Rex r. II. 23

Stockdale, Rex v. I. 223

StockePs case II. 352

■ ■ , Rex ». II. 858, 369

Stockfleth V. De Tastet II. 650

Stockley's case I. 513

Stockton and Edwards, Rex v. II. 22,

23
Stock well o. North I. 148

Stoke and Golding, Rex v. II. 676
Stone, Rex v. II. 570, 615, 692, 695

XXVlU

TABLE OF CASES CITED

Page
Stone V. Blackbarae II. 607

Storr, Rex v. I. 51, 62, 283

Store J, Rex v. 11. 302, 303

Stotesbarj o. Smith I. 145

Stott's case II. 259

StoQghton, Rex o. 1317, 325,326,

32d, 333
Strafford, (Lord's) case II. 616

Stranger v* Searle II. 623

Stratford upon Avon, (Mayor of) Rex v,

1.346
Stratford Bridge cale 1. 3 5 1

Stratton and others. Rex r. If. 565
Stretford, (inhub.) Rex v. 1. 323

Strickland r. Pell {. 506

Stuart 9. Lovell 1.230 242,11.698
Studdy o. Saunders II. 613

Snirs case
Sulston 9. Norton
Summer's case
Surrey, •(inhab.) Ret v*
Sutcliile, (ill ha I).) Ilex v.
Sutton's case

\ Rex ©.

V. Bishop

IL716
I. 159
IL 90, 705
I. 355, 357
I. 402
I. 46, 47
IL710, 718, 719
I. 159

Swallow and others, Rex t. II. 8

Swan's case I. 482

and Jeffreys, Rex v, I. 478,

484, II. 708

Sweeting, Rex o.
■ ' o. Fowler

Swensden's case
Sykes v. Dunbar

T.

I. 578

IL714

I. 571, 576

II, 616

Tabart v. Tipper I. 230, 239

Taft's case II. 329, 330

Tandy's case I. 83

Tanner, Reg. v. I. 253

' and another, Rex o. L 51

Tannet's case II. 443

Tannet, Rex v. IL 482, 715

Taplin's case II. 73

Taplin v Atty IL 677

Tarrant, Rex v. L 140. IL 288, 560

Tatlock V. Harris IL 353

Tattersall, Rex v. IL 698

, Sedgewick, and Hodgson,

, Rex V* i. 22

Tattershall's case 1. 85

Taunton, St. Mary, Rex o. L 334, 339

Tawney's case L 140, 141

Taylor's case 1. 480. IL 157, 218,

330, 331, 333, 353, S02| 875, 377,

491

Page
Taylor and ShaW's caie 1. 432

, Rex V. I. 48, 297, 299, 498.
IL 41, 538, 540, 543, 548, 592
> (Ellen) Rex v. I. 17

', and Robinson, Rex 9. II. 563
V. Forster IL 61 1

c. Whitehead L 309

Teague's case H. 320, 341

Teal and another, Rex v. li. 574, 589,

594

Teed v. Martin
Telicote, Rex o.
Terry's case
Testick's case

IL680

IL 66d

IL309

II. 362, 376, 463

Thane t (Lord) and others, Rex v.

L614
Thatcher's «ase IL 661

Thomu'8 case I. 617, 61 8. IL 235,

257, 467, 658
Thomas, Rex v. L 480, 510

©. Neirtim IL 626

Thompson's case 1. 456* IL 16, 36^

466,645
Thompson, Rex o. L 505* IL 174,

183, 712
■ and Macdanid, Rex v.

IL51

«. Trevanion IL 682

Thorley v. Lord Kerry I. 227, 228,

231
Thornton's case IL 375, 647, 648,

649, 662
Thornton «. Royal Exchange Assurance

IL 622

IL 544

L405

IL 151

1.609

I. 589

L97

1. 385, 390

II. 482

1.454

IL 687

1. 317

IL 1 67

[I. 597, 652

Company
Thorogood, Rex v.
Thorpe's case
Tibbs V. Smith
Tickel V. Read
Tickner, Rex v.
Ticrney, Rex o.
Tilley, Rex v.
Timberly's case
Tinckler's case

(Margaret) case

Tippet, Rex o.

Todd's case ^

Tonge's case

Topbam, Rex v. 1. 230, 239, 242, 243

Took 9. Holliogworth I. 81

Tooley's case L 506, 525

Tooley and others, Reg. o. I. 274,

Tooker v. Duke of Beaufort
Tovey r. Lindsay
Towie and others. Rex v.
Townsend, Rex o.

523

ILT20

1. 190

LW3

1.333,837

IN BOTH VOLUMES.

Page
Tovmon v. Wdam h 148

Tracj V. TallMt II. SO

Tnoter and Reason, Rex v, I. 436,

599,630
Tnpsfaa^r's case II. M

Traveny Rex v. I. 665. II. 690

Treadwell, Rex v. I. 4iH

Treble's case II. 376

Treble^ Rex V. 11.319

Treeve*s case II. 286, ^96

Trflman's case L 2(>7

Trastf and Howard, Rex o. L 618
Tackio, Reg. v. I. 2^6

Tucker's case I. 665

TnftstOQ^. Norton I. 1 58

Tannard's case II. 139

Torbenille v. Savage I. 604

Tnmer't case I. 489. IL 13, 40, 42,

91
Tomer, Rex v. h 86. II. 568, 692,

603, 715
"■ > and others, Rex 9. II. 43, 52

V. Eyles II. 712

c. Pearte II. 607

V. Railton II. 614

Ttremtow 9* Oswin II. 667

Twisleton and others. Rex o. I. 679
Twjning, Rex v. II. ((68, 691

Tje, Rex v. I. 470

Tfers, Rex v» II. 216

U.

Underwood o. Hewsoa !• €07

Upfoldr.Leit II. 319

Upper Boddington, Rex o. II. 613
Upto%Rexf7« 1.411

Uriyii, Rex v. I. 185, 186

Usher's ctfe II. 376

V.

Van— Mnyea, Rex v. II. 100, 199
VendeMTomb and Abbott, Rexr. II.

36, 41, 42, 696, 726

II. 688

IL 610, 616

L 116

I. 60

1.46

1. 148, 161, 166

IL622

1. 4d4, II. 371

L326

2

Vane (Sir H's) case
VaiilaBt o« Dodemead
VaBtaodillo, Rexo.
Variej's case
Yngfaaa'scase
— — — , Rex v»
■ ■ V. Martibi

Vanx'scate
Vsanor, ex parte

Verelst, Rex o.
Vide and others, Rex v,
Vittars v. Mousley
Ville de Varsovie case of
VtlleneuTe's case
Viney v. Barss
Vint, Rex v,
Vdtc, Rex V.
Vooght, V. Winch

W .

Page

II. 648, 668

I. 657, 662

L228

IL 674, 693

II. 301

II. 695

1.233

I. 600

L341

Waddington's case IL 36

J Rex r. 170, 171, 173

174, 218
Wade, Rex r. I. 636, 666, II. 692
Wadley, Rex v. I. 282

Wads worth v. Ilamsbaw IL 612

Wagstaff, Rex v.
Waiters case
« ■ « Rex r.

— — — v» Smith
Wakefield's case

IL 686
11.204
II. 377, 466
L316
IL 606, 606, 607,
624, 724
Wakeling, Rex v. II. 301
Waloot's case IL 360
Waldborough's (Alioe de) case I. S
Walker's case IL 163, 323
* " and others case of IL 690
^ Rex V. 1. 37, 390. IL 268, 714

■ V. Kearney IL 697

r. Wildman IL 612

Wall's case IL 948, 340

Waller, Rex v. IL 637

•• V. Horsfall IL 680

Wallis and others. Rex v. I. 482, 461
Walter, Rex o. L 236

■ V. Haynes 1 1. 667

■ ■ V. Holman IL 69Q
Walters and others, Re:! o. 1.406, IJ,

67
«■ , (James and Baraabas) Rex o.

11.102
Wabh'scase IL 108, 113, 117, 122,

149, 190

■ ' , Rex 9. II. 96
Wandsworth, (inhab.) Rex v. 1. 335
Wanaep, Rex 9. 1.290
Ward's case I. 628, IL 284, 291, 299,

338, 361, 363
Ward, Rex v. II. 361

Waidle's case IL 00, 705

Warickshall, Rex v. IL 646, 660, 661
Wame, Rex v. L 60

Warren, Rex v. I- 142

TABLE OF CASES CITED

Page
Warwick's (Earl oQ case I. 381 .

II. 595, 506
Waterer v. Freeman II. 285

Waterfield d. Bishop of Chichester 1. 214
IVatson's case I. 49, II. 53, 126, 201

. , Rex V. I, 240, 241, 368, 396

403, II. 571, 588, 607, 615, 517,
626, 628, 629, 634, 676, 678, 681,

698, 701, 702
and others, Rex v» I. 210,226,

239

I. 343, 344

II. 667

II. 375

I. 330, 341, II. 325

II. 167
1.231
I. 609

-, Reg. V.
o. King

Watt's case
— -, Rex t.
Weat, Rex o.
Weatherstone o. Hawkins
Weaver u. Bush
o. Ward

Webb's case
Webb, Rex v.
— — — «• Smith
Weeks 0. Sparke
Welboome's case
Weld V. Hornby

1.607

II. 324, 325

I. 318. II. 624

11.611

II 688

II. 683, 687

I. 297, 305, 340,

341
I. 28, 592. II. 376

Wells^s case

Welsh, (Patrick and John), Rex v.

I. 60

Weltje, Rex v. I. 227

West Riding of Yorkshire, Rex v.

1.324
West's case

West and others, Rex o.
Westbeer's case
Westbeer, Rex v.
Westburj, Rex v.
Westiness, Rex v.
Westlake v. CoUard
Weston's case
Weston, (Inhab.) Rex v.

II. 598, 625
I. 59, 81
II. 141
IL 597, 708
1.384
II. 544
II. 611
I. 37, 592
I. 321, 332,
354
II. 15
I. 140
1.408
II. 679

Westwood, Rex v.
Wetheril and another, Rex v.
Whalcy ©. Pajot
Wharam r. Roatledge
Wheatlej, Rexr. 1. 50. n. {g). II. 290,

295, 296, 297
Wheeling's case II 644

Whiley's case II. 335, 336

Whilej and Haines, Rex o. I. 85, 86.

11.384
Whistler, Reg. v. I. 26

White's case L 565, 566. IL 37, 54
White, Rex 9. 1.239,244. 11.624,

648

White and another. Rex o.

and Richardson, Rex o.

and Ward, Rex v.

Page

1.227

1.22,

602

1.297

II. 699

II. 606

I. 597

11.546

II. 498

11.211,212

II. 344, 345

II. 595

1.48

1.471

I. 490, 533

II. 636

II. 352, 456, 457

II. 360, 474

11.^61

11.21
"Ir^fo
I'lv>3<i8

Whitehead, Rex v.
Whitehouse's case
Whitfield, Rex v.
Whiting, Rex ©.
Whitney, Rex v.
Whittingham's case
Wicks, Rex v.
Wicks V. Smallbrooke
Wigg, Rex V.
Wigges, Reg. v.
Wiggs's case
Wihen v. Law
Wilcox's case
VR|<?bx, Rex v.
Wild*^ case

Wild's (Jonathan) case II. 262, 5M
Wilders, Rex c. I. 50 n. {g), H. ^95
Wilfbrd V. Nibbs, Rex v.
Wilkes, Rex 1;.
Wilks's case
Wilks, Rex ».

Wilkins's case IL 119j 120, «M,' 1^8
Wilkinson's case ' ' • II.'^s

Wilkinson and others. Rex 17. II. 1 56
Willace's case L 56, 73; 79

Williams'sxase I. 17, 453, 493, 621,

624. IL 232, 470, 709
Williams, Rex v. I. 21 6, 21 8, 21 9,

241, 276, 297

, Reg. v> L 299

and others. Rex t. * II. 23

■' ■ — dnd Davis, Rex o. 1. 139
'■ V, Dempsey L 606

' o. East India Company

I. 298. IL 672, 691
' ». Lyons I. 145

V. Mundie IL 612, 677

V. Ogle IL 715

V. Yonnghnsband IL 675

Willis's case IL 276, 694

Willonghby's case I. 50. IL 230,

231, 469
Willoughby and another. Rex o.

1.437
Wilson's case I. 59. IL 371

Wilson, Rex v. IL 26, 649

and others. Rex ©. I. 283,

290, 291

— V. Bowie IL 671, 679

(Clerk) V. GreaTes I. 279

t7.RastaU 11.610,611

V. Stubs 11.714

IN BOTH VOLUMES.

Page
Vi Uta (InhabOy Rex v. 1. 360, 356,

358
V^ing, Rex V.
Wiogfield, Rex v*
Winsl^p and Another, Rex v*

Winter's case
Winter, Rex o.
, Reg- 1?-

1.315
1.336
1. 140,
141
II. 403
1.331
1.293
I. 513
1.568

Wiowick (Inhab.), Rex o.
Wiseman^s case
Witcheirs case II. 301, 302

Withal aod Another, Rex v. II. 43,

709
Withers, Rex v. I. 488. II. 610

Wobnm (Inhab.), Rex v. II. 619

Woody Rex V.

, Ex parte
Wood 9. Dnirj
— V. Veal
Woodcock's case

Woodfall's case

Woodford V. Ashley

Woodmaci's case

Woodward's case

Woodjer v. Hadden

Wooldridge's case

Woolooth 9. Meadows

Wooblon, Rex 9.

Worcestershire (Justices of), Rpx v.

313, 314
Worrell's case II. 289

Worsley o. Harrison 11. 285

Wright^ Rex v. I. 47, 49, 89, 214,

216. 11.623
— e— V. Littler II. 687

II. 296, 541

II. 249

II. 726

I. 308—310

II. 606, 660, 683,

686, 687

I. 236, 237, 242

11.637

II. 519

II. 37, 54, 157

I. 309, 310

1.80

1.210

1.219

WrightsoD, Rex v.

Wyat,. Reg. ». I.

Wyatt, Rex v.

" V. Gore

Wych, Rex v»

Wyer, Rexo.

Wyley, Rexr.

Wylie's case II.

Wylie and Another, Rex v.

Wynne's case

Page

1.227
138, 141

1.479
II. 615
II. 592
II. 282
II. 697
383, 384

I. 186
II. 101

X.

Ximines v. Jaques

1.403

1.332

11.371

II. 629, 633

II. 698

1.89

1.5

Y.

Yamton^ Rex v.
Yarrington's case
Yewin's case
Yoke, Rex o.
Yonge, De (case of)
York's case
Yorkshire (Justice of), Rex v. I. 306,

336

'M (West Riding oO, Rex v.

I. 324, 343, 349, 351, 355, 357

Yoong's case I. 45, 157, 516, 523

Youog V. The King 11. 696

, Rex V. I. 391, 591. II. 378,

557

■ and Others, Rexo. I. 415,

626. II. 290, 297, 300, 310

and Pitts, Rex v, 1. 139

'I

' I

. i

\ ^

TABLE

OF THE

PRINCIPAL STATUTES CITED

IN BOTH VOLUMES.

Note: — The lately Repealed Statutes and parts of statutes, cited in this Wiork

are marked ^^ Rep." in the Table.

A List of the Statutes Repealed by the late Acts for the improvement of the

Criminal Law, is subjoined.

HENRY I.

Page

61 stmt. 6. c, 7. Provisions IL 292 n.^.

3. (Westm.

EDWARD I.

l.> c. 3. Escape L 374
c. 9. Concealment
of Felony

L 136, 141
C.13. (Rep.)Rape
— Deflowering
a child under
twelve years

I. 666, 564, 566
c. 16. (Rep.) Petit

Larceny IL 02
c. 26. Champerty

L 17g
c. 36. Extortion

EDWARD L

Page

of Sherifls, &c.
L 144, 145, 147
c. 34. False news

I. 221, 226
4. stat. 3. c. 6. (Rep.) Bigamy

J. 187
13. (Westm. 2.) c. 34. (Rep.)

Rape I. 556, 564
c. 49. Champerty —
Buying Titles

L 180, 181
2l. Stat. 1. (Rep.) De malefac-

toribus in
parcis

I. 454, 549
Conspiracy

IL 554
28. c. 11. Champerty — Mainte-
nance I. 180, 181
d

XXXtT

TABLE OF THE PRINCIPAL STATUTES

EDWARD L

Page

28. 8t. 3. c. 20. Gold, &c.*- Alloy 1. 69

33. 8t. 2. Conspiracj IL 554, 556 '

EDWARD IL

1. St. 2. JOefrangentibus priso"

nam I. 378, 383, 385
9. c. 3. (Rep.) AssaultiDg a

Qergjman I. 615, 616

EDWARD IIL

2. c. 3. Persons going armed,

and Night-walkers

I. 271, 272, 506
5. c. 8. Marshal of K. B. suf-
fering Escapes I. 370,

376
c. 10. Embracery — Jurors I. 184
c. 14. Apprehending Night-
walkers, &c. I. 506
14^ c. 10. Gaoler, (miscondact

of) I. 140

18. St. 3. c. 2. (Rep.) Bigamy

I. 187, n, 6.

23. c. 6. Cheat 1. 175

25. Great Seal II. 343

25. St. 2. c. 12. Coin I. 89

St. 5. c. 2. Coining, &c. 1. 44, n. t.

53, 54, 56,60,61, 66,68

(Rep.) Petit Treason

I. 481—483
31. c. 14. Escape I. 375

34. c. I. Barratry — Punishment

I. 186

c. 1 . Suppression of Riots I. 266

c. 8. Embr&cery — Jurors I. 184

38. c. 12. Embracery — Jurors I. 184

46. Records 1 1. 725

SO, c. 5. (Rep.) Arresting Cler-

gytnan I. 280

. RICHARD IL

1. c. 4. Maiutebance I. 182
c. 9. Buying titles I. 181
c. 15. (Rep.) Arresting Cler-
gymen I. 280

2. St. 1. c. 5« Soandalum Mag*

natum L 226, n. b.
5. c. 7. Foreible Ebtiy. I. 290.

IL 601

RICHARD IL

Page

5. c. 8. Forcible Entry I. 284, 290

7. c. IS. Person going armed I. 272

8. c. 4. Alteriipg R^oqri^s II. 386,

387

12. c 2. Buying and selling Of-

fices I. 149

c. 11. Scandalum Ma gnat urn

I. 226, n. 5.

13. c. 8. Undue abatement of

Commodities I. 175

15. c. 2. Forcible Entry ^ndDe*

talner L 284, 287, 290
c. 3. Admiral's Jurisdiction

in Homicide. I. 107,463
17. c. 1. Foreign Co?n L 57, n. m.
c. 8. Suppressing Riots

L 267, n. f.
20. c. I. Persons going armed 1.272

HENRY IV,

4. c, 5. Selling ofiices, I. 147

5. c^ ^« (RQp.)CuttiogTongues,

^c. I. ^86, 587

c. 6. (Rep.) Assaults upon
Servants of Menibers
of Parliament I. 615

13. c. 7. s. 1. Suppression of riots

I. 266

HENRr V.

2. c. 8. Posse comiiaias, — ^Sup-
pression of Riots I. 96,

267, n. c.

c. 9. Suppression of Riots ib.

16. PrcBMunirt I. 583

HENRY VL'

2. c. 14. Supfnressioa ^f Riots

. L 267, n. f.

8. c. 9. Forcible Bntl-r, &c.

I. 2^, 385^' 289, ^90, 292
II. c. IL (Rep.) Assaults upon
Lords mid 'Members
df Piarllttment L 615

18. c,19. Desertion of Soldiers I. 98

CITEU IN BOTH VOLUMES.

xxtr

EDWARD IV.

17, c- 1.

coia

Page
I. 65

RICHARD HI.

1. c 3. (Rep.) Escapes I. 375

HENRY VII.

3. c 1*

c* 2.

Concealnient of of*
fences-*^ Coroner I. 135,

141

(Rep«) Abduction of

Women I. 35, 557, 571

4. c 13. (Repw) Clergy II. 595

C. J8« Coin I. 56

19. a. 13« SoppressioB of Riots

I. M7, n. t.

HENRY VIII.

8.

7.

3.

4. c

21. c
c

22. c

23. c.

24. c 5.

25. c. 3.
c

26. c.

27. c

27. c

28. c.

Speeches in Parliament
protected I. 214, n. x.

(Rep.) Embezzlement
— Servants I. 6

Spiritual Persons tak-
ing Farms I. 49

5. s* 1. €t sequ. Statute of

Bridfijes I. 342, 344,
346, 347, 352, 353, 355
9. Poisoning I. 429

1* 6. 3. '(Rep.) Acces-
sories I. 30, 434
. Robbery II. 62
(RcpJ Killing Per-
sons attempting to
rob, &c. I. 549, 550
3. (Rep.) Accessories —

Murder 1. 434

6. (RcpO Aiders and abet-
tors I. 27

Trial of murders, • &c.

in fVales I. 462

Admiralty -Trial I. 109

(RepO S«domy, felony

; without clergy I. 567

}^ i R9p.> SacriU^ge II. 45

16r"pAn^» 1*40, 100^ etsequ.

596^ and 168
. i ,Tri»l cl Murders, &c.
. tfonartttod at sea I. 463,

470, 474

6.

4.
0.

HENRY VIII.

Page

32. c* 04 Maintenance — buying

titles I. 181, 182

Embracery of Jurors I. 184

33. c. 1. (Rep.) Cheats II. 127,

2S4, 295, 299, et
sequ, 349, 351
c. 9. s. 11. Cockpit, Gaming-
house I. 299, 300
c. 12. (Rep.) Malicioos striking
in the King's Palaces

I. 612, 613
c. 23. (Rep.) Trial out of the

Shire, &c. I. 40, 168,

464, 470, 474
37. c. 6. (Rep.) Cutting oft' ears

I. 587
c. 9. Usury I. 409

EDWARD VI.

1. c. 1. Reviling the Sacrament

1.217
c. 12. (Rep.) Benefit of Clergy

I. 26, 106, 429
Sacrilege 11.45

Robbery — House-
breaking, &c. II. 62,

637
Accessories I. 30, 434
s. 16. (R<*p.) Bigamy —

Clergy I. 187
s. 22. (Rep.) Witnesses
— Treason, &c.

II. 637

2 & 3. c. 2. s. 6* Desertion in time

of war I. 98

c. 24. (Rep.) Trial in cases

of murder I. 462, 470
c. 24. s. 2, 3, 4. (Rep,) Ac

cessories—
Trial I. 40

3 & 4. c. 21. Forestalling, &c. I. 169
5 & 6. c. 4, (Rep.) Qaarrelliug, &c.

in the Church, or
Church-yard 1.278,279
s. 3. (Rep.) Striking,&c.
' in the Church or
Church-yard I. 279,

612

c. 9. (RepO Stealing in houses,

robbing, &c. I. 27, n. /.

11.47
c. 14w FbreslaUing, &c.

I. 170, 171, 173

d2

XXXVl

TABLE OF THE PRINCH>AL STATUTES

EDWARD VI.

Page

5 & 6. c. 16. s. 1. ef ie^i. killing

offie^» i: 149j 150, 151,

132,154
c. 19. Buying and setting

coin I. 89

. c. Q5. Alehouses I. 2 8

a. c. 11. i* lie. (R^p.) Witnesses

' —Treason II. 637,

663

MARY.

1 Ses^. 1. ^.' 1. Desertion in time of

war 1. 98

* 1. c. 1. Foreign Coin — Re-
peal 1. 5i6
1. c. 4. Reviling the Sacra-
ment—Repeal I. 217 .
1 Sess. % c. 3. Disturbing Divine

Service 1.279,280
1 St. 2. Cr 6. Ceunterfeltiag Fo-
reign Coin I. 56y 62

PHILIP AND MARY.

1. c 10. Petit Treason I. 482,n.g-.

1 & 2 c. 11. Counterfeit Foreigd

Coin 1. 6d

c* 13. (Rep.) Examinations,

Depositions 1. 242, 482.
IL 654, 655, 656,
657, 659, 662, 666

2 & I. c. \0. (Rep.) Ditto. I. 242.

II. 649, 655, 657, 658,

669, 660 ,

• 8. c. 3. Forestalling, &c. I. 169, i

. ' 170 1

3 & 4. c. 9i Aocess^ries I. 36 |

4 & 5. C 3. s. 9* Desertion in time <

of war I. 98 '

• c. 4. (Rep.) Accessories I. 30, *

i 32; 434. IL 62 ,

'ct-Si (Rep.) Taking away 1

l^talaiev I. 577—579 j

I '

* . ! .

' I

ELtEABBTK.

i I

,1 , '

1« c- It Reviling the Sacrament

'» '^ • J»- ■ ■ L217

c. 2. DeMgatioA '<ft' Book ^f

• Prayer lb.

c. ]7< Tnkifig Pfsh ' T. ^41

5. c. 1. Killing one attaint, &c.

1.424

ELI^ABET*. Page

5. c. 1. s-2i. (Rep.) Servknts,

&c. s^ssaalting their
• Masters I. 623, 624
c. 4. s. 31. Sennng Apprentice-
ship I. 47, 48
c. 5. s. 27. Desertion in time

of war I. 98

c. 5. s. 13. Forestallidg 1. 169,

170

c. 9. s. 3. Perj^ary II. 623, 624,

525, 533, 540, 541, 542,

651, 596, 603 .

c. II. s. 2. Impairing Coin I. 64

c. 12. Forestallihj;, &c. I. 16$, 170

c. 14. Forgery IT. 338, 351, 355,

371,449, 451, 452, 453

8. t, 2. s. 4. Suing by iictUious

Plaintiff ^ I. 186

C. 4. (Tlep.) Stealing privately
from the Person —
Clergy I. 27, 272. II.

132, 214

13. C. 5. Fraadulent Conveyance

JI. 312
c.8. Usury 1.409

c. 25. ;5. 13. Forestalling, &c.

L 169, 170

14. c. 3. Counterfeiting Foreign

Coin I. 57, 62

18. C. 1. Impairing Coin . I. 64

c. 5. s« 4. Informer compound-
' ing offences I- 1 36,

137
c, 7. (Rep.) Rape, &c. Benefit

of Clergy, &c. I. 62, 556,
564. II. 594
Carnal knoi^tedge of Fe-
male Children 1. 566, et seq.
Imprisonment, &c. I* 68, 62,

.81, 208
•21. c. 24. Fraudulent Conrfeyajice

' 11.313

29. c. 6. s. 2. Perjury II. 523

31. c. 4. (Rep.) Public Stores II. 144

c. 5. 8. 4. TriaVf^tityL 146, 181

8. 6. Common Iitfprnler,

Limitat^h f. 411

c. 11. Forcible Entry, Re!(tku-

ifca 1, 48^, sfeflU-id3

c. 12. '8. Ik '(Rfep.^'AccesioriM

39. "c. 9. ^PhJtiirehr-iAtdftssories I. 36
'CR*|>.^)" JHidiieiibii • of
Wotri^, Fehmy with-
out Clergy I. 570

CITED IN BOTH VOLUMES.

zxxtu

ELIZABEl^H. Page

59. c 15« C&ep.) Stealing ffom

, dwclllng-bouse, &c I. 26,
^i\ 11. 47 J 4S
43. c 3^ Oyefseers aofc accjoootin^,

&c. I. 141, 147

8.7. Dispbeyipg Order of

Justice I. 364

c. 13. (RepO Kiiibapping I. 582

JAMES I.

1. c 8. (Rep.) Statute of Stabbing

I. 26, 485, ei seq. 637
C. 11. 8. I, ef^seql (Rep,) Btgamj

X. 187, ei seq. 208

2. c. 31. 9* 7. Spreading Infection

I. 114

3. d 4. Serving T^^r^igii States I. 91,

' . 92

c2l- Lib^l—BlaspWiny 1.217

21. C- 3. s. 4. Monopolies I. 175

t. 6. Accesforics, Clergj I. 30.

11.595
C 15. Forcible Entry— Resti-

tation I. 285^ 290. II. 601
c 17. Usury 1.409,410

c. 19. Bankrupts II. ?51

c 2jl. Inns — Exorbitant Prices

I. 298 n. r.
c2a. Fraudnleni Fine, Bail,

, &c. ' 11. 387, 482

c 27. Concealment of Death of

Bastard Children I. 424
c 28-, s. 8. Perjury II. 523

iCUARLES 1.

3. C./3. Assaulting Officer I. 49

16. c. .7- Ga^pkig I. 408, n. k

c^ Id Star' Chamber I. 579

II

l^V'^^-'^tr^ ; ■ ' 1.409
c,.S|i,„^y,Mfioa 11,292

CHARLES II.

Page

16. c. 7. False Dice II. 290

c. 8. FqresttlUng I. 169, 170

22. c. 5. (Rep.) Public Stores II. 144
22 & 29- c. 1. (Rep.) [Coventry
Act] malicious maiming

I. 587, et seq.

e. 5. Embeislement II. 214

Public Stores II. 267,

268
c. 7. (Rep.) Killing Horses

II. 498
c. 1 X, (Rep.) Piracy I. 101
c. 25. (Rep. in part)

G9me L 517. II. 692
29. c. 7. Process — Sunday I. 519,606
31. c. 2. Habeas Corpus Act I. 583

266.
364;

IX titjL ^ J^ J* % 3* Tpmultuous

}3$^lf c 19.1»ior I.

I .n. r5^;2H... lApaifingCoin J. ^5'
^4- <h I4,#^*ff byrs'WgC^^stables 1.141
15. Cf.:f^,«^ Ij,. |!,WVti1lg Foreign

Coin . 1.70

WILLIAM AND MARY.

1. sess. 1. c. 8. s. 2. Oath of alle-
giance, &c. I. 91, n. c.
c. 18. s. 6. Chapels — Re-
gistry I. 251,282
I.e. I a 8. 18. Disturbing Dissent-
ing Congregations

I. 280—282

I. Bt. 2. C.2. Bill of Rights I. 214, n. x.

266, n. b.
% c. 5. 6. 4. Pound-breach and

Rescue, &c. I. 363

3 & 4. c. 9. (Rep.) Accessories —

Clergy I. 25, 27, 30,

36, 567
Housebreaking, &c.
IL 47, 49, 62, 90,
214, 705.
Larceny in Lodgings,
&c. II. 246

4. c. 4. Personating Bail II. 483
c. 10. Otfners of Deer re-
sisting Offenders 1. 454
c. 14. Receiving Stolen goods

II. 282

4 & 5. c. 23v.(Rpp.) Gamekeepers,

&c. resisting Offenders

, 1. 454, 549

. c. 24. (Rep.) Clergy IL 575

5. C.Jl* CertJwVJ, Costs I. 306, 334,

a.^, 359. II. 603

aft 7. c. 17. Impairing Coin, Bul-
lion, &c I. 65, 70,

II. 598

XXXVlll

TABLE OF THE PRINCIPAL STATUTES

WILLIAM AND MiVRY. Page

7 & 8.' c. 7. s. 4. Bribery I. 157

c. 19. s. 6. Exporting Bullion

1.70

8 & 9* c. 26. s. 6, 7, & 9. Passing

Couoterfeit Coin I. 73,
ct sequ.'7% ei sequ.
s. 5. Coining Instru-

miQnts I. 77

c. 26. Counterfeiting Coin,

' &c, &c. L 54, 56, 60,

63, 71
c. 27i Obstructing Process

I. 361
9. c 4. Current Coin I. 54, 80

c 5« (Rep.) Larceny in Lodg-
ings 11. 246

9 k lO. c. 7* Fireworks, Nuisances

I. 303
c. 21. s. 1. Counterfeit Coin

I. 63
c. 32. Libel, Blasphemy I. 48,

218

WILLIAM IIL

Page

WILLIAM m.

1. ci 18» 9. 17. Libel, Blasphemy

L 217
7. cJ 8. 8' 7» Witnesses for Prisoner

II. 640
c. 84. Quakers II. 525, 592

8 & fl. c.% Coin I. 54. n. (e)

. ۥ 11.. Death t)f Party to Suit

II. 520
c< 29. a. 36. Rasing — ^For*

gery II. 320,
396, 404
10 & 11. cl 17« Ldttefies and Nui-

sances I. 304

Ci as. (Rep.) Pmately
Stealing, &c.

IL 214, 262
e. 25. Privately Stealing
' in a Shop L 28

! Trials of Murders,

&c. in New found-
land h 188. n. (J).

464

<i. 4 1 . Public Stores IL 264,

265, 266, 267, 268,

• .1 272, et sequ.

11 & 12, C. 7. (Rep.) Piracy L 100,

101, (0^ 106, 110, 16B

11 & 12. c. 7. s. 9. Laying hands on

Commander of
Ship I. 623

s. 18. (Rep.) Forcing
men on Shore,
&c. I. 583

ANNE.

1. St. 1. c. 18. Repairing Bridges

I. 353,. 358, 359
St. 2. c. 9. (Rep.) Thefts on

Thames . ^ II. 282
St. 2. c. 9^ s. I, 2. (RepO Re-
ceiving Stolen
Go«ds . IL258
5.3. .Prieoners Wit-
nesses II. 640
Accessories I. 30, 38
Receivers of stolen

goods 1. 37

Manslaughter I. 485 n.f,
2 & 3. c. 4. s. 19. Perjary^— R^is-

Cry Acts li. 531
2 & 3. c. 4. Forgery — Registered

Deeds, ficc. II. 448, 449
5. c 6. s. 4» (RepO Benefit of Clergy

L25
c. 14. Penalty of killing a Hare 1.49
c. 14. 8.2, Game 11.692.

c. 31. (Rep^) Accessories — Re-
ceivers I. 85, 38
c. 34. Forestalling, &c. 1. 169, 170
5 & 6. c. 18. Perjury, Registry

Acts IL 531

Forgery, Registered
Deeds IL 449

0. c. 7. Libel, &;c. against the King

L 221
c. 31. s. 3. Fire-Servants II. 496
c. 16. Alluring and marrying

Females (Irish) I. 581
7. c. 12. Ambassadors, &c. L 607

c. 20. Forgery Registered Deeds

IL 441^

c. 25. Counterfeiting Coins, &c.

L 55,71,73,79

9. c. 10. s. 41. Post Office II. 230
c. 12. s. 24. Forestalling, ' &c.

Hops' I. 173 n. u.

c. 14. False Dice, &c. IL 290, 314

c. 14. s; 5« Gaming • I. 406, 408

Intompeteucy IL 593

CITED IN BOTH VOLUMES.

XXXIX

ANNE.

Page

9. c 14*. s. 8. (Rap<) Assault on nc-

co^at of Gaming

I. 278, 624
c 15. CR^V) AHemptiog to kill,
, . .&c^ Privy Coonsellors

I. 590, 65
c. 21. «• 57. Forgery — South Sea

(Jompany II. 408

10. c 19. s. 97. Forgery — Stamps

for Linen IL 421
12. c. 7. (Rep.) Stealing 40$. in a

Boose I. 6, 7

c. 7. Embezzlement II. 214

Bnrglary II. 7, 17, 42

Stealing in a DwelHng-

hbuso II. 51, 52, 53, 54,

126, 129, 709

St* 2i c. Id. Usury I. 410, 411

t. 93. Playhoitses, &c. I. 300

GEORGE I.

1. £to4T» Sediioing Soldiers I. 98
1. sL 2. c^ 5« 8. 1, 2, 3, 5, 8.

Unlawful Assem-
blies I. 255, 256, 282
et«, ^ £• 25. s. 3. Naval &c.

Stores II. 241

8.4. Do. IL 241, 242
%i. 2. c, 25. s. 3. 14. Public

Stores IL 264, 265, 266
St. % c. 25. s. 6. Forgery —
Treasurer of Navy

IL 435

It 2. c. 57. Highways I. 318

a. 4. Riots (Rep.) L 251, 253

3. c^ 4. s. 1. Forging Stamps IL 421

4. «v41-('IleR.)Piracy— Clergy L 106

8. 4. (Rep.) Helping to stolen
«a <k L 32, 136. II. 261,

262, 509
8. 6«.(Rep.) Transportation

IL 595
ۥ I^ .DamagiDg Ships II. 515

6. C44. s. 1. Forging Stamps IL 421
c% \Xn »9SP'. For4;iBg-«-S0uth Sea

Company 1 1. 408

. Ditto IL 408

C» 18,.«», J3i» Fongery— Insu*

. raoe^ Company IL 409

CrJ94 Kidoappini . L 583

e»9S.. (Rep«^ Transportation,

liescuing, &c. '. I. 402

s. 11. (R^p-) Assault with in-

GEORGE I.

Page

tent to spoil garments

I. 620, 621, 624

8. £.6. Quakers II. 525, 591
c. 22, s. 4. Forgery— Funds II. 388

389, 39^
c. 24. s. 1,2. Piracy I. 101, 102
8. 3. Piracy — Accesso-
ries I. 105
s. 4. Piracy— Clergy I. 106

9. c. 8. s. ?„ 4, 5. Public Stores

II. 266, 267, 268, 272, 273
c. 12. s. 4. Forgiog Annuities

IL 292

c. 22. (Rep.) Arson 11.491,492,493

Maiming Cattle IL 497,

498, 499
c. 22. (Rep.) (Black Act), Res-
cue I. 27, 28, 386, 387,

590, et $eq.
s. 1. Threatening Let-
ters IL 576, 577, 578, 584,

586
c. 28. Obstructing Process I. 361

11. c. 4. s. 6. Mayors, &c., bin*

deriug Elections L 143

c. 12. Dannaging Shipa IL 515

c. 18. s. 3. Perjury — London

Election IL 533

c. 22. Obstructing Process I. 361

12. c. 25. Bricks— Penalty I. 49, n. a.
c. 2^. Attoroeys-^-Forgery II. 385

s. 4. Perjury — Attorneys

IL 551
c. 32. s. 9. Forgery-*— East In- .

dia Company, &c. II. 409
Forgery — Chancery IL 444
c. 34. (Rep.)'Assault upon Ma-
nufactures I. 624

GEORGE IL

2. c. 5.- s. 3. (Rep.) Stealing chose

in action II. 62, 143, 145,

172, 178
c. 21. (Rep.)Horaictde — County

I. 108, 465
€.24. Bribery in Elections I. 156,

159
c. 25k %4 1. Forgery IL 328, 339,

348, 362, 370
ci 25> s. 9; Perjury IL 525, 533,

551
c. 25. (Rep.) Embezzlement

IL I47yl48,149
s. 3. Notes, Bills, &c.

IL 171, 232, 233

xl

^ TABLE OF THE PRINCIPAL STATUTES
GEORGE IL Page

2. c. ^5. Forging Dee4s, &C..IL 442,

423, 453, 4M, 455, 456, 457,

460, 463, 464, 466, 467

c. 38. Piracy J. 102

4. c. 18* 8. 1. Forgery — Mediter-

ranean Pass ' II. 443

c. 32. (Rep.) Stealing Lead IL 705
Stealing things annexed
to Buildings IL 137, 138

5. c. 30. (Rep,) Bankrupt IL24g, 251
c. 30, s. 21. Ditto ' IL 650

6. c. 26. Coin L 54
c. 22. Forged Order IL 329,

348L 369
Forged Bills of Ex-
change IL 454, 464,

469,470,471,472

7. c. 21. AssanU with intent to

commit robbery L 124, 616

619

8. c. 6. s. 31. Forgery — Regiater-

ed Deeds IL 449

c. 24. Perjury— Electors IL 531,

599

9. c. 5. s. 4. Witchcraft, &c. IL 314
c. IL Clandestine Marriages in

Ireland L 205, 581

c. J 8. (Rep.) Stealing chose in

action, &c. IL 143, 172
c. 23. Gin, Conviction I. 17

c. 30. Foreign Sertice L 92

c. 35. 9. 10. Resisting, &c.. Re-
venue Laws I. 124, 125

10. c. 28. Playhouses regulated I. 300

n. h,
c. 31, Watermen overloading

boats on the Thames I. 536

11. c. 22. (Rcp.)Hinderiug expor-

tation of Corn L 125

c. 40. Counterfeiting Copper

Monies I. 53

12. c. 26. 8. 8. (Rep.) Forgry

A^say Marks IL 418, 425
c. 29. Repairing of Public

Bridges- , ' I. 353, 354
IS. c. 1^. Races L 408, n. k.

14. c. 6. (Rep.) Stealing Horses,

Cows, &c. IL 169, 185

c. 33, ^ounty Bridges L 347, 348

15. c. 13!s. 11. Forgery &c. of Bank

Notes IL 3d6, 405, 406

'Forgery 1 1. 352

Embezzlement IL 145

s. 1% Steoiitl^ India&onds

IL 204 I

GEORGE IL

Page

15. c. 13^ Stealu^g--Baok of Eng.

land JL 224, 225, 226
c. 84. (Rep.) Stealing Horses,

Cows, &c. IL 169,185,718
c. 28. ConnteifeitMig Coia L 54, 55,

« « 66,58

* 2, 3, 5, 9. Uttering
Couttteifeit Coin I. 78, 81,

HA

t « ^' !?• ^/"»««^ ^f Lunatfcs I.. 206

16. c. 31. Aiding Escape I. 388, et sea.

17. c. 5. Vagabonds— Playhouses 1. 47

300, 301

c. 5. s.5.(Re|pOV8gwwt Act 11.471

Lunatics, removal of I. 14

c. 36. 0?erster'«Accomil;Ll41 n/A

e. 40. s. 10. Public Stores IL 267,

to ■ ^ o 268^ 27«, «75, 27«

18. c. 27. Stealing Cloth 11.244
^-f^- ^'racy L 101, 104
c. 34. Gaming L 407 408

19. c. 10. Disorderly Persons I.' 525
c. 34. Registry, &c.— Reveno©

21. c. 3. Barratry j iq«

22. c. 27. (Rep.) Assault upon

Manufactures I (542

c. 33. (Art. 26.) Burning Ships

^I- 491

c. 33. 8, 17. Perjury— Courts

Martial JJ. 559 53Q

23. c. 11. s. 13. Perjury.— .TriaFof

Witnesses, Indictment,

, , ^^\ 'I- 535, 53(J

c. 11. Perjury ji. ^q^

c. 43. Annoyances in Highways

AA T I- 318

c. 44. Irregular Warrant— In-

demnity j 51Q
c. 46. Perjury IL 525, 5^6, 592
*4. c. 11. 8.^ 3. Embezzlement.

South Sea Company H. 224
c. 27. Stealing jj 2|^

c. 45. (Rep.) StealiBg from Ves-

25. c. 10. (Rep.) Breaking, &c.

into Lead Mines I. 47

c. 29. 8. 6. Coroner— Misde-
meanor in Office I. 133

c. 36. (Rep.) R^^|t4 for Re-'

turn of Stolen Goods I. 13(5

c. 36. 8. 3, 4, 8. Disorderly

?.. 37. 8. 9. (Rep.) Rescuing

Murdereri j. 337

CITED IN BOTH VOLUMES.

xii

GEORGE II.

Page

c. 19.

c 83.

27. t. 3.
c 15.

■

28. c. 19.

f
I

29. c 17.

c sa

e. 34.
30. c%.
c«4.

ۥ55.

31. c. 10.

32. c. 14;
c.«4.

Jodgment and Exe-
cution in cases of
Murder I. 478

4B1,484
' N^ecting Quarantine I. 1 1 1
(Rep.) Beating, &c. Per-

^ns shipwrecked I. 595, 594
Assflitlfing Persons saving
Vessels, &c. I. 624

Marriage Act I. 192, 194,

202,203
(Rep.) Witnesses cx-
pences XL 641

Threatening Letters II. 577,

579, 584
Diforderlj Houses I. 300,

301
Serving Foreign States I. 92
(Rep.) Receiving Stolen
Goods I. 32

Accessories — ^Transpor-
tation I. 32
Ships of War— Commis-
sion I. 102
Annoyances in Highways

I. 318

8. 1. (Rep.) Threatening

Letters If. 577, 579, 584

False Pretences II. 127,

284, 295, 298, et

seq. 323

8. 1^ Piracy — Ransoming

Vessels I. 102

s. 20. Piracy— Trial I. 110
False Personation II. 481
8. 77. Forgery — Funds

II. 389, 395
8. 78. Forgery — Indict-
ment— Corpora-
tions II. 369, 453,
463, 464
Forgery — A ssay
Marks H. 418

Forgery — Preflnes II. 428
Forgery — Away Marks
^ IL 418

GEORGE IIL

Page

C 9Z. S« 4.

» GEORGE III.

^ c. M. iViefts on Ttirftines IL 281,

. 282,283

'11 '

2. c. ^. Receiving goods, &c. I. 32
s. 13. Damaging buoys,
&c, on Thames

IL 515
2. c. 50. »• I9 2, 3. Stealing, &c.

Letters II. 228
230, 231,232,233,
234, 235, 236, 238,

239

4. c.25. Forgery— Funds II. 389
c. 37. 8. 15. Forgery — English

Linen Cbmpany

IL 409

5. e. 14. (Rep.) KiUing Hares^ &c

IL 189
c. 25. s. 7. (Rep.) Robbery IL 174
8. 17, 19. (Rep.) Stealing,

&c. Letters IL 228,

234, 235

c. 36. (Rejf.) Timber IL 673

c. 76. Repairing Roads I. 328

7. c. 40. Robbery of Mail II. 174

c. 50. 8. L Embezzlement —

Post Office II. 147,

710

9. c. 29. s. 2. (Rpp.)Rioters — Arson

—Cotton Mills L 251, 353.

II. 493
c. 30. s. 5. Naval Stores IL 242

10. c. 16. Perjury — Committee of

House of Commons

IL 532

11. c. 40. Uttering Counterfeit

Copper Monies IL 78,

79, 81
Counterfeiting Copper

Monies I. 54, 58, 63

12. c. 11. Marriages of the Royal

Family I. 580

c. 24. 8. 1. Arson — ships II. 490,

514
c. 48. Forgery — ^Stamp IL 420,

422
c. 59. 8. 1. Forgery — Assay

Marks IL 418,

419
€.61. Nuisances — Gunpowder

I. 297
c. 71. Forestalling, frc. L 169, 172

13. c. 31. Apprehending persons

escaping to Scotland,
&c, L 368

c. 56. s. 5, Foi«€inf-— Stamps

II. 421, 428

xlii

TABLE OF THE PRINCIPAL STATUTES

GEORGE in.

Page

13. c. 62. 8. 40, 44. Witnesses iu

lodia. II. 643,664
c. 71. s. 1. Counterfeit Gold

Coin I. 63, n. t.

c. 78.V General Highway Act

1.311, 318,3^^2,327, 333,
ct seq^ 343, 348, 364
s. 77^ 78. Inhabitants &c.

Witnesses II. 604
c. 79. s. 1. Forgerf, &.c. of

Bank Notes II. 397
8. 2. Ditto II. 398

s. 3. Ditto IL 399

c. 84* .General Turnpike Act

I. 321, 327

14. c. 30. Trustees of Poor II. 165
c. 42. Importing Light Silver

Coin 1. 67

c. 78. s; 84. Fire-^Ser?ants II. 496

16. c. . 38. s. 28. Forgery — Plate

Glass Coinpanj

II. 409

17. c. 17« ludiGtment — Corporation

IL 164
c. 26. Illegal Brokerage I. 411, 41 is
c. 30. s. 1. Stamp IL 348

18. c. 18. Forgery — Indictment —

Corporations II. 369, 454
c. 19. (Rep.) Witnesses' Ex-

pences II. 641

19. c. 74. (Rep*) Punishment, Fine,

&c, in li^u of burning

I. 81, 208, 536
6. 3. Punishment IL 595
21* c. 53. Marriages, making valid

L203
c 68. (Rep.) Stealing things
annejLed to buildings

II. 137, 138
21 &22. c. 25. (Irish) Marriage 1.205

22. c. 25. Piracy I. 102
c. 33. Stamps II. 338
c. 58. (Rep.) Receivers of Stolen

Goods — Misdemeanor

I. 37
Stamps. II. 259, 599

23. c. 49. 8. 14. Stamps IL 338

8.2a Do. IL422

c. 58. a; 11. Do. IL422

c. 70. 8. 9. Forgery — Excise

PecmitA L 430

c. 88. P^sons having Pkklock

Keys^ j(€. L 47

24. c. 7. Forgery— Stamps II. 423

GEORGE III.

Page

24. c. 25. India Delinquents I. 142
sess. 2. c. 27. s. 9. Forgery — Franks

IL 433
c. 53. Forgery — Assay

Marks IL 419, 420,

425
c. 56. Transportation I. 402
85. jc. 55. s. 7. Receipts . IL 466

c. 72. s. 17. Forgery — Excise

II. 434

26. c. 71. Horses II. 185, 186
c. 106. s. 26. Forgery— Fisheries

IL409

27. c. 29. Inhabitants, &c Witnesses

II. 604
c. 31. Forgery, Customf — Ex-
cise 1 1. 422, 424
c. 43. Personating Bail J[L 483

28. c. 30. Licensing Theatrical Re-

presentations I. 300, 301
c. 57. Stage Coachman I. 536

29. c. 41.. Forgery — Life Annuities

IL 447

29. c. 50. 8.10.New8pap^s — Stamp

Office 1. 239

30. c.47. Transportation L 402
c. 48. (Rep.) Judgment upon

Women in Petit-treasou

L 460, 481, 484

31. c. 5. Stamps 11.231
c. 25. s. 19. Stamps IL 340
c. 32. s. 10. Disturbing Ropian

Catholic Congregations

I. 282
c. 35. (Rep.) Petit Larceny In-
competency II. 592

32. c. 25. Admiralty Sessions I. 110
c. 34. s. 2. Forgery IL 345
c. 56. Servants' Characters II. 315
c. QO. Libel— General Verdict

1.224

33. c. 28. Bank Transfers IL 394
c. 29. (Irish) Unlawful Assem-
blies I. 263

c. 30. Forgery, &c. Public

Funds IL 389, 390, 391,

392, 393, 394

c. &% 8. 60. Extortion I. 146,

151, 152

c 54. Friendly Societies IL 155

8. 66. Buying and seUing

Offices L 151

c. 55. Punishing Constables. L 143,

366

CITED IN BOTH VOLUMES.

xliii

GEORGE III.

Page

33. c. 67. (Rep. in part) Seamen,

&c. riotoaslj assem-
bling I. 252
Obstructing Seamen, &c.

1.623

34. c. 64. Highway, repairing, &c.

1.216, 322, 327

35. c. 66. Forgery — Annnities 11.392
c. 66. s. 6. Embezzlement —

Bank of England

11.224
c. 67. 8. 1. (Rep.) Bigamy —

Punishment I. 208

c. 94. s. 3, 34. Forgery — Prize-
money II. 436, 457, 458

36. c. 8. Meetings upon Pablic

Grievances 1. 264

c. 9. Preventing the circulation

of Coin I. 127, 128

c. 27. (Irish) Conspiring or pro-
ceeding to murder I. 603
c. 46. Forgery — Annuities, &c.

II. 392
s. 6. Embezzlement —
Bank of England II. 224
37- c. 70. Seducing Soldiers or

Sailors I. 97, 98

c. 98. s. 21. Bread II. 287

c. 122. Forgery — Transfer of

Stock, Stc. II. 391,

392
r. 123. Unlawful Oaths I. 129,

131,261
c. 126. Counterfeiting Copper

monies I. 54

Stamp II. 231

S. 2. Counterfeiting
Foreign Coin
i. 57, 68, 62
Importing of such C^oin

1.66
s. 3. Uttering, &c.
Foreign Counterfeit
Coin I. 79, 97, 88

c. 136. s 7. Searching for
Foreign Counterfeit
Coin, &c. I. 63

38. c. 17. 8. 23. Forgery — Plate

(/lass Company II. 409
d 52. Tenue, county II. 373

C' 47. (Irish) Conspiring or per-

soading to murder I. 603
c:07. Etpbrting Countei-feit

Money I. 68

c. 69. s. 2. Forgery — Assay

GEORGE III.

Page

Marks II. 419

38. c. 78. Evidence of Libels in

Newspapers I. 212, 237,

et seq,

39. c. 24. Porteragp in London II. 308
c. 37. Trial of Offences commited

at Sea I. 106, 108, 109,

474
c- 45. Coin — Punishment 1. 8 1 . n. r.
c. 69. Malicious Mischief in

Port of London II. 515

Arson— Ships II. 491

c. 75. Silver Coin I. 67

c. 79. Unlawful Assemblies I. 133,

257, et seq. 264
c. 85. (Rep.) Embezzlement

IL 170
39 & 40. c. 50. Game L 419, n./.
c. 87. Thefts on Thames

II. 282
c. 89. Perjury — Naval

Stores II. 528

c. 89. s. 1. Public Stores

L 267,268,272,273,
275, 276, 277, 278
8. 2. Do. II. 268

6. 26. Forgery —
Naval Stores

IL 435
c. 93. High Treason —

Witnessess II. 637
c. 94. s.'l, 2, 3. Disposal
of persons Insane

I. 13, 14
c. 119. Obstructing Sea-
men I. 623
41.C. 57. Forgery — Banker's forms,

&c. IL475, 476, 477

c. 90. 8. 9. Printed Statutes-
Evidence IL 718
c. 109. 8. 43. Perjury — General

Enclosure Act IL 531
42. c. 56. Fryer's Balsdm, Stamp

I. 137, n. /7.
Medicine Stamp IL 575
c. 63* 8. 14. Forgery — Franks

II. 433
c. 81. 8* 1, 3, '4. Stealing, &c.

Letters IL 228,236,

237, 239
c. 85. Witnesses A broad 11.643,644
Buying, ftc. Offiees L 154
c. 94. s. 17. Perjury — Excise

II. 527
c. 107. s. 1. (Rep.) Deer 11.673,692

Kliv

TABLE OF THE PRINCIPAL STATUTES

GEORGE IIL

Page

t. 116. Forgerj-^LaiidTaKlL429
c. 119. Lotteries, Little Goes

L 299, 304

43. c. 28. 8. 2t. Forgeij -^ Franks

in Iretand t II. 434

c. 49. Licences for Bollion I. 70
c. 56. Perfnry, Emigration

II. 527
c. 68« (Rep.) Arsoa 11. 493, 667
Abortion II. 711

Verdict of concealment

I. 475, 476
Destroying infants in
the womb I. 424, 553,

554
Shooting at, stubbing,
&e. I. 109, 505, 513,

594—603
c. 59» 'Widening Bridges, 8tc

L 348, 354
Repairs of- Bridges I. 351
c. 60. Exchequer BiUs II. 226
c. 69. 8. 54, Forgery, Cus-
toms, Excise II. 422,

424
Suing for damages to
Bridges 1. 355

ۥ 113. 8. 5. (Rep.) Acces-

' sories I. 37

Trial, &c. I. 40,
41,463,464^474
c. 129. 8. 2. Stealing from

person II. 182

c 139. Counterfeittng foreign

money* I. 57, 63

' ' Forgery — Foreign

Bate • n. 454,455,

464 n. (c)
Forging Plates for
. ' FoteigQBlUs IL 475,

478
d.> 140. Habeas Corpttfe, ad

' 'testijk^ntkim IL 639

44. C4'60. s. 4. Aylesbtti^ Elec-

> - ihm ' IL 533

d 77. Marriages in Chapels

'« ' 1. 203

a 1 92. Offenders escaping to
' • ' I l9Mady$it. h 368

a 98. Forgery^^^abps IL 425
c. >)Q8. Stamps • • IL'250

0. 72. 8. 9^ Fidgety*— Green-

iridv HospkSal ^ IL 442
c. 89. Focgeryi^Deeds, &c.

IL 454 ;

GEORGE IIL

Page

I

44. c* 89. 8. 2. Forgery— I>i?i-

dend Warrants II. 392
s. 2, 3, 4, 7. Forgery,

&c. of Bank Notes
1 1. 396, 397, B99,' 400, 406

45. c« 92* Admitting to Bail L 368

Apprehension of Of-
fenders IL 17Q
8. 3. Stt'bpcEfIa IL 638,

640

46. c 37« Examination of Wit-

nesses ' IL 610

a« 45. 6. 9. Forgery— -Ord-
nance IL 436

a 54. Trial of Murders, &c.
committed • on the
Sea L 110, 168, 463,

474

a. 69. 8. 8. Forgery — Prize

Money . ^ IL 436

c* 76. 8. 9. Forgery — ^Stamp

Duties IL 431

c. 82. 8* 4* Forgery*— Irish

Permits IL 43r

c» 83. s. 9. Forgery -^Pbst

Office II. 434, 43£r

t. 136. Stage-cMchmen L 536

c. 142, Forgery — Woods and

Forests IL' 450'

47. e. 2. 8. 57. Folkstone Har-

bour IL515

0. 54. Arms in'Ireland •1.-272^

n.^]ii)»
Sess. 2. c. 59. Forgery — Post-of-
fice ... IL435
Se8s. % c. 66. Forgery — Ship's

Licences ' IL 444

c. 68. 8. 149. Perjury —

Coals IL5(I»

48* c* 75. Dead bodies cast on .

shore 1.415

Sess. % c. 80. 8. 13; ^Rep.)' For-
gery •-*8tamjks ' 1L428
a 96. Lunatic Paupers,' &o»> '^ '

• L 445 «H(g).
Sess. ^. c. 109. 8. 123. Perjury —

Dublin . licliprdve-
nebt > ^ IL 533
• i. 127. Marriages in Chapels^

.'•-•■»'•■ L 203
0. 11i9^ <R(9pO Stealing Mm
> the Person 1.27

€. 130. Stoled Ani^dfs 1. 104
4^. d 1. 8* 9. Foi%try-*^xche-

quer Bills 11.432,493

CITED IN BOTH VOLUMES.

xU

GEORGE III. Page

48. c. 75. Fovfi^«iy — Order of . »

Borinl II. 472

C. 104. Perjuiiy-^Paotage II. 530

c IV6. Paek^— Letters II. 240

u* 14^ Forgfery*^Ajiilaities

1 IL 592, 447

8-26- Pcijtlry— Life

AnniiiUes II. 526

4^ c. 14. Bwt«rds I. 424, 476

• c. 35. s. 0 & 10. Personating

Seomen's Widows^
&c. 11.439,440

CJ 49. «* 10 & U. Personatp-
ing Half Pay Offi-
<ms^ Ac. IL 439

«» 64<> Forgery -^Annuities,
: ' . ; • &c. IL 392, 447, 448
. : <:. 81. s. 1. (Rep.) Forging

• '-SlMniw II. 428

C4B4. Bridge over<the Tone I. 352
cw 116. 6i«iog Offices, &c. for

Election purpose I. 155, 156
• Brtb«fy ill Elections L 150 160
C4 1122. Stolen Anchors I. 104

cw W3. s. U. Forgery— Utter-

I Ing IL 357

c; 126. Baying and selling o^

^^i I. 150, «/ seq.

•tKt c.lf3. 8. 11. Forging Exchequer

BUb IL 453

C4 06. Stage Coaohmen L 536

.c«'.48. 6tag« Coachmen I. 627

c.^9. s. 1. Embezzlement — Pub-
lic Money IL 227
ct 65. Perjury — Land Revenues

II. 531
. C4102. Unlawful Ontb in Ire-

. land I. 133, 134

^» a 15. Perjnry-<*Ezcheqner Bills

IL 526
•; .1 8.71. Forgery — Exche-

1 4«er Bills IL 433

• CI 1127. Bityiiig and selling Coin 1. 89
52. C' 12. P^blii^ Slores IL 272
' \ih fiQ» Baying and selling Coin

-/:..*!' I. 89,00

c.63.<Il^p.)£filbttzlementIL 219

C4t04. Unlawful. Oaths L 130, 132

aa^^'Vridgea ' n < . I. 354

'^c4 Ii9. Forgery — Annuities IL 392

c^lV'^ff*^ jPefjar^H-Life ' An-

-V ( nuUiM't •• IL 526

t . I cl 1 30. iBJ^y EiMers pntliog

. ..f >, idaw^rAifldu^gs^ &e. I. 24^S,

» ■ p '.;'i 253

GEORGE IIL

Page

62* c. 1S8J 8« 6, 6. Foif;ery, ftc. of

Bank Nikes IL 401

Ct 143.' Resisting and evading

' Revenue Laws L 123

Forgery— Preifaes^ Ex-
cise, Land Tax IL 428, 430
Forgery*— Stortps, &c. IL

410, et seq.
Is; 1. Revenue Laws —

Clergy II. 228, 237

s. 2y3b Stealings &c. from
Letters II. 228, 229, 236,

237, 238
si 4. Accessory to ditto

IL 229
s. 5. Finefr-*-Forgery II. 387
c. 146. Forgery — Parish Regis-
ters II. 447
c. 155. Disturbing Religious

Assemblies I. 281, 282
c. 156. Aiding Escapd of Pri-
soners of War I. 400

53. c 5. Coin I. 89
c. 41. Pnblic Stores II. 273

8. 26. Forgery — Exche-
4«er Bills IL 433

c. 54. Buying,&c.Offices 1. 153, n.J.
c 89. Neglecting, &g. to deli-

ver Election Writs 1.162,

163
c. 108. 8. 25. Forgery Stamps

II. 427
c. 127. Excommunication — Kvi-

dcoce < IL 592

C. 141. AnnuitieB I. 410,412

c. 151. 8. Itw Forgery — Admi-
ralty Conrft II. 435
e. 160- Doctrine of the Trinity

I. 218

54. c. •32. Buying and selling Coin

I. 80
c« 60. Piiblio Slores IL 272

c 70. Forgery— Transfer of

Fuo<l8 II. 392

cvOO. Repiiring of Public

•Bridges L 548

CJ 93. 8. 8 9. False Personation

IL 481
C4IOI. (iUpi>Chira.stehlingL584
. t : CJ 109. .T«rnpfke^ I. 327

cillO. Embezsl^ment-^^srreen-

. ^wtcb Hospital 11.222
r Cl 146. High O'v^ason I. 484

€.167. ^8. 16. Forgery-^Yolun-

te«rs IL 436

xlvi

TABLE OF THE PRINCIPAL STATUTES

GEORGE IIL

Page

54. c. 186. Admittinfir to Bail L 368
c. 186. Apprehension of ofien-

ders IL 176

55. c. 60. Perjury — Seamen's Will

II. 529
c. 60. Forgery, &c. — Prize

Money II. 438

B. 30. False Petitions -*-
Seaman'sWages 11.440,441
c. 68. Diverting and Stopping

Poblie Roads 1.312, 327
c. 99. s. 116. Perjui:y — Brend

in London II. 533

c. 108. 8. 127. Military Stores

II. 243
c. 113. s. 6. Perjury — Excise

II. 527
127. Public Stores 11.273

137. Embezzlement — Poor-
houses II. 222
c. 143. Repairing Bridges I. 354
c. 157. Perjury in Irish Court

II. 528
/ c. 184. 5. 7, 53. Forgery — Stamps

II. 412,413,528
c. 185. Forgery, Stamps, £rc.

IL 413,414
c. 194. Apothecaries Act II. 694

56. c. 21. S.49. Perjury— Goals II. 533
c. 27. Transportation — Return,

Rescoe, and escape from

I. 368, 402
c. 56. s. 37. Forgery, — Irish

Stamp 11.415,416,417
c. 63. Mill-bank Penitentiary

II. 315, 376, 399, et seq.
Officers of Penitentiary,
(misconduct of) I. 144
c. 68. Silver coinage I. 54, bQ^

63, n. t. 64, 67
s. 13. Buying of Gold

Coin I. 89

s. 15. Coinage — Indict-
ment I. 90
s. 16. Gold Coinage —

Evidence I. 90

c. 78. s. 50. Perjury — Coals

II. 533
c. 101. s. 4. Forgery, Navy,

Pensioners, ^c. II. 442
• c. 103. s. 3. Perjury — Excise

II. 527
c. 104. Resisting, &c. Revenue

Laws I. 123

. c. 117. Convict Jnsanes I. 15

GEORGE III.

Page

56. c. 125. Rioters, &c. injuring

Collieries, &c. I. 253

c. 130. Game I. 419, n./.

c. 138. AiM>lition of Pillory I. 98,

136, n. II., 245, 269, 554,
563, 574, 598

57. c. 7. Seducing Soldiers, &c. I. 98
c. 19. Societies taking unlawful

Oaths I. 132, 133

Unlawful Public Meetings

I. 260, et seq.
(Rep.) Damages by Rioters

I 251, n. t.
c. 51. Marriage I. 206

c. 53. Trial of Murders, &c.

committed abroad I. 463
c. 90. Destroying Game in the

Night I. 417, 707

c. 127. s. 4. Forgery, &c. —

Prize Money II. 439

False Personation 11.481,

482

58. c. 23. 6. 38. . Forgery — Ex-

chequer Bills II. 433
c. 38. Kidnapping L 583

c. 70. (Rep.) Witnesses Ex-
pen ces II. 641
c. 84. Marriage in India I. 205

59. c. 11. Mill-bank Penitentiary

I. 382, 399
c. 60. Foreign Enlistment I. 92,

ei seq.
s. 56. Forgery, &c. —

Prize iVioney II. 439
c. 136. Mill-bank Penitentiary

I. 144

60. Libel I. 245, 246
Unlawful Assemblies

I. 259, 2(50

GEORGE IV.

l.c«

c.
c.
c.

c.

»

c.
c.

1. Unlawful Assembtlete I. 245,

246
4. Stage Coachmen I. 627

6. Unlawful Assemblies I.'260
8. Blasphemous and' Seditious

Libels I. 245, 246

35. Forgery — Accountant

General IL 436

37. Special Constables I. 147

58. s. 12. Forgery — Stamps

II. 420

CITED IN BOTH VOLUMES.

xlvii

GEORGE IV. I

Page
1. c. 90. (RepO Maiming, &c«on

High Seaa I. 596

c. 92, Forgerj — Bank Notes,

&C. II. 4^0, et seq.

c. 115. (Rep) Abduction of Wo-
men I. 570
c. 117. (Rep.) Clergy — Stealing

in Shops I. 28

c. 110. $. 33. Insolyents II. 315
1 & 2. c* 35. Irish Lunatics 1. 14, n. a.
C.41. Steam Engines I. 306 '
c* 49. s* 3. False Petitions

Seaman's Wages II. 441
c. 50. Bakers I. 116

C'fiU^ 0# Perjury — East

India Prize

Money 11. 529

C. 75. Stolen Anchors I. 104

Receiving Tackle, &c.

from Ships IL 279—

281
c. 76. Cinque Ports II. 515
c. 88. (lU'p) Assaulting a

Constable 1. 626
c. 90. Clergy — ^Piracy

I. 106, 109
3 c, 17. Marriage I. 193, 194

c 33. (Rep.) Riot I. 353, n. (x)
c. 38. (Rep.) Trial of Acces-

sory I. 37, 38

Manslaughter I. 536

c. 51. Forgery, &c. — Military,

&c. — Pensions,&c. II. 443

c 55. Thefts on Thames II. 283

c. 75. Marriage 1.193,194

c. 123. Insolvents . II. 315

c 126. -Turnpike I. 318, 326, 327,

337
Bridges Add. toI. I. p. vii
4. c 5. Marriage I. 194

c 14. Arms in Ireland 272, n. (m)
c. 41. s. 47. Perjury — Ship's Re-
gisters II. 530
c. 52. Burial of Felo de se 429, n. (A:)
€. #3. {{Upr) Qergy — Stealing

in Shops L 28

j Navaly.&p. Stores II. 241

c. 54- Rep* .Alteration of Black

.,.,,. Act 386, 387.—Add.

t tqI. I. p. xvii

.., ... ,Aa9|QU with iptqnt to

rob . 1.616—620

, Ml^mmg Cattle II. 497

c 04.,.. JEscapi^'^^YideQce, &c.

I. 368, 381, 391

GEORGE IV.

Page

4iC. 76. Marriage Act I. 194—200,

206, 579, 580
Forgery, &c. — Regis-
ters II. 446, 520
c. 87. Unlawful Assemblies I. 263
c. 91. Marriage I. 205, 206
■ c. 96. Turnpike I. 318, 326, 327

5. c. 5. Forgery -— Birmingham

Plate II. 415

c. 18. Arrest, &c. by Officer

out of District 458, 510,

519
c. 20. 8. 4. Embezzlement^ &c.

Post-0 ffice II. 235
c. 30. Stealing Records in Ire-
land II. 143
c. 32. Marriage 1.197
c. 68. Marriage I. 206
c. 83. Vagrant I. 507, n. t.
Implements oC House-
breaking Add. Tol. I. p. iv
c. 84. Escape of Persons or-
dered to be Trans-
ported I. 391
Regulation of Transpor-
tation I. 393, et seq*
c. 95. Combinations of Work-
men II. 565
c. 107. s. 5. False Personation,

&C. II. 480

c. 113. Slave Trade 1. 102,1 64,e^«eg.
Forgery — Slave Trade

II. 444
Perjury — Slave Trade

II. 530

6. c. 5. Mutiny Act I. 95, 98, 99

Perjury — Mutiny Act

II. 529
Transportation under
Sentence of Court
Martial 1. 3S7

c. 16. s. 99. — Perjury — Bank-
rupts II. 532
s. 1 12, 1 1 3. Embezzlement

— Bankrupts II. 248
c. 19. (Rep.) Threatening Let-
ters II. 578
c. 25. Clergymen Convicts I. 25,

n. m.
Clergy, allowance of, I. 472,

n./.
Competency of Wit-
nesses II« 594 — 596
C..69. Punishment of trans-
ported Convicts 1. 402

xlviii

TABLE OF THE PRINCIPAL STATUTES

GEORGE IV.

Page

6. c. 78. Quarantkie I. lU, lis

Forgerj — Quaraotine

II. 444
Perjury — Qoarantine

IL 530
C.89. Buying, ^c Offices I. 149
c. 92. Marriage L 203, 204

c. 105. Revenue Laws I. 117

c. 106. Revenae Law« I. 117

Forgery — Castonn II. 432
Perjury — Customs II. 527
c .107. Reveuue Laws 1.117

c. 108. Revenue Laws 1. 117 — 125,

531, 547
Bribery I. 157

c. 112. Embezzleraent — Ware-
boused Goods II. 223
c. 119. Forgery — Newspaper

Stamps, &c. 11.421

c. 126» Maiming, &c. in Scot-
land I. 595
c. 129. Combinations of Work-
men II. 565, 566
c. 133. Seal of Apothecaries

Company II. 702

7. c. 57. Perjury, &c. — Insolvents

II. 532
c. 64. 8. 1, 2. Bail Add. Vol. I.

p. xxi
8* 2. Examination, &c. be-
fore J. P. — recog-
' nizances of witnes-
ses 75. xxii* II. 638,

655, 666
s. .^. Ditto, in cases of mis-
demeanors lb. xxii
t. Ay by 6. Ditto, before co-
roners /5. xxii.
II. 662
8. 7y 8. Stafidittg nute —
chalienging, &c«
—outlawry, &c.

lb* xxiii
8. 9} lOy 11. Accessories

/5. xxiii. IL
44, 46, 47, bby
60,61, 93,258,
183, 357, 371
8. 12. Offences on bound-
aries of counties
lb. xxiv. II. 176
8. 13. Offences on a jour-
ney lb, xxiv. II. 176
8. 14, 15, 16, 17, 18. In-
dictment — pro-

GEOR<^E IV.

Page

perly of paitners,
counties, &c., how
to be laid 75. xxiv,
XXV. If. 164, 166—
168, 218, 367, 369,
371, 485, 495
8. 19. Plea of misnomer

75. XXV. II. 714
3. 20, 21. befects in in-
dictment lb. XXV,
xxvi. II. 172, 173,

298
$• 22, 5:3, 24a 25, 26, 27.
Fxpences of pro-
secutions 75. xxvi,

xxvii
8. 28, 29, 30. Compensa-
tion .to those who
havo been active in
apprehending of-
fenders 75. xxviil
8. 31. Estreating recogni-
zances 75. xxviii,

xxix
8. 32. Repeal of former

acts, 75. xxix

7 & 8. c. 18. Spring guns, man-
traps, &c. Add. Vol. I.
i \ p* xix

t. 27. Repealing act (see
the Table of Re-
pealed Statutes,
post. Add. Vol. II.

p. xli
c. 28. 8. 1. Plea of * not
gtflfty ' shall
put prisoner on
his trial 75. 1

8» 2. finterittg ^ a plea of
not guilty ' for the
prisoaer 75.

8. 3. Challenge beyond

legal number 75. li
s. 4. Atlainder^otplead-

aUa 75. li. XL 42,

180
s. 5* Jitnc'AM t> enquire
"wbetfier prisoner
fled, &c. 75. U« II

179
s. 6. ^aefit of clergy

aboUbhed 75. li. IL

44
8. 7. What felonies shall

be capital 75. li

CITED IN BOTH VOLUMES.

x\ix

GEOROE IV.

Page
7&8Le.m.i.8. Fuaiiluf t of fc-

lurtca Bot olher-
irtse provided for

A-li. 11.179
1. 9. HMd bboor, kc lb. li
s» 10. Fnufthment of per-
flon alfetdy under
sentence lb. li. II.
180,469
V. 11. PanisluBeBt for
enbteqaent felonj
— ibrin of indict-
ment and evidence, .
die. lb. li, III. If.
180, 498, 704
s. 19. Ponisbmentof Ad>

minhy offences lb. lii
s. 13. EIRftct of pardon on

coinrkt lb. Ui

s. 14. Rule for interpret-
atiod of all crimi-
ml statttles R. UI. II.

173
s. 15. Commencement of

act lb. Ill

a. 10. Not to extend to
Sootfand or Ire-
lanid lb. m

c»f0L a. 1. Commencement of
•et Add. Vol. I.

p. liii
a. 9. IMttinction between
grand and petit lar-
ceny abolished 11.29,
150, 171, 592
s. 9. Plnishment for sim-
ple larceny II. 92,

179
a. 4. Hard kbonr^ &c.

II. 179

a. 5. Stealing public and
priinte secnrities
wr money, &c. II. 144

a« 0. RoMery from the

peetan, 9^ II. 01,^90,

91, 182

a. IT. Obtainng money,
fte« by tbreaten-.
ingyJbc. II. 578

a. 8. Sending letters con-
tateing -manaciog
dammidii, &c II. 579

a. 9. What shall bedeem-
^ an infamous
crime II. 62, 76 (

GEORGE IV.

Page
7 & 8. c. 29. s. 10. Sacrilege, when

capital II. 45

8. 11. Burglary, capital

11.44

s» 12. Housebreaking and
stealing in a house,
when capital II. 49,

51

8. 19. What buildings
oidy aro part of a
house for capital
purposes II. 55

s. 14. Robbery in any
building within the
same, ic II. 55

8. 15. Robbery in a
shop, warehouse,
or countingwhonse

II. 60

s. 16. Stealing certain
goods in process of
roanulkcturo II. 244

s. 17. Stealing goods from
a vessel in a port,
river, or canal, &c.

II. 194

s. 18. Plundering or steal-
ing any part of the
tackle, &c. II. 194

s. 1 9. Persons in posses-
sion of shipwreck-
ed goods, &c. II. 194

s. 20. If any person offers
shipwrecked goods
for sale, &c II. 194

s. 21. The stealing, &c.

of records, &c II. 149

s. 22. The stealing, &c

of wiUs II. 142

s. 29. The stealing of
writings relating to
real estates II. 142

s. 24. Provisions as to
wills and writings,
&c. II. 142

s. 25* Stealing horses,
cows, and sheep,
&c. II. 184

s. 26. dealing, &c deer
in any inclosed
ground, felony II. 187

8. 27. Suspected persons
found in possession
of venison, ftc II.

187

I

TABLE OF THE PRINCIPAL STATUTES

GEORGE lY.

Page
7 & a. C 29- s. 28. Setting engines

for taking deer, or
polling down park
fences II. 188

n 29. Deer-keepers, &c.
naj seize the gnns,
&c. II. 188

s. SO. Rilling, &c hares
or conies is a war-
ren in the night-
time II. 189

s. 31. Stealing dogs, or
stealing beasts or
birds, &c. II. 153

s. 3^ Persons found in
possession of stolen
dogs, &c. II. 153

s. 32. KilUqg Pigeons II. 154

s. 34. Taking fish in an j

water, &c. II. 101

s. 35. The tackle of fish-
ers may be seized II. 192

ft, 36. Stealing oysters or
oyster brood from
oyster b«>ds II. 192

s. 37. Stealing from cer-
tain mines II. 137

8. 38. Stealing trees,

shrubs, &c. II. 140

8. 39. Stealing trees,

shrubs, &c. II. 139

s* 40. Stealing, &c., any
live or dead fence,
&;c. IL 139

8. 41* Suspected persons
\t\ Dossession of
woody&c. II. 140

8. 42. Stealing. &c, any
fnUl or vegetable
prodpicijon in a
gvden, &c. II. 140

8. 43. Staging, &c vege-
tables prodQctions
not growing in
gardens, &c. II. 140

s. 44. Stealing glass,

m^ood^work, or fix-
tures of any kind
fjDom bui(ding8, &c.

IL 137

s. 45. T^niiiPts and lod-
ger9 stealing any
pcoperty from
nouses, &C. II. 138

247

GEORGE IT.

Page
7 & 8.C. 29. s. 4a. Clerks aiserrmts

stealing property
of their masters

IL 206
9. 47. Clerks or servants
reoeiving any mo-
ney, &c IL 207, 208
s. 48. Distinct actsof em-
bezzlement may be
chafed in the
same indictment,
^c. II. 207, 213, 214
a. 49> Agtata embezzling
Bonty entrusted
to them, &c IL 219

s. 5a Not to afect tms-
laeaor mortgagees

IL 220

8. 51. FacAois pledging
lor thek own use,
1^. IL 220

8. b%i These provisions
as to agents shall
not lesttn any re-
medy, &c IL 220

St 53* Obtaining money
Ikc« by false pre-
tfttctf, &c II. 284,
998 el leg. 300, 311,

323

8. 54. Receivers of stolen
goods, where the
OBgiiial offence is
€»lMiy, &c. IL 253

s« 55. Receivers, &c.,
wheie the original
offence is a mbde-
meanor, &c. IL 253

s» 66» All icceivess may
be tried where the
IWUMupai is triable
&c. II. 254

s» 57. Theownerofstolen
]uroparty psosecn-
ilim% thief, ftc —
Restitution II. 180,

260

a« 58» Taking a reward
lor Mping to the
aaoanery^ &G. II. 261

B« 59. Advertising a re«
waid for the re-
tam of stelen pro-
perft9i,&c IL 262

CITED m BOtH VOLUMES.

U

OBdHi^t: ry.

Page
7&8»C»39.s.60; fteteiv^n «f pn>«

^«y where the
^Hgillal offence
is punishable on
stlftrBiArjr convic-
tfl»t» II. 254

!k 61. Prinefpals hi the
oe^Dotid degree and
fteoessories II. 179,
IM, 168, 190, 193,
195, 206, 218, 221,

244

s. M. Abettors in offences
pMii9%able on sum-
marj conviction
11.188, 190, 192, 195

s, 5S* A person in the act
of committing any
otfences, &c. II. 141,
n.h. 188, 192

s. 64. Limitation to sum-
mary proceedings

II. 192, 195

B* 6B» Mode of compel-
ling the appear-
ance of persons,
&;c« IL 192

s. 60* Application of for-
feitures and penal-
ties, &c. II. 188, 192

s« 73. No certiorari^ &c.

Add. Vol. I. p. vi.

s. T5. Venue in proceed-
ings, &c. II. 176

8. 76* This Act not to

extend to Scotland
or Ireland, &c.

IL 176

9. 77. To extend to of-

fences committed
at sea II. 176

c. 30. See Add. Vol. L

Ixviti. etseq.
s« 2. Arson II. 489, 494
a. ^ Destroying manu-
factures, &c. II. 511,

512
8w 4* Dteslro^ing machi-

bery, &c. IL 511

s. 5« Ar«on — Coal Mine

ir. 490
9. 6, 7. Destroying, &c.

Mines IL 510

s. 8. Rioters destroying

church, &c. IL 512

GEOROfe JV.

Page
7 Sr 8. c. 30. s. 0, 10, 1 1. Arson,

&c.--Ships II. 490,

513
s. 12. breaking dovrn

sea banks, 8cz. IL 505
. S.I 3,1 4.1njuring bridges,

turnpikes, &c. II. 507
s. 15. Destroying dams,

&c. II. 506

s. 16. Maiming cattle IL 497
s. 17. Arson*- Ricks II. 490,

513
s. 18. Destroying hop-
binds II. 504
s. 1 9, 20. Injuring trees,

&c. II. 500, 501

s. 21, 22. Destroying

Roots, Plants, &c.

II. 502
s. 23. Destroying Fences,

&c. li. 509

s. 24. Malicious Injury,

&c. II. 516, 673

s. 25. Malicious Injury,

&c. II. 484, 491

s. 26. Accessories,&c. II. 484
s. 27. Punishment, &c.

IL 485, 496
s. 28. Apprehension of

offenders IL 485

s. 29. Summary proceed-
ings II. 485
c. 31. Remedies against
the Hundred, Add.
Vol. II. Ixxvii. et seq,
9. c. 31. * See Add. Vol. I.

p. xxi. et seq.
s. 2. Petty Treason

Add. Vol. I. xi
s. 3. Accessories in Mur-
der lb. riii
s. 4, 5, 6. Execution, &c.

of Murderers /5. x. xi
8. 7, 8. Trial of Mur-
ders, &c. com-
mitted abroad lb. ix
s* 9. Punishment of Man-
slaughter Ilu xi
s. 10. Excusable Homi-
cide, &c. lb. xi
s. 11, 12. Maiming, &c.

lb. xvi. xrii
s. 13. Abortion, &c. lb. xii
8. 14. Concealing birth

of child lb. X

e2

Ut

TABLE OF THE PRINCIPAL STATUTES CITED, &c.

GEORGE IV.

Page
0. c. 31. s. 15. Sodomy lb. xiii

s. 16. Rape lb. xii

8. 17. Carnal knowledge

of children lb, xlii
8. 18. Evidence of carnal

knowledge lb, xii

8. 19^ 20. 'Abduction A. xiii.

xiv. XV
8. 21. Child stealing lb. xvi
8. 22. Bigamy Ib» vi

8. 23. Arresting Clergy- '

man, &c. 15. vii

8. 24,25,26. Aggravated

Aflsaults lb. xviii. see

also V

GEORGE IV.

Page
9. c. 31. 8. 27, 28, 29. Summary

convictions for as-
saults. Add. Vol.

I. p. xxxviii
8.30. Forcing seamen on

shore lb. xv. xvi

8. 32. Offences at sea lb. ix. x

c. 15. Variances II. 715

Add. Vol. II. p. Ixxxii

c. 33« 8. 1. Quakers, &c. Add.

J Vol. II. p. Ixxviii

8. 2. Forgery — Witness /5.

8. 3. Competency of

Convict lb. Ixxxiv

* • /

/■ ' -

■ f

r

I '

J

TABLE

. I

• *

or

STATUTES REPEALED

BY THE LATE ACTS.

5) H. 3. St. S. c. 10. (partially)
S Ed. I. c. 9. (s. 30.) (partiallj)
S Ed. 1. c 11 and 13

SEd. 1. c. 15. (partially)

4 Ed. 1. St. 3. c. 5

6 Ed. 1. c 0.

ISEd. 1. St. 1. c. 99& 34

13 Ed. 1. St. 1. c. 46. (partially)

13 Ed. 1. St. 2. (partially)

21 Ed. 1. St. 2

0 Ed. ^ St. 1. c. 3.

1 Ed. 3. St. 1. c 8. (partially)
18 Ed. 3. St 3. c. 3

25 Ed. 3. St. 5. part of c. 2.

25 £d. 3. St. 6. (ynlgo st. 3. c. 45.)

(partially)
28 Ed. 3. c. 11. (partially)
34 Ed. 3. c. 22
37 Ed. 3. c. 19. (partially)
50 Ed. 3. c. 5.

1 Ilic2. c. 15

G Ric. 2.st. 1. c. 6

5 H. 4. c 5

5 E 4. c (^

2H. 5. St. I.e. 9

7H. 5.

9 H. 6. c. 1. (partially)

8 H. 6. c. 12. (8. 3.) (partially)

11 H. 6. c. 11

18 H. 6. c. 12. (partially)
23 H. 6. c. 9. (partially)
33 U. 6. c. 1. (partially)

1 Ric. 3. c. 3

1 H. 7. c. 7

3 H. 7. c. 2

3 H. 7. c. 3. (partially)

3 H. 7. c. 14

4 H. 7. c. 13

12 H. 7. c. 7
21 H. 8. c. 7
21 H. 8. c. 11
23 H. 8. c. 1

23 H. 8. c. 1 1

24 H. 8. c. 5

25 H. 8. c. 3

26 H. 8. c. 6

31 H. 8. c. 2

32 H. 8. c. 3. (partially)

IW

TABLE OF STATUTES

33 H. 8. c. 1

33 H. 8. c. 12. part of 8. 6. to s. 18

34 & 35 H. 8. c. 14

35 H. 8. c. 17
37 H. 8. c. 6

37 H. 8. c. 8. (s. 2.) (partially)

38 H. 8. c. 23

1 Ed. 6. c. 1% (s. 10, 14.) (partially)

1 Ed. 6. c. 12. 8. 13, 16, aod 23

2 & 3 Ed. 6. c. 24
2 & 3 Ed. 6. c. 33

5 & 6 Ed. 6. c. 4. 8. 3
5 & 6 Ed. 6. c 9
5 & 6 Ed. 0. c. 10

1 & 2 P. & M. c. 13

2 & 3 P. & M. c. 10
4 & 5 P. & M. c. 4

4 & 5 P. & M. c. 8

5 EUz. c. 4. s. 21
5 Eliz. c. 10

5 Eliz. c. 17

5 Eliz. c. 21

8 Eliz. c. 4

13 Eliz. c. 25. (s. 3, 18, 19.) (partially)
18 Eliz. c. 7
27 Eliz. c. 13
31 Eliz. c. 4
31 Eliz. c. 12. (8. 5.) (partially)

39 Eliz. c. 9
39 Eliz. c. 15
43 Eliz. c. 7
43 Eliz. c. 13

1 J. 1. valgo 2 J. 1. c. 8

1 J. 1. Yulgo 2 J. I.e. 11

2 J. 1. c. 27. (partially)
7 J. 1. c. 13

15 Car. 2. c. 2

22 Car. 2. c. 5

22 & 23 Car. 2« c 1

22 & 23 Car. 2. c. 7

22 & 23 Car. 2. c. 11. 8. 9

22 & 23 Car. 2. c. 11. (s. 12.) (parti-
ally)

22 & 23 Car. 2. c. 25. (except 8. 1. to
3.) (partially)

3 J. 2. c. 13

3 W. & M. c« 9

4 W. & M. c. 8

4 W. & M. c. 23. (partially)
4 W. & M. c. 24. 8. 13. (partially)
10 W. 3. c. 12. (volgo 10 & 11 W. 3.
c. 23.) (partially)

10 & 11 W. 3. c. 23. (partially)

11 W. 3. vulgo 11 & 12 W. 3. c. 7. 8. 18
1 Add. 8t. 2. c. 9. (partially)

1 Add. 8t. 2. c. 9. 8. 1. (partially)
0 Add* c. 9. 8. 1. (partially)

6 Add. c. 9. (vnlgo 5 Add. c. 6)
6 Add. (yulgo 5 Add.) c* 31. (parti-
ally)

9 Add* c. 14. 8. 8*
9 Ado. c. 16

12 Add. 8t. 1. c. 7

13 Add. c 21. (vulgo 12 Ann. st 2. c.
18.) 8. 4 & 5. (partially)

1 6. 1. 8t 2. c. 5. 8. 4 & 6« (partially)

1 6. 1. 8t. 2. c. 48
4G. 1. c. 11. (partially)
5 6. 1. c. 16

5 G. 1. c. 28

6 G. 1. c. 23
9G. I.e. 22

12 G. I.e. 34.8.6

2 G. 2. c. 21

2 G. 2. c. 25. (8. 3.) (partially)
4 G. 2. c. 32
6 G. 2. c. 37
8 G. 2. c. 16
8 G. 2. e. 20

10 G. 2. c. 32. (partially)

11 G. 2. c. 22. part of 8. 1 & 2

1 1 G. 2. c. 22. (8. 5. to the eod) (par-
tially)

13 G. 2. C. 21

14 G. 2. c. 6

15 G. 2. c. 34
22G. 2.C. 24

c. 46. (s. 31.) (partially)
22 G. 2. c. 27. part of s. 1 & 2

24 G. 2. c. 45

25 G. 2. c 10

c. 36. (s. 1.) (partially)
25 G. 2. c. 36. (8. 11.) (partially)

25 G. 2. c. 37. except 8. 9 & 10

26 G. 2. c. 19. (8. 1, 2, 3, 4 & 8.) (par-
tially)

26G. 2. c. 19.8. 11

27 G. 2. c. 3. (8. 3.) (partially)

28 G. 2. c. 19.(8. 3.) (partially)

29 G. 2. c. 30

29 G. 2. c. 36. (8. 6, 7, 8, 9.) (partially)

30 G. 2. c. 24. (6. 1.) (partidly)

31 G. 2. c. 35
2 G. 3. c. 29

4 G. 3. c. 12
4G. 3. c. 31

5 G. 3. c. 14

6 G. 3. c. 36
6 G. 3. c. 48
9G. 3. c. 29
9G. 3. c. 41

10 G. 3. c. 18
10 G. 3. c. 48
13 G. 3. c. 31. (8. 4 & 5.) (partially)

REPEALED BY THE LATE ACTS.

It

13G. 3. c 39

13 G. 3.C. 83

16 G. 3. c. SO

18 G. 3. c ID. (s. 7, 8.) (partially)

10 G. 3. c 74. (partially)

^1 G. 3. c. 68

21 G. 3. c. 69

nG. 3. c 58

30G. 3. c 48

31 G. 3. c 35

31 G. 3. c. 61

33 G. 3. c 67. 8. 2

33 G. 3. c 67. (5 & 6.) (partially)

35 G. 3. c 67

36 G. 3. c« g. part of 8. 1 & 2

36 G. 3. c 9. (s. 3. to the end) (par-

tiaOj)
39 G. 3. c 85
39 & 40 G. 3. c 77. (8. 1, 2 & 5.)

(pwrtially)
41 G. 3. c 34.
49 G. 3. c. 67
43 G. 3. c 107
43 G. 3. c 58
43 G. 3. c 60. (s. 3.) (partially)

43 G. 3. c. 113

44 G. 3. c 93. (8. 7, 8.) (partially)
46 G. 3. c. 66

48 G. 3. c. 139
48 G. 3. c. 144
51 G. 3. c« 41
51 G. 3. c 130
Si G. 3. c. 63

63 G. 3. c. 64
63G. 3.C 130
53 G. 3. c. 135

53 G. 3. c. 163. (partially)

54 G. 3. c. 101

56 G. 3. c. 73

57 G. 3. c. ig. (8. 38.) (partiaUy)

58 6. 3. c 38. 8. 1

58 G. 3. c 70. (partiaUy)

59 G. 3. c. 37
5g G. 3. c. g6

1 G. 4. c. 56

1 G. 4. c. go. 8. 3

1 G. 4. c. 103

IG. 4. c. 115

IG. 4. c. 117

1 & 3 G. 4. c. 88

3 G. 4. c. 34

3 G. 4. c. 33

3 G. 4. c. 38. (partially)

3 G. 4. c. 38

3G. 4. c. 114

3 G. 4. c. 136. (8. 60.) (partially)

3 G. 4. c. 136. (s. 138.) (partiaUy)

4 G. 4. c. 46. (partially)
4 G. 4. c 53. (partially)
4 G. 4. c. 54. (partially)
6 G. 4. c. ig

6 G. 4. c 56

6 G. 4. c. g4. (s. 7l 8, g & 10.) (par-
tiaUy)

7 G. 4. c. 6g.

■^ • <

I

/ I

ADDENDA, &e.

TO VOL. I.

TOL. I*

6.— Thb statates 91 H. 8. c. 7. and 18 Ann. c. 7. are repealed by 7 & 8 Geo.
4. c. «7.

IS line IS from the bottoin, after ** rebels (a)/' add — *' And in general the
person commiiting a crime will not be answerable if he was not
a free agent, and was subject to actual force at the time the fact
was done. Thus, if A. by force take the arm of B., in which is
a weapon, and therewith kill C, A. is guilly of murder, but not
B. : but if it be only a moral force put upon B., as by threaten-
ing 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.(a) An ideot or lunatic, or a child so young as not
to be punishable for his criminal act when made use of for the
purpose of committing crimes, are merely the instruments of
the procurer, who will be answerable as a principal. '*(&)

15, dele from the pari^raph beginning *' When the rule was first settled,'' to
the bottom, and also the following pages, 26, S7, and 28, and
two lines at the top of page 89.

39, note (/)» add — ** And see Rex v. Badcock and Others, Russ. & Ry. 249."

36, line 17, after ** effect (m)," dele to the end of that page, and also pages
37 and 38, and insert as follows:—" It should seem, however,
that the recent enactment of 7 & 8 Geo. 4. c. 28. will apply to
accessories after the fact, where no punishment is specially pro-
vided for their felony. The eighth section of that statute Felonies not
enacts, ' that every person convicted of any felony not punish- capital punish-
able with death, shall be punished in the manner prescribed by able under the
the statute or statutes specially relating to such felony, and that ^^}^*.[^_^Jl^
every person convicted of any felony
hath been or hereafter may be
deemed to be punishable under this

the discretion of the Court, to be transported beyond the seas gjg]^
for the terra of seven years, or to be imprisoned lor any term
not exceeding two years, and, if a male, to be once, twice, or

licfy

thrice publicly or privately (whipped if the Court shall so think

(«) 1 Hale, 433. 1 Etft. P. C. c. 5. s. (b) 1 Hawk. P. C. c. 31. i. 7. 1 East.

12. p. 235. P. C. e. 5. s. 14. p. 228.

11

ADDENDA, kc. TO VOL. I.

Of the pro-
ceedings a-
gftiost accei*
sories.

7 G. 4. c. 64.

8.9.

How acces-
sories before
the fact may
be tried.

If offences
committed in
different coun-
ties, acces-
sories may be
tried in either.

Only one trial.

S. 10. How
accessory, if
after the fact,
may be tried.

fit), in addition to such imprisonment' The late consolidation
acts, 7 & 8 Geo. 4. c. 89., 7 & 8 Geo. 4. c. SO., and 9 Geo. 4. c.
31., make accessories after the fact to felonies punishable under
those acts respectively, liable to imprisonment for any term not
exceeding two years. The principal and accessory may be in-
dicted in the same indictment, and tried together, which is the
best and most usual course. Formerly the accessory could not,
without his own consent, have been brought to trial till the
guilt of the principal was legally ascertained by conviction or
outlawry, unless they were tried together. (c) And an accessory
could not in such case have been tried, unless the principal had
been attainted, so that if the principal stood mute of malice, or
challenged peremptorily above the legal number of jurors, or
refused to answer directly to the charge, the accessory could not
have been put upon his trial .(</) But the late statute 7 Geo. 4.
c. 64. has made the following salutary provisions for the effec-
tual prosecution of accessories.

'^ The ninth section of that statute, for the more effectual prose-
cution of accessories before the fact to felony, enacts, * that if
any person shall counsel, procure, or command any other per-
son to commit any felony, whether the same be a felony at com-
mon law, or by virtue of any statute or statutes made or to be
made, tho person so counselling, procuring, or commanding
shall be deemed guilty of felony, and may be indicted and con-
victed either as an accessory before tiie fact to the principal fe-
lony, 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 amen-
able to justice, and may be punished in the same manner as any
accessory before the fact to the same felony, if convicted as an
accessory, may be punished ; and the offence of the person so
counselling, procuring, or commanding, howsoever indicted,
may be inquired of, tried, determined, and panished by any
Court which shall have jurisdiction to try the principal felon, in
the same manner as if such offence had been committed at the
same place as the principal felony, although such offence may
have been committed either on the hi«;h seas, or at any place on
land, whether within his Majesty*s dominions or without; and
that in case the principal felony shall have been committed with-
in the body of any county, and the offence of counselling, pro-
curing, or commanding, shall have been committed within
the body of any other county, the last mentioned offence may
be inquired of, tried, determined, and punished, in either of
of sucn counties: provided always, that no person who shall be
once duly tried for any such offence, whether as an accessory
before the fact, or as for a substantive felony, shall be liable to
be again indicted or tried for the same offence.*

<* The tenth section of the same statute, for the more effectual
prosecution of accessories after the fact to felony, enacts, * that
if any person shall become an accessory after the fact to any fe-
lony, whether the same be felony at common law, or by virtue
of any statute or statutes made or to be made, the offence of
such person may be in<]uired of, tried, determined, and pu-
nished by any Court which shall have jurisdiction to try the
principal felon, in the same manner as if the act, by reason
whereof such person shall haye become an accessory, had been
committed at the same place as the principal felony, although

(c) 1 Hale 623. 2 Hawk. c. 29. s. 45.
Post. 360.

(d) Fost. 362., where the doctrine is
reprobated ; and see 1 Hale 625., where
it is said that it was for this reason that
Weston, the principal actor in the mur-

der of Sir Thomas Overbury, conld not
for a long while be prevailed upon to
plead, that so the Earl and Countess of
Somerset, who were the morers and
procurers, might escape. 1 St. Tr« 314.

ADDENDA, &c. TO VOL. I.

111

sncb act may have been committed either on the bi?h seas or at jf offences be
anyplace on land, whether within his Majesty's dominions or committed in
without; and that in case the principal felony shall have been different coun-
committed within the body of any county, and the act by reason ties, accessory
whereof any person shall nave become accessory shall have been may ^e tried
committed within the body of any other county, the offence of i° either.
such accessory may be inquired of, tried, determined, and pu-
nished in either of such counties: provided always, that no per-
son who shall be once duly tried for any offence of being an ac- ^°^ ^"^^ o°^7«
ccssory, shall be liable to be again indicted or tried for the
same offence.*

" The eleventh s. of the same statute, in order that all accessories S. 11. Acces-
niay be convicted and punished in cases where the principal fe- ^^^V ^^V ^
Ion is not attainted, enacts, • that if any principal offender shall prosecuted af-
be in any wise convicted of any felony, it shall be lawful to pro- ^/ conviction
ceed against any accessory, either before or after the fact, in [i,o^^^h7he
the same manner as if such principal felon had been attainted prindpal be
thereof, notwithstanding such principal felon shall die or be ad- not attainted
niitted to the benefit of clergy, or pardoned, or otherwise deli- &c.
vered before attainder ; and every such accessory shall suffer
the same punishment, if he or she* be in any wise convicted, as
be or she should have suffered if the principal had been at-
tainted.*

** Where the proceedings are against the accessory only, the name Indictment
of the principal should be stated in the indictment if it is against accei-
known ; and where it was stated in an indictment against an ac- sories.
cessory to a felony, that the felony was committed by a person
to the jurors unknown, and it appeared that the principal felon
was a witness before the grand Jury, it was holden that the in-
dictment could not be supported.(e)

^* An indictment against an accessory should state that the princi-
pal committed the offence; and it is not sufficient merely to
state, that he was indicted for the offence, as the indictment is
only an accusation, and it does not follow that he really com-
mitted the offence, because he was indicted for it.(/)

Formerly, if a man had been indicted as accessory in the same A man may be
felony to several persons, he could not have been arraigned till arraigned as
all the principals were convicted and attainted : but it was after- accessory to
wards settled, that if a man were indicted as accessory to two or "^p^ ?^ ^^^
more, and the jury found him accessory to one, it was a good P"°cipals as
verdict, and judgment might pass upon him.(g) "« convicted.

If A. be indicted as principal, and B. as accessory, and both be Former ac-
acqiiitted, or if B. only be acquitted, yet B. may be indicted as quittal, when
principal in the same offence, and his former acquittal is no a bar to a fresh
bar.(A) But it is said, that if A. be indicted as principal and indictment.
acquitted, he cannot be afterwards indicted as accessory before
the fact.(i) If, however, a man be indicted as principal and ac-
<]nitted, he may be indicted as accessory after the fact; and so
if he be indicted as accessory btfore the fact and acquitted, he
may, it seems, be indicted as accessory after the fact.(it) The
late statute, as we have seen, 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 »ame offence. (tf^

«<

<«

(e) Res r. Walker, 3 Campb. 264. So
ia aa iadictment for larceny, though the
goods may be laid to be the property of
permmt nnknomn^ such an allegation is
improper if tbe owner be really known.
2 East. P. C. p. 651, 781. Post. Book
IV. Chap. On Larceny,

{/) Lord Sanchar's case, 9 Co. 117 a.

is) Fost. 361. 9 Co. 119. 1 Hale
624. 2 fiawk. P. C. c. 29. s. 46. Plowd.
9S,99. F(ifL36l.

W J Hale 625. Rex v. Winifred and

Tliomas Gordon, 1 Leach 515. S. C. 1
East. P. C. 35.

(0 1 Hale 626. 2 Hale 244. But
Mr. Justice Foster says, that he knows
not upon what grounds, as in considera-
tion of law the oifences of principal and
accessory are quite different. See Fost.
361, 362.

{k) 1 Hale 626.

(0 7 G. 4. c. 64.

8.9.

i. 1 0. ; and see also

A 2

IV

ADDENDA, &c. TO VOL. I.

Persons hav-
ing iraple-
itients Df
housebreak-
in?, &c. with
felonious in-
tent. And re-
puled thieves^

Other acts
criminal from
the intent.

Felonies not
capital, pun-
ishable under
the acts, if any
relatin(7 there-
to ; otherwise
under this act.

4 , dele, from the paragraph beginning; '* Where a person is feloniouslj
stricken,*' to the bottom and also the next page.

47, dele, the paragraph beginning, *' With respect to persons having imple-
ments," and insert as follows : — ** With respect to persons having
impleinenls for house-breaking, &c. in their possession with a
felonious intent^ the legislature has made some provisions. The
5 G. 4. c. 83. s. 4. enacts, ' That every person naving in his or
Her custody or possession any picklock key, crow, jack, bit,
or other implement, with intent feloniously to break into any
dweliing-house, warehouse, coach-house, stable, or out-build-
ing, or being armed wilh any gun, pistol, hanger, cutlass,
bludgeon, or other offensive weapon, or having upon him or
her any instrument with intent to commit any felonious act;
and every person being found in or upon any dwelling-house,
warehouse, coach house, stahle, or out-house, or in any in-
closed yard, garden, or area for any unlawful purpose, and every
suspected person or reputed thief frequenting places of public
resort and other places specified in the act with intent to commit
felony shall be deemed a rogue and vagabond within the intent
and meaning of that statute. And in some instances an act, ac-
companied with a certain iotent, has been made a felony by par-
ticular statutes; as by the 7 & 8 Geo. 4. c. 29. s. 38., the sever-
ing with intent to steal the ore of any metal, or any coal, &c.
from any mine, bed or vein thereof is made felony punishable as
simple larceny. And by the 7 & 8 G. 4. c. 30. s. 3., the damag-
ing certain articles in a course of manufacture, with intent to
to destroy them, and the entering certain places with intent to
commit such offence, is made felony punishable by transporta-
tion for life or imprisonment, &c.'

58, line 15, dele from the word *^ felony" to the end of the paragraph, and
then add, ** But clergy is not taken away, and the punishment
under this statute would have been formerly only a year's im-
prisonment by the general statute of 18 Eliz c. 7. s. 3. (m) That
statute is repealed by 7 & 8 G. 4. c. 27. but the statute 7 & 8 G. 4.
c. 28. s. 8. enacts, * that 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 conrt, to be transported
beyond the seas for the term of seven years, or to be imprisoned
for any term not exceeding two years ; and, if a male, to be
once, twice, or thrice publicly or privately whipped (if the court
shall so think fit), in addition to such imprisonment "

62, line 15, after the word accessories dele to the end of the paragraph and insert
'* But it was questioned whether if they were liable to transpor-
tation or to any other punishment than was authorised by the ge-
neral act of 18 Eliz. c. 7. s 3. If so they would now be punisha-
ble only under the general provision of 7 & 8 G. 4. c. 28. s. 8."

81, at the end of note (q) add '* But the statute 18 Eliz. is repealed by 7 & 8
G. 4. c. 29, See however the clause 7 & 8 G. 4. c. 28. s. 8. giving
a general punishment for felony."

101, note (e), after 22 & 23 Car. 2. c. 1 1. s. 9. add " repealed by 9 G. 4. c.
31."

106, note (p) after 1 Ed. 6. c. 12. s. 10. add '' now repealed by 9 G. 4. c.
31."

109, line 16, after 43 G. 3. c. 58. add ** now repealed.'*

note (*) after 1 G. 4. c. 90. s. 1. add " but is now repealed, new provi-
sions being substituted for it by 9 G. 4. c. 31."

no, line 10, after the word *' appoint" add " and the late act 7 G. 4. c. 38.
was passed to enable the commissioners for trying offences com-
mitted upon the sea and justices of the peace to take examina-

(m) Rex V. West, and others, 1 East. P. clergy the offenders might be imprisoned
C. c. 4. s. 11. p. 162. The Stat. ISElis. for any time not ezceediog a year.
•. 7. s. 3. provided that upon allowance of

ADDENDA, &c. TO TOL. I. y

tion touching such offences and to commit to safe custody per-
sons charged therewith.'*
Ittbe end of the page add, ** By 7 & 8 G. 4. c. 28. s. 12. all offences prose- Punishmentfl
secuted in the High Court of Admiralty of Biiglaud shall upon 7 & 8 G. 4. c!
every first and subsequent conviction he subject to the same pu- 28. s. 12.
nishments, whether of death or otherwise as if such offences had
been committed upon the land."
The statute 9 G. 4. c SI. s. 32. enacts ** that all indictable offences 9 G. 4. c. 31.
mentioned in this act which shall he committed within the juris- Provisioas for
diction of the Admiralty of England, shall be deemed to be of- offences
fences of the same nature, and liable to the same punishmenLs, *?»io8t 'l*j«
as if they had been committed upon the land in England, and *J^ committed
may he dealt with, enquired of, tried, and determined in the ^ ^^
same manner as any other offences committed within the juris-
diction of the Admiralty of England. Provided always, that Not to effect
nothing herein contained shall alter or affect any of the laws re- the laws rela-
lating to the government of his Majesty's land or naval forces." tingrto the
ItO, line 10, from the bottom after the word *^ same" insert ** By 7 G. 4. c. forces.
48. 8. 19. it is enacted ** that every intimation tetany smuggling
vessel or boat in whatever manner given shall be deemed to be a
signal within the meaning of the said act for the prevention of
smuggling and shall subject the person giving such intimatioa
to be detained and proceeded against as directed by the said
act."
Ill, after line 6 from the top add, ** By 7 G. 4. c. 48. s. 17. it is enact-
ed that no writ of certiorari shall issue from the King's
Bench to remove any proceeding before any justice or jus-
tices of the peace under any act for the prevention of smug-
gling, or relating to the revenue of the customs, nor shall any
writ of habeas corpus issue to bring up the body of any pet son
who shall have been convicted before any justice or justices of
the peace under amy such act, unless the party against whom
such proceeding shall have been directed or who shall have been
so convicted or his attorney or agent shall state in an affidavit
in writing, to be duly sworn, the grounds of objection to such
proceedings or conviction; and that upon the return to such
writ of certiorari or habeas corpus no objection shall be taken
or considered other than such as shall have been stated in such
affidavit; and that it shall be lawful for any justice or justices
of the peace, and they are hereby required to amend any in-
formation, conviction> or warrantof commitment for any offence
under any such act."
It7, line 15, after the word '* clergy (a)" insert *^ It should be observed that
so much of this statute as relates to any person who shall beat,
wound, or use any other violence to any person or driver, and
so much thereof as makes any second offence felony is repealed
by the recent act 9 G. 4» c. 31.
— note (a) at the end add, *' but these sections are repealed by 7 & 8 G. 4.

c. 27."
128, at the end of the chapter add '* So much of this statute as relates to any
person who shall beat, wound, or use any other violence to any
person or driver and so much thereof as makes a^y second of-
fence felony is repealed by the late act 9 G. 4. c. 31. but other
provisions are made for the puilishtiient of offences of this de-
scription.
The 86tb section enacts *' that if any person shall beat, wound, or 9 g. 4. c. 31.
use any other violence to any person, with intent to deter or bin- Assaults with
der him from selling or buying any wheat or other grain, flour, intent to ob-
meal, or malt, in anv market or other place, or shall beat, struct the
wound, or use any other violence to any person having the care buying: or sell-s
or charge of any wheat or other ^rain, flour, meal, or malt *°8 of grain,
whilst on its way to or from any city, market- town, or other °'' ®®

place, with intent to stop the conveyance of the same, every of^DifnishablV
Mich offender may be convicted thereof before two justices of ganfmarily be-
the peace, and imprisoned and kept to bard labour in the fore two ma-

giitratei.

y\ ADDENDA, &c. TO VOL. I.

common gaol or house of correction, for any term not exceed-
ing three calendar months $ prorided always that no person, who
shall be punished for any such offence, by virtue of this provi-
sion, shall be punished for the same offence by virtue of any
other law whatsoever/'

136, line 10, dele the whole of the paragraph and insert "It may be observed
that to take any reward for helping a person to stolen goods is
felony by 7 & 8 6. 4. c. 29. s. 58., and to advertise a reward for
the return of things stolen, incurs a forfeiture of fifty pounds
by the fifty-ninth section of the same act.** (n)

147, line 18, deie the first sentence of the paragraph, and insert " It is an of-
fence at common law to refuse to serve an office when duly
elected, (a) And the refusal of persons to execute ministerisLl
Dffices to which they are duly appointed and from the ezecutioQ
of which they have no proper ground of exemption seems in ge-
neral to be punishable by indictment*'

168, line S6, after '« 33 H. S. c. S3." msert '« repealed by 9 6. 4. c. 31."

187, line 7, after *' 4 Ed. I. st 3. c. 6." insert ** now repealed by 9 G. 4. c. 31."
note (6) after *' 18 Bdw. 3. st 3. c. 2.," add " now repealed by 9 G. 4.

c. 31." and after *' 1 £d. 6. c. 18. s. 16." add '' also repealed by
the same act of 9 G. 4. c. 31. "

188, line 15, dele the words, " In the construction of this statute," and insert

as follows: ''The provisions of this statute were in several
respects defective. A person whose consort had been abroad
for seven years, though known to be living, might have married
again with impunity. And so might a person who was only
9 G. 4. c. 31. divorced a metua ei ihoro. The recent statute, 9 Geo. 4. c. 31.,

8. 22. therefore repeals the statute of James, and by s. 88. enacts.

Bigamy. ' that if any person, being married, shall marry any other per-

son during tne life of the former husband or wife, whether the
second marria^ shall have taken place in England or elsewhere,
every such oflSnder, and every person counselling, aiding, or
abetting such offender, shall be guilty of felony, and being con-
victed thereof, shall be liable to be transported beyond the seas
for the term of seven years, or to be imurisoned, with or with-
out hard labour, in the common gaol or house of correction, for
any term not exceeding two years ; and any such offence may
be dealt with, inquired of, tried, determined, and punished io
the county where the offender shall be apprehended, or be in
custody, as if the off*ence had been actually committed in that
Exceptioni. countv; provided always, that nothing herein contained shall

extend to any second marriage contracted out of England by
any other than a subject of Sis Majesty, or to any person mar-
rving a second time whose husband or wife shall have been con-
tmually 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, or shall extend to any person who at
the time of such second marriage shall have been divorced from
the bond of the first marriage, or to any person whose former
marriage shall have been declared void by the sentence of any
Court of comnetent jurisdiction.' The statute of James is how-
ever still in force with respect to offences committed before or
upon the last day of June, 1888. In the constniction of this
statute of James."
808, at the end of the chapter add — *' This statute is however repealed by the
9 Gnbo. 4. c. 31. except as to offlences committed before or on the
last day of June, 1888, and the enactment of the new statute as
to punishment is, (as we have seen,) that the ofender shall be
liable to be transported beyond the seas for the term of seven
years, or to be imprisoned, with or without hard labour, in the
common gaol or house of correction, for any term not exceed-
ing two years."

(n) See this statate more at large post, (o) Rex v, Bower^ 1 B & C. 587.

Book IV. Chap. XXVIII.

ADDENDA, ka. TO VOL. I. vii

242, line 13, After *' 2 & S Ph. & M. c. 10." add '* both now repealed bj 7 Gto.

4. c. 64. s. ss;'

S3], tioe 3, dele to the end of the page, and the three first lines in the next
page, and then insert — *' The I Geo. I. st. «. c. 5. s. 4. was re-
pealed by 7 & 8 Geo. 4. r. 27., but the statute 7 & 8 Geo. 4. c. 7 & g Geo. 4.
SO. s. 8 . enacts, ' that if any persons, riotously and tumultuously c. 30. s. 8.
assembled together to the disturbance of the public peace, shall Rioters demo-
onlawfully and with force demolish, pull down, or destroy, or lishing, &c. a
begin to demolish, pull down, or destroy, anj church or chapel, church, cha-
or any chapel for the religious worship or persons dissenting pel, house, or
from the united church of England and Ireland, duly registered certain build-
er recorded, or any house, stable, coach-house, out-house, ioBf>>?''*oy
warehouse, office, shop, mill, malt-house, hop oast, barn, or era- ?I!^ Jl°*^«"
Dary, or any building or erection used in carrying on any trade ^^ ^^ mine.
or manufacture, or any branch thereof, or any machinery, whe-
ther fixed or moveable, prepared for or employed in any manu-
facture, or in any branch thereof, or any steam engine, or other
engine for sinking, draining, or working any mine, or any staitb,
building, or erection used in conducting the business of any
mine, or any bridge, waggon-way, or trunk for conveying
niinerais from any mine, every such oSender shall be guilty of
felony, and, being convicted thereof, shall suflfer death as a
felon.' "

251, note (I)— The statutes mentioned in this note are repealed by 7 & 8 Geo.
4. c 87. but ibe statute 7 & 8 Geo. 4. c. SI. consolidates and
amends the laws relative to remedies against the hundred. See
the statute in the Addenda to Vol. H.

S52, dele from the paraoraph beginning ** The 52 Geo. S. c. ISO." to the bottom,
and also tne following page to the words, ** without benefit of

clergy.(yr
259, note (c) dele ^' 41 Geo. S. c. 94." to the end of the note, and insert '* 7 & 8

Geo. 4. c. SI.*'
953, dele the note (x).
976, dele the paragraph beginning with the words '* With respect to challenges

given on account of money won at play."
976, Ale from the paragraph beginning " By the second section," to the bottom,

and also the following page, to the words ** within the meaning

ofthesUtute.(A)"

979, dele the notes.

980, line 7 from the bottom, dele the paragraph beginning ** The arrest of a

clergyman," and insert, '* By the recent statute 9 Geo. 4. c SI. 9 G. 4. c.31.
s. 9S. * if any person shall arrest any clergyman upon anv civil s. 23.
process while ne shall be performing divine service, or shall with Arresting a
the knowledge of such person lie going to perform the same, or clergyman en-
returning from the performance thereof, every such offender g*8^*^d m di-
ahall be «:uilly of a misdemeanor, and being convicted thereof, '^^^ service,
shall sufii^r such punishment by fine or imprisonment, or both, as
the Court shall award.* "

995, note (b) at the end add—*' And in Duncan v, Thwaites, S B. & C. 584.
Abbott, C. J., says, *1 take it to be a general rule, that a party
who sustains a special and particular injury by an act which is
nntawful, on the ground of public injury, may maintain an ac-
tion for his own special injury.' And see Rose and others v.
Miles, 4M. & S. 101.**

301, line 9S, add — ''And see 58 Geo. S. c 70. s. 7. and 9 Burn. Just. p. 661.**

S17, note (/) at the end, add — " And if the tenant of the land plough the soil,
over which another has a way, this is a nuisance to the way, for
it is not so easy to him as it was before. 9 H. 4. II Vin. Abr.
Nuisance (G).**

548, line 13 from the bottom, add — " By the S Geo. 4. c. 196. s. 107. reciting
that many bridges on turnpike roads are by prescription liable to
be repaired by certain parishes, and not by the county or coun-
ties in which they are situated, and which bridges, from change
of times and circumstances, are become no longer sufficiently
convenient fox the use of the public, without being enlarged or

Viii ADDENDA, &c, TO VOL. I.

otherwise improved, it is enacted that it shall be lawful for
any such county or counties, parish or parishes, respectiyely
to enter into a composition or agreement with each other, and
by the authority of those persons who shall be legally competent
to make rates tor such county and parish respectively, whereby
the improvement and future repair of any such briclge shall be
undertaken, and lie upon the county or counties in which such
bridge is locally situated, and that all rates made for carrying
into effect any such composition, agreement, repairs, or improve-
ment, shall be made and assessed in the same manner as other
the rates of such county or parish respectively, and sbnll be
good and valid to all intents and purposes in the law whatso-
ever."

353, note (a) at the end add — *' But thongh their obligation is only to this ex-
tent, see as to the power to widen by an order at sessions, 43 G.
3. c. 69. s. 8. ante 348.**

375, line 8, dele from the words, ** The 1 Rich. 3. c. 3." to the end of the para-
graph.

386, dele from the paragraph beginning '* By the 9 Geo. 1. c. 29." to the bot-
tom, and also the following page, to the words " without benefit
of clergy," inclusive.

408, line 16 from tne bottom, after the word ''statute," add *' now re-*
pealed."(p)

485, dele from the top to the end of the paragraph.

, dele note (d).

429, line 14 from the bottom, dele the words *' which again makes the offence
wilful murder, and takes away clergy.*'

, note (*) dele "48 Geo. 3. c. 68. s. 1." and insert " 9 Geo. 4. c. 31."

433, dele the paragraph beginning '* Clergy is taken away in all cases of mn^-
9 0. 3. c. 31 . der," and insert '* By the statute 9 Geo. 4. c. 3 1 . s. 3. every perston
a. 3. Punish- convicted of murder, or of being an accessory before the fact to
ment of pria- murder, shall suffer death as a felon: and every accessory afler
cipals and ac* the fact to murder shall be liable, at the discretion of the Court,
cessories m to be transported beyond the seas for life, or to be imprisoned,
murder. ^iih or without hard labour, in the common gaol or house of

correction, for any term not exceeding four years.**

434, dele the note (k).

Place of triaL 468, line 15, after the words, **In either county (g),** dele to the end of the

paragraph, and insert * but by the statute 2 & 3 Edw. 6. c. 84. s«
8. (A), it was enacted, ''That the trial should be in the county
where the death happens. That statute is, however, repealed
by 7 Geo. 4. c. 64., the twelfth section of which enacts, in gene-
ral terms, that where any felony or misdemeanor shall be com-
mitted on the boundary or boundaries of two or more counties,
or within the distance of five hundred yards of any such boundary
or boundaries, 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. The ninth section of this statute
also enacts as to the trial of accessories before the fact, that in
case the principal felony shall have been committed within the
body of any county, and the offence of counselling, &c. shall
• have been committed within the body of any other county, the

last mentioned offence may be inquired of, tried, &c. in either
of such counties. So with respect to the trial of accessories after
the fact, the tenth section enacts, where the principal felony,
and the act by which the party liecame accessory have been com-
mitted in diflierent coonties, the trial may be had in either."

463, line 88, dele the sentence beginning with the words, "With respect to ac-

cessories to felonies," to Uie end of the paragraph.

464, in the margin opposite line 1 1, erase " after examination oeforethe King*s

0) Repealed by 7 Geo. 4. c. 64, s. 32.

ADDENDA, &c. TO VOt. I. ix

council/* and insert, *' where the murder or nuuislaughter is com-
mitled.**
464, line 22, dele the sentence beginning <* This statute did not extend,** to the
end of the paragraph, and insert, " But this statute is repealed
by 9 Geo. 4. c. SI., which Aubslitutes other provisions."' The Britiahsob*
seventh section enacts, **That if any of his Majesty's subjects jects may be
shall be charged in England with any murder or manslaughter, tried in Eag-
or with being accessory before the fact to any murder, or after land for mur-
the fact to any murder, or manslaughter, the same being re- ^^^ **f "**'*"
spectively committed on land out of the United Kingdom, «la«ghtcrcom-
whelher within the King's dominions or without, it shall be """^*^ '*^~"'-
lawful for any Justice of the peace of the county or place where
the person so charged shall be, to take cognizance of the offence
so charged, and to proceed therein as if the same had been com-
mitted within the limits of his ordinary jurisdiction; and if
any person so charged shall be committed for trial, or admitted
to bail to answer such charge, a commission of oyer and ter-
miner under the great seal, shall be directed to such persons,
and into such county or place as shall be appointed by the
Lord Chancellor, or Lord Keeper, or Lords Commissioners of
the great seal, for the speedy trial of any such offender; and
sach persons shall have full powers to enquire of, hear, and de-
termine all such offences, within the count? or place limited in
their commission, by such good and lawful men of the said
county or place, as shall be returned before them for that pur-
pose, in the same manner as if the offences had actually been
conimitted in the said county or place; provided always, that Prorifo.
if any peers of the realm, or persons entitled to the privilege
of peerage, shall be indicted of any such offences, by virtue of
any commission to be granted as aforesaid, they shall be tried
by their peers in the manner heretofore used : provided also,
that nothing herein contained shall prevent any person from
being tried in any place out of this kingdom, for any murder
or manslaughter committed out of this kingdom, in the same
manner as such person might have been tried before the passing
of this act.*'
iThe eighth section enacts, " that where any person being feloniously Proyision for
stricken, poisoned, or otherwise hurt upon the sea, or at any the trial of

Elace out of England, shall die of such stroke, poisoning, or murder and
urt in England, or being feloniously stricken, poisoned, or manslaughter,
otherwise hurt at any place in England, shall die of such stroke, T^^^f ^^

manslaughter, or of being accessary before the fact to murder
or after the fact to murder or manslaughter may be dealt with,
enquired of, tried, determined and punished in the county or
place in England, in which such death, stroke, poisoning, or
nurt, shall happen, in the same manner, in all re<tpects, as if
such offence had been wholly committed in that county or
place.**
464, line 30, dele '* this,** and insert " the repealed.** And in the same line,
instead of ** is,** read " was."

464, last line, instead of ** But a British subject is indictable under the 33 H. 8.**

read " But it was holden that a British subject was indictable
andet that statute.*'
461, notes (q) and (r) dele.

465, line 2, after the word •* And,** read '* it was also holden that*'

466, dele from the paragraph beginning with the words *' Where a person was

struck, &c.** to the end of the page, and also the four first lines
in the next page.
466, line 10, at the end of the paratrraph, insert " The statute 9 Geo. 4. c. 31 . Provision for
s. 38. enacts, * That all indictable offences mentioned in this act, offencesagainit
which shall be committed within the jurisdiction of the Admiralty this act com-
of England, diall be deemed to be offences of the same nature, milted at sea.
and liable to the same punishmenlSy as if they had been com-

ADDENDA, &c. TO VOL. I.

Not to affect
the laws re-
lating to the
forces.

A woman con^
cealing the
birth of her
child. See
Cornwall s
case, R. & R.
336.

4 6. 4. c. 31.

8.4.

Period of exe-
cution, and
marks of in-
famy.

Sentence to be

pronounced

immediately.

Power to re-
spite.

S. 5. As to
the dissection
of the bodies
ofmurderers.

S. 6. Prison
regulatioos as

nitted upon tbe land in Ei|^uid, and may be dealt with, en-
quired of, tried, and determined io the same manner as any
other ofiences committed within the jurisdiction of the Admiralty
of England: provided always, that nothing herein contained,
shall alter or afffct any of the laws relating to the goveroroent
of his Majesty *s land. or naval forces."

470, note (0 at the end, add ** This statute is now repealed by 7 Geo. 4. c. 64.
s. 3«.

470, note (u) at the end, add "This statute is now repealed by 9 Geo. 4. c. 31.

474, line 3, from the bottom, dele the words, "And ny the 43 Geo. 3." and to

the end of the paragraph.

475, at tbe end of tbe page, add, "This provision, as it could only be acted

upon where tbe party was charged with tbe crime of murder by
tbe indictment, was open to niucb objection, and has been re-
pealed by tbe recent statute 9 Geo. 4. c. SI. s. 14. which enacts,
that tf any woman shall be delivered of a child, and shall by
secret burying or otherwise disposing of tbe dead body of the
said child, endeavour to conceal the birth thereof, every such
offender shall be guilty of a misdemeanor, and being convicted
thereof, shall be liable to be imprisoned, with or without hard
labour, in the common gaol, or bouse of correction, for any
term, not exceeding two years; and it shall not be necessary to
prove whether the child died before, at, or after its birth; pro-
vided always, that if any woman tried for tbe murder of her
cbild, shall be acquitted thereof, it shall be lawful for the jury,
by whose verdict she shall be acquitted, to find in case it shall
so appear in evidence, that she was delivered of a child, and
that she did by secret burying, or otherwise disposing of the
dead body of such child, endeavour to conceal the birth thereof,
and tbereupon the Court may pass such sentence as if she had
been convicted upon an indictment for tbe concealment of the
birth."

476, line 9, after the words, " so upon the,** insert "repealed statute.'*

476, line 11, instead of the words, " will be,'* insert *^ would have been.**

477, dele tbe last paraprapb of the siztb section.

477, dele tbe first paragraph to tbe 7tb section, and insert " The judgment
and mode of execution in cases of murder, is now regulated by
the statute 9 Geo. 4. c. 31., which repealed the provisions upon
that subject in the former statute 25 Geo. S. c. 37. Tbe fourth
section enacts, * tbat every person convicted of murder shall be
executed according to law, on the day next but one after that
on which the sentence shall be passed, unless the same shall hap-
pen to be Sunday, and in that case, on the Monday following ;
and the body of every murderer shall, after execution, either
be dissected or bung in chains, as to tbe Court shall seem meet;
and sentence shall be pronounced immediately after tbe convic-
tion of every murderer, unless tbe Court shall see reasonable
cause for postponing the same ; and such sentence shall express
not only the usual judgment of death, but also the time hereby
appointed for the execution thereof, and that the body of the
offender shall be dissected or bnn^ in chains, whichsoever of
the two tbe Court shall order : provided always, that after such
sentence shall have been pronounced, it shall be lawful for the
Court or Judge to stay the execution thereof, if such Court or
Judge shall so think fit*
'* Tbe fifth section enacts, * tbat whenever dissection shall be or-
dered by such sentence, the body of the murderer, if executed
in tbe county of Middlesex or city of London, shall be imme-
diately conveyed bv the sheriff* or sheriffs, or bis or their offi-
cers, to the hall ot tbe surgeon's company, or to such other
place as the said company shall appoint, and shall be delivered
to such person as the said company shall appoint, for the pur-
pose of being dissected ; and the body of the murderer, if exe-
cuted elsewhere, shall in like manner be delivered to such sur-
geon as the Court or Judge shall direct, for the same purpose.*
*^ Tbe siitb section enacts, ' tbat every person conTicted or mor-

/

ADDENDA, &c. TO VOL. L xi

der shall, after judgmait, be confined in some safe pkce within to murderexa
the prison, apart from all other prisoners, and tball be fed with under sen-
bread and water only, and with no other food or liquor, except tence.
in case of receiving the sacrament, or in case of any sickness or
wound, in which case the surgeon of the prison may order other
necessaries to he administered $ and no person but the gaoler
and his servants, and the chaplain and surgeon of the prison,
shall have access to any such convict, without the permission, in
writing, of the Court or Judge before whom such convict shall
have been tried, or of the sheriff or his deputv : provided al-
ways, thai in case the Court or Judge shall think nt to respite
the execution of snch convict, such Court or Judge may, by a
licence in writing, relax, during the period of the respite, all
or any of the restraints or regulations hereinbefore directed
to be observed.' **

481, at the commencement of Chapter the second, after the words '^ petit

treason " iniert " The sUtute 9 Geo. 4. c. 31. s. 2. enacU, * that Petit treason
every offence, which before the commencement of this act ^^ ^^ treated.
would have amounted to petit treason, shall be deemed to be
murder only, and no greater offence ; and all persons guilty in
respect thereof, whether as principals or as accessories, shall be
dealt with, indicted, tried, and punished as principals and acces-
sories in murder.' "

485, line 8, after the word ** lenient," dele to the end of the paragraph.

490, dtle the whole of Section 11. to page 405.

50S, note (z), at the end add— «* And in Ex parte Keans, 1 B. & C. 261., Ab-
bott, C. J., says, ' it is lawful lor any person to take into cus-
tody a roan charged with felony, ana keep him until he can be
taken before a magistrate.' "

SM, lise 5, dele the words «* By the 10 Geo. 9. c. 31." and to the end of the
paragraph, and insert " By the 7 & 8 Geo. 4. c. Ixxv. (local and
personal) s. 38., in case any greater number of persons or pas-
sengers shall be taken or carried in anv such wherry, boat, or
other vessel (mentioned in the act) on tne river Thames, (within
ihe limits there mentioned,) than are respectively allowed to be
carried therein, and any one or more of them shall by reason
thereof be drowned, every person or persons who shall work or
navigate such wherry, &c. offending therein, and being con-
victed, shall be deemed guilty of misdemeanor, and shall be
liable to punishment, as in cases of misdemeanor, at the discre-
tion of tne Court, and shall also be disfranchised, and not al-
lowed to work or navigate any wherry, &c., or to enjoy any of
the privileges of a freeman of the company of watermen, &c. on
the river Thames."

536, dele the whole of the paragraph beginning with the words " The of-

fence of manslaughter is felony within the benefit of clergy,"
to the end of the next page.
note (d), dele the words ** It has been observed that this may," and in-
sert ^ It was observed upon a former statute, 10 Geo. 2. c. 31.,
containing a more severe punishiaent for an offence of this kind
that it might."

537, at the end of the page, add-^'^ The recent statute 9 Geo, 4. c. 31. s. 9. Punishme&tof

eifacts, * tlut every person convicted of manslaughter shall be maiMlaugliter.

liable, at the discretion of the Court, to be transported beyond

the seas for life, or for anv term not less than seven years, or to

he imprisoned with or without hard labour, in the common gaol

or house of correction, for any terra not exceeding four years,

or to pay such fine as the Court shall awapd.' "

538, after line 7 from the hcitAom, Misert — ** The statute 9 Geo. 4. c. 31. s. 10.

coacts, * that no Bonishnient or forfeiture shall be incurred by

may person who shall kill another hy misfortune, or in his own

defence, or in any other manner, wiilioat felonv.' '^
55S, fine 6, deie «• his lately been passed by which," and iiwnrt " 43 Geo. 3.

c. 58. nada' "
, Ikie e> 4M^ the vrards <* are nade."*

Xll

ADDENDA^ kc. TO VOL. L

9 6.4. c. 31.

•.43.

Administering
poison or
using any
means to pro-
cure the mis-
carriage of a
woman quick
with the child.
The like as to
a woman not
quick with
chUd.

9G.4. C.31.
8. 18.

What shall be
deemed suffi
cient proof of
carnal know-
ledge in Tape>
&c.

The carnal
knowledge of
a child under
ten years old
made felony
withont cler-

56S, after line 8, dele the next paragraph, beginning ** Tbe 4S Geo. 3. c. 58.**
and insert '* That statute is repealed by 9 Geo. 4. c. 31. But
this latter statute contains certain provisions upon the same sub-
ject.
*' The thirteenth section enacts, * that if any person, with intent to
procure the miscarriage of any woman then being quick with
child, unlawfully and maliciously shall administer to her, or
cause to be taken by her, any poison or other noxious thing,
or shall use any instrument or other means whatever, with the
like intent, every such offender, and every person counselling,
aiding, or ahetting such offender, shall be guiUy of felony, and
being convicted thereof, shall suffer death as a relon ; and if any
person, with intent to procure the miscarriage of an;f woman
not being, or not being proved to be, then quick with child, un-
lawfully and maliciously shall administer to her, or cause to be
taken by her, any medicine or other thing, or shall use any
instrument or other means whatever, with the like intent, every
such offender, and every person counselling, aiding, or abetting
such offender shall be guilty of felony, and being convicted
thereof, shall be liable, at the discretion of the Court, to be
transported beyond the seas for any term not exceeding fourteen
years, nor less than seven years, or to be imprisoned, with or
without hard labour, in the common gaol or house of correc-
tion, for any term not exceeding three years, and if a male, to^
be once, twice, or thrice publicly or privately whipped (if the
Court shall so think fit), in addition to such imprisonment' *'

559, line 9 from the bottom, dele ^^ on this section of the statute," and insert
" upon tbe repealed statute 43 Geo. 3. c. 68., which like the
present enactment, made a distinction in the punishment of the
offence, where the woman was quick with child, it appeared
that"

554, dele the whole of the paragraph, beginning with the words ** The se-
cond section of^the statute recites."

, line 16 from the bottom, dele the words *' this section of the statute,*'

and add ** the same repealed statute."

556, in the margin opposite line 4, erase ** by 18 Eliz. c. 7. s. 1.**

, line 3 from the bottom, after the word •' clergy " insert " But these

statutes are repealed by the late act 9 Geo. 4. c. 31. s. 16., which
enacts upon this suhject, * that every person convicted of the
crime of rape shall suffer death as a felon.* "

557, line 7, dele the words " have their clergy ,(e)" and insert •• are not sub-

ject to capital punishment."

, line 14 from the bottom, at the end of the paragraph, add *< And

though that statute is repealed, the late act 9 Geo. 4. c. 31. s.
19, SO. makes certain provisions against the forcible or unlawful
abduction of females, which will he mentioned in a subsequent
Chapter."

558, line 7, after the words ** very different opinions have been hol4en,(p)**

dele the remainder of the page, and also pages 559, 560, and
561, to the end of line 18, and insert *' But the recent statute
9 Geo. 4. c. 31. s. 18., reciting, that upon trials for the crimes of
buggery and rape, and of carnally abusing girls under the re^
spective ages thereinbefore mentioned, offenders frequentlv es-
caped by reason of the difficulty of the proof which has been
required of the completion of those several crimes, for remedy
thereof, enacts, * that it shall not be necessary in any of those
cases to prove the actual emission of seed in order to constitute
a carnal knowledge, but that the carnal knowledge shall be
deemed complete upon proof of penetration only.* "
564, sect* !i, dele from the beginnmg of the section to the bottom of the page
and insert ** In rape as we have seen the carnal knowledge must
be against the will of the party : but by the fourth section of
the statute 18 Eliz. c. 7. now repealed carnat knowledge of any
woman child, under the age of ten years was made felony with-
out benefit of clergy, ana this without any reference to the con-

ADDENDA, &c. TO VOL- 1. xiii

sent or non-coiisent of the child, ivhich was therefore considered gy, by 18 Eliz.
as immaterial. The statute enacted * that if auy person should c. 7. now re-
unlawfully and carnally know and abase any woman child under pealed,
the a^e of ten years, every such unlawful and carnal knowledge
should be felony ; and Ine offender, thereof betnj; duly con-
"victed, should suffer as a felon without allowance of clergy.
II appears at one time to have been thought, th^it the carnal know- ij^q carnal
ledge of a child above the age of ten and under twelve years was knowledi^e of
rape, though she consented ; twelve years being the age of con- a child above
sent in a female, and the statute Westro. I. c. 13., which enacted, ten and under
* that none do ravish any maiden within age^ neither by her own twelve years
consent nor without," bein^ admitted to refer, by the words <**? made a
•' within age," to the age ot twelve years, (fi) It was, however, misdemeanor
afterwards well established, that if the child was above ten years ?X "^^^' .
old it was not a felonious rape, unless it was against her will j c'lTlio '
and consent, (r) But children above that age, and under twelve repealed,
were still within the protection of the stat. of Westm. I. c. IS.,
the law with respect to the carnal knowledge of such children
not having been altered by either of the subsequent statutes of
Westro. 2. c. 84. or 18 Bliz. c. 7. («) The statute Westro. I. c. 13.
made the deflowering a child above ten years old and under
twelve, though with her own consent, a misdemeanor punisha-
able by two yearns imprisonment and fine at the king's plea-
sure." U)
These statutes having been repealed by 9 G. 4. c. 31. the 17th sec- 9 g.4. c.31.
tion of that act sunstitntes the following provisions and enacts g. 17. Carnal
' that if any person shall unlawfully and carnally know and knowledge of
abuse any girl under the age of ten years, everv such offender a girl under
shall be guilty of felony, and being convicted thereof, shall ten the like of
suffer death as a felon ( and if any person shall unlawfully a girl above
and carnally know and abuse any girl, being above the age of ^°^°d below
ten years and under the age of twelve vears, every such offender *^**^**
shall be guilty of a misdemeanor, and being convicted thereof,
shall be liable to be imprisoned with or without hard labour, in
the common gaol or house of correction for such term as the
court shall award."

565, line 8 at the end add " These observations will apply to the present enact-
ment."

567, line 7 and also in the margin insert " 25 H. 8." instead of" 87 H. 8."

567, line 4 from the bottom afler ** clergy (b)" add '' The statute 9 6. 4. c.
31, s. 15. repeal this act but enacts * that every person convicted
of the abominable crime of buggery, committed either with
mankind or with any animal, shaifsuffer death as a felon."

note (b) line 13 instead of ** is revived*, read *^ was revived" and lines

14, 16, instead of '* stands at this day absolutely" read '* after
the passing of that statute was" and at the end of the note add
** But the 6 Eliz c. 17. is now repealed by 9 G. 4. c. 31.

570, line 3, dele the whole of the paragraph beginning ^ The forcible abduc-
tion and unlawful taking," and insert " The forcible abduction
. of a woman from motives of lucre is an offence of the degree of
felony by 9 6. 4. c. 31. s. 19. which repeals several former sta-
tutes upon this snbject. It enacts that where any woman shall Forcible ab*
have any interest, whether legal or equitable, present or fu- duction, ofa
ture, absolute, conditional, or contingent, in any real or per- woman on ac-
sonal estate, or shall bean heiress presumptive or next of kin count of her
to any one having such interest, it any person shall from mo- fortune with
tives of lucre, take away or detain such woman against her will, i«itent to mar-
vrith intent to marry or defile her, or to cause her to be mar- ryher, «c.
ried or defiled by anj other person, every such offender, and
every person counselhng, aiding, or abetting, such offender, shall
be guilty of felony, and being convicted thereof, shall be liable

(f) 1 Hale 631. 2 Inst. 180. 3 lost. 60. (f) Ante 556.

\t) San. 112. 4 Blac. Com. 212. 1 (0 4Blac. Com. 212. 1 East P. C. c.

'. C. e. 10. s. 2. p. 436. 10. s. 9. p. 436

xiv ADDENDA, &c. TO VOL I.

to be transported beyond the seas for life, or for any term not
less than seven years, or to be imprisoned, with or without hard
labour, in the common gaol or house of correction, for any term
not exceed in{^ four yeans."

570, line 6, instead of ** The statute 3 Hen. 7.*' insert ** The repealed statute

8 H. 7."

in the margin opposite line 6, erase " makes the forcible taking away of

subslance a felony/'

— line 26, dele the paragraph, beginning '* Clergy was taken away/' and
insert " Clergy was taken away from pentons found ffuilty of
offences against this statute by the 39 Eliz. c. 9., but a later sta-
tute 1 Geo. 4. c. 115. repealed this enactment of 39 Eliz. c. 9.,
and made the offence punishable by transportation or imprison-
ment. This statute I G. 4. c. 115. is repealed by 9 G. 4. c. 31.
Some of the points decided upon the repealed statutes may still
be worthy of observation. "

571, line 26, dele^ the sentence beginning with the words '* The taking alone"

and also the following sentence add the words " And a mar-
riage will he sufficient," and insert *' The taking alone did not
constitute the offence under the repealed statute and it was ne-
cessary that the woman taken away should have been married or
defiled by the misdoer, or by some others with his consent. But
the new enactment makes the taking away or detaining a wo-
man with intent to marry or defile her a complete offence. And
under the repealed statute it was decided that if the woman
were under torce at the time of taking, it was not at all ma-
terial whether she were ultimately married or defiled with her
her own consent or noti on the ground that an offender shoald
not be considered as exempted from the provisions of the sta-
tute, by having prevailed over the weakness of a woman, whom
he got into his power by such base means. And it was also de-
cided that a marriage will be sufllicient.".
Of the connty ^^^> ^'^ ^^ paragraph beginning ** If however a woman" to the bottom of
in which the ^^^ f^S^t ^^^ ^^^^ pages 573, 574, 575, 576, and 577, to the end

offence shall of Ime 16, and insert *" Upon the same repealed statute where a

be said to woman was taken away forcibly in one county, and afterwards

have been went voluntarily into another county, and was there married or

committed. defiled, with her own consent, it was holden that 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 con-
tinuing force in that county, the offender might be indicted
there; though the marriage or defilement ultimately took place
with the woman's own consent. (J) The enactment of the
. late statute 7 G. 4. c. 64. s. 12. would have applied to this ob-
jection.
Necessary *' It was resolved, that an indictment for this offence upon the re-

statement in pealed statute ought expressly to set forth that the woman taken

the indict- away had lands or goods, or was heir apparent, and that the tak-

^^^^* ing was against her will ; and that it was for lucre ; and also that

she was married or defiled ; such statement being necessary to
bring a case within tlie preamble of that statute, to which the
enacting clause clearly referred in speaking of persons taking
away a woman ^' so against her will "(/) But it was said not to
have been necessary to state in the indictment, the taking was
with an intention to marry or defile the party, because the words
of the statute did not require such an intention, nor did the want
of it any way lessen the injury, (m) In an indictment where the

a) Talwood'i case Cro. Car. 485, 468. (/) 1 Hawk. P. C. c. 41. s. 4. 1 Hale

1 Hale 660. 1 Hawk. P. C. c. 41. s. 9. 1 460. 4 Blac. Com. 2. 12. Co. 21, 100.

East. P. C. c. 11. a. 3. p. 455. Rex ▼. (m) Rex v. Fulwood, Cro. Car. 488.

Lockhart and Lovdon Gordon, Cor. ante 570. 571. It is said, however in 1

Lawrence J. Oxford Lent ais. 1804. Hale 660. that the words e& iHtentim$e ad

ADDENDA, &c. TO VOL. I.

XT

recent enactineDt of 9 G. 4. c. SI. the allegation as to the intent
'will be necessary.
It appears to have been considered as clear that a woman taken Of the evi-
away and married might be a witness against the offender if the dence of the
force were continuing unon her till the marriage ; and that she woman when
naight herself prove sucn contiouinz force : («) for though the **JS^*° away
offender was her husband de facto, he was no husband i^^jiirf, »"»« "darned.
in case the marriage was actually against her will, (o) It seems
however, to have been questioned, how far the evidence of the
iDYei^led woman would be allowed, in cases where the actual
marriage was good by her- consent having been obtained after
forcible abduction. ( p) But other authorities appear to agree,
that it should be admitted, even in that case; esteeming it ab-
surd that the offender should thus take advantage of his own
wrong, and that the very act of marriage, which was a princi-
pal ingredient of his crime, should (by a forced construction of
Jaw) be made use of to stop the mouth of the most material
witness against him. (9) Ana where the marriage was against the
will of the woman at the time, there does not seem to be any
good ground upon which her competency could have been ob-
jected to, though she might have given her subsequent assent, (r)
It also appears to have been ruled upon debate, in a modern
<»se, that a wife was a competent witness for, as well as against
her husband ; on the trial of an indictment for this offence, al-
though she had cohabited with him from the day of her mar-
riage. (<)
** The unlawful abduction of a girl under the age of sixteen from 9 G* ^-c. 31.
her parents, or persons having the charge of her, is an offence of >• 2^*
the degree of misdemeanor bv 9 Geo. 4. c. 31. 8.80. which Unla^^fiilab-
enacts, ' that if any person shall unlawfully take, or cause to be °."^^!,^'^ °^^
taken, any unmarried girl, being under the age of sixteen years, pare/ig"^ ^^
out of the possession, and against the will of her father or mo- gm^r^ians.
iher, or of any other person having the lawful care or charge of
her, every such offenaer shall be guilty of a misdemeanor, and,
being convicted thereof, shall be liable to suffer such punish*
nient, by fine or imprisonmenty or by both, as the Court shall
award.*
** The provisions of the repealed statute, 4 & 5 Ph. & M. c. 8. and Repealed sta-
the construction upon some parts of it, may still be worthy of tate of 4 & 5
observation.** Ph. & M. c. 8.

579, deU the whole of the paragraph beginning with the words, '' Though the
statute only gives authority to the star chamber," and also the
whole of the next paragraph, to the word ** temptation.**

563, line 16 from the bottom, dele '* It enacts that in case any master of a

merchant ship,** and to the end of the page, and insert, ** But it 9 O. 4. c. 31.
is repealed by the recent statute, 9 Geo. 4. c. 31. and s. 30. of s- 30.
that stitute enacts, * if any master of a merchant vessel shall. Punishment
during his being abroad, force any man on shore, or wilfully f°^ *^® inaater
leave him behind in any of bis Majesty's colonies, or elsewhere, **' * mcrcliant
or shall refuse to bring nome with him again all such of the men ^®**^* torcing

who married ber for any considerable
time, her examination in evidence might
have hetvk more questionable.

(q) 4 Blac. Com: 209.

(r) 1 East, P. C. c. U. s. 5. p. 454.

{») Perry'9 case, Bristol, 1794. 1 Hawk.
P. C. c.41. 8. 13. and in 1 East. P. C. c.
11.8. 5. p. 455. the learned author says
** I conceive it to be now settled, that in
'' all cases of personal iojaries committed
'* by the husband or wife against each
*^ other the injured party is an admissible
" witness against the other." And see
post, Book on evidence.

iftmm mmitandam were usually added in
iadictmeota upon this statute and that it
was aafipsi so to do,

[n) Fnlwood's case Cro. Car. 488.
Brown's case 1 Ventr. 243. Swendscn's
case, 5SLTri. 456.

Co) 1 Hale r>60, 961, 4 Blac. Com. 209.

(f) 1 Hale 161, where the anthor ob-
serves, upon Brown's case {ante n. (n) )
that 90«M of the reasons why the woman
w» sworn and gare evidence were, that
theie was no conabitationj and that there
was coBcuring evidence to prove the
wbole hex : bot that if she had freely and
vitl^out constraint, lived with the perSon

xvi ADDENDA, &c. TO VOL. I.

his aeAman on whoBi he CMrrled oul with him, «$ are in a condition to retorn

■liore , or re- when be shall be ready to proceed en his homeward bound voy-

fusing to bring a|^e, every such master shall be gailty of a qiisdemeanor, and

him home. being lawfully conficted thereofT shall be imprisoned for such

Mode of trial, term as the Court shall awwrd ; and all sach offences raa3f be

&c. prosecuted by Indictment, or by information At the suit of his

Majesty's Attorney- General in the Court of King's Bench, and
may be alleged in the indictment or information to have been
committed at Westminster, in the county of Middlesex; and the
said Court is hereby authorised to issue one or more commis-
sions, if necessary, for the examination of witnesses abroad ; and
the depositions taken under the same shall be received in evi-
dence on the trial of every snch indictment or information."
58S» in the margin, even vrith line 18, erase «* 1 1 & 19 W. 3. c. 7. s. 18.*^ and
insert ** 9 Geo. 4. c. SI. s. SO.** and at the end of the marginal
note erase, '* liable to three months imprisonment,*' and insert
** guilty of a misdemeanor.'*
9 0; 4. c. 31. 584, 4ei^ the whole of the section, and insert «<The statute 54 Geo. S. c. 101. is
Child stealing repealed by the 0 Geo. 4. c. 31 . the twenty-first section of which

enacts, ** thilt if any person shall maliciously, either by force or
fraud, lead or take away, or decoy or entice away, or detain,
any child under the age of ten years, with intent to deprive the
parent or parents, or any other person having the lawful care or
charge of such child, of the possession of such child, or vrith
intent to steal any article upon or about the person of such child,
to whomsoever such article may belong; or if any person shall,
with any such intent as foresaid, receive or harbour any such
child, knowing the same to have been, by force or fraud, led,
taken, decoyed, enticed away, or detained as hereinliefore men-
tioned ; every such offender, and every person counselling, aid-
ing, or abetting such offender, shall be guilty of felony, and
bemg convicted thereof, shall be liable to be transported beyond
the seas for the term of seven years, or to be imprisoped« with
or without hard labour, in the common gaol or house of cor-
rection, for any term not exceeding two years, and if a male, to
be once, twice, or thrice pnblicly or privately whipped, (if the
r \? ^^^^Z Court shall so think fit,) in addition to such imprisonment: pro-

J° ,K ".„" y\6ed always, that no person who diall have claimed to be the

Sfil .IT.k r '■••^«' ^^ •«> »llegilira*te child, or to have any right to the pos-

gmmaie cau- ^^^^ ^f ^^^ ^.^^ ^^H ^ y^^^^^ ^^ ^ prosecuted by virtue

hereof, on account of his getting possession of such child, or
taking such child out of the possession of the mother, or any
other person having the lawful charge thereof.* **
586, line 7 from the bottom, iir/e ^* have been made,** to the end of the page,
and also the following pages, 587, 588, 589, 590, 591, 598, 59S,
and the nine lines at the top of page 594, and insert, *^ were
made highly penal by the enactments of several statutes now
repealed. The statute 9 Geo. I. c. S8. commonly called the
Bimek Aci^ and which made the maliciously shooting at any per-
son a capital offence, and the i6 Geo. 2. c. 19. & 1. by which the
beating or wounding persons shipwrecked with intent to kill
them, dtr. or putting out false lights to bring a bhip into danger,
were repealed by the statute 7 & 8 Geo. 4. c n. The statute
5 B. 4. c. 5. relating to cutting tongues and potting out eves ;
the 99 & 93 Car. 9. c. I. called Uie CovetUty Jd, by which mali-
cious maiming was made a capital offence; the 9 Ann. c. !<».
which made it capital to attempt to kill, assaalt, wound, &c. a
arivy counsellor, and also the 43 Geo, 3. c 52i. commonly called
Irf>rd EUenborongh^s Act» are repealed by the reccsit statate
9 Geo. 4. c« 31.
9G.4.C31. **Thisrecentstatn«e,9Geow4.cSl. contains aevaral e«actmcnls

s. 11. upon these sobjecta The eleventh section enacts, «« Ihnft if any

Attmpta to peison unlawfully and malictonsly*shnll ndminislcr or nttcmnt

*^-?!^»!t** *o wiahiwter to any petsnn, or shall eanse to be tnkca hy any

^ r«M, any poison or other dcstractm thii^. or shnll ulnw.

ADDENDA, &c. TO VOL. I. xvii

Fallj and maliciously attempt to drown, suffocate, of strangle certaio acts,
maj person, or shall unlawfully and maliciously shoot at any shall be ca-
person, or shall, by drawiofif a trigger, or in any other manner, pitaJ.
attempt to discharge any kind of loaded arms at any person, or
shall unlawfully and maliciously slab, cut, or wound any person,
with intent, in any of the cases aforesaid, to murder such person,
every such offender, and every person counselling, aiding, or
abetting such offender, shall be guilty of felony, and being con«
▼icted thereof, shall suffer death as a felon^
** The ISth section enacts, '* that if any person unlawfully and ma- S. 19. Sboot'
liciously shall shoot at any person, or shall, by drawing a trigger, iog at, or
or in any other manner, attempt to discharge any kind of loaded stabbing, cut-
arras at any person, or shall unlawfully and maliciously stab, ting, or
cut, or wound any person, with intent, in any of the cases afore- wounding any
said, to maim, disfigure, or disable such person, or to do some P^^^^''^* ^i^
other grievous bodily harm to such person, or with intent to ^'^'f "^ ^
resist or prevent the lawful apprehension or detainer of the party Jh^ii^be ca-
so offenoing, or of any of his accomplices, for any offence for pj^^j provided
which he or they may respectively be liable by law to be appro- the case would
hended or detained, every such offender, and everv person couu- have been
selling, aiding, or abetting such offender, shall be guilt? of murder if
felony, and bemg convicted thereof, shall suffer death as a felon : death had ea-
provided always, that in case it shall appear, on the trial of any sued.
person indicted for anv of the offences above specified, that such
acts of shooting, or of attempting to discharge loaded arms, or
of stabbing, cutting, or wounding as aforesaid, were committed
under such circumstances, that if death had ensued therefrom,
the same would not in law have amounted to the crime of mur-
der, in every such case the person so indicted shall be acquitted
of felony.*
** The repealed statute 43 Geo. 3. c. 58. contained the following
enactments,'*

598, liae 8, ^ie the words '* This sUtute 43 Geo. 3. c. 58.'* and to the end of
the paragraph, and insert, ^' The cases upon the construction of
the statute 43 Geo. 3. c. 58. may assbt iu the construction of the
new law.**

612, line 8, 4fcsif to the end of the page, and also 16 lines of the next page.

615, line 18» dele to the end of the page, and also the following page, and the

9 lines at the top of page 6 17, and insert, '* Amongst the principal Assault with
of those assaults, the aggravated nature of which may be said to intent to corn-
arise from the great criminality of the object intended to be mit a robbery,
effected, is an assault upon a person with a felonious intent to anddemaad-
eommit a robberif; and nearly allied to this, is a demand of pro- i°R money by
perty effected by menaces or force, and with the intent of steal- menaces or^
mg such property. These offences were made felonies by the '^^^^ '^'^h m-
late statute, 4 Geo. 4. c. 54. s. 5. which repealed the statute 7 Geo. *®'^' ^ •^"'
9. c. 21 . an act for the more effectual punishment of assaults with
intent to commit robbery, but the 4 Geo. 4. c. 54. is also repealed
by the statute 7 & 8 Geo. 4. c. 87. The present law upon the
subject is contained in the statute 7 & 8 Geo. 4. c. 29. s. 6. which
enacts, * that if any person shall assault any other person, with an Assaults with
intent to rob him, or shall with menaces or by force demand any intent to com-
such property of any other person with intent to steal the same, mit robbery,
every such offender shall be guilty of felony, and being convicted A°d demands
thereof, shall be liable, at the discretion of the Court, to be accompanied
transported beyond the seas for life, or for any term not less ^''jl* menaces
than seven years, or to be imprisoned for any term not exceed- ^^ torce.
in^ four years, aud, if a male, to be once, twice, or thrice pub-
licly or privately whipped, (if the Court shall so think fit,) in
addition to such i m prison men t.**
** The repealed statute 4 Geo 4. c. 54. enacted, '* That if any person Repealed sta-
sbould maliciously assault any other person, with intent to rob tute 4 G. 4, c.
such other person, or should by menkces, or by force, maliciously 54.
demand moneys security for money, goods or chattels, wares or
merchandize, of any other person, with intent to steal the same,

B

XYlll

ADDENDA, &c. TO VOL. I.

n & 12 w. 3.
c. 7. 1. 9.

Aggravated as-
saults.

9G. 4. c. 31.
s. 23.

Arresting a
clergy niRQ
during divine
service.

S. 24.

Punishment
for assaults on
officers, &c.
for their en-
deavours to
save ship-
wrecked pro*
pcrty.

Assaults with
intent to com-
mit fplooy ;
assaults on
peace officers;
or. to prevent
the arrcot of
offenders; or
in pursuance of
a conspirHcy
to raise wages;
pu>>ldhablc
with hard la-
hour.

S. 2«.

AssnuH on any
seaman, «Ivc.
to prevent him
from working;
assaults with
intent to oh-
stniet the
hujring or sel-
ling of gn'ain,
or its free

or fthoald procure, counsel, aid, or abet the commission of the
said offences, or of any of them; every person so offending,
being thereof lawfully convicted, should be adjudged guilty of
felony, and should be liable at the discretion of the Court, to be
transported beyond the seas for life, or for such terra, not les»
than seven years, as the Court should adjudge, or to be impri-
soned, and kept to hard labour in the common gaol or house of
correction, for any terra not exceeding seven years.'

*• Some of the cases upon the repealed statutes may assist in the
construction of the present law. Upon the repealed act 7 Geo. 2.
c. 21. it was decided that the assault therein described must."
«20, dele from the paragraph beginning " Another species of aggravated as-
' saults," to the bottom of the pnge, and also the following pages
621, 622, 628, 624, 6?5, and 626, and then insert " The U & 12
W. 3. c. 7. s. 9. enacts ' that if any person shall lay violent hands
on his commander, whereby to hinder him from fighting in de-
fence of his ?^hip and goods, committed to his trust,* he shall be
adjudged to be a pirate, felon, and robber ; and being convicted,
shall suifer death, and loss of lands, goods, &c. as pirates, felons,
and robbers upon the seas, ought to suffer."

•* The following enactments concerning aggravated assaults, are
contained in the recent statute 9 Geo. 4. c. 31. s. 23. enacts,
*That if any person shall arrest any clergyman upon any civil pro-
cess, while lie shall be performing divine service, or shall, with a
knowledge of such person, be going to perform the same, or
returning from the performance thereof, every such offender
shall be guilty of a misdemeanor, and being convicted thereof,
shall suhl-r such punishment, by fine or imprisonment, or by
both, as the Court shall award."

•• The twenty-fourth section enacts, * That if any person shall as-
sault and strike, or wound, any magistrate, officer, or other per-
son whatsoever lawfully authorized, 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, every such offender, being
convicted thereof, shall be liable to be transported beyond the
seas, for the term of seven years, or to be imprisoned, with or
without hard labour, in the common gaol or house of correc-
tion, for such term as the Court shall award."

** The twenty- fifth section enacts, * That where any person shall be
charged with, and convicted of any of the following offences as
misiiemeanors; that is to say, of any assault with intent to com-
mit felony ; of any assault upon any peace ofiScer, or revenue
officer in the due execution of his duly, or upon any person
acting in aid of such oflUcer, of any aasault upon any person
with intent to resist or prevent the lawful apprehension or de-
tainer of the party so assaulting, or of any other person, for any
offence for whicn he or they may be liable by law to be appre-
hended or detained; or of any assault committed in pursuance
of any conspiracy to raise the rate of wages; in any such case
the Court may s-ntence the offender to be imprisoned, with or
without hard lal our, in the common gaol or house of correc-
tion, for any term u(/t excerdii j^ Iv.o y ars, and may also (if it
shall so (hir>k tit) fine tlie ollouder, and require him to find
sureties f(»r kr"piiig th-' peace."

" The tweiity-sjxth section ei.acts, "That if any person shall un-
liiwluliy, Uiid wilh force, hinder any scan an,keelman, or caster,
frcm working at or exercising his lawful trade, business, or oc-
cupation,, or shall beat, wound, or use any other violence to
him, with intent to deter or hinder him from working at or ex-
ercising the same ; or if any person shall beat, wound, or use
any other violence to any person, with intent to deter or hinder
him from filing or buying any wheat or other grain, flour,
meal, or malt, in any market or other place, or shall beat,
^onnd, or use any other violence to any person having the care

ADDENDA, &c. TO VOL. I. xix

ttr charge of any wheat or other f^ain, flour, meal, or malt, pAssa^e ; pu-
whilst on its way to or from any city, market-town, or other nishable before
pl.ice, with intent lo stop the conveyance of the same, every two mapis-
such offender may be convicted thereof bcfortJ two justices of trates ; with
the peace, and imprisoned, and kept to hard labour in the com- imprisonment
mon fi^aol or house of correction, for any term not exceeding not exceeding
three calendar months ; provided always, that no person, who tbree months.
shall be punished for any such oflfence, by virtue of this provi*
8ioD, shall b(^ puni'^lu^d for tiie same ofience by virtue of any
other law whatsoever/^
««7, at the end of *' Chapter Twelfth," insert "Chapter the Thirteenth."
" Of setting spring guns, man traps, &c."
*' The sUtute 7 & 8 Geo. 4. c 18. s. I. enacts and declares. "That 7 & 80. 4. c.
if any person shall set or place, or cause to beset or placed, any l^-
spring gun, man trap, or other engine calculated to destroy Persons set-
human life, or inflict grievous bodily harm, with the intent that '*"'- °^ P'«ciiisf

the sime, or whercbv the sanie may destroy or inflict s:rievous ^P""'"?^' !<""*»
-u ji u • . II - • ^- man traps, etc.

bodily h;irm, upon a trespasser or other pv-rson commg m con- j.„j|tv of a

tact therewith, the person so setting or placing, or causing to misdemeanor,

be so set or placed, such gun, trap, or engine as aforesaid, shall

be guilty of a misdemeanor."

**The second section enacts, "That nothing therein contained S. 2.
shall extend to make it illfgal to set any gin or trap, such as Proviso for
may have been or may be usually set with the intent of de- traps for de-
stroying: vermin." stroying

•* The third section enacts, 'That if any person shall knowingly ^'*'^'"*°'
and ivilfully permit any such spring gun, man trap, or other ^•^'
engine, as aforesaid, which may have been set, fixed, or left in Persons per-
any place, then being in or afterwards coming into his or her °^*'^^'"P' g'^ns,
possession or occupation, by some other person or persons, to ^""^P^j ^*^' *®'
continue so set or fixed, the person so permitting the same to con^inue^* ^
continue, shall be deemed to have stt and fixed such gun, trap, deemed to
or engine, with such intent as aloresaid." have set the

** The fourth section enacts, 'That nothing in this act shall be same.
deemed or construed to make it a misdemeanor, within the o 4
meaning of this act, to s^^t or cause to l)e set, or to be continued proviso for
set, from sun set to sun rise, any spring gun, man trap, or other guns, traps,
enirine, which shall be set, or caused or continued to be set, in a &c. set for the
dwelling-house, for the protection thereof.* " protection of

•* By the fifth section, the act is not to affect proceedings touching dwelling-
any matter or thing done or committed previous to its passing." housei.

** And by section six, the act is not to extend to Scotbind."

a t

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XXI

\

ANNO SEPTIMO

GEORGII IV. REGIS.

CAP. LXIV.

An Act for improving the Administration of Criminal Justice in Eng-
land. [26 May, 1826.]

Whbmab it is expedient to define under what circumstances persons may be
admitted to l>ail in cases of felony, and to make better provision for taking
ciuninatioiis, informations, bailments, and recognizances, and returning the
same to the proper tribunals : And whereas the technical strictness of criminal
proceedings mi^ht in manj instances be relaxed, so as to ensure the punish-
ment of the guilty, without depriving the accused of any just means of de-
ieoce ; and the administration of justice in that part of the United Kingdom
called England might in other respects be rendered more eflectual : Be it
therefore enacted by the King^s most excellent Majesty, by and with the ad-
vice and consent of the Lords Spiritual and Temporal, and Commons, in this
preseot Parliament assembled, and by the authority of the same. That where who maybe
any person shall be taken on a charge of felony or suspicion of felony, be- admitted to
fore one or more justice or justices of the peace, and the charge shall be sup- bail on a
ported by positive and credible evidence or the fact, or by such evidence as, charge of fe-
if act explained or contradicted, shall in the oninion of the justice or jus- lony, andwbo
tJces raise a strong presumption of the guilt of the person charged, such per- ^Z??}'
soa shall be committed to prison by such justice or justices, m the manner i^u c q\
iieretnafler mentioned t but if there shall be only one justice present, and the ^'^•^•^•^'f
whole evidence given before him shall be such as neither to raise a strong pre-
aonoptioa of guilt nor to warrant the dismissal of the charge, such justice
shall order the person charged to be detained in custody until he or she shall
he taken before two justices at the least ; and where any person so taken, or
mmj person in the first instance taken before two j ustices of the peace, shall
he cbarged with felony or on suspicion of felony, and the evidence given in
support of the charge shall, in their opinion, not be such as to raise a strong
presoraption of the guilt of the person charged, and to require his or her
committal, or such evidence shall be adduced on behalf of the person charged
as ahall in their opinion weaken the presumption of his or her guilt, but
there shall notwithstanding appear to them, in either of such cases, to be suf-
ficient groond for judicial enquiry into his or her guilt, the person charged
shall be admitted to hail by such two justices, in the manner hereinafter
meatioDed : Provided always, that nothing herein contained shall be con-
atroed to require any such justice or ju»tices to hear evidence on behalf of
any penon so cbarged as aforesaid, unlesK it shall anpear to him or them to be
ioeetaad condacive to the ends of justice to hear the same.

XXll

ADDENDA, &c. TO VOL. I.

1&2P. &M.
c. 13.

2 & 3 P. & M.
c. 10.

Before any
person charg-
ed witkMony,
&c. sliall be
"bailed or com-
mitted, the
justices shall
take down in
writing the
exaroinatioD,
&c. and bind
ivitnesscs to
appear at the
trial.

Examinations,
&c. to be deli-
vered to the
court.

Puty of Jus-
tice on charges
of misdemean-
or.

Duty of coro-
ner. (i&2P.
& M. c. 13. s.

5.)

Penalty on
justices and
coroners. (1 &
2 P.&M. c.
13. s. 5.)

Provisions to
apply to all
justices and
coroners. (1 &
2 r. & M. c.
13. s. 6.)

3W.&M. c.
9.S.2.

II. And ivhereas it is expedient to amend and extend the provisions of two
acts, the first passed in the first and second years of the reign of King Philip
and Qneen Mary, intituled " An act appointing an order to justices of peace
for the bailment of prisoners," and the second passed in the second and third
years of the same rei£cn, intituled '^ An act to take examination of prisoners
suspected of manslaughter or felony ;'' be it therefore enacted. That the two
justices of the peace, before they shall admit to bail, and the justice or jus-
tices, before he or they shall commit to prison any person arrested for felony
or on suspicion of felony, shall take the examination of such person, and the
information upon oath of those who shall know the facts and circumstances
of the case, and shall put the same, or as much thereof as shall be materialy
into writing; and the two Justices shall certify such bailment in writing ; and
every such justice shall have authority to hind by recognizance all such per-
sons as know or declare any thing material touching any such felony or sus-
picion of felony, to appear al the next court of oyer and terminer, or gaol
delivery, or superior criminal court of a county palatine, or great sessions or
sessions of the peace, at which the trial theipeof is intended to be, then and
there to prosecute or give evidence against the party accused; and such jus-
tices and justice respectively shall subscribe all such examinations, informa-
tions, bailments, and recognizances, and deliver or cause the same to be de-
livered to the proper officer of the court in ivhich the trial is to be, before or
at the opening of the court.

III. And be it further enacted. That every justice of the peace before
whom any person shall be taken on a charge of misdemeanor, or suspicion
thereof, shall take the examination of the person charged, and the informa-
tion upon oath of those who shall know the facts and circumstances of the
case, and shall put the same, or as much thereof as shall be material, into
writing; before ne shall commit to prison or require bail from the person so
charged ; and in every case of bailment shall certify the bailment in writing;
and shall have authority to bind all persons by recognizance to appear to pro-
secute or give evidence against the party accused, in like manner as in cases
of felony; and shall subscribe all examinations, informations, liailments, and
recognizances, deliver or cause the same to be delivered to tbe proper officer
of the court in which the trial is to be, before or at the opening of the court,
in like manner as in cases of felony.

IV. And be it further enacted. That every coroner, upon auy inquisition
before him taken, whereby any person shall be indicted for manslaughter or
murder, or as an accessory to murder before the fact, shall put in ifriting
the evidence given to the jury before him, or as much thereof as shall be ma-
terial; and shall have authority to bind by recognizance all such persons as
know or declare any thing material touching the said manslaughter or mur-
der, or the said offence of being accessory to murder, to appear at the oext
court of oyer and terminer, or gaol delivery, or superior criminal court of a
county palatine, or great sessions, at which the trial is to be, tbeo and there
to prosecute or give evidence against the party charged, and every such coro-
ner shall certify and subscribe the same evidence, and all such recognizances,
and also the inquisition before him taken, and shall deliver tbe same to the
proper officer of the court in which the trial is to be, before or at tito open-
ing of the court.

V. And be it further enacted. That if any justice or coroner shall offend in
any thing contrary to the true intent and meaning of these provisions, the
court to whose officer any such examination, information, evidence, bail-
ment, recognizance, or inquisition, ought to have been delivered, shall, upon
examination and proof of the offence in a summary manner, set such fine
upon every such justice or coroner as the the court shall think meet.

VI. And be it further enacted. That all these provisions relating to justices
and coroners shall apply to the justices and coroners not only of counties at
large, but also uf all other jurisdictions.

VII. And whcrens divers statutes, taking away the benefit of clergy, or
creating felonies without benefit of clergy, have omitted to take away the be-
nefit ot clergy under cerLiin circumstances consequent npon the indictment
of the olTender : And whereas a partial remedy for such defects was supplied
by an act passed in the^third year of the reign of King William and ilueen
Mary, intituled " Au act to take away clergy from some offenders, and to
bring other to punishment,"' whereby it was enacted, that if any person should

7 GEO. IV. c, 64. XXiii

he iodicted of may offenoe for which, by virtue of any former statute, such per-
son was excluded from the benefit of clergy, if convicted by verdict or con-
fesiion, such person should not be admitted to the benefit of clerg^y under
any of the circumstances therein enumerated : And wherean it is expedieut to
eitend Uie like remedy to hII oflenct-s which now are or herc.jfter shall beex-
clud»*d from the benefit of clercry ; Ue it thort^forc eii:iclod. That if any per- Fdonifs with-
R^n shall be indicted of any ollcnce for which, by virtue of this or lif any out benefit of
other statute or statute** made or to be made, the oiil-iulcr is or siiall be excluded clergy pro-
from the benefit of clergy, such peri^on shall be equ.ill y excluded from the be« vided for na-
Befit of clercry, whether lie or slie "-hall be couvictid by verdict or by confes- der all cir-
stoD, or shall upon arraignment st;ind mute of malice, or will not answer di- cumstnnccs
rectly to the charge, or shall challenge peremptorily above the number of consequent on
twenty persons returned to be of the jury, or shall be outlawed upon such *"^*^V w

iadictineot, although the statute or statutes takinor away the t>euefit of clers:y &^m^ 9 a 2
io any such case may not expressly provide that the oQ'eiidcr shall be ex- 12 G 3 c *'0.)
cloded from the benefit of clergy, in case such oli'ender shall confess, or stand
male, or not answer directly, or challenge perein|>turily above the number
of Iweniy persons returned to be of the jury, or be outlawed; and every
Uijni; herein contained shall extend as well to all accessories as to principals.

VIII. And, with re^rd to clergyable felonies, be it enacted. That if any Felonies with-
person shall be indicted of any felony for which tlie otlender is or shall be en* in benefit of
titled to the beaefit of clergy, and such person stiall on arruigoiuent confess cler^ry pro-
the felony, or stand inute of malice, or will not answer directly to the charge, vided for un-
or shall challenge peremptorily above the number of twenty persons returned dcr all cir-

to be of the jury» or shall be outlawed upon such indictment, in every such cumstaDccs

case such person shall be deemed and taken to be convicted of the felony, consequent on
and the court shall award such judgment as if such person had been convicted \" no r*

by verdict 1 and every thing hereiu coula'iued shall extend as well to all acccs- ™^° 20 ) See

IX. And, for the more enectual prosecution of accessories before the fact 4. c. £g. Ad-
to felony, be it enacted. That if any person shall counsel, procure, or com- deod 2d vol.
niand any other person lo commit any felony, whether the same be a felony Accessorr be-
at common law, or by virtue of any statute or statutes made or to bo made, fg^e thc^ct
the person so counselling^ procur'mg, or commanding, shall be deemed guilty may be tried
of felony, and may be indicted and convicted, either as an accessory before as such, or as
the fact to the prmcipal felony, together with the principal felon, or after a substantive
the conviction of the principal felon, or may l>e indicted and convicted of a folon, hy any
sttbMaotive felony, whether the principal felon shall or shall not have been court which
veviou^y convicted, or shall or shall not be ameuiblc to justice, and may b^s jurisdic-
be punished io tlie same manner as any accessory before the fact to the same ^^^^ ^P ^r
feloaj, if coDvicte^ as an accessory, may be punished; and the oflence of the } '^l°^T/i u
persoo so counselling, procuring, or commanding, howsoever indicted, may be the offence be
enquired of, tried, determined, and punished by any Court which shall have committed on
jurisdiction to try the principal felou, in the same manner ai if such offence the sensor
had been committed at the same place as the principal felony, although soch abroad. (43 G.
ofence may have been committed eitlier on the high seas or at any place on 3. c. 113. s. 5.)
land, whether withio his Majesty's dominions or witiiout ; and that in case the |f the offences
principal felony shall have been committed within the body of any county, and he corxmitted
the offence of counselling, procuring, or commanding shall have been com- in d'lfTerent
uittrd within the body of any other county, the last-mentioned ofience may counties, ae-
be inquired of, tried, determined, and punished, in either of soch counties: cessoryniHybe
provided always, that no person who shall be once duly tried for any such tri<^d in either.
i>i[emce^ whether as an accessory before the fact or as for a sulislantive felony, (^ ^^ ^^* ^'
shall be liable to be again indicted or tried for the same offence. ^ ^^* ^ f{^

X. And for the more effectual prosecution of accessories after the fact to k\ ' '
felony, be it enacted. That if any person shall become an accessory after the '^

(act to any felony, whether the same be a felony at common law, or by virtue Accessory af-

of any statute or statutes made or to be made, the ofience of such person may ^^' ' 1 . t -^^h

he inquired of, tried, determined, and punished by aay Court which shall have ^.f^„y ^^,^^1

joriidiclton to try the principal felon, in the same manner as if the act, by ^hichhasju-

reason whereof such person shall have l^ecome an accessory, had been com- risdu lion to

mitted at the same place as the principal felony, although such act may have try the priocl-

been committed either on the high seas or at any place on land, whether pal felon.

vithin hts Majesty's dominions or without; and that in case the principal xf the ofTenees

hAoaj shall have been committed within the body of any county» and the act ^^ committsd

xxiv ADDENDA, &c. TO VOL- I.

in different ^y '«uon whereof any peraoo shall have hecoitie accessory shall hare been
counties, ac- committed within the body of any other county, the offence of such accessory
cessory may may be inquired of, tried, determined, and pimished in either of snch conn-
be tried in ties: provided' always, that no person who shall he once duly tried for any
either. (2 & 3 offence of being an accessory shall be liable to be again indicted or tried for
Ed. 6. c. 34. the !sanie offence..

B* ^') XL 'And in order that all accessories may be convicted and jNinished in

Accessory may cases, where the principal feion is not attainted, be it enacted, That if any prin-
be prosecuted oipnloffbnder shall he in anywise convicted of any felony, it shall be lawfol to
after convio- proceed against any accessory, either before or after the fact, in the same
tion of the manner as if such princioal felon bad been attainted thereof, notwithstanding
th^^^T th '^^^ prmtipal felon shall die or be admitted to the benefit of clergy, or par*

vrindo 1 be doDedyOr otherwise delivered before attainder ; and every such accessory shall
nut attainted M^<^ thesamejpmiishraent, if he or she be in anywise convicted, as he or she
&c. (1 Anne' should hove suffered if the principal had been attainted.
St. 2. c. 9. 8. 1.') XII. And for the more effectaal prosecution <{f offences committed near the
Offences com- houndarkes el counties, or partly m one conniy and partly in another, be it
mitted on the' enacted. That where any fetuny or misdemeanor shall be committed on the
boundaries of b<a«ndary or boundaries of two or more counties, or within the distance of
counties may ^e hundred yarda of any such boundary or boundaries, or shall be begun in
be tried in one county and completed in another, every such felony or misdemeanor may
either coanty. he<dealtiwith» inquired of, tried, determined, and punished in any of the said
(59 G. 3. c. 96: couatiesi in the same manner as if it had been actually and wholly committed
■• 2*) therein.

Offlences oom* XUI. Aad for the more effectual prosecution of offences committed duriTig
mitted during journieafrom place feo place, be it enacted, That where any felony or nisde-
a journey or mftaaor shall be committed on any pe(son, or on or in respect of any property
voyage maybe i||,or upon* any coach, waggon^ cart, or other carriage whatever employed m
triecl in any any journey, or ahalL be committed on any person, or on or in respect of any
county property on board any vessel whatever employed on any voyage or journey

the^co^clT & Upon any navigable river^ canal, or inland navigation, such felony or misd^*
passed f59 O ^^^^'^^r. msfy be dealt with« inquired of, tried, determined^ and punished in
3. c. 27. and c! ^^B* counfav through- anjr part wnereof such coach, waggon^ cart, carriage, or
95.) ' vessel shall have passed in the course of the journey or voyage during which

sfich^felony or qnisdemeaaor 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, cenbre, or other partof 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
adjoLning 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 voya^
during which such felony or misdemeanor shall have been committed, in the
same manner as if it had been actually committed in such county.
In indictments - XI V* And in order to remove the difficulty of stating the names of all the
forofi^nces owners of property in the case of partners and other joint owners, be it en*
comntiited on acted, That in any indictment or information for any felony or misdemeanor,
the property of wherein it shall be requisite to stale the ownership of any property whatsoever^
partners, it whether real or personal, which shall belong to or be in the possession of more
may be laid in than one person, whether such |>ersons be partners in trade, joint tenanta, par-
any one part-., ceners., or tenants in common, it shall be sufflcieot to muiTe one of such per-
'^^d ^i*^^"^^' sons, and to state such property to belong to the person so named, and another*
r56 O 3^!^ 73 ^ ofthers, as the case may be ( and whenever, in any indictment or informa-
] G.4. c. 102.' ^^^^ for any felooty or misdemeanor, it shall be. necessary to mention for any
6 G. 4. c. 56 ) purpose whatsoever, any partnere, joint tenants, parceners, or teamnts in com-
• mon, it shall be sufficiettt to describe them in the manner aforesaid v- and this
provision shall be .eonstriied to extend to all joint stock oompanies and tnis«
tees.
Property be- XV. And with respect to the property of counties^ ridhgs,and divnions^ be
longing to it^nacted^ That in any indictment «r. infiormationfor>nnyfeloBy«os misde*
counties, &c. meaner (Comniittediifli 4ipQn«iOrw«ti| respect to any heidge^ eodlt, ^ol,ihoii8o
™*T ^ J?*^ ^^ of .q^rreptvoUf io^finai^, asylum, «r other, building^ erected. oroDami^edsin
theinhabitMits wholewwr inipar^afcliho. expense ^-any omoty« ridings < or. dtvasion^nr/ on or
^iSQ^Seli ^Uh4reMHN:tt«|nq|i.gOod«^ricfeittelB>whalsoevep^fro3ided ibr oriat>«lie ex-
^3% ' ' * ' peosarO«,a9j|.(C<>«(d5i.rM^agi^ordivisi^ u^ed I<m niakingi nllerin^> or

7 GEO. IV. c. 64. XXV

repurio^ aay bridge, or any highway at the ends thereof, or any court or other
such huildtoff as aforesaid, or to be used in or with any such coark or other
btiildio^t it »ia)l be suflEicient to state any soch property, real or personal, to
belong to the iohabiinnts of soch county, riding, or division; and it shall w>t
be necessary to spiecify the names of any of such inhabitants.

XVI. And with respect to the property of parishes, townships, and hamlets. Property or^
be itcaacled. That in any indictment or information for any felony or misde- d^red for the
mcanov coraraitted in, upon, or with respect to any workhouse or poorbouse, "•• of the poor
or on or with respect to any goods or chattels whatsoever, provided for the ^ pAnstieii,
Bse of the poor of any parish or parishes, township or townships, hamlet ] ?Ji™^>i|e
or faamtels, place or places, or to be used in any wol'khonse or poorbonse overseers,
in or belonging to the same, or by the master or mistress of such workboose or ^55 q, 3/^,
poorbouse, or by any workmen or servants employed therein, it shall be suffi- 137. g[ x.)
cient lo state any such property to belong to the overseers of the poor for the
time being of such parish or parishes, township or townships, hamlet or ham-
Itfb, phbce or places, and it shall not be necessary to specify the names of all
or aay of such overseers ; aadin any indictment or information for any felony Materials, &e.
or misdemeanor committed on or with respect to any materials, tools, or im- for repairing
plemcnts provided for making, aitering, or repairing any highway within any ^'^7f^" ?^
parish, township, hamlet, or place, otherwise than by the trustees or commis- ^ '^'" ^ °®
SHwera of aay taraptke road , it shall be sufficient to aver that any such things Qf\^J^l^^
are the pi^operty of the savvey or or surveyors of the highways tor the time ^eVor of hiirh^
beii^ Off such parish, township^ hamlet, or place, and it shall not be necessary ^gy,.
to specify the name or names of any such surveyor or surveyors.

XVII.* And with respect to property under turnpike trusts, be it enacted. Property of
That in any indietment or information for any felony or misdemeanor com<- turnpike trus-
mitted in or oa or with respect to any house, hailding, gate, machine, lamp, tees may be
hoard, sioae, post, fence, or other thing, erected or provided in pursuance of | J^f
any actof paniament for making any turnpike road, or any of the conre- (^q?\ tog
niencea or appurteaaooes thereunto resnectively belonging, or any materials, g. go ) ' *
tools, or iameraeBts provided for making, altering, or repairing any such
raadi-it shall be sufficient to state any such propertv to belong to the trustees
or cooHiiisBtoneffs of soch road, and it shall not be necessary to specify the
names of any of such trustees or coimnissioners.

XVIil. And with respect to property under commissioners of sewers, be it Iq indictments
eaocted. That in any indictment or information for any felony or misdemeanor for offences
commitied on or with respect to any sewer or other matter within or under committed on
the view, cognizance, or management of any commissioners of sewers, it shall sewers, the
be sufficient to state any such property to belong to the commissioners of property may
sewers within or under whose view, cognizance, or management, any such ^ I'i^ '? ^^®
things shall he, and it shall not be necessary to specify the names of any of commission-
such conmiissioners. ^'**

XiX. And for preventing abuses from dilatory pleas, be it enacted, That no Indictment
indictment or information shall be abated by reason of any dilatory plea of not to abate
misaomer or of want of addition, or of wrongs addition of the party offering bv dilatory
such plea, if the Court shall he satisfied by affidavit or otherwise of the troth \n^'^ o^ ™is*
of such plea t bat in such case the Court shall forthwith cause the indictment uomer, &c.
or •oforaaaAioa to be amended according to the truth, and shall call upon such
party to pAead thereto, and shall proceed as if no such dilatory plea bad been
pleaded.

XX^ And that the ponisliHient of offbnders may be less frequently inter- What defects
ceptcdia eonaeqiaence of technical niceties, be it enacted. That no judgment shall not vi-
npofrany iAdintment or information for any felony or misdemeanor, wnethe'r tiate an in-
ader Tofdact'or outlaxrry, or by confession, deftiiilt, or otherwise, shall be dictment after
stayed Of nnaeraedfor want of the averment of any matter unnecessary to be vcrdlot, or
prottedi.inof'finr the omiasioa^f the words »* as appears by the record,'* or of otherwise.
the.srDftiB/*>withiforoe. aod anus,** or of the 'words «« against this peace,** nor
for the insertion of the words ** against the form of the statute," instead of th6
w«eda(1^■|faiiBtllthe{offmtof the statutes^'' ortfice ^erk(i;*ntr for thalahy pefr*
soa Off f|»eBK>na «acntiooed'inr<the. indietmeot or infortnnt ion- in or are deiriguated
hy««iiiio«if office or-jOlher deseriptvve aflpellition instead of bis, her, or
ttieii* pcoiritsaianio or 'names, nor for omitting to stele the time at which the
offiBoooaaa coflomitted^ in atfy casdtwiiero time is not of the essence of the
ofi«Bco#iaoSr foe slaftiiig<»tbe iime/imperfoctly, '«or for stating the offence to
have hnHt«bi]UpitJtodbo»'A Any. sobseifuent'to thC' 'fiodiag of tot indictment or.

xxvi ADDENDA, &c. TO VOL. I.

exhibttia? th0 ioforination, or on an impossible day, or on a daj that never
happeoed, nor for want of a proper or perfect venue* where the Court sliall
appear by the indictaient or informaiion to have had jurisdiction over the
offence.
What sliall not XXI. And be it further enacted, That no judgment after verdict upon any
besofficieotto indictment or information for any felony or misdemeanor shall be stayed or
Btayor revmc reversed for want of a similiter, nor by reason thit the jury process h;is been
juagmeot alter ^^^^ded to a wronp officer upon an insufficient suggestion, nor for any niis-
vcr ic norocr or misdescription of the officer returning such process, or of any of the

jurors, nor because any person has served upon the jury who has not been re-
turned as a juror by the sheriff or other ofhcer ; and tliat where the offence
charged has been created by any statute, or subjected to a greater degree of
punishment, or excluded from the benefit of clergy by any statute, the in-
dictment or information shall after verdict be held sufficient to warraut the
paoishment prescribed by the statute if it describe the offcuce in the words of
the statute.
Courts may XXII. And, with regard to the payment of the expenses of prosecutions for

order payment feiooy, be it enacted. That the Court before which any person shall be pro-
pftbeezpeDSea ^ecuted or tried for any felony is hereby authorized and empowered, at the
tkMMtr^' request of the prosecutor or of any other person, who shall appear on recog-
^y^^p ^£ i'^iq. mzance or subpoena to prosecute or give evidence against any person accused
ay. (58 0. 3. ^^ *"7 felony, to order payment unto the prosecutor of the costs and expenses
c. 70. f. 4.)* * which snch prosecutor shall incur in preferring the indictment, and abo pay-
ment to the prosecutor and witnesses for the prosecution, of such sums of ro(v
Hey as to th^ Court shall seem reasonable ami sufficient to reimburse such pro-
secutor and witnesses for the expenses they shall have severally incurred in
attending before the examining magistrate or magistrates and the grand jnry,
and in otherwise carrying on such prosecution, and also to compensate them
Allowance to 'or their trouble and loss of time therein i and, although no bill of indictment
persons at- be preferred, it shall still be lawful for the Court, where any person sliall, in
tending on re- the opinion of the Court, bvna fde have attended the Court in obedience to
cognizance, any such recognizance or subpesna, to order payment unto such person of such
where no hill sutn of money as to the Court shall seem reasonable and sufficient to reim-
nSr^^q^ 10 ^^^^^"^^ person for the expenses which he or she shall have>«ftajUtf in-
(J8G. 3. c. 19. curred by reason of attending before the examining magistrate or magistrates,
*' and by reason of such recognizance or subpcena, and also to compensate such

person for trouble and loss of time \ and the amount of the expenses of attend-
ing before the examining magistrate or magistrates, and the compensation for
trouble and loss of time therein shall be ascertained by the certificate of such
magistrate or magistrates, granted before the trial or attendance in court, if
ftuch magistrate or magistrates shall think fit to grant the same ; and the
amount of all the other expenses, and compensation, shall be ascertained by
the proper officer of the Court, subject nevertheless to the regulations to be
established in the manner hereinafter mentioned.
Conrts may XXI 1 1. And whereas for want of power in the Court to order pavroent of

order payment the expenses of any prosecution for a misdemeanor, many individuals are de-
of the expenses terred by the expense from pmsecuting persons guilty of misdemeanors, who
of prosecution thereby escape the punishment due to their offisnces ; for remedy thereof, be
m certam ^ enacted, that where any prosecutor or other person shall appear before any

cases of mis- |*ourt on recognizance or subpoena, to prosecute or give evidence against any
emeanor. person indicted of any assault with intent to commit felony, of any attempt
to commit felony, of any riot, of any misdemeanor for receiving; any stolen
property knowing the same to have been stolen, of any assault upon a peace
' officer in the execution of his duty, or upon any person acting in ajul of such
officer, of any neglect or breach of duty as a peace officer* of any assault com-
mitted in pursuance of any conspiracy to raise the rate of wages, of knowingly
and designedly obtaining any property by false pretences, of wilful aiKi in-
decent exposure of the person, of wiltul and corrupt perjury, or of auborna*
tion of fierjury, every such court is hereby authorized and empowered to
order payment of the' costs and expenses of the prosecutor and witn^ssea for
the prosecution, together with a compensation for their trouble and loss of
time, in the same maimer as courts are hereinbefore authorized and empowered
to order the same in cases of felony ; and, although no bill of indictment be
preferred, it shall still be lawful for the Court where any person shall have banA
3de attended the Court, in obedience to any such recognizance, to order pay-

7 GEO. IV. c. 64. XXvii

mcnt af the expenses of such |>ersoii, together with a compensation for his or
her troable and loss of time, in the same manner as in cases of felony: pro- <

Tided, that in cases of misdemeanor t)ie power of ordering the payment of
expenses and compensation shall not extend to the attendance before the exa-
mining ma<;istrate.

XXIV. And be it further enacted, that every order for payment to any pro- Order for pay-
secutor or other person as aforesaid sliall be forthwith made out and delivered ^^^^ ^ h^
by the proper officer of the Court unto such prosecutor or other person, upon "j^^ °"^ v
being paid for the same the sum of one shiiliog for the prosecutor and six- ^cl^aod i?^d^'
pence for each other person, and no more; and, except in the cases herein- by coun^
after provided fur, shall be made upon the treasurer of the county, riding, or treasurer,
division in which the offence shall have been committed, or shall be supposed (53 G: 3.c. 70.
to have been committed, who is hereby authorized and required, upon sight s. 6. ,

of every such order, forthwith to pay to the person named therein, or to any 18 G.3. c. 19.
one duly authorized to receive th^same on his or her behalf, the money in >• 8.)
such order mentioned, and shall be allowed the same in his accounts.

XXV. And whereas felonies and such misdemeanors as are hereinbefore How the ex-
enumerated may be committed in liberties, franchises, cities, towns^ and peoses shall be
places which do not contribute to the payment of any county rate, some of paid in places
which raise a rate in the nature of a county rate, and others have neither aov not contribut-
snch rate, nor any fund applicable to similar purposes, and it is just that sucn '^^S to the
liberties, franchises, cities, towns, and places should be charged with all costs, 5??^^ J'***^
expenses, and compensations ordered by virtue of this act, in respect of fe- ^ g^jin)
lonies and such misdemeanors committed therein respectively ; be it therefore "' '^
eaacted, that all sums directed to be paid by virtue of this^ct, in respect

of felooies and of such misdemeanors as aforesaid, committed or supposed to
have t»een committed in such liberties, franchises, cities, towns, and places,
shall be paid out of the rate in the nature of a county rate, or out of any fund
applicable to similar purposes, where there is such a rate or fund, by the
treasurer or other officer having the collection or disbursement of such rate
or fund; and where there is no such rate or fund in such liberties, franchises,
cities, towns, or places, shall be paid out of the rate or fund for the relief of
the poor of the parish, township, district, or precinct therein, where the of-
fence was committed or supposed to have been committed, by the overseers or
other officers having the collection or disbursement of such last mentioned
rate or fund i and the order of court shall in every such case be directed to
sQch treasurer, overseers, or other officers respectively, instead of the treasurer
of the county, riding, or division, as the case may require.

XXVI. And, for the better regulation of costs and expenses in the cases Qaarterses-
aforesaid, and for preventing abuses in respect thereof, be it enacted, that it gions to make
shall lie lawful for the justices of the peace of any county, riding, or division, regulations as
or of any liberty, franchise, city, town, or place chargeable with costs and ex- to costs and
peases under the proviMon aforesaid, in quarter sessions assembled, to estab- expenses.
li^, and from time to time to alter such regulations as to the rate of any costs (* ^9' ^* *' '*
and expenses thereafter to be allowed by virtue of this act, as to them shall "' ^'^

seem just and reasonable 1 which regulations having received the approbation
aod signature of one Justice of eaol delivery or of great sessions for the
connly vfherein any such regulations shall have been established, shall be
binding oa alt persons whatsoever.

XXVII. And, for enabling the High Coart of Admiralty to order the pay- For payment
meat of the costs and expenses of prosecutors and witnesses, and compensa- of expenses la
tion for their trouble and loss of time, in cases in which other courts have a prosecutions
like power onder this act, be it enacted, that it shall be lawful for the Jiftdge in Court of
of the said Court of Admiralty, in every case of felony, and in^very case of Admiralty.
misdemeanor of the denominations hereinbefore enumerated, committed upon

the high Seas, to order the assistant to the counsel for the a&irs of the ad-
miralty and navy to pay such costs, expenses, and compensation to prosecu-
tors and witnesses, in like manner as other courts may order the treasurer of
the county to pay the same ; and such assistant is hereby authorized and re-
quired, opou sight of every such order, forthwith to pay to the person named
therein* or to any one duly authorized to receive the same on his or her
behalf, the money in $uch order mentioned, and shall be allowed the saiae in
h'isaecoanls.

XXVIU. And, for the better remuneration of persons wbo have been active Courto may
in the appcehensioii of certain offenders, be it enacted, that where anyperson order compcn-

xxviii ADDENDA, &c. TO VOL. I.

fmtlon to thoio ^hall appear to any court of o^ and terminer, gaol delivery, silperior crt-
wlio have boon tii\tm\ conrt of a county palatine, or court of great sessions, to have been ac*
nctlvo in tho tiyo in or toimrds dio apprehension of any person (Charged trith murder, or
npprchcniion with fslohionsly and maliciously shooting at, or attempting' to discharge any
of ccruln of- kind of loaded fire arms at any other person, or -vrith stabbing, cuttuig, or
fcnrtors. poisoning, or with administering any thing to procure the miscarriage of any

(^^^' ^ ^» woman, or with lupc, or with bnrglary or felonious house-breaking, or with
10 A*ii w ^ i^ol>l>«ry on the person, or with antoo, or with horse-s(ea1ing, bullock-stealings
0 21 • 12 ^^ tihecp-stealinp, or with being accessory before the fact to any of the offences
ftAun.'c.3l! *foi'0Miid, or with receiving any stolen property knowing tbe same to have
p 1^ ' * * been stolen, every such court is hereby authorized and empowered, rn any of
14 O. 2. 0. 6. ^^ ^^^^ aforesaid, to order the sheriff of the county in which the offence
AB (}. 3. c. 70* ^hall hate been committed to pay to the person or persons, %ho shall appear
B. 4 & 6. to the Court to have been active in or towards the apprehension of any person

charged with any of the said offences, sa^b sum or sums of money as to the
Court shall seem reasonable and sufficient to compensate such person or per-
sons for his, her, or their expenses, exertions, and loss of time in or towards
such apprehension i and where any person shall appear to any court of sessions
of the pence to have been active in or towards the apprehenston of any party
charged with receiving stolen property knowing the same to have been sftolen,
such court shall have power to order compensation to such person in the same
manner as the other courts hereintiefore mentioned ; provided always, that
nothing herein contained shall prevent any of the said courts from also allow-
ing to any such persons, if prosecutors or witnesses, such c^te, expeoses, and
corapensatioi^ as courts are by this act empowered to allow to prosecutors
and witnesses respectively.
S»ch otders to XXIX. And be it further enacted, that every order for raymeM to any per-
h«l>^id by the son in vetpeet of such apprehension as aforesaid, shall be tbrthwitfa made out
■hcriff, who i^Qii delivered by the proper officer of the court unto such person, upon being
r^^^V te r*. 1*^ ^^ ^^^ ^'^^ ^^ ^"^ ®^ ^^^ shilling and no more : and the sheriff of the
iwvment on ^^^'^^T ^ ^^ ^^""^ heing is hereby anthoriied and required, upou sight of
a^Hlcalion to '*^^ order, forthwith to pay to such person, or to any one duly authorized on
the ifvniorr* hHwr her behalf^ the money in such order mealioned't and every snch sheriff
(^8 G. 3, c*rO. niay imroediatelf apply Ibr repayment of the same to the commisinoners of
», &« hia'Mi^raly^i tr«asary% who upon lnspectin|g such order, together with the ac-

3 (}» I, c. 15« qnitlaaee *of the peVsoo entitled to receive the money thereon, shall forth-
•« 4.) with order repayment to the sheriff of the money so by him paid, without any

fee or reward whatsoever.
If tta]r man Is X\\, And he it further enacted. That if any man shall happen to be killed
kkHc«l in «t- III eadeavourtng to apprehend any person who shall be charged with any of
ti^mpune to 11^ offeocf^ hereinbefore last nmtiooed, it shall be lawful fur the court he-
i*Ke V^rt*m f^^^ ^^^ ^^1^ p^^f.,,,^,1 j^j^H 1^ iiried to order the sheriff of the county to pay
^^'*^;*^ to the widow of the man so killed, in ra^v^ he shall ha%Y ben mirrieli. or to
dcr «.vnlivtt«»- ^'* child or rhildnfo in nse hi* irif<p shall be dead« or to his father or mother
ikw u> b;« ^ ** *^*^ ^ ^^^^ ^^^ '^ neither wife nor chiW^ such sum of moorT as to the
nutv. court iii it» dtwtelion shall seem uiwel « aad the order for parmewt of soch

v.^9iV«. ^ Cs ?0s money $hall hr n^ade out and detiyertd by the proper officer of the court nnio
9^ X' the party eatitltd to receive' the $ame« or unto some ooe oa his or her behalf,

to be named in stsch order hv the direttioa of the court ; ard r\nj soch order
shall be paid by aad repaid to the sheriff la tbr niaataer bereiabrlbve oacotioofd.
R<w>cr:»A»c« XXXK And wnaieia& the pcactice of iedt«rrim»3«lelT estreatiT^^ recogni-
M <vr(jaa taacw> for the appeania<ir of persoft< to praerwte oc'^^tty evide«c«. or to

c^5)r^ v^ aft answer far a rooaatou w^<aolt« or ia the oOkt cans bfrebsf^cr sperified, has
>«< «4TVT»s;<a K'y« tfiKir4 la vaaar ici>tar.ce$ predartii^ of baT^>h^7 to per««s who have c«-
"^ *'^V«i a iv«««i trio the iMMrs be it thfvefo^ ewacted. That «a r>evT case wbfve aay

i^i^-* * viracr* l<t.<ni b»iiiiJ ^t lere^isaace f«w ha;: or bfr aypgiaraiwe^ 'or fcr whose ap-

pcuMMir aoy other fer«ana shall be loo becftJ tv^ prvoerwle or pKv cniewoe la
aat caoteotf MNay «r mi.diwwaair^ ec Iw asasianer ^w axy cvwaeai xaoalt. or
to aveicwo oC abe jpcaMeiik or be abMhr aai oawer aa wasaarvi « ^$anu! SMaTsa wmmK
4Acll. theofficyrafther^airlbywbaoatbersereat^^aaaAeettt shal aad
a$ braebT ta^aimii bi» pufian a H!t in •■■^.i^. spnr '^linc A» amme «C

dHhu^. ^ad theaniBi i << ^heedftwce ^ ityat of
or bis wr brr Mamti^ wvs iv bamadL tu-^^^ftbcr wM the

oa c%eaa siKai yifa^na

7 GEO. IV. c. «4. xxix

tiw cante, if known, why each such person has not appeared, and whether by
reason of the non-appearance of sucb person the ends of justice have been de-
feated or delafied ( and every such ofiicer shall and is hereby required, before
aoy such recognizance shall be estreated » to lay such list« if at a court of oyer
and terminer or gaol delivery in any county besides Middlesex aad London,
or at a court of great sessions, or at one of the superior courts of the counties'
palatine, before one of the justices of those courts respectively i if at a court
wherein n recorder or other corpomte officer is the judge or one of the judges,
before such recorder or other corporate officer ; and if ai a session of the
peace, before the chairman or two other justices of the peace who shall have '

attended such court, who are respectively authorised and required to examine
soch list, and to make such order touching the estreating or puttiD<; in pro*
cesfi of any such recognizance as shall appear to them respectively to be just)
and it stmTl sot he lawful for the officer of any court to estreat ar put in
process any such recognizance without the written order of the justice, re-
corder, corpojcate officer, chairman, or justices of the peace before whom re-
spectively such list shall have been laid.

XXX II, And be it further enacted. That from and afler the commencemeal Repeal of the
of tbb act, fio much of a statute made at Westminster in the third year of the acts,
rei^ of king Edward the First, as provides what prisoners shall not be reple* 3Ea. l. c. L5.
disable and what shali he so ; and a statute made m the seventh year of the ^ ^ ^^
reign of kiagHeor^ the fifjthi and so much of a statute made in the ninth qu\' .
year of the same re»ga« as relates to indictments aad appeals laid in a non« ^ • • c. i.
existing place; and so much of a statute made in the eighteenth year of the i8H.6.c. 12.
reign of aing Henry the Sixth; as perpetuates the said provision of the statute
last referred to; and so much of a statute made in the twenty^third year of the ^ ^» ^* <^* 9*
same reign, as relates tosberiflfsand other officers and ministers therein men-
tioned letting out of prinon upon sureties any person in custody upon indicts*
roent; and an Act passed in the first year ot the reign of King Richard the 1 R- 3. c. 3.
Third, intitutled * An act for bailing of persons suspected of ^ony ( and so 3 H. 7. c. 3.
nuch of an act passed in the third year of the reign of king Henry the Se-
venth, intituled * An act that justices of the peace may take bail/ as relates to
bail or malnprize I and an act passed in the tweaty-nftb year of the reign of 25 H. 8.c.3.
kiog HenrV the Eighth, intituled ' An act for standing mute* and peremptory
chatlen|ce v and so much of an act passed in the thirty -second year of the same 32 H. 8. c. 3.
reign, iqti tilled ^ For the continuation of acts,' as perpetuates the saidlast-
roentipned. act % and an act passed in the second find third years of the reign of 2 & 3 Ed. 6. c.
king Edward the Sixth, intituled * An act for the trial of murders and felonies 42.
i« severaltcpontiea:' and an act passed in the fifth and sixth years of the same 5 & 6 Ed. 6. c.
reign, in^tuled * An act to take away the benefit of clergy from such as rob in 10.
one shire and fly into another i* and an act passed in the first and second years i & 2 P. & M.
of the reign of king Philip and queen Mary, intituled 'An act appointing an c. 13.
order to justices of peace for the bailment of prisoners;' and an act passed in the * 3 p & M
second and third years of the same reign, intituled * An act to take examina- ^ ^q^
tic a of pri9oners inspected of manslaughter or felony ;* and an act passed in * *
the foiull^ year of the reign of king William and queen Mary, intituled * An 4 W.&M.c.S.
act for, encouraging the apprehending of highwaymen;' and so much of an 10& 11 W.3.
act paned in the tenth and eleventh vears of the reign of king William, iati- c. 33.
tnled ' An act for the better apprehending, prosecuting and punishing of felons
that commit burglary, house-breaking or robbery in shops, warehouses coach-
bouses, or stables, or that steal horses,' as relates to the certificatethereln men-
tion^; and so much of an act passed in the first year of the reign of queen 1 Anne, st. 2.
Anne, iniituled *• An act for punishing of accessories to felonies and receivers c. 9. s. 1.
of stolien. goods; and to prevent the wilful burning and destroying of ships,'
as retafes to accessories ; and an act passed in the sixth year of the same Vulgo,
reign, Intitled .' An act for the encouraging the discovery and apprehending of 5 Anne, c. 31.
hdu^BDr^al^r^/ except the special provision aflSscting the sheriffs and under-
shm^ of jpondon and Midolesex ; and an act passed in the sixlh year of the 5 q j ^ 23.
reiga,of.k}|^Q«orge the First, intituled ^ An act for the further preventing
roSbmr,^,6arglary , and other felonies ; and for the more effectual transporta-
tion pf'/el^o^s' and so much of an act passed in the. twenty -<fifth year of the 25 O. 2. c.36.
r^gnp/,ki^ Gec^rge the Second, intitutled ' An act for the better preventing 8.11.
tb^api^j^^lieries; and for rcyrulsmng places of public entertainpent, ana
puaislii^peirsop^ k^ping disoroerly hous^ as, relates -t^. payments' to pro-i
Kcn^. ij^ ^?^ 9^ H^^'^l\ ^<1 ^^ (wch of an act pwed «a the twenty- 27 G. 2. c.3.

XXX ADDENDA, ke. TO VOL. I.

WTenth year of the same rei^, intituled 'An act for the better secnrin^to
constables and others the expenses of conveying offenders to gaol, and for al«
towing the charges of poor persons bound to give evidence against felons/ as
relates to the allowance of compensation to poor persons appearing on rrcog-
18 O.3., c. 19. nizance to give evidence against any one accused of felony; and so much of
t. 7, 8. ' an act passed in the eighteenth year of the reign of king George the Third,

intituled * An act for the payment of costs to parties on complaints determined
before justices of the peace out of sessions; for the payment of the charges
of constables in certain cases; and for the more effectual pajroeot of charges
to witnesses and prosecutors of any larceny or other felony, as relates to pay-
ments and allowance to prosecutors and other persons appearing on recogni-
xance or subpcBoa to give evidence as to any felony, and to rules and regula-
tions touching the cost^ and charges to be allowed to such prosecutors and
43 G. 3. C.59. persons; aud so much of an act passed in the forty- third year of the same
** ^* feign, intituled * An act for remedying certain defects in the laws relative

to Ihe building and repairing of county bridges and other works maintained
at the expense of the inhabitants of counties in England," as relates to lay-
iSG.S.c. 113. ing the property ia the surveyor of county bridges in any indictment; and so
•• 5. much of an act passed in the same year, for providing, among other things,

for the more convenient trial of accessories in felonies, as relates to the trial
of accessories, except the special provisions therein contained as to ac-
cessories before the fact in murder; and an act passed in the fifty-sixth
56 6.3. c. 73. year of the same reign, intituled * An act for removing difficulties in the con-
viction of offenders stealing property from mines;' and an act pissed in the
fifty-eighth year of the same reign, intitutled ' An act for n-peiiling such
58 G. 3. c. 70. parts of several nets as allow pecuniary and other rewards upon the conviction
of persons for highway robbery and other crimes and offences; and furfacititat-
ing the means of prosecuting persons accused of felony and other ofl^cnces,*
except so much thereof as relates to disorderly houses; and an act passed in
the fifty-ninth year of the same reign, intituled *• An act to facilitate the trial
59G.3.C. 27. of felonies committed on board vessels employed on canals, navigable rivers,
and inland navigations i* and another act passed in the same year, intituled
59G.3.e. 96. * An act to facilitate the trials of felonies committed on stage-coaches and
stage- waggons and other such carringes, and of felonies committed on the
boundaries of counties;* and an act pass(*d in the first year of his present Ma-
1 G. 4. c. 102. jesly's reign, for making general the provisions of the said recited act of tbo
fifty-sixth year of the reign of king George the Third : and so much of an act
3 0.4. c. 38. passed in the third year of the present reign, intituled * An act for the further

and more adequate punishment of persons convicted of manslaughter, and of
servants convicted of robbing their masters, and of accessories before Ihc fact
to grand larceny and certain other felonies,' as provides that accessories l>e-
fore the fact may be indicted for a mi<<demeanor ; and so ranch of another act
3 G.4. c. 126. passed in the same year, intituled ^ An act to amend the general laws now in
■• 60. Deing for regulating turnpike roads in that pa^t of Great Britain called Eng-

land, as relates to stating in any indictment any things to be the proporty of
the clerk to the trustees or commissioners, as therein mentioned ( and an act
9 0. 4. c. 56. passed in the sixth year of the present reign, intituled * An act to aoMod two
acts for removing difficulties in the conviction of offenders stealing property
in mines and from corporate bodies,* shall lie and the same are hereby repealed,
except so far as any of the said acts relate to Scotland or Irelaad, or repeal
the whole or any part of any other acts, and except as to offences conunitted
before the passing of this act, which shall l>e dealt with and punished as if this
act bad not been passed.

9 GEO. IV. c. SI. xxxi

ANNO NONO

GEORGII IV. REGIS.

CAP. XXXI.

Ar Act for consolidating and amending the Statutes in England rela*
tioe to Offences against the Person. [^7th June^ 1828.]

WvcKBAt it is expedient to repeal various statutes now in force in that part

•f tbe Uoiled Kin^duni called England, relative to offences against the per-

•oa, ID order that the provisions contained in those statutes may be amended

and copftolidated into this act; be it therefore enacted by tiie Kind's most ex-

cdleiit Majeaiy, by and with the advice and consent of the Lords Spiritual

asd Tenip<»ral, and Commons, iu this present parliament assembled, and by

theaulbority of the same. That so much ot* the great charter made in the Repeal of

Bioth year oY the reign of King Henry the Third, as relates to inquisitions of 9 h, 3. c.20.^

life or nienil>er; and so mach of a statute made iu the ftfiy-second year of 52 H. 3. c. 25.

tbewme reirn« as relates to murder; and so much of a statute made iu tbe 3 Ed. 1. c. 11

third year ol the reign of King £dward the First, as relates to inquests of and 13.

murder, and the writ of Odio et aiid, and to any person ravishing or tiking 4 E^. I. at. 3.

avay by force any female as therein mentioned; and so much of a statute ^* ^*

Bade in the fourth year of the same reign, intituled " The statute of bi- ?o^J**,^'^*,

gamy," asrriates to bigamistn; and so much of a statute made in the sixth 99 d^

jear of tlie aame reign, as relates to any person killing another by misfor- g'^ ^^st l!

toae or in his own defence, or in other manner without felony ; and so much c. 3.

of a slatote made at Weslroiaster in the thirteenth year of the same reign, as 13 Ed. 3. st. 3,

relates to the writ ofOdio it atiA and to rape ; and so much of a statute made c. 2.

in the niiilh year of the reigu of King Edward the Second, commonly 25Ed. 3. 8t.5.

called ArHeuii Cleric as relates to laying violent hands on a clerk; Partof c. 2.

and so DMtch of a statuto made in the eighteenth year of the reign of 50 Ed. 3. c. 5.

king Kdward the Third, as relates to bigamists; and so much of a statute lKich>2 c. 15.

reign, as relates to petit treason; •Ricb.2.8t. 1.
aad so maeli of a statute made ia the fiftieth year of the same reign, as re- ^u a r

made in tlie iiseaiy-fifih year of the same reign, as relates to petit

lates to the arreals of persons of holy church ; and so much of a statute made ^ ^ 1 ' A
m the first year of the reign of kiig Aichard the Second, as relates to the like 2 H. 5. bl U
arrcsis : and so ranch of a statute made in the sixth year of the same reigo, as c. 9' '
relates to ravishers, and to women ravished ; and so much of a statute made 11 H. 6. e. 11.
ia the fiAh year of the reign of king Henry the Fourth, as relates to cutting
the toagnes or putting out the eyes of any the king's liege people, and to any
a<4aoU opon the servant of a knight of the shire in parliament ; and so much
of sitatate made in tbe second year of the reign of king Hetiry the Fifth, an 3 H. 7. c. 2.
rtiales to persons fleeing for marders, mansiaugiitcrs, robberies, and bat-
teries; and so much of a statute made in the eleventh year of the reign of king 3 h 7 c 14
Reory the Stitfa, as relates to any assault or aQVay made to any lord, knight
of ti^ shire, cili2ea, or burgess being and attending at the parliament or
ether council of tbe king ; and an act passed in tbe third year of the reign
of king Hcory the Seveatht inlituJed ' An act against taking away of women 12 H. 7. c. 7.
' their wtib;* and an act passed in the same year, intituled ' An act that 24 H. 8. c. 5.

xxxii ADDENDA, kc TO VOL. L

tlieslewird, treMurer, and controllor of the kin^s hoate* ihall enquire of

offences done within the same ;* and an act passed in the twelfth year of the

25 H. 8. e. 6. same reig^, intitnled ' An act to make some offences petty treason t* and an

act passed in the twenty-fourth year of the rei^ of Henrf the Eighth, inti-

tulea * An act where a man kilhng a thief shall not forfeit his goods ;* and an

33 H. 8. c. 12. act passed in the twenty-fifth year of the same reign, intituled * An act for

Part of a. 6. the punishment of the ^ice of buggery ;* and so much of an act passed in the

to 8. 18. thirty-third year of the same reign, intituled * An act for mnrther and

38 H. 8. c. 23. malicious bloodshed within the court,* as relates to the punishment of man-

slaughter and of malicious striking, by reason whereof blood shall be shed;
and an act passed in the same year, intituled ' An act to proceed by a commis-
sion of oyer and determiner against such persons as shall confess treasons,
without remanding the same to be tried in the same shire where the offence
was committed ;* and so much of an act passed in the first year of the reign
1 Ed. 6. c« 12. of King Edward the Sixth, intituled ' An act for the repeal of certain statutes
a. 10. 13. 16. concerning treasons, felonies, etc.,* as relates to petty treason and murder,
and 22. and to bigamists, but nothing therein now in force reUtinff to foreign pleas or

dower ; and so giuch of an act passed In the fifth and sixth years of the same
5 & 6 Ed. 6. c. rci?D« intituled 'An act against quarrelling and fighting in churches and
4. 8. 3. churchyards,' as relates to Sie punishment of persons convicted of striking

with any weapon, or drawing any weapon with intent to strike as therein men*
tioned ; and an act passed in the fourth and fifth years of the reign of King
4&5P. &M. Philip and Queen Mary, intituled 'An act that accessories in murder and
^' ^* dif ers felonies shall not have the benefit of clergy ;* and an act oassed in the

4 & 5 P. & M« same years, intituled ' An act for the punishment of such as shall take away
<^« 8. maidens that be inheritors, being within the age of sixteen years, or that

marry them without consent of their parents;* and so much of an act passed

5 Ells. c. 4. a. in the fifth year of the reign of Queen Elizabeth, intituled 'An act touching
21. divers orders for artificers, labourers, servants of husbandry, and apprentices,

as relates to the punishment of any servant, workman, or labourer making any
5 Elis. c. 17. assault or affray as therein mentioned ; and an act passed in the nroe year, in-
tituled ' An act for the punishment of the vice of sodomy «* and an act passed in
1 8 EUs. c. 7. the eighteenth year of the same reign, intitu led *^ An act to take away clergy from
the offenders in rape and burglary , and an order for the delivery of clerks convict

39 Elis. c 9. without purgation ;'* and an act passed in the thirty-ninth year of the same

reign, intituled "An act for taking away of clergy from offenden against a
certain statute made in the third year of the reign of King Heny the ^venth,
Vnlgo 2 J. 1. concerning the taking away of women against their wills unlawfully ;** and an
c. 8. ' ftct passed in the first year of the reign of King James the Firnt, intituled " An

Vulffo 2 J 1 *ct to take away the benefit of clergy from some kind of manslaughter ;** and
^ lll^ an act passed in the same year, intituled " An act to restrain all persons from

marriage until their former wives and former husbands be dead )** and an act
22 & 23 C. 2. Passed in the twenty-second and twenty-third years of the reign of King Charles
c. 1. the second, intituled "An act to prevent malicious maiming and wounding;*'

22 & 23 C 2 ^^^ ^^ much of an act passed in the same years, intituled " An act to prevent
c. 1 1. 8. 9.* ^^^ delivery up of mercnant ships, and for the increase of good and serviceable

shipping,** as relates to any mariner laying violent hands on his coraroander,
VuIffo 11 & 12 '^ Uierein mentioned ; and so much of an act passed in the eleventh year of
W.3/c.7.8.18 ^® ^P^ ^^ King William the Third, intituled " An act for the more effectual
suppression of piracy,'* as relates to any master of a merchant vessel, who shall
force any man on shore, or wilfully leave him behind, or refuse to bring home
9 Ann. c. 14. ^^7 "^'^ ^ therein mentioned ; and so much of an act passed in the ninth year
f^g^ * * ' of the reign of Queen Anne, intituled " An act for the better preventing of
excessive and deceitful gaming,*' as relates to the forfeiture and punishment of
any person assaulting and beating or challenging or provoking to fight any
9 Ann c 16 other person on account of any money won as therein mentioned; and an act
passed in the same Tear, intituled " An act to make an attempt on the life of
a privy counsellor in the execution of his oflSce to be felony without benefit of
12 0. 1. c. 34. clergy ;** and so much of an act passed in the twelfth year of the reign of King
8. 6. George the First, intituled " An act to prevent unlawful combinations of

workmen employed in the woollen manufactures, and for better payment of
2 0. 2 c. 21. ^^'^ wages,'* as creates any felony ; and an act passed in the second. year of
the reign of King Qeorge the Second, intituled " An act for the trial of mur-
ders in cases where either the stroke or death only happens within that ^part of
Great Britain called England ; and so much of an act passed in the eleventh

0 GEO. IV. c. 31. xxxiii

feir 9i tteflvme rel^, iotftnM ^ Ab tctfer pMfthin^ todt persons as rfiall u g. 2. c. 22.
io injaties mod ▼ioMDC«s to tiie' persons or properlilB of his Majesty's snb- Part of s. 1
jecls^ irMi sntentto hinder the exportation of com, as relates to any petson and 2.
who sfam bcA wound, or use any other Tioience to any person or driver, and
so Buck thereof as noakes any second offence felony % ami so moch of an act
passed in the twnaty-seeoad year of the same reign, iatitoled * An act for the 22 0. 2. c. 27.
moreeffMftaal proventiag of frauds and abuses committed by persons em- P^^ of s. 12.
ployed in the manoisclare of hats, and in the woollen, linen, fustian, cotton,
mo* lettlher, fnr, heaip« flax, molmir, and silk mannfactares ; and for pre-
Tsntia^ valawfoi combinations of journeymen dyers and journeymen hot-
pfewiii, and of all persoas employed in the said several manufactures, and for
the better payment of their wa;^, as extends to the persons therein mentioned
that part of the act of the twelfth year of king George the First which is here-
iabeme referred to« and the whole of an act passed in the twenty-fifth year 25 6. 2. c. 37.
of tkereiM of king George the Second, intituled, * An act for better preventing except a. 9.
the hoTTM crime of mnrder,* except so far as relates to rescues and attempts and 10.
to rcKaet and ao much of an act passsed in the twenty-sixth year of the same 25 G. 2. c. 19.
Beigo, intitaled ' An act for enforcing the laws against pec^ons who steal or s. 11.
deUftt shipwrecked goods* and for the relief of persons suffering loss thereby,*
as relates to aay person who shall be assaulted, beaten, and wounded for the
exerciae of, his duty in the salvage of any vessel, good<;, or effects, as therein
mentioned i and so much of an act passed in the thirtieth year of the reign ef qq q 3 c 48
king Geori^ the Third, intituled * An act for discontinuing the judgment
which has keen required by law to be given against women convicted of cer-
tain crimes, and substituting another judgment in lieu thereof,* as relates to
petit irenaoo ; and so much of an act pa^ed in the thirty-third year of the 33 q 3 ^^ ^^^
suae reiga* intiloled ^ An act for better preventing offences in obstructing, de- g. 2. *
stroyittgv er damaging shipaor other vessels, and in obstructing seamen, keel-
niea, caateie* -and ship oarnenters from pursuing their lawful occupations,* as
relates te any seaman* keelnina^ caster, ship carpenter, or other person, who
shall prmnnt. iunder* .4>r obstruct, or assault, beat, wound, or do any bodily
vifrieace'or hurt to aay seaman, keeknao, caster or ship cari>enter, as therein
pwticelariy- mentioned $ and an act passed in the thirty-fifth year of the saihe 35 g. 5. c. 67.
leigB, ietituled * An act for rendering more effectual an act passed in the first
year of the reign of king James the First, intituled ** An act to restrain all
{Msoea from marriage ontii their former wives and former husbands be
doftd;'*' 4md so muck of an^aet passed io the thirty-sixth year of the same 36 6.3. c.9.
wtipk^ ioiiftiih)d * An act to prevent obstructions to the free passage of grain part of s. 1.'
wiUiie the kingdom, as relates to any person who shall beat, wound, or use and 2.
any othor Tioience to any person or driver, and so much thereof as makes
any soeond offence felony; and an act passed in the forty-third ^ear of the 43 g 3 c 58
mine iei|gn, intituled * An act for the further prevention of malicious sboot-
iag, andialtemptinff to discharge loaded fire arras, stabbing, cutting, wound-
ii»« poisoning, ana the malicious using of means to procure the miscarriage
efweetun, and also the malicious setting fire to buildings: and also for
repealing a eerlsin act made in England in the twenty-first year of the late
king Tain the First, intkoled ** An act to prevent the destroying and mnr-
therii^ of hastard children,*' and also an act made in Ireland in the sixth year
of the reign of the late queen Anne, also intituled *' An act to prevent the
destroying and mnrtbering of bastard children,** and for making other pro*
Tiaiona in lien thereof;* and an act passed in the same forty-thi^ year, mti- 43 g.3.c. 113.
tuled *• An act for the more effectually providing for the punishment of of-
fencea ia idlf ully casting away, burning, or destroying shins and vessels, and
for the vioce eonvenient trial of accessories in felonies, and for extending the
powcfv ef an act made in the thirty-third year of the the reign of king Henry
the Ughlh, aa teas relates to murders, to accessories to murders, and to man-
slaaghleiB I* andea act passed in the fifty-fourth year of the reign of king George .ir 9 ini
the Thifd, iaCitttled * in act for the m<>re effectual prevention of child-steal- ^^ ^'^' ^' '^^-
iag<* aad m> much of aa act passed in the fifty-eighth year of the same reign, 58 6. 3. c. 38.
~ « An act to extend and render more effbctual the present regulations g. 1.

for the relief of seafarine men and boys, subjects of the United Kingdom of
Great Britain and Ireland, in foreign parts,* as relates to the trial ot offences
igainst the act of king William the Third, hereinbefore mentioned; and so
Diocb of an act passed in the first year of the reign of his present Majesty, ^ q 4, g. 90,
uh'toJed *Aaaet Io remove doubts and to remedy defects in the law, with g 2 '

C

XXXIV

ADDENDA, &c. TO VOL. I.

1G.4.C. 115.

1 & 2 6. 4. c.

88.

3 6. 4. c. 38.

3G.4.C.114.

Coromence-
ment of this
Act.

Petit Treason
to be treated
in all respects
as Marder.

Punishment of
Frinc'pals and
Accessories in
Murder.

Period of Ex-
ecution and
Marks of In-
famy.

Sentence to be

pronounced

immediately.

power to
respite.

As to the Dis-
section of the
Bodies of
Murderers.

Prison Regu-
lations as to
Murderers
under sen-
tence.

respect to certain offences committed upon the sea or within the jarisdictiOfi
of the Admiralty,' sis refers to the act oi" the forty-third year of the reign of
king George the Third, hereinbefore first mentioned ; and an act passed in
the same first year, intituled ' An act to repeal so much of the several acts
passed in the thirty-ninth year of the reign of Elizabeth, the fourth of George
the First, the fifth and eighth of George the Second, as inflicts capital punish-
ment on certain offences therein specified, and to provide more suitable and
effectual punishment for such offences;' and so much of an act passed in the
first and second years of the present reign, intituled ' An act for the amend-
ment of the law of rescue, as relates to the offences of assaulting, beating,
and wounding therein mentioned ; and an act passed in the third year of the
present reign, intituled ' An act for the further and adequate punishment of
persons convicted of manslaughter^ and of servants convicted or robbing their
masters, and of accessories before the fact to grand larceny, and certain other
felonies;" and so much of an act passed in the same year, intituled * An act
to provide for the more effectual punishment of certain offences by impri-
sonment with hard labour,' as relates to any of the assults tlierein mentioned;
shall continue in force until and throughout the last day of June in the pre-
sent year, and shall from and after that day, as to that part of the United
Kingdom called England, and as to offences committed within the jurisdic-
tion of the Admiralty of England, be repealed, except so far as any of the
said acts may repeal the whole or any part of any other acts, and except as to
offences committed before or upon the said last day of June, which shall be
dealt with and punished as if this act had not been passed ; and this act shall
commence and take effect (except as is hereinbefore excepted) on the first day
of July in the present vear.

II. And be it enacted, That every offence, which before the commencement
of this act would haveamounted to petit treason, shall be deemed to be murder
only, and no greater offence; and all persons guilty in respect thereof, whether
as principals or as accessories, shall be dealt with, indicted, tried, and pu-
nished as nrincipals and accessories in murder.

III. Ann be it enacted, That every person convicted of murder, or of being
an accessory before the fact to murder, shall suffer death as a felon ; and every
accessory after the fact to murder shall be liable, at the discretion of the
couit, to be transported beyond the seas for life, or to be imprisoned, with or
without hard labour, in the common gaol or house of correction, for any term
not exceeding four years.

IV. And be it enacted. That every person convicted of murder shall be exe-
cuted according to law on the day next but one after that on which the sen-
tence shall be passed, unless the same shall happen to be Sunday, and in that
case on the Monday following; and the body of every murderer shall after
execution, cither be dissected or hung in chains^ as to the court shall seem
meet; and sentence shall be pronounced immediately after the conviction of
every murderer, unless the court shall see reasonable cause for postponing
the same; and such sentence shall express not only the usual judgment of
death, hut also the time hereby appointed for the execution thereof, and that
the body of the offender shall be dissected or hung in chains, whichsoever of
the two the court shall order : provided always, that after such sentence shall
have been pronounced, it shall be lawful for the court or judge to stay the exe-
cution thereof, if such court or judge shall so think fit.

y. And be it enacted. That whenever dissection shall be ordered by such
sentence, the bodv of the murderer, if executed in the county of Middlesex or
city of London, shall be immediately conveyed by the sheriffor sheriffs, or his
or Iheir officers, to the hall of the Surgeon's Company, or to such other place
as the said company shall appoint, and shall be oelivered to such person as
the said company shall appoint, for the purpose of being dissected ; and
the body of the murderer, if executed elsewhere, shall in like manner be
delivered to such surgeon as the court or judge shall direct, for the same
purpose.

VI. And be it enacted, that every person convicted of murder shall, after
judgment, be confined in some place within the prison, apart from all other
prisoners, and shall be fed with bread and water only, and with no other food
or liquor, except in case of receiving the sacrament, or in case of any sick-
ness or wound, in which case the surgeon of the prison may order other ne-
cessaries to be administered ; and no person but the gaoler and his servants.

9 GEO. IV. c. 31. XXXV

ud Ibie ehaplain and surgeon of the prison, shall hAve access to any such con-
vict, without the permission in writing of the court or jud^e before whom such
coniict shall have been tried, or of the sheriff or his deputy : provided always,
that in case the court or judge shall think fit to respite the execution of such
convict, such court or judge may, by a licence in writing, relax, during the pe-
riod of the respite, all or any of the restraints or regulations hereinbefore di-
rected to be observed.

FII. And be it enacted. That if any of his Majesty's subjects shall be British snb-
charged in Sngland with any murder or manslaughter, or with being acces- jccta may be
sory t>efore the fact to any murder, or after the fact to any murder or man- ^i^icd in En^-
siaughter, the same beiug resfiectively committed on hnd out of the United ^*"^ ^o^ mur-
Ringdoro, whether within the King's dominions or without, it shall be lawful ^^^ °^ ™*'*"
for any justice of the peace of the county or place where the person so charged *^^"^^^'*
shall be, to take cognizance of the offence so charged, and to proceed therein ^^J'"""'"^"
as if the same had been committed within the limits of his oroinary jurisdic- ^^^^^ '
tion; and if any person so charged shall be committed for trial, or admitted
to hail to answer such charge, a commission of oyer and terminer under the
great seal shall be directed to such persons, and into such county or place as
shall be appointed by the Lord Chancellor, or Lord Keeper or Lords Commis-
sioners of the great seal, for the speedy trial of any such offender ; and such
persons shall have full power to enquire of, hear, and determine all such of-
fences, within the county or place limited in their commission', by such good
and lawful men of the said county or place as shall be returned before them
for that purpose, in the same manner as if the offences had been actually com-
mitted in the said county or place: provided always, that if any peers of the. Proriso.
realm, or persons entitled to the privilege of peerage, shall be indicted of any
such offences, by virtue of any commission to be granted as aforesaid, they
shall be tried by their peers in the manner heretofore used: provided also,
that nothing herein contained shall prevent any person from being tried in any
place out of this kingdom for any murder or manslaughter committed out of
this kingdom, in the same manner as such person might have been tried before
the passing of this act.

VIH. And be it enacted. That where any person being feloniously stricken, Provision for
poisoned, or otherwise hurt upon the sea, or at any place out of England, ^he trial of
shall die of such stroke, poisoning, or hurt in England, or being feloniously ^^^^^f &nd
stricken, poisoned, or otherwise hurt at any place in England, shall die of '"j^'^'^l^ughtcr,
SQcb stroke, poisoning, or hurt, upon the sea, or at any place out of England, J,J^ the
eicry offence committed in respect of any such case, wnether the same shall cause 'of'death
amount to the offence of murder or of manslaughter, or of being accessory ^Qiy^ happens
before the fact to murder, or after the fact to murder or manslaughter, may m England.
be dealt with, enquired of, tried, determined and punished in the county or
place in England in which such death, stroke, poisoning, or hurt shall happen,
ui the same manner, in all respects, as if such offence had been wholly com-
mitted in that county or place.

IX. And be it enacted. That every person convicted of manslaughter shall PuDishmcnt of
be liable, at the discretion of the Court, to be transported beyond the seas for manslaughter.
life, or for any terra not less than seven years, or to be imprisoned, witli or

without hard labour, in the common gaol or house of correction, for any term
not exceeding four years, or to pay such fine as the Court shall award.

X. Provided always, and be it enacted. That no punishrornt or forfeiture As to homi-
shaii be incurred by any person who shall kilt another by misfortune or in his cide not felo-
own defence, or in any other manner without felony. nious.

XI. And be it euacted, That if any person unlawiully and maliciously shall Attempts to
administer or attempt to administer to any person, or shall cause to be taken murder, when
by any person, any poison or other destructive thing, or shall unlawfully and eridenccd by
maliciously attempt to drown, suffocate, or strangle any person, or shall un- certain acts,
bwfully and maliciously shoot at any person, or shall, by drawing a trigger, ***"^' ^ *^*~
or in any other manner, attempt to discbarge any kind of loaded arras at any V}^*
person, or shall unlawfully and maliciously stab, cut, or wound any person,

with intent, in any of the cases aforesaid, to murder such person, every such
offender, and every person counselling, aiding, or abetting such offender, shall
be guilty of felony, and being convicted thereof, shall sutfer death as a felon.

XII. And be it further enacted. That if any person unlawfully and mali- Shootinflrat,
cionsjy shall shoot at any person, or shall, bv drawing a trigger, or in any or atabliinfr,
other raaoner, attempt to discharge any kind of loaded arms at any person, or cutting, or

C 2

XXXVI

ADDENDA, &c. TO VOL. I.

wounding any
person, with
inteat to
maim, &c.
shall be capi-
tal, provided
tbe'case would
have been
murder if
death had en-
sued.

Administering
poison or using
any means to
procure the
miscarriage of
a woman
quick with
child.

Hie like as to
a woman not
quick with
child.

A woman se-
creting the
dead lK>dy of
her child, to
conceal the
fact of its
birth, guilty
of misde-
meanor.

Proviso.

Sodomy.

Rape.

Carnal know-
ledge of a girl
under ten, the
like of a girl
above ten and
below twelve.

What shall be
sufficient proof
of carnal
knowledge in
the four pre-
ceding

shall unlawfully and maliciously stab, cut, or wound any person, with intent,
in any of the cases aforesaid, to maim, disfigure, or disable such person, or to
do some other grievous bodily harm to such person, or with intent to resist or
prevent the lawful apprehension or detainer of the party so offending, or of
any of his accomplices, for any offence for which he or they may respectively
be liable by law to be apprehended or detained, every such offender, and
every person counselling, aiding, or abetting such offender, shall be guilty of
felony, and being convicted thereof, shall suffer death as a felon : provided
always, that in case it shall appear, on the trial of any person indicted for any
of the offences above specified, that such acts of shooting, or of attempting to
discharge loaded arms, or of stabbing, cuttin?, or wounding as aforesaid, were
committed under such circumstances, that it death had ensued therefrom, the
same would not in law have amounted to the crime of murder, in every such
case the person so indicted shall be acquitted of felony.

XIII. And be it enacted, That if any person, with intent to procure the mis-
carriage of any woman then being quick with child, unlawfully and mali-
ciously shall administer to her, or cause to be taken by her, any poison or
other noxious thing, or shall use any instrument or other means whatever
with the like intent, every such offender, and every person counselling, aiding,
or abetting such offender, shall be guilty of felony, and being convicted
thereof, shall suffer death as a felon ; and if any person, with intent to procure
the miscarriage of any woman not being, or not being proved to be, then
quick with child, unlawfully and maliciously shall administer to her, or cause
to be taken by her, any medicine or other thing, or shall use any instrument
or other means whatever with the like intent, every such offender, and every
person counselling, aiding, or abetting such offender, shall be guilty of felony,
and being convicted thereof, shall be liable, at the discretion of the Court, to
be transported beyond the seas for any term not exceeding fourteen years nor
less than seven years, or to be imprisoned, with or without hard labour, in
the common gaol or house of correction, for any term not exceeding three
years, and, if a male, to be once, twice, or thrice publicly or privately whipped
(if the Court shall so think fit), in addition to such imprisonment.

XIV. And be it enacted. That if any woman shall be delivered of a child,
and (shall, by secret burying or otherwise disposing of the dead body of the
said child, endeavour to conotal the birth thereof, every such offender shall be
guilty of a misdemeanor, and being convicted thereof, shall be liable to be im-
prisoned, with or without hard labour, in the common gaol or house of cor-
rection, for any term not exceeding two years ; and it shall not be necessary
to prove whether the child died before, at, or after its birth : provided always,
that if any woman tried for the murder of her child shall be acquitted thereof,
it chall be lawful for the jury, by whose verdict she shall be acquitted, to find,
in case it shall so appear in evidence, that she was delivered of a child, and
that she did, by secret burying or otherwise disposing of the dead body of such
child, endeavour to conceal the birth thereof, and thereupon the Court may
pass such sentence as if she had been convicted upon an indictment for the
concealment of the birth.

XV. And be it enacted. That every person convicted of the abominable
crime of buggery, committed either with mankind or with any animal, shall
suffer death as a felon.

XVI. And be it enacted. That every person convicted of the crime of rape
shall suffer death as a felon.

XVII. And be it enacted. That if any person shall unlawfully and carnally
know and abuse any girl under the age of ten years, every such oflTender shall
be guilty of felony, and being convicted thereof, shall suner death as a felon ;
and if any person shall unla^ulty and carnally know and abuse any girl, being
above the age of ten years and under the age of twelve years, every such of-
fender shall be guilty of a misdemeanor, and being convicted thereof, shall be
liable to be imprisoned, with or without hard labour, in the common gaol or
house of correction, for such term as the Court shall award.

XVIII. And whereas upon trials for tbe crimes of buggery and of rape, and
of carnally abusing girb under the respective ages hereinbefore mentioned,
offenders /requendy escape by reason ot the difficulty of the proof which has
been required of the completion of those several crimes ; for remedy thereof
be it enacted. That it shall not be necessary, in any of those cases, to prove
the actual emission of seed in order to constitute a carnal knowledge»but that

.1

^?1

9 GEO. IV. c. 31. xxxvii

the carnal knowledge shall be deemed complete upon proof of penetration

Ofilj.

XIX. And be it enacted, that where any woman shall have anY interest. Forcible ab-
"Aether I^al or eauitable, present or future, absolute, conditional, or con- duction of a
tingeot, in any real or personal estate, or shall be an heiress presuroptiye or woman on ac-
nest of kin to any one having such interest, if any person shall, from motives count of her
of lucre, take away or detain such woman against her will, with intent to fortune, with
marry or defile her, or to cause her to be married or defiled by any other per- ii'tent to
ton, every such offender, and every person counselling, aiding, or abetting marry ber>&c.
such offender « shall be guilty of felony, and being convicted thereof, shall be

liable to be transportedl>eyond the seas for life, or for any term not less than
aeven yean* or to be imprisoned, with or without hard labour, in the common
gaol or house of correction, for any term not exceeding four years.

XX. And be it enacted, that if any person shall unlawfully take, or cause Unlawful ab-
to be taken, any nnmarried girl, being under the age of sixteen years, out of duction of a
the possession and against the will of her father or mother, or of any other gi" from her
person having the lawful care or charge of her, every such offender shall be P<^'C"^> ^^
guilty of a misdemeanor, and bein^ convicted thereof, shall be liable to suffer S^^^^'^^"-
snch pttnishment, by fine or imprisonment, or by both, as the Court shall

award.

XXI. And be it enacted, that if any person shall maliciously, either by force child-steal-
or fraud, lead or take awa^ , or decoy or entice away, or detain, any child un- ^Qg.

der the age of ten years, with intent to deprive the parent or parents, or any

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

snch child, to whomsoever such article may belong ; or if any person shall,

with any sach intent as aforesaid, receive or harbour any such child, knowing

the same to have been, by force or fraud, led, taken, decoyed, enticed away,

or detained as hereinbefore mentioned; every such offender, and every person

counselling, aiding, or abetting snch offender, shall be guilty of felony, and

being convicted thereof, shall be liable to be transported beyond the seas for

the term of seven years, or to be imprisoned, with or without hard labour, in

the common gaol or house of correction, for any term not exceeding two years,

and, if a male, to be once, twice, or thrice publicly or privately whipped (if the

Court shall so think fit,) in addition to such imprisonment : proviued alwavs. Not to extend

that no person who shall have claimed to be the father of an illegitimate child, to fathers tak-

or to have any right to the possession of such child, shall be liable to be pro- i°? their ille-

secuted by virtue hereof, on account of his getting possession of such child, gitiniate child-

or taking sack child out of the possession ofthe mother, or any other person ^^*

having the lawful charge thereof.

XXII. And be it enacted, that if any person, being married, shall marry any Bigamy.
other person during the life of the former husband or wife, whether the second
marriage shall have taken place in England or elsewhere, every such offender,

sod evenr person counselling, aiding, or abetting such offender, shall be
gnilty ol'^felony, and being convicted thereof, shall be liable to be transported
Iwyond the seas for the term of seven years, or to be imprisoned, with or with-
ont hard labour, in the common gaol or house of correction, for any term not
exceeding two years; and any such offence may be dealt with, enquired of. Place of trial,
tried, determined, and punished in the county where the offender shall be ap-
prehended or be in custody, as if the offence had been actually committed m
that coontT i provided always, that nothing herein contained shall extend to Exceptions,
any second marriage contracted out of England by any other than a subject
of his Majesty, or to any person marrying a second time, whose husband or
wife shall have been continually absent trom such person for the space of seven
}rears then last past, and shall not have been known by such person to be living
vithin that time, or shall extend to any person who at the time of such second
laarriage shall have been divorced from the bond of the first marriage, or to
aay person whose former marriage shall have been declared void by the sen-
tence of any Court of competent jurisdiction.

XXUI. And be it enacted, that if any person shall arrest any clergyman Arresting a
open any civil process, while he shall be performing divine service, or shall, clergyman
with the knowledge of such person, be going to penorm the same, or return- during divine
iag from the performance thereof, every such offender shall be guilty of a mis- service.
demeanor, and being convicted thereof, shall suffer such puntsnmeot, by fine
«r inynBoameat, or oy both, as tbe Court shall award.

XXXViii ADDENDA, &p. TO VOL. I.

ViinUhmnnt XXIV. And be it enncted, thst if aoy penon sfamll assBDlt mod strike or

for ftttnntilu oo wound any niagi<itrate, officer, or other person whatsoever bwfully authorized,

ttiTu'vrnj Ai;, on account of the exercise of hb duty in or conceminf; the preserTatioa of

fnr thr ir vm' any venncl in dihtre<M, or of any vessel, goods, or effects wrecked, stranded, or

Hi'ftvoiirii to ciwt on i»hore, or lying under water, every such offender, being convicted

'^'^^^ .L^"P Iheroof, Hhall be liable to l)c transported beyond the seas for the term of seven

Vrt* ^^^' yearn, or to be imprinonrd, with or without hard labour, in the common gaol

^^*^ ^' or house of correction, for such term as the Court shall award.

AMiinItt with XXV. And be it enacted, that where any person shall be charged witli and

InttMit to rom- con\ icted of any of the following offences as misdemeanors; that is to say, of

itilt felony \ any n^wault with intent to commit felony « of any assault upon any peace of-

iiMntiltn 1)11 f|(.4.|. i^f revenue officer in the due execution of hb duty, or upon any person

t>nir« omcrrii; ncting in aid of such officer t of any assault upon any person with intent to re-

ihp \rT^%iot **"** ^*f t»rcvcnl the lawful apprehension or detainer of the party so assaulting,

«ifrcii(l/r» or ^^ ^* ""y otlicr person, for any offence for which he or they may be liable by

In iiiirmiiiiiro ^'*^ ^^' ^'^ apprehended or detained \ or of any assault committed in pursuance

of A coiinpU ^^ ^^^1 ron«ipiniry to raise the rate of wages; in any such case the Court may

rtiry to riiiiio ncntonco the offender to be imprisoned, with or without bard labour, in the

wAKt^Hi pii- common gnol or hou^o of correction, for any term not exceeding two years,

nUliubin with and may also (if it shall so think fit) fine the offender, and require him to find

Imrd labour, luretios for keeping the peace.

Afmnult on any X X Vl. And be it enacted, that if any person shall unlawfully and with force

i(( nman, ^^. U) hinder any Ncaman, koelman, or carter from working at or exercising his law-

l>i I'viMit him ful trade, busincsH, or occupation, or shall beat, wound, or use any other vio-

from working; lenco to him, with intent to deter or hinder him from working at or exercising

jiRNiiultH witit tlio Humci or if any person shall beat, wound, or use any other violence to any

iV"I{ *? "^" pt'rM)«, with intent to deter or hinder him from selling or buying any wheat

Mnict tiio ^p other grain, ffour, meal, or malt, in any market or other place, or shall

llntf of irrnlii ^****^* wound, or use any other violence to any person having the care or charge
(u* Uii free ' ^^ *^"7 wheat or other grain, flour, meal, or malt, whibt on its way to or from
t>ANMnuo { nu- ^^^y ^*^y* market town, or other place, with intent to stop the conveyance of
uinhnClo bo- t^^*' hamc, every such offender may be convicted thereof before two justices of
foro two mn> the peace, and imprisoned and kept to hard labour in the common gaol or
ffUtriac»» M'ith luutsi' of correction, for any term not exceeding three calendar roontlu: pro-
Imprixoumcnt vidod ulwnvH, that no person, vho shall be punished for any such offence by
not cxcocdioif virtue of this provision, shall be punished for the same offence by virtue of
lUivi> tuontht). anv other law whatsoever.

IVrikmt com* SLXVIU And whereas it is expedient that a summary power of punbbing
inittli)i( nuy pcr>ous for common assaults and batteries should be provided under the limit-
ctnnmou »«• at ions hereinatlcr mentioned ; be it therefore enacted, that where any person
•AuttorbAt- jijj.iJi unlawfully ass;iult or beat any other person, it shall be lawful for two
liTv **"|y **J* ^ ju slue's of the peace, U|H>n complaint of the party ag«^ievcd, to hear and dc-
pMMjKiioit hy ti^riuin,* su^.|| offence, and the oliender, upon conviction thereof before them,
t^tc" UmAv '^^^^^^ forfeit and pay such fine as shall appear to them to be meet, not exceed-
Auo aud «r\>9t4 "'S^' top^ihcr with costs ^if ordcredj tho sum of ^^e pounds, which finesliall
not e4.c\^c«lin|r ^^ l^'*^ ^^^ ^ine one of the overseers of the (|K>or, or to some other officer of
t)/^ ^ ^ the |uristu township, or place in which the offence shall have been committed,

ArrtuAtioa of '** ^^* ^^ *"*^^ o\er>et*r or ollicer |^id over to the use of the general rate of the
luc liue* ^ county, ridiosc, or diviMon in whtch such parish, township, or place shall be

sitUAte, whether the same shall or shall not coutribute to such general rate;
ott^illi'^"*"^*** and the exidenco of any inhabitant of the ct>uuty, riding, or di^Wion shall be
lueat* ^^ admitti^l in priH)f of the oflVnee, notwithstanding such application of the fine

incurred thcrt^by t and if such fine as shall be awarded by the said justices,
together with tiie cost< vit\^r\ieffed«) shail not be pjitd, either ira mediately after
ll)e conviction, or within such nenod as the said justices shall al the time of
IIm' cor.^ictivui ao|H>ml« it shall Ve U«ful f«>r them to ronunit the oficnder to
the Cv'mmou ^aol or hou^ ^f ctwrectiMi^ tbetv lo ^ inpriMMcd for any term
not c\ccc^Uuc t«o calcudar mouths^ unless such fine aad cti$ts he sooaer paid \
irtVp a^cvx* jj^ji ^1^ ijj^ justicts, ujHHi the h<>ariikg ot* aav snch cak' «if aswalt or fcattery,

I V l!r *^!^ **"^* ^""^ ^^'^^ *'^*^ '^^ ■*** **^* ^ rt»\eJ, or s^U cad the KNanll or battery to
iKrrXSt Ifcaxt^ Nsx« j j>t,(iea, or s.> Irui.*;^ « "o* to nxrU aa^ fcs;s^nic«L Md shall ac-

ioAl<^o«ia c%H>!««x^ly dt>i\u>N tbe eomp^a.,.;, IWy $^*« loHh«.u wake oot a cniificate
tmi?N^«« to »«*'<* ^^-"^^ ha*.^s^ »Uta^c the ttaci of >*i<h d.v-.-ssak a»d >4all deliver soch

rcrtt^cftte to the Murtv acatctsA whoaa tW coaapUial vas wvlmed.

•I

'4

9 GEO. IV. c. 31, xxxix

oompUiat iludl hkxe been preferred for any common jusanlt or battery, shall Sach certlft-
haTc obtained such certificate as aforesaid, or having been convicted shall *^f ^. ^^ con-
have paid the ^hole amount adjudged to be paid under such conviction, or T'^^^?^
shall have suffered the imprisonnient awarded for non-payment thereof, in °^ a bar to
every such case he diall be released from all further or other proceedings, 'ecdLiM^ **'°"
civil or criminal, for the same cause. .

XXIX. ProTided always, and be it enacted, That in case the justices shall ^}^^^^ P«»TJ-
find the assault or battery complained of to have been accompanied by any ^^^Z to a -
attempt to commit felony, or shall be of opinion that the same is, from anv ^^avated ^'
other circumstance, a fit subject for a prosecution by indictment, they shall ^^^3 ^^^
abstain from any adjudication thereupon, and shall deal with the case in all

respects in the same manner as they would have done before the passing of
this act : Provided also, that nothing herein contained shall authorize any
justices of the peace to hear and determine any case of assault or battery in
which any question shall arise as to the title to any lands, tenements, or he-
reditaments, or any interest therein or accruing therefrom, or as to any
bankruptcy or insolvency, or any execution under the process of any court of
justice.

XXX. And be it enacted. That if any master of a merchant vesf^el shall, Panisliincnt

again

are in a condition to return when he shall be ready to proceed on his home- * seaman on

ward-bound voyage, every such master shall be guilty of a misdemeanor, and fu°j^' ^^y ^^'

being lawfully convicted thereof, shall be imprisoned for such term as the i^rinff bim

~ - brinff

Court shall avrard; and all such offences may be prosecuted by indictment or home.

by information, at the suit of his Majesty's Attorney- General, in the Court of •, , of tr*al

KiDg*s Bench, and may be alleged in the indictment or information to have ^^ ^ ^ '

been committed at Westminster in the county of Middlesex ; and the said

Coart is hereby authorized to issue one or more commissions, if necessary,

for the examination of witnesses abroad ; and the depositions taken under the

tame shall be received in evidence on the trial of every such indictment or in-

ibrmatioo.

XXXI. And be it enacted, That every accessory before the fact to any fc- Provision for
lony punishable under this act, for whom no punishment has been herein- accoMorieslo
before provided, shall be liable, at the discretion of the Court, to be trans- offences a-
ported beyond the seas for any term not exceeding fourteen years nor less e^"i°8^ ^his
than seven years, or to be imprisoned, with or without hard hbour, in the ^^^'
common gaol or house of correction, for any term not exceeding three

years; and every accessory after the fact to any felony punishable under
this act (except murder) snail be liable to be imprisoned, with or without
hard labour, in the common gaol or house of correction, for any term not
exceeding two years; and every person who shall counsel, aid, or abet the
commission of anj misdemeanor punishable under this act, shall be liable to
be proceoied against and punished as a principal offender.

XXXII. Ana be it enacted. That all indictable offences mentioned in this As to offences
act, which shall be committed within the jurisdiction of the Admiralty of against this
England, shall be deemed to be offences of the same nature, and liable to the act committed
same punishments, as if they had been committed upon the land in England, >t ^^b*

and may be dealt with, enquired of, tried, and determined in the same man- Not to affect
ner as any other offences' committed within the jurisdiction of the Admiralty the lawsrelat-
of England : Provided always, that nothing herein contained shall alter or ing to the
affect any of the laws relating to the government of his Majesty's land or na- forces.
'%al forces.

XXXIII. And for the more effectual prosecution of offences punishable Provision for
upon summary conviction by virtue of this act, be it enacted, That where offences a-
aay person shall be charged on the oath of a credible witness before any jus- gainst this
tjce of the peace vrith any such offence, the justice may summon the person ^^^ punish-
clarged to appear before any two justices of the peace at a time and place to ^^^^ ^° ""°^~
be named in such summons, and if he shall not appear accordingly, then ^^^ convic-
(npon proof of the due service of the summons upon such person by deliver- ^^°^'
bglbe tame to bini) the^ustices may either proceed to hear and determine the

caw ex parte, or may issue their warrant for apprehending such person and
kiflginr him before them ; or the justice before whom the charge shall be

xl

ADDENDA, &c TO VOL. I.

mgi.

Form of con-

TlCtiOD.

made may (if he^ shall so think fit) issue such warrant in the first instance^
nvilhout any previous summons.
Time for snin* XXXIV. ProTided always, and be it enacted. That the prosecution for
mary proceed- every offence punishable on summary conviction by virtue of this act shall he
commenced within three calendar months after the commission of the of-
fence, and not otherwise.

XXXV. And be it enacted. That the justices before whom any person shall
be summarily convicted of any ofience against this act may cause the convic-
tion to be drawn up in the following form of words, or in any other form of
words to the same effect, as the case shall reqnire ; (that is to say,)

Bb it remembered, That on the day of in the

year of our Lord at in the county

of , [or riding, division, liberty, city, etc. as the

case may be], A. O. is convicted before us [naming the justices], two of
his Majesty *s justices of the peace for the said county, [or riding, etc.], for
that he the said A. O. did [specify the offence, and the time and place when
and where the same was committed, as the case may be]; and we the said
justices adjudge the said A. 0. for his said offence to be imprisoned in
the , and there kept to hard labour for the space

of [or, we adjudge the said A. O. for his said oflfence to

forfeit and pay the sum of] [here state the amount of the fine imposed],
and also to pay the sum of for costs; and in de&alt

of immediate payment of the said sums, to be imprisoned in the
for the space of , unless the said sums shall be sooner

paid ; [or, and wo order that the said sums shall be paid by the said A. 0.
on or before the day of 1, and we direct

that the said sum of [i. e. the amount of the fine] shall be

paid to of aforesaid, in which

the said offence was committed, to be by him applied according to the di-
rections of the statute in that case made and provided ; and we order that
the said sum of for costs shall be naid to C. D. [the

party aggrieved]. Given under our hands the day ana year first above
mentioned.'

XXXVI. And be it enacted. That no such conviction shall be quashed for
want of form, or be removed by eeriiorari or otherwise into any of his Ma-
jesty's superior courts of recordf; and no vmrrant of commitment shall be
held void by reason of any defect therein, provided it be therein alleged that
the party has been convicted, and there be a good and valid conviction to
sustain the same.

XXXVII. Provided always, and be it enacted. That nothing in this act
contained shall affect or alter any act, so far as it relates to the crime of high
treason, or to any branch of the public revenue, or shall affect or alter any
act for the prevention of smuggling, or any part of the act passed in the
sixth year of the present reign, intituled ** An act to repeal the laws relatiog
to the combination of workmen, and to make other provisions in lieu
thereof.

XXXVIII. Provided also, and beitenactedy That nothing in this act con-
tained shall extend to Scotland or Ireland.

No certiorari^
&c.

Not to repeal
any act relat-
ing to high
treason, the
revenue, or
combinations.

Not to extend
to Scotland or
Ireland.

— ^

xU

ADDENDA, &c.

TO

VOLUME THE SECOND.

7 & 8 Geo. IV. c. 27.

An Act for repealing various Statutes in England relative to the Be*
nefii of Clergy^ and to Larceny and other Offences connected there"
uUh^ and to malicious Injuries to Property y and to Remedies against
the Hundred. l^lst June 1827. J

WnsmBAS it is expedient to repeal varions statutes now in force in that part of
the United Kingdom called England, relative to the benefit of clergy ; and it
is also expedient to repeal various statutes relative to larceny, and other of-
fences of stealing, and to burglary, robbery, and threats for the purpose of
robbery or of extortion, and to embezzlement, false pretences, and the receipt
of stolen property, in order that the provisions contained in those statutes
may be amended and consolidated into one act; and it is also expedient
witn the same view to repeal various statutes relative to malicious injuries to
property % and also with the same view to repeal various statutes relative to
remedies against the hundred : Be it therefore enacted by the King's most Ex-
celleiit Majesty, bv and with the advice and consent of the Lords spiritual
and temporal, and Commons, in this present parliament assembled, and by
the authority of the same. That so much of a charter or statute made in the
ninth year of the reig^ of kin^ Henry the Third, commonly called Ckarta de 9 h. 3. st. 2.
#(M^esli, as relates to the punishment for taking the Kind's venison 1 and so c. 10.
macJi of a statute made at Westminster in the third year of the reign of king 3 ^ ^ | ^2
Sdvrard the First, as relates to clerks taken for guilty of felony, and to tres* ^ 20.
|WMiCf in parks and ponds ; and so much of a statute made at Westminster in
the thirteenth year of the same reigp, as ordains that the towns near adjoin* 13 Ed. 1. st. 1.
ia^ shall he distrained to levr at their own cost a hedge or dyke overthrown* ^ ^^•
and to yield damages; and tne whole of a statute made in the same year, in- 13 Ed. 1. st. 3.
titaled ** Slaiutum ffkUon^ except so much thereof as forbids fairs and mar^
keli beii^ k^ in chorchyards; and a statute made in the twenty-first year of 21 Ed. 1. st. 2.
the aune leigo, intituled " Staiutum de Malefaetoribus in Psrcis i** and so
ma^ <rfa statQte made in the first year of the reign of king Edward the 1 Ed. 3. it. 1«

c.8.

xlii ADDENDA, &c. TO VOL. II.

Third, as relates to trespasses io the King's forests of vert and venison ; and
25 Ed. 3. Bt. 6. so ranch of a statute made in the twenty-fifth year of the same reign, intt-
(vulgo st.3.) tuled " Ordinaiio pro Ciero" as relates to clerks convicted of treasons or fe-
c. 4, 5. lonies, and to the arraignment of clerks; and so much of a statute made in

28 Ed. 3. c. 11. the twenty-eighth year of the same rei^, as relates to making cry and fresh

suit, and to hundreds and franchises hemp answerable as therem mentioned j

34 Ed. 3. c. 22. and so much of a statute made in the thirty-fourth year, and of another sta-
37 ^.3. c. 19. tute made in the thirty-seventh year of the same reign, as relates to hawks ;
8 H 6 c 12 '"^^ ^ niuch of a statute made in the eighth year of tne reign of king Henry
B.3.' ' ^^ Sixth, as relates to the offences of stealing, taking away, withdrawing, or

avoiding of any record or other like thing therein mentioned ; and so much
33 H. 6. c. 1. of a statute made in the thirty-third year of the same reign, as relates to ser-
vants taking and spoiling the goods of their masters after their death ; and an
1 H. 7. c. 7. ^^^ passed in the first year of the reign of king Henry the Seventh, intituled
"An act against unlawful hunting in forests and parks ;^' and an act passed in

4 H. 7. c. 13. the fourth year of the same reign, intituled ^' An act to take away the benefit
21 H. 8. c.7. of clergy from certain persons;" and an act passed in the twenty-first year of

the reign of king Henry the Eighth, intitulea " An act for the punishment of
such servants as shall withdraw themselves, and go away with their masters* or
mistresses* caskets and other jewels or goods committed to them in trust to be

21 H. 8. c. 11. kepis'* ^^^ ^^ Act passed in the same year, intituled ** An act for restitution
' to oe made of the goods of such as shall be robbed by felons;** and an act

23 H. 8. c. 1. passed in the twenty-third year of the same rei^n, intituled " An act that no
person committing petty treason, murder, or felony, shall be admitted to his

23 H. 8. c. 11. clergy under subdeacon ;** and an act passed in the same year, intituled *' An

31 H 8 *c 2 ' ^^^ ^^^ breaking of prison by clerks convict ;** and an act passed in the thirty-
' ' ' ' first year of the same reign, intituled " An act against fishing in ponds;*' and

33 H. 8. c. 1. '^^ AC^ passed in the thirty-third year of the same rei^n, intituled ** An act
concerning counterfeit letters, or privy tokens, to receive money or goods in

34&35H. 8. other men°s names;** and an act passed in the thirty-fourth and thirty-fifth

c. 14. years of the same reign, intituled " An act for a certificate of convicts to be

35 H 8 c 17 ™^^ ^^^^ ^^^ King*s Bench ;** and an act passed in the thirty-fifth year of the

same reign, intituled ** An act for the preservation of woods;** and an act
37 H. 8. c. 6. passed in the thirty-seventh year of the same reigpi, intituled ** An act a^inst
?7 h' fl' » * burning of frames;** and so much of an act passed in the same year, intituled
sin. B. c. B. ,. ^^ ^^ ^^^^ ^^ indictment lacking these words. Ft ei armU, shall be suffi-
cient in law,*' as relates to persons stealing any horse, gelding, mare, foal, or

1 Ed. fi. c. 12. filley ; and so much of an act passed in the first year of the reign of king £d-
8. 10, 14. mii the Sixth, intituled " An act for the repeal of certain statutes concern-
ing treasons, felonies, &c.,** as relates to house-breaking, robbing, horse-
stealing, and sacrilege, and to the allowance of the benefit of clergy in any

2 & 3 Ed. 6. ^se therein mentioned ; and an act passed in the second and third years of
c. 33. ' the same reign, intituled " An act that no man stealing horse or horses shall

5 & 6 Ed 6 c ^^^y I'b^ benefit of his clergy ;** and an act passed in the fifth and sixth years
i^^ * ' * of the same reign, intituled '* An act that no man robbing any house, booth,

or tent, shall not be admitted to the benefit of his clergy ;*' and so much of

4 & 5 P. & M. an act passed in the fourth and fifth years of the reign of kin^ Philip and
c. 4. queen Mary, intituled *' An act that accessories in murder and divers feiouies

snail not have the benefit of clergy,** as relates to accessoriesi to any robbery

5 Eliz. c. 10. or burning therein mentioned ;** and an act passed in the fifth year of the

reign of queen Elizabeth, intituled *' An act reviving a statute made anno 21
H. 8. touching servants embezzling their masters* goods ;** and another act
5 EUa. c. 21. passed in the same fifth year, intituled " An act for the punishment of unlaw-
8 El* * c 4 ' "'^ taking of fish, deer, or hawks;** and an act passed in the eighth year of
• the same reign, intituled " An act to take away the benefit of clergy from
certain felonious offenders ;** and so much of an act passed in the tliirteenth
13 EHa. c. 25. yg^ gf ^^e same reign, intituled '• An act for the reviving and continuance of
8. 3, 18, 19. certain statutes," as alters and perpetuates the act of the thirty-fifth year of
the reign of king Henry the Eighth hereinbefore recited ; and so much of an
18 Eliz. c.7. ^^' passed in Uie eighteenth year of the reign of queen Elizabeth, intituled
*' An act to take away clergy from the ofifenders in rape and burglary, and an
order for the delivery of clerks convict without purgation,** as relates to bur-
glary, and to persons admitted to the benefit of clergy ; and an act passed in
27EIiz. c. 13. Uie twenty-seventh year of the same reign, intituled '* An act for the foUow-
31 Eliz. c. 4. ingof liue and cry i*' and an act passed in the thirty-first year of the same

7 & 8 GEO. IV. c «7. aliii

Tttrn, tn^taled **Aii act against embezzling of armoar, habiliments of war^

ind victual ;** and so much of an act passed in the same year, intituled '* An 31 Cli^. e. 12.

act to avoid horse-stealing,*^ as enacts that all accessories to horse-stealing ''S* -

shall be deprived of the benefit of clergy ; and an act passed in the thirty-

niolh year of the same reign, intituled ''* An act that no person robbing any »^ _. . ^

house in the day-time, although no person be therein, shall be admitted to **' ' '

have the benefit of his clergy r and an act passed in the forty-third year of

tbe same reign, intituled " An act to avoid and prevent divers misdemeanors 43 Eliz.c. 7.

in lewd and idle persons:'* and an act passed in the same.year, intituled ** An .„ „,, .„

act for the more peaceable government of the parts of Cumberland, Northnm- ' * ^

berland, Westmoreland, and the bishoprick ot Durham ;" and so much of an

act passed in the second year of the reign of king James the first, intituled j. ^-^

*' Ad act for the better execution of the intent and meaning of former sta- 2 jac. ]. c. 27.

tutes made against shooting inf guns, and for the preservation of the game of recognized as '

pheasants and partridges, and against the destroying of hares with hare pipes, existing in

and tracing bares in the snow,*' as relates to house doves, pigeons, and deer ; 2 G. 3. c. 29.

and ao act passed in the third year of the same reign, intituled *' An act 3 j^c. I.e. 13.

against oniawful hunting and stealing of deer and conies;** and an act passed [This' act and*

in the seventh jear of the same reign, for the explanation of the last-men- the next are

ttoned act ; and an act passed in the nfteenth year of the reign of King Charles recognized as

the Second, intituled '* An act for the punishment of unlawful cutting or steal- existing in 16

ing or spoiling of wood and underwood, and destroying of youn^ timber 6. 3. c.30.]

trees;** and an act nassed in the twenty-second year of the same reign, inli- ^ •'jf* ^-^' 13.

Inled •• Ao act for taking away the benefit of clergy from such as steal cloth ^ ^^^- 1* ^' *•

from the rack, and from such as shall steal his Majesty's ammunition and ' ^'

stores;^ and an act passed in the twenty-second and twenty-third years of the

same rei«], intituled ^'Anact to prevent the malicious burning of houses, 22&:23Car 2

stacks ofcom and hay, and killing or maiming of cattle ;** and so much of an ^^y

act passed in the same years, intituled ** An act to prevent the delivery up of 22 & 23 Car. 2.,

merchants ships, and for the increase of good and serviceable shipping,** as ^^ n, g, 12.

relates to the wilful destruction of any ship by any of the persons belonging

to it, as therein mentioned ; and an act passed in the same years, intituled

*' Ao act for the better preservation of the game, and for securing warrens not 22 & 23 Car.2.

ioclosedf and the several fishings of this realm,** so far as relates to all subjects c. 25.

thereia mentioned, except the appointment and powers of gamekeepers, excepts. 1 to 3*

search vrarrants, and the description of persons, who are thereby declared to

be persons not allowed to have or keep for themselves or any other person any

guns, bows, greyhounds, or other animals or things therein enumerated ; and

an act passed in the third year of the reign of King William and Queen Mary, 8 W.& M.c.9.

intituled ** An act to take away clergy from some offenders, and to bring

others to punishment;** and so much of an act passed in the fourth year of the 4 W. & M. c.

same reign, jntitu led '* An act for the more easy discovery and conviction of 23.

soch as shall destroy the game of this kingdom,*' as relates to pigeons and

fish, and to persons wrongfully fishing, and to all instruments and engines for

destroying or taking fish, and to the burning of any grig, ling, heath, furze,

^ofis, or ^rn ; and so much of an act passed in the fourth year of same reign,

mtituled *' An act for reviving, continuing, and explaining several laws therein 4 w. & M. c.

mentioned, which are expired and near expiring,'* as explains the said recited 24. s. 13. *

act of the third year of the same reign ; and the whole 01 an act passed in the

tenth year of the reign of King Wlfiam the Third, intituled '* An act for the 10 W. 3. c. 12.

better apprehending, prosecutmg, and punishing of felons that commit bur- (vulgolO&U

glary, house-breaking, or robbery in shops, warehouses, coach-houses, or W. 3. c. 23.)

stables, or that steal horses," except so much thereof as relates to fees for dis- excepts. 7 & 8.

charging recognizances and drawing bills of indictment, and to defective bills

of indictment; and the whole of an act passed in the first year of the reign of

Queen Anne, intituled ** An act for punishing of accessories to felonies and re- ] adq. Bt. 2.

ceivers of stolen goods, and to prevent the wilful burning and destroying of c. 9. except'

ships, except so much thereof as relates to witnesses on behalf of the prisoner s. 3.

upon any trial for treason or felony ; and an act passed in the sixth year of

the same reign, intituled " An act for repealing a clause in an act, intituled 6 Ann. c. 9.

*Aaact for the better apprehending, prosecuting, and punishing felons that (vulgoSAnn.

commit burglaries, house-breaking, or robberies in shops, warehouses, c. 6.)

coach-houses, or stables, or tha^ steal horses;* and an act passed

in the twelfth year of the same reign, intituled **An act for the more ]2Ann. st. 1.

c/Foctoal preventing and pHoi^hiog robberies that shall be committed in c. 7.

ADDENDA, &c. TO VOL II.

boofei ;** and so macfa of an act pased in the thirteenth jear of the same rei^,
13 AnD. C.21. intitaled ''An act for the preserving all such ships, and goods thereof, which
(yolgo 12 Ann. shall hapneo to be forced on shore or stranded npon the coasts of this kingdom,
"^- ^0 0,K ^^ "7 other of her majesty *8 dominions,*' as relates to any person upon whom
c 18. ■• 4 & 5. mij go<»ds itolen or carried off from any Tcsse) ia distress shall oe found,
and to the several offiences toaching Tesseb in distress which are thereby
made capital felooiesi and so much of an act pased in the first year of the
1 6. 1. St 2. e* Kign of King George the First, intitnled ^An act for preventing tomolts and
5. f.4 & 6. riotons asMmblies, and for the more speedy and effectoal poniuiing^ |he riot-
erSy^ as relates to any rioters demolishing or pulling down, or beginning to
demolish or pall down, any of the buildings therein mentioned, and to the
liability of the inhabitants of the hundred, city, or town, in which the damage
shall be done, to yield damages to the party injured ; and an act passed in the
1 G. 1. St 2. c. snme year, intituled ** An act to encourage the planting of timber trees, fruit
48. trees, and other trees for ornament, shelter, or profit, and for the better pre-

servation of the same, and for the preYcnting the burning of woods ;** and the

4 G. 1. c 1 1. whole of an act passed in the fourth year of the same reign, intituled ^* An act
except 8. 7. for the further preventing robbery, burglary, and other felonies, and^or the

more effectual transportation of felons and unlawful exporters of wool, and
for declaring the law upon some points relating to pirates,** except so much
thereof as relates to the trial of piracy, felouT, or robberr committed within
the admiraltT jurisdiction ; and an act passed in the fiftn year of the same

5 G. 1. c. 28. reign, intituled " An act for the further punishment of such persons as shall

nnuiwfullykill or destroy deer in parks, ]Hiddocks, or other inclosed grounds^
6G. 1. c. 16. and an act passed in the sixth year of the same reign, intituled *'* An act to ex-
plain and amend an act passed in the first vear of bis Majesty*s reiffn, intituled
* An act to encourage the planting of timber trees, fruit trees, and other trees
for ornament, shelter, or profit, and for the better preservation of the same,
and for the preventing the burning of woods,* and tor the belter preservation
of the fences of such woods;** and an act jrasscd in the ninth year of the same

9 G. 1. c. 22. reign, intitnled *' An act for the more effectual punishing wicked and evil-

disposed persons going armed in disguise, and doing iiguries and violences to
the persons and properties of his Majesty's subjects, and for the more speedy
bringing the offenders to justice ;*' and so much of an act passed in the second
2 G. 2. c. 25. year ofthe reign of kins George the Second, intitnled *' An act for the more
8. 3. effectual preventing and further punishment of forgery, peijury, and suborna-

tion of peijury, and to make it felony to steal bonds, notes, or other securities
for payment of money,** as relates to the stealing or taking by robbery an v
orders or oUier securities therein enumerated ; and an act passed in the fourth
4 G. 2< c. 32. year of the same reign, intituled " An act for the more effectual punishing
stealers of lead or iron bars fixed to houses or any fences belonging Ihere-

6 G. 2. c. 37. unto ;" and an act passed in the sixth year of the same reign, intituled '' An

act for making perpetual the several acts therein mentioned, for the better re-
gulation of juries; and for empowering the justices of session or assizes for
the counties palatine of Chester, Lancaster, and Durham, toiippoint a special
jury in manner therein mentioned ; and for continuing the act for regulatiag
the manufacture of cloth in the West Riding ofthe county of York, (except a
clause therein contained;) and for continuing an act for the more effectual
punishing wicked and evil-disposed persons going armed in disguise, and for
other purposes therein mentioned ; and to prevent the cutting or breaking
down the bank oi any river, or any sea bank, and to prevent the malicious
euMing.of hopbindSf and for continuing aa act made in the thirteenth and
fourtoonth yean of the reign of King Charles the Second, for preventing theft
and raplae upon the northern borders of England ; and for reviving and con-
tinuing certain clauses in two other acts made for the same purpose;** and an
act pa»ed in the eighth year of the reign of King George the Second, intituled
8 G. 2. c. 16. *< An act for the amendment of the law relatbg to actions on the statute of
8 G. 2, c. 20. Z ^°® '^^ ^'T** '^"^ '^ ^^^ passed in the same year, intituled '* An act for ren-
dering the laws more effectnal for punishing such persons as shall wilfullv and
maliciously pull down or destroy turnpikes for repairing highways, or locks
or other works erected by act of parliament for making rivers navigable, and
for other purposes therein mentioned;** and an act pas£^ inthe tenth year of

10 G. 2. c. 32. the same rei^, intituled ** An act for continuing an act for the more effectual
except 1, 10. punishing wicked and evil-disposed persons going armed in disguise, and doing

injuries and violences to the persons and properties of his Maje8ty*B subjects^

7 & B GEO. IV. c. ^7. Xlv

and for tbe more speedy briDgiag the offenders to Jasfice^ and for continuing
two clauses, to prevent the cutting or breaking down the bank of anj riyer or
sea bank, and to prevent the malicious cutting of hopbtnds, contained in an
act passed in the sixth year of his present Majesty^s rei^n ; and for the more
effectual punishment of persons removing any roaterials used for securing
marsh or sea walls or banks, and of persons malicioudy settin? on firs any
mine, pit, or delph of coal or caonel coal, and of persons unln^wrblly huntmg
or taking any red or dllow deer in forests or chases, or beating or wounding
keepers or other officers in forests, chases, or parks; and for more effectually
securing the breed of wild fowl,** except so much thereof as relates to wild
fowl ; and so much of an act passed in the eleventh year of the same relgo, in-
tituled ^*Aa act for punishing such persons as shall do injuries and violences ^q 2 c 22
to the persons or properties of his Majesty's subjects, with intent to hinder g 5.'to th e '
the exportation of corn,*' as relates to the liability of the inhabitants of hun^* end!
dreds ; and an act passed in the thirteenth year of the same reign, intituled *' An ^- q n c 21
act for further and more effectually preventing the wilful and malicious de- ' ' ' '
stroction of collieries and coal works i** and an act passed in the fourteenth
yrar of the same reign, intitled '* An act to render the laws more effectual for 1 4 G. 2. c. 6.
liK* preventing the stealing, and destroying of sheep and other cattle ;** and an
act passed in the fifteenth year of the same reign, intituled ** An act to explain ]5 q o q 34,
an act made in the fourteenth year of the reign of his present Majesty, inti-
tuled ' An act to render the laws more effectual for preventing the stealing
and destroying of sheep and other cattle;* and an act passed in the twenty-
second year of thesame reign, intituled ^* An act for remedying inconveniences 22 O. 2. c. 24.
which may happen by proceeding in actions on the statute of hue and cry ;*'
and so much of an act passed in thesameyear, for (amon^ other purposes) asccr- 22 0. 2. c. 46.
taining the method of leaving writs of execution against the innabitants of s. 34.
hundreds, as relates to sucn writs and the proceedings thereupon ; and an act
passed in the twenty-fourth year of the same rei^n, intituled, ** An act 24 G. 2. c. 45.
for the more effectual preventing of robberies ana thefts upon any navi-
gable rivers, ports of entry or discharge, wharfs and keys adjacent;** and an
act passed in the twenty-fifth year of the same reign, intituled " An act for 25 G. 2. c. 10.
the more effectual securing mines of black lead from theft and robbery ;*' and
so much of an act passed in the same year, intituled *' An act for the better 25 G. 2. c. 36.
preventing thefts and robberies, and for regulating places of public entertain- s. 1.
ment, and punishing persons keeping disorderly nouses," as relates to the
advertiseinents therein prohibited y and so much of an act passed in the twen-
ty-sixth year of the same reign, intituled "An act for enforcing the laws 26G.2.C. 19.
against persons who shall steal or detain shipwrecked goods, and for the relief s. 1, 2, 3^ 4, 8.
of persons suffering losses thereby," as relates to any of the felonies therein
mentioned, and to search warrant, and to property belonging to any vessel
lost, stranded, or cast on shore, being found in any place, or in the possession
of any person, and to any person ofiSring or expossing to sale any such pro-
perty, as therein respectively mentioned $ and so much of an act passed in the 28 0. 2. c. 19.
twentj-eijght year of the same reign, for (among other purposes) preventing s. 3. '
the bommg or destroying of ^oss, furze, or fern in forests or chases, as relates
to persons burning or destroying the same ; and an act passed in the twenty-
ninth year of the same reign, intituled " An act for more effectually dis- 29 G. 2. c. 30.
conra^ng and preventing the stealing, and the buying and receiving stolen
lead, iroo, copper, brass, bell-metal, and solder, and for more effectually
bringing the ofl&nders to Justice ;* and so much of an act passed in the same
year, intituled *' An act for inclosing, by the motnal consent of the lords and 09 6 2 c 36
tenants, part of any common, for the purpose of planting and preserving ,^ 5 7 g 9. '
trees fit for timber or underwood, and for more effectually preventing the nn- ' * ' ' '
lawful destruction of trees,'* as relates to the remedy for the recovery of dam-
ages against the inhabitants of the adjoining parishes, towns, hamlets, vil-
lages, or places, and to the punishment of the several offences relating to trees,
and to the explanation respecting the three acts of King George the first, as
therein respectively mentioned : and so much of an act passed in the thirtieth
year of the same reign, intituled '* An act for the more effectual punishment 30 G.2.c. 24.
of persons who shall attain or attempt to attain possession of good^ or money g. !•
by taise or untrue pretences-, for preventing the unlawful pawning of goods;
for the easy redemption of goods pawned ; and for preventing gaming in pub-
lic bouses nj journey men, labourers, servants, and apprentices,** as relates to
obtaining by false pretence or pretences any property as therein mentioned ;

rivi ADDENDA, &c. TO VOL; II.

31 G. 2. c. 35. and an act paflsed in the thirtj-fifst year of the same rei^, intituled " An act

to continue seTeral laws therein mentioned, for granting a liberty to carry
SUffars of the growth, produce, or manufacture of any ot his Majesty's sogar
Colonies in America, from the said Colonies directly into foreign parts, in
ships built in Great Britain and navigated according to law; for the prevent-
ing the committing of frauds by bankrupts; for giving further encourage-
ment for the importation of naval stores from the British Colonies in America;
and for preventing frauds and abuses in the admeasurement of coals in the
city and liberty of Westminster ; and for preventing the stealing or destroying
of madder roots ;" and an act passed in the second year of the reign of King

2 G. 3. c.29. George the third, intituled *' An act to amend so much of an act made in the
first yeir of the rei^n of King James the First, intituled * An act for the
better execution of the intent and meaning of former statutes made against
shooting in guns, and for the preservation of the game of pheasants and part-
ridges, and against the destroying of hares with hare pipes, and tracing hares
in the snow.,* as relates to the preservation of house doves and pigeons, by
paaking the manner of convicting such person or persons as shall oSend there-
in more easy and expeditious;" and an act passed in the fourth year of the

4 G. 3. c. 12. reign of King George the Third, intituled " An act to continue several laws
for the better regulation of pilots for the conducting of ships and vessels' from
Dover, Deal, and the isle oi Thanet, up the rivers of Thames, and Medway;
relating to the landing of rum or spirits of the British sugar plantations be-
fore the duties of excise are paid thereon; and to the further punishment of
persons going armed or disgu^ised in defiance of the laws of customs or excise ;
and to the rdief of the officers of the customs in informations upon seizures;
and for granting a liberty to carry sugars, of the growth, produce, or manu-
facture of any of his Majesty^s sugar colonies, directly into foreign parts, in
ships built in Great Britain and navigated according to law; and for punish-
ing persons who shall damage or destroy any banks, floodgates, sluices, or
other works belonging to the rivers and streams made navigable by act of

4 G. 3. c. 31. parliament;" and an act passed in the same year, intituled '^ An act to indem-

nify such persons as have omitted to qualify themselves for offices and em-
ployments, and to indemnify justices of the peace, deputy Lieutenants, and
officers of the Militia, or others, who have omitted to register or deliver
in their qualifications within the time limited by law, and for giving further
' time for those purposes; and to indemnify members and officers in cities, cor-
porations, and borough towns, whose admissions have been omitted to be
stamped according to the several acts of parliament now in force for that pur-
pose, or having been stamped have been lost or mislaid, and for allowing
them time to provide admissions duly stamped; and to prevent the destruc-
tion of trees and underwoods growing in forests and chases; and an act passed

5 G. 3. c. 14. ^^ ^^^ ^^^ y^^^ ^^ ^^^ same reign, intituled ** An act for the more effec-

tual preservation of fish in fish ponds and other waters, and conies in warrens,
and for preventing the damage none to sea banks within the county of Lincoln
by the breeding conies therein ; and an act passed in the sixth year of the
6G. 3. c. 36. same reign, intituled ** An act for encouraging the cultivation, and for the
better preservation of trees, roots, plants, and shrubs;" and another act

6 G. 3. c. 48. passed in the same year, intituled " An act for the better preservation of tim-

ber trees, and of woods and underwoods, and for the further preservation of
roots, shrubs, and plants ;" and an act passed in the ninth year of the same

9 G. 3. c. 29. ^^^K^y intituled *' An act for the more effectual punishment of such persons as
shskil demolish or pulldown, burn, or otherwise destroy or spoil any mill or
mills, and for preventing the destroying or damaging of Engines for draining
collieries and mines, or bridges, waggonways, or other things used in convey-
ing coals, lead, tin, or other minerals from mines, or fences fur inclosing
lands in pursuance of acts of parliament ; and an act passed in the same year,

9G. 3. c.41. intituled *' An act for better securing the duties of customs upon certain
goods removed from the out ports and other places to London ; for regulating
the fees of officers of his majesty's customs in the province of Seoegambia in
Africa; for allowing to the receivers general of the Duties on offices and em-
ployments in Scotland, a proper compensation for their trouble «and expences;
for the better preservation of hollies, thorns, and quicksets in forests,
chases, and^irivate grounds, and of trees and underwoods in forests and
chases; and for authorising the exportation of a limited qnantity of an in-
ferior sort of barley called nigg, from the port of Kirkwall in the islands of

7 & 8 GEO. IV. c. 27. xlvii

Orkney ; and an act passed In the tenth year of the 0ame reign, intitiiled

*' Aa act for prevenling the stealing of dogs 9" and another act passed in 1^ ^' 3* c. 18.

tiie same year, intituled " An act for making the receiving of stolen jewels, 10 6. 3. c. 48.

ind gold and stWer plate, in the case of burglary and highway robbery, more

penal; and so much of an act passed in the thirteenth year of the same

reign, intituled '^ An act for the more effectual execution of criminal laws 13 G. 3. c. 31.

in the two parts of the United Kingdom," as relates to the prosecution and s. 4, 5.

punishnieat of persons for theft or larceny, and for receiving or having

aoj stolen property as therein mentioned ; and an act passea in the same

3rear, intituled ** An act for repealing so much of an act made in the twenty-^ y^ q ^ ^ ^2.

third year of his late majesty King George the Second, as relates to the pre-

Tenttng the stealing or destroying of turnips \ and for the more effV:ctually

preventing the stealing or destroying of turnips, potatoes, cabbages, parsnips,

pease, and carrots ;'* and another act passed in the same thirteenth year, m-

titttled *^ An act to extend the provisions of an act made in the sixth year of ^3 q^ 3^ ^^ 33

his present Majesty's reign, intituled * An act for the better preservation of

* limber trees, and of woods and underwoods, and for the further preservation
' of roots, shrubs, and plants,* to poplar, alder, maple, larch, and nornbcam;"

and an act passed in the sixteenth yenr of the same reign, intituled ** An act ^5 q 3 c.30.

more effectually to prevent the stealing of deer, and to repeal several former

^Intes made for the like purpose*/' and the whole of an act passed in

the nineteenth year of the same reign, intituled *' An act to explain and 19 q 3 ^ y^^

amend the laws relating to the transportation, imprisonment, and other pu- except s. 70.

nishmeoL of certain offenders," except so much thereof as relates to the judges

lodgings; and an act passed in the twenty-first year of the same reign,

intituleil "'^ An act to explain and amend an act made in the fourth 21G. 3. c.68.

year of the reign of his late Majesty, King George the Second, intituled

* An act for the more effectual punishing stealers of lead and iron bars fixed

* to houses, or any fences belonging thereunto ;' and another act passed

in the same twenty-first year, intituled ** An act to explain and amend an 2I G. 3. c. 69.
act made ia the twenty-ninth year of the reign of his late Majesty
King George the Second, intituled ' An act for more effectually dis-
*■ couraging and preventing the stealing, and Uie buying and receiving

* of stolen lead, iron, copper, brass, bell-metal, and solder, and for more

* effectually bringing the offenders to justice;'" and an act passed in
the twenty-second year of the reign of King George the Third, inti-
tuled " An act for the more easy discovery and effectual punishment of 22 G. 3. c. 59.
buyers and receivers of stolen goods ;'' and an act passed in the thirty-first

fear of the same reign, intituled ** An act to render persons convicted of petty 01 p o o-
larceny competent witnesses ;" and an act passed in the same year, intituled '* '^' ^'
^ An act for better protecting the several oyster fisheries within this king- 31G. 3. c.51.
dom ;^ and so much of an act passed in the thirty-third year of the same reign,
izitJKuIed *' An act for better preventing offences in obstructing, destroying, or 3'! q 3 ^ m
damaging ships or other vessels, and in obstructing seamen, keelmen, casters, ^[ 56. •'
and ship carpenters, from pursuing their lawful occupations," as relates to per- '
sons who shall wilfully and maliciously set fire to, or destroy or damage other-
wise than hy fire, any ship, keel, or other vessel ; and so much of an act passed
in the thirty-sixth year of the same rei^n, intituled '* An act to prevent ob* 35 q 3 ^ q
structions to thejfree passage of grain within the kingdom," as relates to the g 3^ to the end-
liability of the inhabitants of hundreds; and an act passed in the thirty-ninth
year of the same reign, intituled ** An act to protect masters against embezzle- 39 q^ 3 ^^ 35
ments by their clerks or servants ;^' and so much of an act passed in the thirty-
ninth and fortieth years of the same reign, intituled *' An act for the security 39 & 40 g 3
of collieries and mmes, and for the better regulation of colliers and miners," ^ yj g i '5*
as declares what persons shall be deemed and adjudged to he guilty of a mis*
demeanor, and as relates to any person who shall steal or take away, or break,
destroy, damage, or embezzle, any article not exceeding the value of five
shillings as therein mentioned, or snail break, destroy, or damage any waggon,
cart, or other carriage as therein mentioned ; and an act passed in the forty-
first year of the same reign, intituled *' An act for the indemnifying of persons 41 q, 3, (., 24.
injured by the forcible pulling down and demolishing of mills, or of works m, k.)
thereunto belonging, by persons unlawfully and riotously a<«sembled ;" and an
act passed in the forty-«econd year of the same reign, intituled ** An act to 43 q^ 3^ ^ g^^
eiiead the provisions of an act made in the thirteentn year of the reign of his
pneseol Majesty 9 iatituled * An act for repealing so much of an act made ia

Xiviii , ADDENDA, &c TO VOL. II.

the twentj'tbird jmt of bis late Majestj Kiog George the Second, u relates
to the Dreventing^ the stealing or destroying of turnip and for the more ef-
fectually preventing the stealing or destroy tng of turnips, potatoes, cabbages,
parsnips, pease, and carrots,' to certain other leld crops, and to orchards ; and
for amending the said act C and an act passed in the same forty-second year,

42 6. 3. c. 107. intituled ** An act more effectually to prevent the stealing of deer;** and so

43 G. 3. c. 58. n^uc^ o^ an act passed in the forty-third year of the same reign, intituled '* An
Partof S.I. * *^^ ^o' ^^ further prevention of malicious shooling, and attempting to dis-
charge loaded fire arms, stabbing, cutting, wounding, poisoning, and the ma-
licious using of means to procure the miscarriage of women i and also the
malicious setting fire to buildings; and also for repealing a certain act made
in England in the twenty-first year of the late King James the IRrst, intituled
' An act to prevent the destroying and murdering of bastard children ;* and
also an act made in Ireland in the sixth vear of the reign of the late Queen
Anne, also intituled 'An act to prevent the destroying and murdering of bas-
tard children T and for making other provisions ia lien thereof,** as relates to
the setting fire to any of the building therein enumerated ; and the whole of

43 G. 3. c. 113. an act pissed in the same forty-third year, intituled " An act for the more

except s. 6. effectually providing for the punishment of offences in wilfully casting away,
burning, or destroying ships or vessels ; and for the more convenient triu of ac-
cessories in felonies ; and for extending the powers of an act made in the thirty-
third year of the reign of King Henrv the Eighth, as far as relates to murders,
to accessories to murders, and to manslaughter,** except so much thereof as spe-
cially relates to accessories before the fact in murder, and to manslaoghter ; and
so much of an act passed in the forty- fourth year of King George the Third,

^^^'^' ^* ^* intituled " An act to render more easy the apprehending and bringing to trial

** ' > ^* offenders escaping from one part of the United Kingdom to the other, and also

lirom one count? to another,** as relates to the prosecution and pnnidiment of
persons for thefl or larceny, and for receiving or having any stolen propertj^, as
therein mentioned ; and an act passed in the forty-fifth year of the same reign,

45 G. 3. c. 66. intituled '* An act to prevent in Great Britain the ille^lly carrying away bark ;
and for amending two ads passed in the sixth and ninth years of his present
Majesty *s reign, tor the preservation of timber trees, underwoods, roots, shrubs,
plants, hollies, thorns, and quicksets;** and an act passed in the forty-eighth

48 G. 3. c. 129. year of the saaie reign, intituled " An act to repeal so much of an act passed
in the eighth year of the reign of Queen Bliz^th, intituled * An act to take
awav the benefit of dergy nrom certain offenders for felony,' as takes away
the benefit of clergy from persons stealing privily from the person of another;
and for more eliectoally preventing the crime of larceny from the person ;**

48 G. 3. c. 144. and an act passed in the same forty-eighth year, intitnled ** An act for the
more effectoal protection of ovsler fisheries and the brood of oysleis in
Easiand ;** and an act passed in the fifty-first year of the same reign, utitnled

51 G.3. c. 41. ** An act to repeal so much of an act passed in the ei^teenth year of the
reign of King George the Second, intituled ' An act for the more effectually
preventing the stealing of linen, fnstian, and cotton goods and wares, in build-
ings, fields, grounds, uid other places used for printing, whitening, bleaching,
or dyeing VSe same,' as takes away tiie benefit of clcwgy from persons stealing
doth in places therein meatiooed ; and for more effectually pieventing such

51 G.3. c. 120. felonies;*' and an act passed in the same fiffy-first year, intitnled ** An act to

amend an act of the forty-seventh year of hn present Majesty, for more effec-
tually preventing the staling of deer ;** and aa act passed in the fifly-second

52 0. 3. e.6S. year or the same reign, intituled ^ An act for nsore eActnally prevailing the

cmbeadeoiest of securities for money and other effirds left or depMieS for
safe enstody, or other snedal pmrpose, in the hands €»f banken, merchants,
brokers, attotnies, or oUwr agents; and aa act passed in the same year, inti-
52 0. 3. c64. toled ** Aa act for cxtmding the provisioas of aa act of the thirtietfa year of
King George the Second, against persons obtaiaia^ moaey by finlse pretences.

to penons so obtaining iKmds and other secnrtties;** and another act passed
52 G. X c. 130. the same fifty-second yenr, intitnled ** Aa act for the more effectoal pnaish-

it of persons destroying the properties of his Majesty's sabjecls, and

abling tile owners of sndi properties to recover damages for me injory sns-

ftv-thund vear of Uie s

tained ;** and so mach of aa act passtd ia the fifty-third year of the same
53 G.1. c.162. vc^^o, intitaled ** An act to repeal a ccftaia provisioB respectia^ penons con-
victed of felony withoat hencat of dcfgy, coataiaed ia aa act made ia the
ifty-secoad yor of the cciga af his preseat Majesty, for the credioa of a

7 fc 8 GEO. IV. c. 27. XKX

Mnitealiary house for the conflncniciit of persons coil^^cted within the citr of
ioDdon and coonty of MiddleseT, and for maktoj^ other provisions ia lieu
thereof,*^ as relates to the punishnient of larceny ; and an act passed in the
fifty -sixth year of the same reien, intituled '' An act for the more efiectual 56 G. 3. c. 129.
pooishment of persons riotously destroyin[( or damaging buildings^ engines,
attd machinery used in and about collieries and other mines, waggonways,
bridges, and other works used in conveying and shipping coals and other mine-
rals ; and for enabling the owners of such property to recover damages for the
iojnry snstained ;'' and so much of an act passed in the fifty-seventh year of
the same reigo; intituled '* An act for the more effectually preventing sedi- 57 G.'3. c. 19.
tioos meetings and assemblies,^ as relates to the liability of the inhabitants of a. 38»
the eity, town, or hundred, to yield compensation to the party injured, as
therein mcmtioned ; and an act passed in the first year of the reign of his pre-
sent Majesty, intituled '* An act for the summary pnuishraent, in certain cases, 1 G. 4. c. 56.
of persons wilfully or maliciously damaging or committing trespasses on pub-
lic or private property ;" and the whole of an act passed in tne same year,
intituled ** An act to repeal so much of the several acts parsed in the thirty- i g. 4. c. 115.
ninth year of the reign of Elizabeth, the fourth of George the First, the fifth
aad eighth of Geoi^ the second, as inflicts capital punishment on certain
ofiences therein ^cified, and to provide more suitable and effectual pnnish-
ment for sach offences," except so much thereof as relates to the offences
made capital by the said act of Queen Rlizabeth ; and another act parsed in
the same year of the present reign, intituled *' An act to repeal so much of an 1 G. 4. c. 117.
act passed in the tentn and eleventh years of King William tJie Third, intituled
* An act for the better apprehending, prosecuting, and punishing of felons that
commit burglary, house-breaking, or robbery m shops, warehouses, coach-
houses, or stables, or that steal horses,* as takes away the benefit of clergy
from poisons privately stealing, in any shop, warehouse, coach-house, or stable,
any goods, wares, or merchandizes of the value of Afe shillings s and for more
cfiectaally preventing the crime of stealing privately in shops, warehouses,
coach-hottses, or stables $** and an act passed in the third year of the present
reign, intitnled *'* An act for extending the laws, against receivers of stolen 3 G. 4. c. 24.
goods to receivers of stolen bonds, bank notes, and other securities for
money ;** and an act passed in the same year, intituled *' An act for altering 3 G. 4. c, 33.
and amending several acts passed in the first and ninth years of the reign of
King George the First, and in the forty-first, fifty-second, fifty-sixth, and fifty-
seventh years of the reign of his late Majesty King George the Third, so far as
the same relate to the recovery of damages committed by riotous and tumul-
tuous assemblies, and unlawful and malicious offenders % and the whole of an
act passed in the same year of the present reign, intituled ** An act for the fur- 3 G. 4. c. 38.
ther aad more adequate punishment of persons convicted of manslaughter,
aad of servants convicted of robbing their masters, and of accessories before
the fact to grand larceny, and certain other felonies," except so far as relates
to manslaaghter ; and so much of another act passed in the same year, inti-
tnled ** An act to provide for the more effectual punishment of certain offences, 3 G. 4. c. 114.
by imprisonment with hard labour,'* as relates to the punishment for receiving
stolen goods, and for obtaining any property as therein mentioned by false
pretences; and so much of an act pasted in the same year, intituled ** An act 3 G. 4. c. 126.
to amend the general laws now in being for regulating turnpike roads in that s. 128.
part of Great Britain called Bngland," as creates any felony ; and the whole
of an act passed in the fourth year of the present reign, intituled ** An act for 4 G. 4. c. 46.
repealing the capital punishments inflicted by several acts of the sixth and
twenty-seventh years of King George the Second, and of the third, fourth, and.
tweate-aecond years of King Geor^ the Third, and for jirovidiag other
pttnisoments in lien thereof, and in lieu of the punishment of frame-breaking
voder ao act of the twenty-eighth year of the same reign,*' except so far as
relates to the felonies created by the acts of the twenty-seventh year of King
George tlie Second, and of the third year of King George the Third therein
recital ; and the whole of an act passed in the same vear of the prescqt rei^n,
intitnled *^ An act for extending the benefit of clergy to several larcenies 4 g. 4. c. 53.
therein mentioned," except so far as relates to any person convicted of stealing
orembezzJing his Majesty's ainmunition, sails, cordage, or naval or military
stores, or of being accessory to any such offedce ; and the whole of an act
pased IB the same year, intituled *^ An act for allowing the benefit of clergy ^ q^ 4^ ^ 54^
Ufpenotaeoowleted of certain feWni^ under two acts of the ninth year of

1 ADDENDA, &c. TO VOL. 11.

King George the First and of the twenty-seventh year of King- Geor^ the
Second \ fur making better provision for the punishment of persons guilty of
sending or delivering threatening letters, and of assaults with intent to commit
robbery,** except so far as relates to any person who shall send or deliver any
letter or writioe threatening to kill or murder, or to bum or destroy, as therein
mentioned, or diall be accessory to any such offence, or shall forcibly rescue
any person being lawfully in custody for any such offence ; and an act passed
ff 0. 4. c. 19. in the sixth year of the present reign, intituled " An act for the amendment of
the law as to the offence of sending threatening letters;" and so much of an

6 0. 4. c. 94. act passed in the same year of the present reign, intituled ** An act to alter
a. 7, 8, 9» 10. and amend an act for the better protection ot the property of merchants and

others, who may hereafter enter into contracts or agreements in relation to
goods, wares, or merchandize entrusted to factors or agents,** as relates to any
misdemeanor therein mentioned ; and also an act passed in the seventh year of

7 G. 4. e. 69. the present reign, intituled *^ An act to amend the law in respect to the offence

of stealing from gardens and hothouses;** and all acts continning or perpe-
tuating any of the acts or parts of acts hereinbefore referred to, so far only
as relates to the continuing or perpetuating the same respectively, shall be and
continne in force antil and throughout the last day of June in the present
year, and shall from and after that day as to that part of the United Kingdom
called England, and as to offences committed within the jurisdiction of the
admiralty of Bi^land, be repealed ; except so far as any of the said acts may
repeal tlie whole or any part of any other acts; and except as to offences and
otner matters committed or done liefore or upon the said last day of June,
which shall be dealt with and punished as if this act had not been passed.
Not to repeal H, Provided always, and be it enacted. That nothing in this act contained
f^7 set relat- s||^|| {q mywise affect or alter such part of any act as relates to the post office,
^^I ^^ ^^^^ or to any branch of tbepnblic revenne, or to the naval, mililaiy, viclnalling,
omce, ^''^ >^ or other public stores or his Majestr, his heirs or successors, except the acts of
l^m fiSlnk^ ^ tkirtvfirst year of Qaeen Klixabeth and of the twenty-second year of King
of Enrlaad or C^'*'^^ Aie Second, which are hesein-befoie repealed, or shall affirct or alter
South Sea ' *>>7 <^ relating to the Bank of England or Sonth Sea Company.
Conpaay.

7 & 8 Geo. 4. c 28.

jim Aci fmrjmiker nmprmmg ike AdammtrmHom ofJmUee m Crummal
Cusfsm EngkauL ^tUi Jmrne^ 1827.]

WaaanAS trials for crimMal effuiUJ in tka part of Ike CniMI Kingdom
called Ei^land we atftaried witk soaw fbms whick iir«|wcntiy ivpcde the
doe admiaislration of jnstice, and it is tbeicfogc i iptdirwl to dhoGsk sach
forms, and also to abolisk tke benefit of cktgy, and la BMke befttu provision

the Cmg^ Mosl exceUam imertT, bv

l.ocdb saififal aad ti waswK aai Coin

Apleaof bM.andbvll«aatihantyarikesaMe,Tteiif

MX ruKy> le^ of aeoase* bciag anai^aad apaa aay awctaaoat fer txaaaai, feloay, or

., ^"?^» atracy, sLall Msad tknala a aka of ^ aaft gaiily.'* ke shall bv sack wIcA. with-

i^c^^o^^ iata^vlMC^rm^bedc£aitobaveWki«Kif«^

£2^1-^; MBmr fi II .■«WiT«>dha«it«>JltetoiJ

7 & 8 CEO. IV. c. 28. U

iball so think fit, to order the proper officer to eoter a pica of *' not guilty "
on behalf of such person % and the plea so entered shall have the same force
aod effect as if such person had actually pleaded the same.

HI. And be it enacted, That if any person, indicted for any treason, felony, K^cry cbal-
or piracy, shall challeno;e peremptorily a ereater number of Ihe men returned ^j*"?^ beyond
to be of the jury than such person is entitled by law so to challenge in any of * ' h U b"™"
the said cases, every peremptory challenge beyond the number allowed by law ^^[^^ ^ ®
ia any of the said cases shall be entirely void, and the trial of such person «hall
proceed as if no such challenge bad been made.

IV. And he it enacted. That no plea setting forth any atUinder shall be Attainder of
pleaded in bar of any indictment, unless the attainder be for the same offence »"o^"^^ j'l?*®
as that charged in the indictment. °°^ pleadable.

V. And be it enacted. That where any person shall be indicted for treason Jury shall not
or felony, the jury empannelled to try sucn person shall not be charged to en- enquire of pri-
qnire concerning his lands, tenements, or goods, nor whether he fled for such ^^^er's lands,
treason or felony. f^'J'^J^ ^^-

VI. And be it enacted. That benefit of clergy, with respect to persons con- ^' '^ ^
victed of felony, shall be abolished; but that nothing herein contained shall l^cnefit of
prevent the joinder in any indictment of any counts which might have been ?.J^Y
joined before the passbg of this act "^^^^'

VII. And be it enacted. That no person convicted of felony shall suffer What felonies
death, unless it be for some felon? which was excluded from the benefit of ^"^7 ^^^^^ ^
clergy before or on the first day of the present session of parliament, or which ^^^P^^^^*
hath been or shall be made punishable with death by some statute passed after

that day.

VIII. And be it enacted. That everv person convicted of any felony, not Felonies not
punishable with death, shall be punished m the manner prescribed by the sta- capital pun-
tute or ttatntes specially relating to such felony ; and that every person con? ishable under
victed 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 ^^' relating
he liable, at the discretion of the Court, to be transported beyond the seas for otbervrise nn-
the terra of seven years, or to be imprisoned for any term not exceeding two ^^^ ^^^^ ^^^^^ "
years; and, if a male, to be once, twice, or thrice publicly or privately whipped

(if the Court shall so think fit), in addition to such imprisonment.

IX. And, with regard to the place and mode of imprisonment for all The Court
offences punishable under this act, be it enacted. That where any person shall ™^y order

be convicted of any offence punishable under this act, for which imprison- ^*'"1^ labour or
ment may be awarded, it shall be lawful for the Court to sentence the offender solitary con-
to be imprisoned, or to be imprisoned and kept to hard labour, in the common p^rt^oTthe^
^aol or house of correction, and also to direct that the offender shall be kept sentence of
m solitary confinement for the whole or any portion or portions of such im- imprisonment.
prtsonraent, or of such imprisonment with hard labour, as to the Court in its
discretion shall seem meet.

X. And be it enacted. That wherever sentence shall be passed for felony on If a person
a person already imprisoned under sentence for another crime, it shall be law- unrlcr sen-
fol for the court to award imprisonment for the subsequent offence, to com- tonce for ano-
mence at the expiration of the imprisonment to which such person shall have ther crime is
been previouslv sentenced ; and where such person shall be already under sen- rfi*^^*^^^^ ^
tence either of imprisonment or of transportation, the court, if empowered Q^^^'j^f^y

to pass sentence of transportation, may award such sentence for the subse- ^^^^ ^^ second
qneot offence, to commence at the expiration of the imprisonment or trans- sentence, to
portation to which such person shall have been previously sentenced, al- commence
though the aggregate term of imprisonment or transportation respectively after the ex-
may exceed the term for which either of those punishments could be other- pi ration of the
wise awarded. fi^^t.

XI. And whereas it is expedient to provide for the more exemplary punish- runishmcnt
ment of offenders who commit felony after a previous conviction for felony, for a subse-
whether such conviction shall have taken place before or after the commence- quent felony.
ment of this act ; be it therefore enacted. That if any person shall be be con-
victed of any felony, not punishable with death, committed after a previous
conviction for felony, such person shall, on such subsequent conviction, be

liable, at the discretion of the court, to be transported beyond the seas for
life, or for any term not less than seven years, or to be imprisoned for any
term not exceeding fonr years, and, if a male, to be once, twice, or thrice
paUiciy or privatdy whipped (if the Court shall so think fit), in addition to

D 2

Ki

ADDENDA, &c. TO VOL. II.

Fonn of in-
dictment for
the subsequent
felony.

What shall be
sufficient proof
of the first
conviction.

Uttering false
certificate of
convictiout

Admiralty of-
fences.

Effect of a free
or conditional
pardon to a
convict.

Proviso.

Rule for the
interpretation
of all criminal
statutes.

Commence-^
ment of this
act.

Not to extend
to Scotland or
Ireland.

such imprisonment ; and in an indictment for any such felony committed
after a previous conviction for felony, it shall be sufficient to state that the
offender was at a certain time and place convicted of felony, without other-
wise describing the previous felony ; and a certificate containing the sub-
stance and effect only (omitting the formal part) of the indictment and con-
viction for the previous felony, purporting to be signed by the clerk of the
Court, or other officer having the custody of the records of the Court where
the offender was first convicted, or by the deputy of such clerk or officer
(for which certificate a fee of six shillings and eight-pence, and no more,
shall be demanded or taken), shall, upon proof of Uie identity of the person
of the offender, be sufficient evidence of the fi.rst conviction, without proof
of the signature or official character of the person appearing to have signed
the same ; and if any such clerk, officer, or deputy shall otter a false certifi-
cate of any indictment and conviction for a previous felony, or if any person,
other than such clerk, officer, or deputy, shall sign any such certincate as
such clerk, officer, or deputy, or shall utter any such certificate with a false
or counterfeit signature thereto, every such offender shall be guilty of felony,
and, being lawfully convicted thereof, 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 ; and, if a male, to be once,
twice, or thrice publicly or privatdy whipped (if the Court shall so think fit),
in addition to such imprisonment.

XII. And be it enacted. That 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.

XTII. And be it declared ana enacted. That where the King*s Majesty shall
be [il eased to extend his royal mercy to any offender convicted of an^ felony
punishable with death or otherwise, and by warrant under his royal sign ma-
nual, 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 of-
fender 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

Itrevent or mitigate the punishment to which the offender might otherwise be
awfully sentenced on a subsequent conviction for any felony committed after
the grantin? of any such pardon.

XIV. And be it enacted, That wherever this or any other statute relating
to any offence, whether punishable upon indictment or summary conviction,
in describing or referring to the offence or the subject matter on or with re-
spect to which it shall be committed, or the offender or the party affected or
intended to be affected by the offence, hath used or shall use words importing
the singular number or the masculine gender only, yet the statute shall be un-
derstood to include several matters as well as one matter, and several persons
as well .as one person, and females as well as males, and bodies corporate as
well as indiviouals, unless it be otherwise specially provided, or there be
something in the subject or context repugnant to such construction ; and
wherever any forfeiture or penalty is payable to a party aggrieved, it shall be
payable to a body corporate in every case where such body shall be the party
aggrieved.

XV. And be it enacted. That this act shall commence and take effect on
the first day of July, one thousand eight hundred and twenty-seven.

XVI. Provided always, and be it enacted. That nothing herein contained
shall extend to Scotland or Ireland.

7 & S GEO. IV. c. 99; lji{

7 & 8 Geo. IV. c. 29.

Ju Act for con$oUdating and amending the Law$ in England relative
io Itorceny and other Offences connected therewith,

[21fl June 1827.]

WaimBAt varions statutes now in force in that part of the United Kingdom
called BnfHand, relatiTO to larceny and other offences of stealing, and to bur-
glary, robbery, and threats for the purpose of robbery or of extortion, and to
embczslensent, false pretences, and the receipt of stolen property, are by an
act of the present session of parliament repealed from and after the last day
of June io the present year, except as to offences committed before or upon
that day ; and it is expedient that the provisions contained in those various
statutes should be amended and consolidated into this act, to take effect at the
same time as the said repealing act t Be it therefore enacted by the King's
most excellent Majesty, by and with the advice and consent of the Lords spi-
ritual and temporal, and Commons, in this present parliament assembled, and
by the authority of the same, That this act shall commence on the first day Commence-
of July in the present year. ment of act.

II. And be it enacted. That the distinction between grand larceny and petty Distinction
larceny shall be abolished, and everv larceny, whatever be the value of the between prand
property stolen, shall be deemed to be of the same nature, and shall be sub- and petty Ihf-
ject to the same incidents in all respects as grand larceny was before the com- ceny abolish-
mencement of this^ act ) and every Court, whose power as to the trial of lar- ^d.

ceny vras before the commencement of this act limited to petty larceny, shall
have power to try every case of larceny the punishment ot which cannot ex-
ceed the punishment hereinafter mentioned for simple larceny, and also to
try all accessories to such larceny.

III. And be it enacted. That every person convicted of simple larceny, or of Pua|g|j|nc
any felony hereby made punishable like simple larceny, shall (except in tlie f^^ simplj^ *
cases hereinafter otherwise provided for) be liable, at the discretion of the larceny.
Court, to be transported beyond the seas for the term of seven years, or to be
imprisoned for any term not exceeding two years, and, if a male, to be once,

twice, or thrice publicly or privately whipped (if the Court shall so think fit)^
in addition to such imprisonment.

IV. And, with regard to the plac^ and mode of imprisonment for all in* The court
dictable offences punishable under this act, be it enacted. That where any may, for all
peraon shall be convicted of any felony or misdemeanor punishable under this offences with-
act, for which imprisonment may be awarded, it shall be lawful for the Coart i° ^^^* A<^t, or^
to sentence the offender to be imprisoned, or to be imprisoned and kept to ^^ ^^^ ^^T
hard labour, in the common gaol or house of correction, and also to airect ^"''^^ soli-
that the offender shall be kept in solitary confinement for the whole or any "^''X^^i^ua^*
portion or portions of such imprisonment, or of such imprisonment with hard ^^^^
labour, as to the Court in its discretion shall seem meet.

V. And he it enacted. That if any person shall steal any tally, order, op Stealing pub-
other security whatsoever, entitling or evidencing the title of any person or lie or private
body corporate to any share or interest in any public stock or fund« whethen securities for
of this kingdom, or of Great Britain or of Ireland, or of any foreign state, money, or
or in any fund of any body corporate, company, or society, or to any de- ^ur^wts for
posit in any savings bank, or shall steal any debenture, deed, bond, bill, F^^^f' ^^^^^
note, warrant, order, or other security whatsoever for money or for payment • u Yi' *^**
of money, whether of this kingdom or of any foreign state, or shall steal any cordinffto the
warrant or order for the delivery or transfer of any goods or valuable thing, circumstances
rfcry such offender shall be deemed guilty of felony, of the same nature and like stealing

in the same degree and punishable in the same manner as if he had stolen any goods.
chattel of like value with the share, interest, or deposit to which the security
so sColeo may relate, or with the money due on the security so stolen or se-

liv

ADDENDA, kc. TO VOL. 11.

Rule of inter
pretation.

Robbery from
the person.

Stealing from
the person.

Assaults with
intent to com*
mit robbery,
and demands
accompanied
with menaces
or force.

Obtaining mo-
ney, &c. by

mous crime.

Sending let-
ters contain-
ing menacing
demands, or

cured thereby and remaining unsatisfied, or with the value of the goods or
other Taluabie thing mentioned in the warrant or order ; and each of the se-
veral documents hereinbefore enumerated shall throughout this act be
deemed for every purpose to be included under and denoted by the words
" valuable security."

VI. And be it enacted. That if any person shall rob any other person of any
chattel, money, or valuable security, every such offender, being convicted
thereof, shall suJBxir death as a felon; and if any person shall steel any such
property from the person of another, or shall assault any other person with
intent to rob him, or shall with menaces or by force demand any such pro-
perty of any other person with intent to steal the same, every such offender
shall be guilty of felony, and, being convicted thereof, shall be liable, at the
discretion of the court, to be transported beyond the seas for life, or for any
term not less than seven years, or to be imprisoned for any term not exceed-
ing four years, and, if a male, to be once, twice, or thrice publicly or pri-
vately whipped (if the court shall so think fit), in addition to such impri-
sonment.

VII. And be it declared and enacted, That if any person shall accuse or
threaten to accuse any other person of any infamous crime, as hereinafter

threatening to defined, with a view or intent to extort or gain from him, and shall by inti-
accuse a party midating him by such accusation or threat extort or gain from him, any chat-
of an infa- tel, money, or valuable security, every such offender shall be deemed guilty
-.^ - «««,« ^^ robbery, and shall be indicted and punished accordingly.

YIII. And be it enacted, That if any person shall knowingly send or de-
liver any letter or writing, demanding of any person, with menaces, and
without any reasonable or probable cause, any chattel, money, or valuable
security ; or if any person shall accuse or threaten to accuse, or shall know-
threatening to ingly send or deliver any letter or writing accusing or threatening to accuse,
accuse a par- any person of any crime punishable by law with death, transportation, or pil-
ty of an in- )Q|.y, or of any assault with intent to commit any rape, or of any attempt or
famous crime, endeavour to commit any rape, or of any infamous crime, as hereinafter de-
to extort mo- gn^^ ^ith a view or intent to extort or gain from such person any chattel,
money, or valuable security; every such offender shall be guilty of felony,
and, being convicted thereof, shall be liable, at the discretion of the court,
to be transported bey-ond the seas for life, or for any term not less than seven
years, or to be imprisoned for any term not exceedmg four years, and, if a
male, to be once, twice or thrice publicly or privately whipped (if the court
shall so think fit), in addition to such imprisonment.

IX. And, for defining what shall be an infamous crime within the meaning
deemed au in- of this act, be it enacted. That the abominable crime of buggery, committeia
iiamous crime, either with mankind or with beast, and every assault with mtent to commit

the said abominable crime, and every attempt or endeavour to commit the said
abominable crime, and every solicitation, persuasion, promise, or threat of-
fered or made to any person, whereby to move or induce such person to com-
mit or permit the said abominable crime, shall be deemed to be an infamous
crime within themeanin?of this act.

X. And be enacted, Tliat if any person shall break and enter any church
or chapel, and steal therein any chattel, or having stolen any chattel in any
church or chapel, shall break out of the same, every such offender, being
convicted thereof, shall suffer death as a felon.

XI. And be it enacted. That every person convicted of burglary shall suffer
death as a felon : and it is hereby declared, that if any person shall enter the
dwelling-house of another with intent to commit felony, or being in such
dwelling-house shall commit any felony, and shall in either case break out of
the said dwelling-house, in the night-time, such person shall be deemed guilty
of burglary.

XII. And be it enacted, that if any person shall break and ent«r any dwell-
ing house, and steal therein any chattel, money, or valuable security to any

ing in a house, value whatever; or shall steal any such property to any value whatever in any
when capital, dwelling house, any person therein being put in fear; or shall steal in any

dwelling house any chattel, money, or valuable security to the value in the

whole of ^\€ pounds or more ; every such offender, bemg convicted thereof,

shall suffer death as a felon.

What build* XIH. Provided always, and be it enacted, that no building, althouo^h

ingi only are within the same curtilage with the dwelling-house, and occupied therewith,

ney, &c.

What shall be

Sacrilege,
when capital.

Burglary ca-
pital.

Honse-brpak-
ing and steal-

cer-
8 in
ma-

7 & 8 GhEO. IV. c. 2«. Iv

ihall be deemed to be |Niri of tucb dwellinf -house for the pvrpose of bar« p^rt of a borne

glarj, or for any of the purposes aforesaid, unless there shall be acorn* for capital pur-

iDooication between such building and dwelling house, either immediate, or poses,
by means of a covered and inclosed passage leading from the one to the other.

XIV. And be it enacted. That if any person shallhreak and enter any build- Robbery in

Id^, and steal therein any chattel, money, or Taluahle security, such building any buildiogi

being withia the curtilage of a dwelling house, and occupied therewith, but within the

sot being part thereof according to the provision herein-before mentioned, >^™c curti-

erery such offender being convicted thereof, either upon an indictment for the ^S^ as the

nme offence, or upon an indictment for burglary, housebreaking, or stealing ''^.^f^' °^^ ^^^

to the value of five pounds in a dwelling house, containing a separate count ^^,!^ of (k/*

for soch offence, shall be liable, at the discretion of the court, to be trans- ^Qg^.
ported beyond the seas for life, or for any term not less than seven years, or to
be imprisoned for anj term not exceeding four years, and, if a male, to be once
twice, or thrice publicly or privately whipped (if the court shall so think fit),
in addition to such imprisonment.

XF. And be it enacted. That if any person shall break and enter any shop, Robbery in a

varehouse, or counting-house, and steal therein any chattel, money, or va« shop, ware-

Inable security, every such offender, being convicted thereof, shall be liable to house, &c
any of the punishments which the court may aWard as hereinbefore last men-
tioned.

XVI. And be it enacted. That if any person shall steal, to the value of ten c»»^*q
diUlings, any goods or article of silk, woollen, linen, or cotton, or of any one or ^^^^ ffood.
more of those materials mixed with each other, or mixed with any olher ma- process of
lerial, whilst laid, placed, or exposed, during any stage, process, or progress of nufacture.
mannfiMture, in any building, neld, or other place, every such offender being
convicted thereof, shall be liabte to any of the punishments which the Court

may award as hereinbefore last mentioned.

XVII. And be it enacted. That if any person shall steal any goods or mer- stealing goods
cbandize in any vessel, barge, or boat of any description whatsoever, in any from a vessel
port of entry or discharge, or upon any navigable river or canal, or in any in a port,
creek belonging to or communicating with any such port, river, or canal, or river, or canal ,
stiall steal any goods or merchandize from any dock, wharf, or quay adjacent &c.

to any such port, river, canal, or creek, every such offender, being convicted
thereof, shall be liable to any of the punishments which the Court may award
as hereinbefore last mentioned.

XVIII. And be it enacted, That if any person shall plunder or steal any part Plundering

of any ship or vessel which shall l>e in distress, or wrecked, stranded, or cast on any part of the
^ore, or any goods, merchandize, or articles of any kind belonging to such tackle or cargo
ship or vessel, every such offender, being convicted thereof, shall suffer death ^^ ^ ^hip-
as a felon : provided always, that when articles of small value shall be stranded ^^^i^ed vei-
or cast on shore, and shall be stolen without circumstances of cruelty, out-
rage, or violence, it shall be lawful to prosecute and punish the offender as Proviso.
for simple larceny ; and in either ca«e the offender may be indicted and tried
either in the county in which the offence shall have been committed, or in any
county next adjoining.

XIX. And be it enacted. That if any goods, merchandize, or articles of any F^ersoos in pos-
kind, belonging to any ship or vessel in distress, or wrecked, stranded, or cast session of

on shore as aforesaid, shall, by virtue of a search warrant, to be granted as sbipwreeked
heretaafler mentioned, be found in the possession of any person, or on the goods, not
premises of any person with his knowledge, and such person, being carried be- giving a satis-
fore a justice of the peace, shall not satisfy the justice that he came lawfully factory ac-
by the same, then the same shall, by order of the justice, be forthwith delivered ^ount.
over to or for the use of the rightful owner thereof; and the offender, on con- ^'* '"'• •• "*•
Tiction of such offence before toe justice, shall forfeit and pay, over and above
the value of the goods, merchandize, or articles, such sum of money, not ex- See pott, s. 66
ceeding twenty pounds, as to the justice shall seem meet. ^ ^7,

XX. And be it enacted, That if any person shall offer or expose for sale any If any person
goods, merchandize, or articles whatsoever, which shall have been unlawfully offers ship-
taken, or reasonably suspected so to have been, from any ship or vessel in dis- wrecked goods
tress, or wrecked, stranaed, or cast on shore as aforesaid, in c^ery such case for sale, the
aay person to whom the same shall be offered for sale, or any officer of the e^f^^* m»r h#
CBSlMns or excise, or peace officer, may lawfully seize the same, and shall >«ized,&c.
vitk all conveoieot speed carry the same, or give notice of such seizure, to

Ivi ADDENDA, &c. TO VOL. II.

some Justice of the peace ; anil if the person who shall have oflered or etplse^
the same for sale, being duly summoned bj such Justice, shall not appear and
satisfy the Justice that he came lawfully by such goods, merchandize, or arti-
cles, then the same shall, by order of the justice* be forthwith delivwed over
to or for the use of the rightful owner thereof, upon payment uf a reasonable
reward (to be ascertained by the Justice) to the person who seized the same;
and the offender, on conviction of such offence by the Justice, shall forfeit
See pott, B. 66 and pay, over and above the value of the goods, merchandize, or articles,
& 67. such sum of money, not exceeding twenty pounds, as to the justice shall

seem meet
The stealing, XXI. And be it enacted, That if any person shall steal, or shall for any frau^
&c. of records dulent purpose take from its place of deposit for the time being, or from any
^^^^^^ P™' person having the lawful custody thereof, or shall unlavrfully and maliciously
*^^^^^f • . obliterate, injure, or destroy, any record, writ, return, nanel, process, inter-
tke ^"'" rogatory, deposition, Affidavit, rule, order, or warrant or attorney, or any ori-
ginal document whatsoever of or belonging to any court of record, or relating
to any matter civil or criminal, begun, depending, or terminated in any sucn
court, or any bill, answer, interrogatory, deposition, affidavit, order, or de-
cree, or any original document whatsoever or or belonging to any court of
equity, or relating to any cause or matter begun, depending, or terminated in
anj such Court, every such offender shall 1^ guilty of a misdemeanor, and,
bemg convicted thereof, shall be liable, at the discretion of the Court, to be
transported beyond the seas for the term of seven years, or to suffer .such other
punisnment by fine or imprisonment, or by both, as the Court shall award ;
and it shall not in any indictment for such offence be necessary to allege that
the article, in respect of which the offence is committed, is the property of any
person, or that the same is of any value.
The stealing, XXII. And be it enacted, That if any person shall, either during the life of
&c. of wills, the testator or testatrix, or after his or lier death, steal, or for any fraudulent
purpose destroy or conceal, any will, codicil, or other testamentary instru-
ment, whether the same shall relate to real or personal estate, or to both,-
every such offender shall be guilty of a misdemeanor, and, being convicted
thereof, shall be liable to any of the punishments which the Court may award,
as hereinbefore last mentioned ; and it shall not in any indictment for such
offence be necessary to allege that such will, codicil, or other instrument, h-
the properly of an j person, or that the same is of any value.
The stealing of XXIII. And be it enacted. That if any person shall steal any paper or parch*
writings rclat- ment, written or printed, or partly written and partly printed, oeine evidence
log to real es- of the title or of any part of the title to any real estate, every sucn offender
tatc. shall be deemed guilty of a misdemeanor, and, being convicted thereof, shall

be liable to any of the punishments which the Court may award, as herein-
before last mentioned ; and in any indictment for such offence, it shall be suf-
ficient to allege the thing stolen to be evidence of the title, or of part of the
title, of the person or of some one of the persons having a present interest,
whether legal or equitable, in the real estate to which the same relates, and to
mention such real estate, or some part thereof; and it shall not be necessary
to allege the thing stolen to be of any value.
These provi- XXIV. Provid^ always, and be it enacted, That nothing in this act con-
sioDB as to ^ tained relating to either of the misdemeanors aforesaid, nor any proceeding,
wills and writ- conviction, or judgment to be had or taken thereupon, shall prevent, lessen,
kigs shall not q,. impeach any remedy at law or in canity which any party aggrieved by any
lessen any ^^^^ offence might or would have haa if this act liaa not been passed; but
th^nartv a^ nevertheless the conviction of any such offender shall not be received in evi-
ffrievSlnow ^en^^ in ^^J action at law or suit in equity against him ; and no person shall
^^ be liable to be convicted of either of the misdemeanors aforesaid, by any evi-

dence whatever, in respect of any act done by him, if he shall at any time
previously to his being mdicted for such offence have disclosed such act, on
oath, in consequence of any compulsory process of anv court of law or equity
in any action, suit, or proceeding which shall have been bonAJiie instituted
by any party aggrieved, or if he shall have disclosed the same in any examin-
ation or deposition before any commissioners of bankrupt.
Stealing XXV. And be it enacted. That if any person shall steal any horse, mare,

horses, cows, gelding, colt or filly, or any bull, cow, ox, heifer or calf, or any ram, ewe,
and sheep. sheep or lamb, or shall wilfully kill any of such cattle, with intent to steal the

K or flkhi or ttnj ptrt of the cattle so killed, every sack offleiider ibftir
be gnilty of leloDj« and, being convicted thereof, flhall suffer death as a
felon.

XXri. And be it enacted, that if any person shall unlawfolly and wilfhll j Stcallog, Stc. >
coune, hoat, snare, or carry away, or Kill or wound, or attempt to kill or deer in any in^
wound, any deer kept or being in the inclosed part of any forest, chace, or closed ground,
purliefl, or in any inclosed Und wherein deer shall be usually kept, every such felony.
offender shall be guilty of felony, and being convicted thereof, shall be liable
to be iMHiished in the same manner as in the case of simple larceny \ and if The like in
any person shall unlawfully and wilfully course, hunt, snare, or carry away, certam nnin«
or kill or wound, or attempt to kill or wound, anv deer kept or being in the closed ground
nnindosed part -of any forest, chace, or purlieu, ne shall /or everv such of« punishable
fence, on conviction thereof before a justice of the peace, forfeit and pa^r such summarily.
fom, not ezceedine fifty pounds, as to the justice shall seem meet \ and if any See pott, a. 69
person, vrho shall have been previously convicted of any offence relating to & 67.
deer for which a pecuniary penalty is by this act imposed, shall offend a second Deer-stealing
time, by committing any of the offences hereinbefore last enumerated, such iq nnincloscd
second offence, whether it be of the same description as the first offence or ground after
not, shall be deemed felony, and such offender, being convicted thereof, any other of-
shall be liable to be punishea in the same manner as in the case of simple fence as to
larceny. deer, felony.

XXVII. And be it enacted. That if any deer, or the head, skin, or other Suspected per^
part tlmieof, or any snare or engine for the taking of deer, shall by virtue of aons^ found in
a search vrarraat, to be granted as hereinafter mentioned, be found in the pos* possession of
session of any person or on the premises of any person with his knowleoge, venison, &c.
and sach person, being carried before a justice ot the peace, shall not satisfy ^nd not satts-
the justice that he came lawfully by such deer, or the head, skin, or other f^tonly ac-
part thereof, or had a lawful occasion for such snare or en^ne, and did not |j|'^i^<^ ""^
keep the same for any unlawful purpose, he shall, on conviction by the justice, ^ ^^ ^^ ^^
forfeit and pay any sum not exceeding twenty pounds; and if any such person ^ ' cL,
shall not nnder the provisions aforesaid be liable to conviction, then, tor the ^\P^^' ^
discovery of the party who actually killed or stole such deer, it shall be lawful ^ ^''

for the justice, at his discretion, as the evidence given and the circumstances In case tbey
of the case shall require, to summon before him every person through whose cannot be eon-
hands snch deer, or the head, skin, or other part thereof, shall appear to have victed, bow
passed; and if the person from whom the same shall have been first received, !~f J°!!|!!f.^
or who shall have had possession thereof, shall not satisfy the justice that he ^^^ proceea.
came lawfully by the same, he shall, on conviction by the justice, be liable to
the payment of such sum of money as is hereinbefore last mentioned.

XXVIII. And be it enacted, that if any person shall unlawful l^r and wilfully Setting en-
set or use any snare or engine whatsoever, for the purpose of taking or killing' glnes for tak-
deer, in any part of any forest, chace, or purlieu, whether such part be in- ing deer, or
closed or not, or in any fence or bank dividin? the same from any land adjoin- pulling down
inp, or in any inclosed land where deer shall be usually kept, or shall unlaw- psrk fences.
folly and wilfully destroy any part of the fence of any land where any deer

shall be then kept, every such offender, being convicted thereof before a ius*

tice of the peace, shall forfeit and pay such sum of money, not exceeding ^ff^'^' '*

twenty pounds, as to the justice shall seem meet.

XXiX. And be it enacted, that if any person shall enter into any forest. Deer-keepers,
chace, or purlieu, whether inclosed or not, or into any inclosed land where &c. may seise
deer dnll be usually kept, with intent unlawfully to hunt, course, wound, tbe guns, &c.
kill, snare, or carry away any deer, it shall be lawful for every person en- of offenders
Imrted with the care of such deer, and for any of his assistants, whether in his who, on de-
presence or not, to demand from every such offender any gun, fire-arms, m^pd> ^^ ^^
snare, or engine in his possession, and any dog there brought for hunting, delireruptne
coursing, or killing deer, and in case such offender shall not immediately de- **™^'
liver op the same, to seize and take the same from him in any of those respec-
tive places, or, upon pursuit made, in any other place to which he may have
escaped therefrom, for the use of the owner of the deer ; and if any such of- Resistance to
fender shall unlawfully beat or wound any person entrusted with the care of keepers, &c.
tbe deer, or any of his assistants, in the execution of any of the powers ^iven in the ezecu-
by this act, every such offender shall be guilty of felony, and, beine convicted tion of their
thereof, shall be liable to be punished in the same manner as in Uie case of duty.
simple larceny. Killing &c

XXX. And be it enactedi that if any person shall unlawAilly and wilfully in lu^e^^r col

Iviii ADDENDA, &c. TO VOL. II.

Dies in a War- ^^ nieht-time take or kill any hare or coiwj ia any warren or ground lawfuHj
ren in the °^ f^^ ^^^ breeding or keeping of hares or conies* whether the same be in-
Night-time. closed or not, eyery such offender shall be guilty of a misdemeanor, and, be*
The like in ^°S convicted thereof, shall be punished accordingly i and if any person shall
the Day-time. uiHawfuHy and wilfully in the day-time take or kill any hare or coney in any
such warren or ground, or shall at any time set or use therein any snare or
engine for the taking of hares or conies, every such offender, being convicted
See post, 8. 66. thereof before a justice of the peace, shall n>rfeit and pay such sum of mo-
& 67. ' ney, not exceeding &\e poundfs, as to the justice shall seem meet : pro-

Proviso. ▼ided always, that nothing herein contained shall affect any person taking

or killing in the day-time any conies on any sea bank or river bank in the
county of Lincoln, so far as the tide shall extend, or within one furlong of
such bank.
Stealinir XXXI. And be it enacted. That if any person shril steal any dog, or shall

Doffs, or ^^1 ^^J l>cast or bird ordinarily kept in a state of confinement, not bein^ the

stealing subject of larceny at common law, every such offender, beiuA^ convicted

Beasts or thereof before a justice of the peace, shall for the first offence foiteit and pay

Birds ordina- over and above the value of the dog, beast, or bird, such sum of money, not
rily kept in exceeding twenty-pounds, as to the lustice shall seem meet ; and if any person
Confinement, go convicted shall afterwards be guilty of any of the said offences, ana shall
and not the \^ convicted thereof in like manner, every such off*ender shall he committed
Subject of ^^ 11^^ common gaol or house of correction, there to be kept to hard labour
See to'^' a. ^^' ^"^^ term, not exceeding twelve calendar months, as the convicting jus-
66 AS?! ^^ ^^'^ think fit ; and if such subsequent conviction shall take place before

two justices, they may further order the offender, if a male, to oe once or
twice publicly or privately whipped, after the expiration of four days from the
time of such conviction.
Persons fonnd XXXII. And be it enacted. That if any dog or any such beast, or the skin
in Possession thereof, or any such bird, or any of the plumage thereof, shall be fonnd in
of stolen the possession or on the premises of any person by virtue of a search warrant,

Dogs, &e. 11' to be granted as hereinafter mentioned, the justice by whom such warrant was
able to Penal-* granted may restore the same respectively to the owner thereof; and the per-
ties. son Iq ^hose possession or on whose premises the same shall be so found (such

See post 8.63. person knowing that the dog, beast, or bird has been stolen, or that the skin is
the skin of a stolen do^ or beast, or that the plumage is the plumage of a stolen
bird) shall, on conviction before a justice of the peace, be liable for the first
offence to such forfeiture, and for every subsequent offence to such punish-
ment, as persons convicted of stealing any dog, beast, or bird are hereinbe-
fore made liable to.
Killinff Pi- XXXIII. And be it enacted. That if any person shall unlawfully and wil-

jreons ^°^^7 ^'^'* ^oi^>^^« ^^ ^^^ ^^J house dove or pigeon, under such circumstances

^^ as shall not amount to larceny at common law, every such offender, being

See post S.66. convicted thereof before a justice of the peace, shall forfeit and pay, over and
^^j^ ' ' ' above the value of the bird, any sum not exceeding two pounds.
Tak'' F' h XXXIY. And be it ena(;ted. That if any person shall unlawfully and wil-
inuv Water ^^ ^^ ^^^ ^^ destroy any fish in any water which shall run through or be in
situate in ^^y land adjoining or beion^ng to the dwelling-house of any person being the

land belonir- owner of such water, or having a riffht of fishery therein, every such off'ender
ing to a sbftll be guilty of a misdemeanor, and, being convicted thereof, shall be punished

DweUittj? accordingly; and if any person shall unlawfully and wilfully take or destroy, or

HoQse ; attempt to take or destroy, any fish in any water not being, such as afor^aid,

in any private but wnich shall be private property, or in which there shall be any private
Fishery else- riorht of fishery, every such ofl^der, being convicted thereof before a justice
iHiere. of the peace, shall forfeit and pay, over and above the value of the fish taken

Seepo8t^8.66. or destroyed (if any,) such sum of money, not exceeding five pounds, as to
^^^* tiie justice shall seem meet: provided always, that nothing hereinbefore con-

Proviaion res- tained shall extend to any person angling in the day-time ; but if any person
petting An- by angling in the day-time unlawfully and wilfully take or destroy, or at^
glers. tempt to teke or destroy, any fish in any such water as first mentioned, he

See post s. €6 ^^'^ ^^ conviction before a justice of the peace, forfeit and pay any sum
& 6T^ ' * ^^^ exceeding five pounds; and if in any such water as last mentioned,
he shall on the like conviction, forfoit and pay any sum not exceed-
ing two pounds, as to the justice shall seem meet ; and if the boundary of
any parish, township, or vill diall happen to be in or by the side of
anysach trateras is herniAcfove mmtioBcdy itsbap be sufficient to prove

7 & 8 GEO. IV. c. 20. lix

t!hat the offSence was committed either in the parish, township, or vill iiaine€
in the indictment or information, or in any parish, township, or vill adjoining
thereto.

XXXV. And be it enacted. That if any person shall at any time be found The Tackle of
fishing against the provisions of this act, it shall be lawful for the owner of P^hers may
the ground, water, or fishery where such offender shall be so found, his ser- °^ seiiea.
vsnte, or any person authorized b]f him, to demand from such offender any
rods, lines, hooks, nets, or other implements for taking or destroy inj^ fish,
which shall then be in his possession, and in case such offender shall not imme-
diately deliver np the same, to seize and tdce the same from him for the use
of snch owner : provided always, that any person angling in the day-time Angler, on
against the provisions of this act, from whom any implemements used by Seizure of hia
anglers ^all be taken, or by whom the same shall be delivered up as aforesaid Tackle, ez-
shall by the taking or delivering thereof be exempted from the payment of empt from
any damages or penalty for such angling. Penalty.

XXXFI. And be it enacted. That if any person shall steal any oysters or steallnir
or oyster brood from anv oyster bed, laying, or fisherv, being the property Oysten or
of any other person, and sufficiently marked out or known as such, every Oyster Brood
such offender shall be deemed guilty of larceny, and, being convicted thereof, from Oyster
shall be punished accordingly ; and if any person shall unlawfully and wilfullj Beds,
ose anj dredge, or any net, instrument, or engine whatsoever, within the li- Dredging for
mits of any snch oyster fishery, for the purpose of taking oysters or oyster Oysters with-
brood, although none shall be actually taken, or shall, with any net, instni- io the Limits
ment, or eneine, drag upon the j^ound or soil of any such fishery, every snch of any O^er
person shall ne deemed guilty of a itiisdemeanor, ana, being convicted thereof, Fishery,
shall be punished by fine or imprisonment, or both, as the court shall award i
such fine not to exceed twenty pounds, and such imprisonment not to exceed
three calendar months : and it shall be suflicient in any indictment or informa-
tion to describe, either by name or otherwise, the bed, laying, or fishery in
which any of the said offences shall have been committed, without stating the
same to fale in any particular parish, township, or vill : provided always, that Pro^igo,
nothing herein contained shall prevent any person from catching or fishing for
any floating fish within the limits of any oyster fishery with any net, instru-
ment, or engine adapted for taking floating fish only.

XXXYII. And be it enacted, Tnat if any person shall steal, or sever with Stealing from
intent to steal, the ore of any metal, or any lapis calaminaris, manganese or certain Mines.
mundick, or any wad, black cawke, or black lead, or any coal or cannel coal
from any mine, bed, or vein thereof respectively, every such offender shall be
guilty of felony, and being convicted thereof, shall be liable to be punished in
the same manner as in the case of simple larceny.

XXXYIII. And be it enacted, That if any person shall steal, or shall cut. Stealing Trees
break, root op, or otherwise destroy or damage with intent to steal, the whole Shnibs, Ac.
or any part of any tree, sapling, or shrub, or any underwood, respectively growing in
growing in any park, pleasure ground, garden, orchard, or avenue, or in certain situa-
any ground adjoinitt|^ or belonging to any dwelling-house, every such offender ^ {"' '^.^^ ^®
(in case the value of the article or articles stolen, or the amount of the in- ™<>'*y» " ™
jury done, shall exceed the sum of one pound) shall be guilty of felony, and j^^^ exceeds
being convicted thereof, shall be liable to be punished in the same manner
as in the case of simple larceny ; and if any person shall steal, or shall cut. Stealing
break, root up, or otherwise destroy or damage with intent to steal, the Trees, Shrubs,
whole or any part of any tree, sapling, or shrub, or any underwood, re- &c. growing
spectively growing elsewhere than in any of the situations hereinbefore men- elsewhere,
tioned, every such offender (in case the value of the article or articles ^* ^^f v
stolen, or the amount of the injury done, shall exceed the sum of five pounds) y^^°^' J^
shall be guilty of felony, and, being convicted thereof, shall be liable to be ^g^ exceeds
pnniUied in the same manner as in toe case of simple larceny.

XXXIX. And be it enacted. That if any person sBall steal, or shall cat Stealing
break, root up, or otherwise destroy or damage with intent to steal the whole Trees, Shrubs,
or any part or any tree, sapling, or shrub, or any underwood, wheresoever the &c. where-
same may be respectively growing, the stealing of such article or articles, or soever grow-
the injury done, being to Uie amount of a shilling at the least, every such of- ^C^ and of any
fender, being convictM before a justice of the peace, shall for the first offence Yr^ ^^^
forfeit and pay, over and above the value of the article or articles stolen, or able^nm-
the amonnt of the injury done, such sura of money, not exceeding fhre g^^^ Convic-
ponadsy as to the justice shall seem meet) mid if any penoo so coaticlad tion lor First

Jx ADDEND A» &c. TO VOL. II.

and Second ^^^ afterwards be guilty of anj of tbe said offences, and shall be convicted*
Offence; thereof in like manner, every such offender shall for such second oflfence bof

Third Offence^ committed to the common ^ol or house of correction, there to be kept to hard
Felony. labour for such term, not exceeding twelve calendar months, as the convicting

Seeposty 8.66. Justice shall think fit; and if such second conviction shall take- place before two
& 67. lustices, they may further order the offender, if a male, to be once or twice pub'

liclv or privately whipped, after the expiration of four davs from the time of
such conviction; and iiany person so twice convicted shall afterwards commit
any of the said offences, such offender shall be deemed guilty of felony, and,
being convicted thereof, shall be liable to be punished- in the same manner as
in the case of simple larceny.
Stealing, &c. XL. And be it enacted. That if any person shall steal, or shall cut, break,
any live or or throw down with intent to steal, any part of any live or dead fence, or any
dead fence, wooden post, pale, or rail set i|p or used as a fence, or any stile or gate, or
wooden fence, any part thereof respectively, every snch offender, being convicted before a-
stile, or gate, justice of the peace, shall for the first offence forfeit and pay, over and above
we post. 8. 66 y,^ yalue of the article or articles so stolen, or the amount of the injurv
done, such sum of money, not exceeding five pounds, as to the justice shall
seem meet; and if any person so convicted shall afterwards be guilty of any
of the said offences, and shall be convicted thereof in like manner, every
such offender shall be cominitted to the common gaol or house of correc-
tion, tiiere to be kept to hard labour for such term, not exceeding, twelve ca-
lendar months, as the convicting justice shall think fit; and if such subse-
auent conviction shall take place before two justices, they may further order
le offender, if a male, to be once or tv^ce publiciv or privately whipped,
after the expiration of four days from the time of such conviction.
Suspected XII. And be it enacted. That if the whole or any part of anv tree, sapling,,

persons in or shrub, or any underwood , or any part of any live or dead fence, or any
possession of post, pale, rail, stile, or gate, or any part thereof, being of the value of
wood, &c. not two shillings at the least, shall, by virtue of a search warrant, to be granted

pu . . . f^||y ^y ^^ same, he shall on conviction by the justice forfeit and pay, over
See post. 8. 66 ^^^ above the value of the article or articles so found, any sum not exceedioe
^^^- two pounds. ^

Stealing, &c. XLII. And be it enacted. That if any person shall steal, or shall destroy op
any fruit or ' damage with intent to steal, anv plant, root, fruit, or vegetable production,-
vegatable pro- growing in any garden, orchard, nursery ground, hothouse, greenhouse, or
daction in a conservatory, everv such offender, being convicted thereof before a justice
garden, &c. of the peace, shall, at the discretion or the justice, either be committed to
punishable on t|,e common gaol or house of correction, there to be imprisoned only, or to
summaij con- f^ iroprisoneifand kept to hard labour, for any term not exceeding six ca-
first o'ff . lendar months, or else shall forfeit and pay, over and above the value ojf the
second of- ^ ' article or articles so stolen, or the amount of the injury done, such sum of
fence, felony. ™eney, not exceeding twenty pounds, as to the justice sftiall seem meet ; and.
See post. 8,66 ^ ^^J PC'^ou so convicted shall afterwards commit any of the said offences,
&67. ' ' such offender shall be deemed guilty of felony, and, being convicted thereof,,
shall be liable to he punished in the same manner as in the case of simple
larceny.
Stealing, &c. Xtlll. And be it enacted. That if any person shall steal, or shall destrov
vegetable pro- or damage with intent to steal, any cultivated root or plant used for the food
ductions not of man or beast, or for medicine, or for distilling, or for dyeing, or for or
S'^J^^i & ^^ ^^® course of any manufacture, and growing in any land, open or inclosed,
^roens, &c. not being a garden, orchard, or nursery ground, every snch .offender, being
convicted before a justice of the peace, shall, at the discretion of the jus-
tice, either be committed to the common gaol or house of correction, there
to be imprisoned only, or to be imprisoned and kept to bard labour, for any
• term not exceeding one calendar month, or else shall forfeit and pay, over

See pott, B. 66 ^n^ above the value of the article or articles so stolea, or the amount of the
&67. injury done, such sum of money, not exceeding twenty shillings, as to the

justice shall seem meet, and in default of payment thereof, together with
the costs, (if ordered,) shall be committed as aforesaid, for anv term not ex-
ceeding one calendar month, unless payment be sooner nuMe; and if any
person so convicted shall afterwards be guilty of any of the said offences^ and

7 & 8 GEO. IV. c. 29. Ixi

sbtll he convicted thereof ia like manner, every such offeader shalf be coftf-
mitted to the coinmon gaol or house of correction, there to be kept to hard
labour for such terra, not exceeding six calendar months, as the convicting
justice shall think fit ; and if such subsequent conviction shall take place be^
fore two justices, they may further order the offender, if a male, to be once
or twice publicly or privately whipped, after the expiration of four days from
the time of such conviction. «

XLIY. And be it enacted. That if any person shall steal, or rip, cut, or Stealing gtasv,
' break with intent to steal, any glass or wood-work belonging to any building wood-work,
whatsoeTCr, or any lead, iron, copper, brass, or other metal, or any utensU or fixtures of
or fixture, whether made of metal or other material, respectivelv fixed in or any kind from
to any building whatsoever, or any thing made of metal fixed in any land building§, and
being private property, or for a fence to any dwelling-house, garden, or area, ™***1 fixtures
or in any square, street, or other place dedicated to public use or ornament, "^ grounds.
every such offender shall be guilty of felony, and, being convicted thereof,
shall be liable to be punished in the same manner as in the case of simple lar-
ceny ; and in case or any such thing fixed in any square, street, or other like
place, it shall not be necessary to allege the same to be the property of any
person.

XLY. And, for the punishment of depredations committed by tenants and Tenants and
lodgers, be it enacted. That if any person shall steal any chattel or fixture let lodgers steal-
to be used by him or her in or with any house or lodging, whether the con- log any pro-
tract shall have been entered into by him or her, or by her husband, or by P^^^y from
any person ou behalf of him or her, or her husbandf, every such offender i'^"'*^^ ^'
shall be guilty of felony, and, being convicted thereof, shall be liable to be Jlft^^them.
punished in the same manner as in the case of simple larceny; and in every
such case of stealing any chattel it shall be lawful to prefer an indictment in
the common form as for larceny, and in every such case of stealing any fix-
tare to prefer an indictment in the same form as if the offender were not a te-
nant or lodger, and in either case to lay the property in the owner or person
letting to hire.

XL VI. And, for the punishment of depredations committed by clerks and Qerks and
servants in cases not punishable capitally, be it enacted. That if any clerk or servants steal-
servant shall steal any chattel, money, or valuable security belonging to or in ing property
the possession or power of his master, every such offender, being convicted of their maa-
thereof, shall be liable, at the discretion ot the Court, to be transported be- ters.
yond the seas for any term not exceeding fourteen years nor less than seven
years, or to be imprisoned for any term not exceeding three years, and, if a
male, to be once, twice, or thrice publicly or privately whipped (if the Court
shall so think fit) in addition to such imprisonment.

XLFil. And, for the punishment of embe'zzlements committed by clerks Clerks or ser-
and servants, be it declared and enacted, That if any clerk or servant, or any yaou receiv-
person employed for the purpose or in the capacity of a clerk or servant, ing any mo-
shall, by virtue of such eraploymeat, receive or take into his possession any ney, &c. on
chattel, money, or valuable security, for or in the name or on the account ^^^^ master's
of his master, and shall fraudulently embezzle the same, or any part thereof, ^count, and^
every such offender shall be deemed to have feloniously stolen the same from ^if l j°^ '^
hb master, although such chattel, money, or security was not received into ^'to luive f^*
the nosaeaaion of such master otherwise than by the actual possession of his joniously
clerk, servant, or other person so employed ; and every such offender, being stolen it*
convicted thereof, shall be liable, at the discretion of the Court, to any of
the ponisbmenta which the Court may award as hereinbefore last men-
tioned.

XLFIII. And, for preventing the difficulties that have been experienced in Distinct acts
the prosecution of the last mentioned oflfenders, be it enacted. That it shall of embezzle-
be lawful to charge in the indictment and proceed against the offender for any n>c°t may be
nuniber of distinct acts of embezzlement not exceeding three, which may charged in the
have been committed by him against the same master, wiuin the space of six '^'"^ mdict-
calmdar moDths from the first to the last of such actsi and in every such in- °^^''**
dictment, except where the offence shall relate to any chattel, It shall be suf-
ficient to allege the embezzlement to be of money, without specifying anv
particular coin or vainable security; and such allegation, so far as regards Astoallega-
the description of the property, shall be sustained, if the offender shall be (ion andproof
proved to have crobezzlea any amount, although the particular species of of the proper-
ty embessled.

L

Ixii ADDENDA, kc. TO VOL 11.

coin or valuable securitj of which such amoont was composed shall not be

firoTed ; or if he shall be proved to have embezzled any piece of coin or va-
uable security, or any portion of the value thereof, although such piece of
coin or valuable security may have been delivered to him in order that some
part of the value thereof should be returned to the party delivering the same,
and such part shall have been returned accordingly.
Agents em- XLIX. And, for the punishment of embezzlements committed by agents

bezzUog mo- entrusted with property, be it enacted, That if any money, or security for
Dey entrusted the payment of money, shall be entrusted to any banker, merchant, broker,
^ \. ? '^^ attorney, or other agent, with any direction in writing to apply such money,
applied to any ^^ j^^y p^^.^ thereof, or the proceeds or any part of the proceeds of such se-
^^M pur- curity, for any purpose specified in such direction, and he shall, in violation
^ of good faith, and contrary to the purpose so specified, in any wise convert

to his own use or benefit such money, security, or proceeds, or any part
thereof respectively, every such offender shall be guilty of a misdemeanor,
and, being convicted thereof, shall be liable, at the discretion of the Court,
to be transported beyond the seas for any term not exceeding fourteen years
nor less than seven yearS) or to suffer such other punishment by fine or im-
or embezzling prisonment, or by both, as the court shall award; and if any chattel orva-
any goods or luable security, or anv power of attorney for the sale or transfer of any share
valuable se- or interest in any public stock or fund, whether of this kingdom, or of Great
curity entrust- Britain or of Ireland, or of anv foreign state, or in any fund of any body
cdtotbemfor corporate, company or society, shall be entrusted to any banker, merchant,
safe custodjr, broker, attorney or other agent, for safe custody, or for any special purpose,
nurnose'^ without any authority to sell, negotiate, transfer, or pledge, and he shall, in
ffuUty of mis- ^i^^^^^oi^ of good faith, and contrary to the object or purpose for which such
demeanor. chattel, security, or power of attorney shall have been entrusted to him, sell,
negotiate, transfer, pledge, or in any manner convert to his own use or benefit
such chattel or security, or the proceeds of the same, or any part thereof, or
the share or interest in the stock or fund to which such power of attorney
shall relate, or any part thereof, every such offender shall be guilty of a mis*
demeanor, and being convicted thereof, shall be liable, at the discretion of the
Court, to any of the punishments which the Court may award, as herein-
before last mentioned.
Not to aUtet L* Provided always, and be it enacted. That nothing hereinbefore contained
trustees or relating to agents shall affect any trustee in or under any instrument whatever,
mortgagees ; ^^ ^^y mortgagee of any property, real or personal, in respect of any act done
by such trustee or mortgagee in relation to the property comprised in or
nor bankers, affected by any such trust or mortgage; nor shall restrain any banker, mer-
&c. receiving chant, broker, attorney, or other agent, from receiving any money which shall
vkoney due on de or become actually due and payable upon or bv virtue of any valuable se-
secnritiesy curity, according to the tenor and effect thereof, in such manner as he might
or disposing have done if this act had not been passed ; nor for selling, transferrin?, or
of securities otherwise disposing of any securities or effects in his possession, upon whicn he
on which they shall have any lien, claim, or demand entitling him by law so to do, unless
have a lien. gyi.), ^\^^ transfer, or other disposal shall extend to a greater number or part
of such securities or effects than shall be requisite for satisfying such lien,
claim, or demand.
Factors pledg- i,|. And be it enacted. That if any factor or agent entrusted, for the purpose
ing for their ^f ^\q^ ^mi ^qj goods or merchandize, or entrusted with any bill of lading,
own use Miy ^irarehouse keeper's or wharfinger's certificate, or warrant or order for delivery
cuments relat- ^^ goods or merchandize, shall, for his own benefit and in violation of good
imr to goods ^^iui, deposit or pledge any such goods or merchandize, or any of the said
entrusted to documents, as a security for any money or negotiable instrument borrowed or
them for the received by such factor or agent, at or before the time of making such deposit
purpose of or pledge, or intended to be thereafter borrowed or received, every such of-
sale, guilty of fender shall be guilty of a misdemeanor, and, being convicted thereof, shall
a misde- be liable, at the discretion of the Court, to be transported beyond the seas for

meanor. any term not exceeding fourteen years nor less than seven years, or to suffer

such other punishment by fine and imprisonment, or by both, as the Court
Not to extend shall award ; but no such factor or agent shall be liable to any prosecution
to cases w^ere for depositing or pledging any such ?oods or merchandize, or any of the said
the pledge documents, in case the same shall not be made a security for or subiect to the
does not ex- payment of any greater sum of money than the amount which, at the time of

f :-:j.

fiicli deposit or
fe ^ pnofipal iDj^"

'ill Provided
aoraaj
C2;&$t an?
iloresaid, i&ali
Tl.<ch as J fBrty 9CT

tVndff shaO

^ent as

u oSimder aj^iixMl C3^ set. m.

I . «- ^ -• -■

■ >»rT^

prenottsly t»>

iOfbine
act, 00 oitll, IB
equity IB aaj
«titated by
eumimticMi

(iocljoa

uy pcnon shall fcv

chaltel,
wa of the

beiog

tnusporled

pamsiiiiMiit, W €mc mr
FoviU alvajs. tkoA if
oeaoor it abaU h
mch muacr ss to
ntitM to he
be remoreabli.
be liable to be

U7. AMl,willi
if my
wpcrty
otlMral
tobave

felony, aa4 nay
fact, orfbra

ieloii dull or liamll sot kive
be wDoiaUe to joitice
be liable^ at tbe
my term not exceediog fo
pnsoned for any
twice, or thriee, publicly or
ID addition to socii i
tried for reooriDg at afimaaiit,
for tbe same offeaoe.

LT. And be it enacted, Oal if

wi ii' mi" MS. u -ir rr ii-3. r :=• li— i*.

snnnir^ i -•5 it t^' i_"*iiifL

5Tii*^ TT m 'Bi'Nit-iifMitti a:ic
ac ^:c'4la«.r":iiA:a ir j»* J jut*- **? itt

«r in Ilia. » *:••? r I'l^ ^«tiil

t* jarcssTv. ae sslx.! liiC i* -n-«n *-»trr«:'' le

iir mn

IfcTS!

anrnnrt

ar:ir-aXi. -•€-

to be tncsported beyond tbe «as for

nar Ics tban aevea ycan^ or to be ii»>

tbree Tcan, aad. if a Bale, to be occe>

y vh^ped <if tbe Covrt skill 5o tbtak fit)

always tbai ao persoa^bowsorver

be fiable to be prosecnted a second time

▼•

tSrc <::!dtfr at
actnK9cn<-»
after tW t»ct»

Vsar.

dmil receive aay chattel,
Taloable secnrity, or otherpropertv' vhatsoerer, the sUaliag, tikia^, obtaia*
ia^, or converting whereof is maae aa iadictaWe mBdemeaaor by this act,
ftiich person knowing the gnme to hare been aalawfnlly stolen, takea, obtaiaed,
or converted, every such receiver shall be guilty of a misdemeanor, and may
be indicted aad ccmvicted thereof, whether the penon gailty of the principal
misdemeanor shall or shall not have been previondy convicted thereof, or
shall or diall not be amenable to justice; and every such receiver shall, on
conviction, 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 ex*
cecdiog two years, and, if a male, to be cmce, twice, or thrice publicly or pri-
vately whipped (if the Court shall so think fit) in addition to such imprison*

a mishl^'nieaa-
or, rtceirera
aMyb« pw»a^
rated ^ a
miadcmeattort

LVI. And be it enacted. That if any person shall receive any chattel, money, All rM^lvvra
valuable security, or other nroperty whatsoever, knowing the same to have ««*y "** J['"**'
been feloniously or unlawfully stolen, taken, obtained, or converted, every !^ |^|T^| |g
sQdi person, whether charged as an accessory after the fiut to the felony, or \,i^^,il .^^

trUblf I or

Ixjv ADDENDA, fcc. TO VOL. 11.

where the pio- "^^ a^suhstaotive felony, or with m misdenieBaor only, miT be dealt with, fit'
perty U found ^ic^^l tried, and punished in any county or place in whicn he shall have or
in their pes* shall have had any such property in bis possession, or in any county or place
f^cssion, as in which the party guilty of the principal felony or misdemeanor may by law
well as where be tried, in the same manner asf such receiver may be dealt with, indicted, tried,
the receiTiog and punished in the county or place where he actually received such property.
ukes pUce. ^ LVII. And, to enconra|^ the prosecution of offenders, be it enacted, That
The owner of if any person, fuiltj of any such felony or misdemeanor as aforesaid, in steal-
stolen pro- ing, taking, obtaimng, or converting, or in knowingly receiving any chattel,
perty prose- money, valuable security, or other property whatsoever, shall be indicted for
cuCing thief or any such offence, by or on the behalf of the owner of the property, or his
receiver to executor or administrator, and convicted thereof, in such case the property
^h°lV h^'^*^ shall be rest^ired to the owner or his representative ; and the Court, before
restitution of ^^^™ ^^7 ^^^ person shall be so convicted, shall have power to award from
his property. ^^^^ ^>n>e to time writs of restitntion for the said property, or to order the
. restitution thereof in a summary manner : provided always, that if it shall

J:jiception. appear before any award or order made that any valuable security ^all have

been bondJUIe paid or discharged by some (lerson or body corporate liable to
the payment thereof, or being a n^otiable instrument shall have been bond
JUe taken or received by transfer or delivery, by some person or body corpo-
rate, for a just and valuable consideration, without any notice, or without any
reasonable cause to suspect that the same had by aoy felony or misdemeanor
been stolen, taken, obtained, or converted as aforesaid, in such case the Court
shall not award or order the restitntion of such security.
T k* ff a re- ^^111* And be it enacted, That every person who shall corruptly take any
ward for help- '^^''^7 ^' reward, directly or indirectly, under nretence or npon aeconfit of
inir to the re- belping any person to any chattel, money, valuable security, or other propoiy
covery of whatsoever, which shall by any felony or misdemeanor have been stolen, taken,

stolen proper- obtained, or converted as aforesaid^ shall (unless he cause the offender to be
ty without apprehended and brought to trial for the same) be guilty of felony^ and, being
bringmg the convicted thereof, shall be liable, at the discretion of the Court, to be trans-
offender to ported beyond the seas for life, or for any term not less than seven years,* or to
^n^« DO imprisoned for any term not exceeding four years, and, if a nule, to be

once, twice, or thrice publicly or privately whipped (if the Court shall so* think
fit) in addition to such imprisonment.
Advertising a ^^ ^ *^ enacted, That if any person shall publicly advertise a reward

reward Vor the ^^^ ^^ return of any property whatsoever which shall have been stolen or lost,
return of ^^^ ^^^^ ^° ^^ flkdvertisement use any words purporting that no questions

stolen proper- ^>H be asked, or shall make use of any words in any public advertisement pnr-
ty, &c. porting that a reward will be given or paid for any property which shall have

oeen stolen or lost, without seizing or making anj enquiry after the person
producing such property, or shall pr6mise or offer in any such public adver-
tisement to return to any pawnbroker or other person who may have bought
or advanced money by way of loan upon any property stolen or lost, the
money so paid or advanced, or any other sum of money or reward for the re-
turn of such property, or if any person shall print or publish any such adver-
tisement, in any of the above cases every such person shall forfeit the sum of
fifty pounds for every such offence, to any person who will sue for the same
by action of debt, to be recovered with fuU costs of suit.
Receiven of ^^ ^^^ ^ '^ enacted, that where the stealing or taking of any property
property, whatsoever is by this act punishable on summary conviction, either tor every

where the ori- oflfence, or for the first and second offence only, or for the first offence only,
nnal offence any person who shall receive any such property, knowing the same to be un-
18 punishable lawfully come by, shall, on conviction thereof before a justice of the peace,
on snmmary be liable, for every first, second, or subsequent offence of receiving, ta the
convictMn. same forfeiture and puntdiment to which a person guilty of a first, second, or
subsequent offence of stealing or taking such property is by this act made
liable.
Principals in ^^'* '^^ ^ ^^ enacted, that in the cases of every felony punishable under
the second de- ^^ ^^ every principal in the second degree^ and every accessory before the
grte and ac- ^<^^» ^^^^ ^ punishable with death or ouerwise, in tlie same manner as the
eessories. principal in the first degree is by this act punishable % mid every accessory after

the net to any felony punishable under this act (except only a receiver of
stolen property) shall on conviction be liable to be imprisoned for any term
not ezceediiig two years \ and every person, who shall aid, abet, coun^i or

7 & 8 GEO. IV. c. 30. Ixv

Wocare the commission of any misdemeuior punishable under this act, shall
se liable to be indicted and punished as a principal offender.

LXII. And be it enacted, that if any person shall aid, abet, counsel, or pro- Abettors in
core the commissicm of any offence which is by this act punishable on sura- offences pu-
mary convictioa, either for every time of its commission, or for the first and nishable on
econd time only, or for the first time only, every such person shall, on con- summary con-
viction before a justice of the peace, be liable, for every first, second, or sub- viction.
sequent offence of aiding, abettinr, counselling, or procuring, to the same
forfeiture and punishment to which a person guilty of a first, second, or sub-
sequent offence, as a principal offender, is by this act made liable.

LXllI. And, for the more effectual apprehension and discovery of all of- A person in
fenders punishable under this act, be it enacted, that any person found com- ^^^ ^} ^^
mittin(^ any offence punishable, either upon indictment or upon summary committing
conviction, by virtue of this act, ezcent only the offence of aogling in the day- *°L.**^appre-
tiroe, may be immediatelv apprehended without a warrant by any peace of- ^Q^e^i with-*
ficer, or by the owner of the property on or with respect to which the offence ^^^ |^ warrant
shall be committed, or by his servant or any person authorized by him, and
forthwith taken before some neighbouring justice of the peace, to be dealt ^ justice
with according to law i and if any credible witness shall prove, upon oath be- |,poD good
fore a justice of the peace, a reasonable cause to suspect that any person has grounds of
in his possession or on his premises any property whatsoever, on or with re- sospicton
spect to which any such offence shall liave been committed, the justice may proved on
grant a vrarrant to search for such property, as in the case of stolen goods ; oath, may
and any person, to whom any property shall be offered to be sold, pawned, or grwat a searcli
delivered, if he shall have reasonable cause to suspect that any such offence vrarrant.
has been committed on or with respect to such property, is hereby authorized, Any person,
and, if in bis power, is required to apprehend and forthwith to carry before a to whom
justice of the peace the party offering the same, together with such property, stolen pro-
to be dealt with according to law. perty is of-

LXiV. And be it enacted, that the prosecution for every offence punishable • .u''^^
on summary conviction under this act shall be commeoced within three ca- '^'^Q^^;f ^
leadar months after the commission of the offence, and not otherwise ; and ^.^. .
the evidence of the party aggrieved shall be admitted in proof of the offence, Limitation as
and also the evidence of any inhabitant of the county, riding, or division in ^ snoimary
which the offence shall have been committed, notwithstanding any penalty or P*"^^^^ ^'^f^'
forfeiture incurred by the offence may be payable to the general rate of such Competencyof
county, riding, or division. witnesses.

LX V. And, for the more effectual prosecution of all offences punishable on Mode of com-
suromary conviction under this act, be it enacted, that where any person shall pcUing the ap-
be chugged, on the oath of a credible witness, before any justice of the peace pearance of
with any such offence, the justice may summon the person charged to appear ^f?^?? ^^'
at a time and place to be named in such summon*}, and, if he shall not appear "ishabie ^^ ^
accordingly, tneo (upon proof of the due service of the summons upon such ^^^^^ ^
person, by delivering the same to him personally, or bv leaving the same at his
usual place of abo£) the justice may either proceed to hear and determine
the case ear parte^ or issue his warrant for apprehending such person, and
bringing him before himself or some other justice of the peace, or the justice
before whom the charge shall be made may (if he shall so think fit,) without
any previous summons (unless where otherwise specially directed,) issue such
warrant, and the justice before whom the person charged shall appear to be
brought shall proceed to hear and determine the case.

LXVl. And, with regard to the application of all forfeitures and penalties Application of
upon summary convictions under this act, be it enacted, that every sum of forfeitures and
money, which sliall be forfeited for the value of any property stolen or taken, penalties on
or for the amount of any injury done, (such value or amount to be assessed in summary con
each case by the convicting justice,) shall be paid to the party aggrieved, if victions.
known, except where such party shall have been examined in proof of the of-
fence, and in that case, or where the partv aggrieved is unknown, such sum shall
beafmlied inlhe same manner as a penalty i and every sum which shall be ira-
posedas a penalty by any justice of the peace, whether in addition to such value
or amount, or otherwise, shall be paid to some one of the overseers of the poor,
or to some other officer (as the instice may direct) of the parish, township, or
place in which- the offence shall have been committed, to be by such overseer
or officer paid over to the use of the general rate of the county, riding, or
division in which »ucb parish, township, or place shall bo situate, whether the

E

Ixvi

ADDENDA, &c. TO VOL. II.

Frotiso.

If a penon
sammaiily
convicted shall
not pay, &c,,
the justice
may commit
him.

Scale of im-
prisonment.

Jasticc may
discharge the
offender in
certain cases.

Pardon for
non-payment
of money.

A summary
conviction
shall be a bar
to any other
proceeding for
the same case.

Form of coa-
viction.

same shall or shall not contribute to sach general rate : provided always, that
where several persons shall join iu the coromission of the same oflfence, and
shall, upon conviction thereof, each be adjudged to forfeit a sum equivalent
to the value of the property or to the amount of the iojury, in every such case
no further sura shall be paid to Uie party aggrieved than that which shall be
forfeited by one of such offenders only ; and the correspond iug sum or sums
forfeited by the other offender or offenders shall be applied in the same manner
as any penalty imposed by a justice of the peace is hereinbefore directed to
be applied.

LXVII. And be it enacted, that in every case of a saramary conviction un-
der this act, where the sum which shall be forfeited for the value of the pro-
perty stolen or taken, or for the amount of the injury done, or which shau be
imposed as a penalty by the justice, shall not be paid, eillier immediately
after the conviction, or within such period as the justice shall, at the time of
the conviction, appoint, it shall be lawful for the convicting justice (unless
where otherwise specially directed) to commit the offender to the common
gaol or house of correction, there to be imprisoned only, or to be imprisoned
and kept to hard labour, according to the discretion of the justice, for any
term not exceeding two calendar months, where the amount of the sum for-
feited, or of the nenalty imposed, or of both, (as the case may be,) together
with the costs, snail not exceed five pounds; and for any term nof exceeding
four calendar months, where the amount with costs shall not exceed ten
pounds; and for any term not exceeding six calendar months, in any other
case ; the commitment to be determinable in each of the cases aibresaid upon
payment of the amount and costs.

LXVIII. Provided always, and be it enacted, that where any person shall
be summarily convicted before a justice of the peace of any offence against
this act, and it shall be a first conviction, it shall be lawful fcir the justice, if
he shall so think fit, to discharge the offender from his conviction, upon bis
making such satisfaction to the party aggrieved for damages and costs, or
either of them, as shall be ascertained by the justice.

LXIX. And be it enacted, that it shall be lawful for the King's Majesty to
extend his royal mercy to any person imprisoned by virtue of this act, al-
though he shall be imprisoned for nonpayment of money to some party other
than the crown.

LXX. And be it enacted, that in case any person convicted of any offence
punishable upon summary conviction by virtue of this act, shall have paid the
sum adjudged to be paid, together with costs, under such conviction, or shall
have received a remission thereof from the crown, or shall have suffered the
imprisonment awarded for nonpayment thereof, or tlie imprisonment adjudged
in the first instance, or shall have been discharged from nis conviction in the
manner aforesaid, in every such case he shall be released from all further or
other proceedings for the same cause.

LXXI. And be it enacted, that the justice before whom any person shall be
convicted of any offence against this act may cause the conviction to be drawn
up in the following form oi words, or in any other form of words to the same
effect, as the case shall require ; videlicet^

day of

in the year

BE it remembered, 'that on the

of our Lord at ' in'the county of

]or riding, division, liberty, city, &c., as the case may be,] A. O. is convicted
before me J. P., one of his Majesty's justices of the peace for the said county
[or riding, &c.,] for that he the said A. 0. did [specify the offence, and the
time and place when and where the same was committed, as the case may be ;
and on a second conviction state the first conviction ;] and I the said J. P«
adjudge the said A. 0. for his said offence to be imprisoned in the
[or, to be imprisoned in the and there kept to hard labour!

for the space of [or, I adjudge the said A. O. for his said of-

fence to forfeit and pay [here state the penalty actually im-

posed, or state the penalty, and also the value of the articles stolen, or the
amount of the penalty, and also the value of the articles stolen, or the
amount of the ii(jury done, as the case may be,] and also to pay the sum of

for costs, and in defiiult of inuuediate payment of the said
sums, to be imprisoned in the \€t to ms imprisoned in the

and there kept to hard labour] for the space of

'A

7 & 8 GEO. IV. c. 29. Ixvil

* unlesft Uie said sams shall be sooner paid ; [m*, and I order that the said sums

* !(hall be paid by the said A. 0. on or before the day of ;]

* and I dinect that the said sum of [t. e. the penalty only] shall be
' paid to of aforesaid, in whicn the said nuance was

* cmnmitted, to be by him applied according to the directions of the statute

* in that case made and proTided ; for that the said sura of [i, e, the

* penalty] shall be paid to, &c. [as liefore,] and tliat the said sum of

* \u e, the value of the articles stolen, or the amount of the injury done] shall

* be paid to C. D. [the party aggrieved, unless he is unknown or has been exa-
*" mined in proof of the oifence, in which case state that fact, and dispose of the

* whole like the penalty, as before;] and I order that the said sura of

* for costs shall be fiaid' to [the complainant] Given under my

* hand and seal, the day and year first aliove mentioned.'

LXXIl. And be it enacted. That in all cases where the sum adjud^d to be Appeal.
paid on any summary conviction shall exceed five pounds, or the imprisonment
adjadgcd shall exceed one calendar month, or the conviction shall take place
before one justice only, any person, who shall think himself ag^ieved by any
such conviction, may appeal to the next court of general or quarter sessions
which shall be holden not less than twelve days after the day of such convic-
tion, for the county, riding, or division wherein the cause of complaint shall
have arisen ; providfed that such person shall give to the complainant a no-
tice in writing of such appeal, and of the cause and matter thereof, within
three da^ after such conviction, and seven clear days at the least before
soch sessions, and sliall also either remain in custody until the sessions, or
enter into a recognizance with two sufiicient sureties before a justice of the
peace, conditioned personally to appear at the said sessions and to try such
appeal, and to abide the judgment of the court thereupon, and to pay such
costs as shall be by the court awarded : and upon such notice being given,
and such recognizance being entered into, the justice, before whom the same
diall be entered into, shall liberate such person if in custody; and the court
at such sessions shall hear and determine the matter of the appeal, and shall
make such order therein, with or without costs to either party, as to the court
shall seem meet: and in case of the dismissal of the appeal, or the affirmance
of the conviction, shall order and adjudge the offender to be punished accord-
ing to tlie conviction, and to pay such costs as shall be awarded, and shall, if
necessary, issne process for enforcing such judgment.

LXXIll. And be it enacted, That no such conviction or adjudication made No Certi-
OD appeal therefrom shall be quashed for want of form, or be removed by orari, &c
certiorari or otherwise into any of his Majesty's superior courts of record ; and
no warrant of commitment shall be held void by reason of any defect therein,
provided it be therein alleged that the party has been convicted, and there be a
good and valid conviction to sustain the same.

LXXIV. And be it enacted. That every justice of the peace, before whom Convictions to
any persoil shall be convicted of any offence against this act, shall transmit be returned
the conviction to the next court of general or quarter sessions which shall be to the quarter
holden for the county or place wherein tlie offence shall have been commit- Sessions.
Ied<, there to be kept by the proper officer among the records of the court ;
and upon any indictment or information a^iust any person for a subsequent How far evi-
offeiice« a copy of such conviction, certified by the proper officer of the dence in
court, or proved to he a true copy, shall be sufficient evidence to prove a future Cases.
conviction for the former offence, and the conviction shall be presumed to
have been unappealed against, until theeoatrary be shewn.

LXXV. And, for the protection of persons acting in the execution of this Venue, in
ad, be it enacted, Tliat all actions and prosecutions to he commenced at^ainst proceedings
any person for any thing done in pursuance of this act shall be laid and tried against per-
ia the county where the fact was committed, and shall be commenced within six sons acting
caleadar months after the fact committed and not otherwise ; and notice in under this
writing of such action, and of the cause thereof, shall be given to the dc- ^^^*
fendaot one calendar month at least before the commencement of the action. Notice of
and ia any soch action the defendant may plead the general issue, and give action,
this actaod the special matter in evidence at any trial to be had thereupon; General
and BO plaintiff* shall recover in any such action ii tender of sufficient amends issue, &c.
aUJ have been made before such action brought, or if a sufficient sum of
moneT shall have been paid into court after such action brought, by or on
Ma/r of die defendant; and if a verdict shall pass for the defendant, or the

E 2

Ixfiii

ADDENDA, &c TO VOL. II.

Thift act not
to extend to
Scotland or
Ireland, ex-
cept in two
cases.

Receiren.

To extend to
offences com-
mitted at

plaintiff shall become noosoit, or £seoatioiie any mch action after isme
joined, or if, upon defnoner or otherwise, jadgmenl shall be given against
the plaintiff, toe defendant shall lecorer his foil costs as between, attomej
and client, and have the like lemedy for the sune as any defendant hath by
law in other cases; and thongfa a yerdict shali be given for the plaintiff in any
snch action, such plaintiff sWI not have costs against the defendant, nnlew
the jndge before whom the trial shall be shall certify hb approbation of the
action, and <^ the verdict obtained thereupon.

LXXTI. Provided alwavs, and be it enacted. That nothing in this act con-
tained shall extend to Scotland or Ireland, except as follows ; (that is to say,)
thkt if any person, having stolen or otherwise feloniously taken any chattel,
money, valuable security, or other property whatsoever, in any one part of
the United Kingdom, shall afterwards have the same property in his posses-
sion in any otter part of the United Kingdom, be may be d<alt with, indtct-
ed, tried, and punished for larceny or theft in that part of the United Kin^
dom where be shall so have such property, in the same maaner as if he had
actually stolen or taken it in that part; and if any person in any one part of
the United Kingdom shall receive or have any chattel, money, valuable se-
curity, or other property whatsoever, which shall have been stolen or other-
wise feloniously taken in any other part of the United Kiogdom* such person
knowing the said property to have been stolen or otherwise feloniously taken,
be may be dealt with, indicted, tried, and punished for such offence in that
part of the United Kingdom where he shall so receive or have the said pro-
perty, in the same manner as if it bad been originally stolen or taken in that
part

LXXYII. And be it enaated. That where any felony or misdemeanor p«-
nishable under thb act, shall be committed within the jurisdiction of the Ad-
miralty of Bngland, the same shall be dealt with, enquired of, tried, and de-
termined in the same manner as any other felony or misdemeanor committed
within that jurisdiction.

7 & 8 Geo. IV. c. 30.

Commence-
men of act.

Setting fire to
a Church,
Chapel,
HoDse, or
certain
buildings.

jIn act for consolidating and amending the Lazes in England relative
to malicious If\juries to Property. [^XstJuney 1827.]

WnaaaAi various statutes now in force in that part of the United Kingdom
called England, relative to malicious injuries lo property, are by an act of the
present session of Parliament repealed, from and after the last day of June
in the present jf ear, except as to offences committed before or upon that day,
and it is expedient that the provisions contained in those statutes should be
amended and consolidated into this act, to take effect at the same time as the
said repealing act: be it therefore enacted by the king's most excellent Ma-
jesty, by and with the advice and consent of the lords spiritual and tem-
poral, and commons, in this present Parliament assembled, and bv the autho-
rity of the same. That this act slmll commence on the first day of July in the
present year.

II. And be it enacted. That if any person shuU unlawfully and maliciously
set fire to any chnrch or chapel, or to any chapel for the religions worship of
persons dissenting from the united church of England and Ireland, duly re-
gistered or rrcorded, or shall unlawfully and maliciously set fire to anv house,
stable, coach*honse, outhouse, vrarehouse, office, shop, mill, malt-house,
hop-oast, bam, or granary, or to any building or erection used in carrying
on any trade or maniilacture, or any branch thereof, whether the same or
any of them respectivelv shall then be in the ponession of the offender, or in
the posBCSsion of any other pepwo, with intent thereby to injure or defraud

7 & 8 GEO. IV. c. 30. Ixir

iny penon, eyenf saeh offender ahmll be guilty of felony, and, being cou-
Ticted tliereof, shmll suffer death as a felon.

III. Avd t>e it enacted. That if any person shall unlawfully and maliciously Destroytng
cnt, liremk, or destroy, or damage witn intent to destroy or to render useless, silk, wooUeo,
any goods or article of silk, woonen, linen, or cotton, or of any one or more linen, orcot-
of those materials mixed with each other, or mixed with any other material, ton goods in
or any framework-knitted piece, stocking, hose, or lace respectiyel y, being the loom, &c.
in the loom or frame, or on any machine or engine, or on the rack or tenters, oranvmachi-
or in any stare, process, or progress of manufacture t or shall unlawfully pcn^heloog-
and mttlicioosly cut, break, or destroy, or damage with intent to destroy or to ^°^ to those
render oselesB, any warp or shute of silk, woollen, linen, or cotton, or of any ^!|°ac ^*
one or more of those materials mixed with each other, or mixed with any other
material, or any loom, frame, machine, engine, rack, tackle, or implement,
wlietber fixed or moveable, prepared for or employed in carding, spinning,
throwinr, weaving, fulling, shearing, or otherwise manufacturing or preparing
any inch roods or articles ; or shall by force enter into any house, shop, builcT
ing, or place, with intent to commit any of the offences aforesaid, every such
oronder shall be guilty of felony, and, being convicted thereof, shall be lia-
bles, mi the discretion of the court, to be transported beyond the seas for life,
or for any term not less than- seven years, or to be imprisoned for any term
not exceeding four years; and, if a male, to be once, twice, or thrice pul>-
licly or privately whipped (if the court shall so think fit), in addition to such
inprisonment,

VI. And be it enacted. That if any person shall unlawfully and maliciously Destroying
cnt, break, or destroy, or damage with intent to destroy or to render useless, threshing
any threshing machine, or any machine or engine, whether fixed or moveable, machines, or
prepared for or employed in any manufacture ^whatsoever, (except the manu- machinery in
tactnreof silk, woollen, linen, or cotton goods, or goods of any one or more "ly other
of those materiab mixed with each other, or mixed with any other material, manufacture .
or any framework-knitted piece, stocking, hose, or lace,) every such offender ^^^^ ^^^
shall be guilty of felony, and, being convicted thereof, shall be liable at the "»'^80^°ff*
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; and, if a
male, to be once, twice, or thrice publicly or privately whipped (if the Court
shall so think fit,) in addition so such imprisonment.

y. And be it enacted, that if any person shall unlawfully and maliciously Setting fire to
set fire to any mine of coal or cannel coal, every such offender shall be guilty & coal mine.
of felony, and, being convicted thereof, shall suffer death as a felon.

TI. And be it enacted, that if any person shall unlawfully and maliciously Drowning any
cause any water to be conveyed into any mine, or into any subterraneous mine, or fill-
passage communicating therewith, with intent thereby to destroy or damare ing up any
aoch mine, or to hinder or delay the working thereof, or shall, with the like shaft, &c. with
intent, unlawfully and maliciously pull down, fill up, or obstruct any airway, ioteot (o de- ,
waterway, drain, pit, level, or shaft of or belonging to any mine, every such •^r*'^ '"'•
offender shall be guilty of felony, and, being convicted thereof, shall be lia* ™^^'
ble, 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 9 and, if a male, to be once, twice, or thrice publicly or privately
whipped (if the Court shall so think fit,) in addition to such imprisonment:
provided always, that this provision shall not extend to any damage committed Proviso.
under ground by any owner of any adjoining mine in working the same, or
by any person duly employed in such working.

Til. And be it enacted, that if any person shall unlawfully and maliciously Destroying
pall down or destroy, or damage with intent to destroy or to render useless, any engine,
MBj ateam engine or other engine for sinking, draining, or working any mine, erection, &c.
or any staitb, building, or erection used in conducting the business of any used in any *
mine, or anr bridge, waggonway, or trunk for conveying minerals from any mine.
mine, whether such engine, staith, building, erection, bridge, waggonway, or
trunk be completed or in an unfinished state, every sucli offender shall be
guilty of felony, and, being convicted thereof, shall be liable to any of the
poaishments which the Court may award, as hereinbefore last mentioned.

VIII. And be it enacted, that it any oersons, riotously and tumultuously as- i^ioters demo-*
ambled ti>gether to the disturbance or the public peace, shall unlawfully and lisbing, &c a
^nlh force demolish, pull doim, or destroy, or begin to demolish, pull down, church,
•r dmikojt nay churcn or chapel, or any chapel for the religious worship of chapel, bouse.

Ixx ADDENDA, &c. TO VOL. 11.

or certain persons -dissentiDe from the united church of England and Ireland* duly ro-

buildiogs, or gistered or recorded, or any house, stable, coach-house, outhouse, warehouse,

any machinery office, shop, mill, roalthouse, hop oast, barn, or granary, or any building or

in any mann- erection used iu carrying on any trade or manufacture, or any branch thereof,

factory or or any machinery, whether fixed or moveiable, prepared for or employed iR

mine. ^ny manufacture, or in any branch thereof, or any steam eng^ine or other ea-

gine for sinking, draining, or working any mine, or any stailh, building, or

erection used in conducting the business ofany mine, or any bridge, waggoa-

way, or trunk for conveying minerals from any mine, every such offender

shall be guilty of felony, and, being convicted thereof, shall suffer death as a

felon.

Setting fire to IX. And be it enacted, that if any person shall unlawfully and maliciously

or dcBtroyins set fire to, or in anywise destroy any ship or vessel, whether the same be com-

a ship. plete or in an unfinished state, or shall unlawfully and maliciously set fire to,

cast away, or in anywise destroy any ship or vessel, with intent thereby to

Iirejudice any owner or part owner ot such ship or vessel, or ofany goods on
»oard the same, or any person that hath underwritten or shall underwrite any
policy of insurance upon such ship or vessel, or on the freight thereof, or
upon any goods on board the same, every such offender shall be guilty of fe-
lony, and, being convicted thereof, shall suffer death as a felon.
Damaging a X. And be it enacted, that if any person all unlawfully and maliciously dar

ahip, other- mage, otherwise than by fire, any ship or vessel, whether complete or in aa
wise than by unfinished state, with intent to destroy the same, or to render the same use-
fi>^* less, everv such offender shall be guilty of felony, and, being convicted there-

of, 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 exceed-
ing two years; and, if a roalcrto be once, twice, or thrice publicly or pri-
vately whipped (if the Court shall so think fit,) in addition to such imprisoa-
ment.
Exhibiting XI. And be it enacted, that if any person shall exhibit any false light or

false signalfl signal, with intent to brin^ any ship or vessel into danger, or shall unlawfully
to a ship, &c. ; and maliciously do any thmg tending to the immediate loss or destruction cw
destroying a a„y gi^jp q^ vessel in distress, or destroy any part of any ship or vessel .which
shipwrecked g|^^|| j^^ |,^ distress, or wrecked, stranded, or cast onshore; or any goods, mer-
^ivo &e chandize, or articles of any kind belonging to such ship or vessel, or shall bv

^^^' ' force prevent or impede any person endeavouring to save his life from such
ship or vessel, (whether he shall be on board or shall have quilted thesame«)
every such offender shall be guilty of felony, and being convicted thereof,
shall suffer death as a felon.
Destroying XII. And be it enacted, that if any person shall unlawfully and malicioosly

any sea bank, break down or cut down any sea bank or sea wall, or the bank or wall of any
&c. or worka fiver, canal, or marsh, whereby any lands shall be overflowed or damaged, or
onany nver or ^^^^^ j^^ j^, danger of being so, or shall unlawfullv and maliciously throw
^*°* ' down, level, or otherwise destroy any lock, sluice, floodgate, or other work

on any navigable river or canal, every such offender shall ne guilty of felony,
and, being convicted thereof, shall be liable, at the discretion of the Court* to
be transported l>eyond the seas for life, or for any term not less tlian seveo
years, or to be imprisoned for any term not exceeding four years ; and, if a
male, to be once, twice, or *thrice publicly or privately whinped (if the Court
Removing the shall so tlunk fit,) in addition to such imprisonment; and it any person shall
V^^*otany unlawfully and maliciously cut off, draw up, or remove any piles, chalk, or
■ea bank, &c., other materials fixed in the ground and used for securing any sea bank or sea
damaffcfto"^ ^*'' ^^ *^® hank or wall ofany river, canal, or marsh, or shall unlawfully and
struct the na- maliciously open or draw up any floodgate, or do any other injury or roi&*
Tigation of a chief to any navigable river or canal, with intent and so as thereby to obstruct
river or canal. ^^ prevent the carrying on, completing, or maintaining the navigation thereof,
every such offender shall be guilty of felony, and, being convicted thereof,
shall be liable, at the discretion ot the Court, to be transported beyond the
seas for the term of seven years, or to be imprisoned for any term not ex-
ceeding two years ; and, if a male, ijo be once, twice, or thrice publicly or
privately whipped (if the Court shall so think fit,) in addition to such impri-
sonment.
Injnry to a XIII.- And be it enacted, that if any person shall unlawfully and maliciously

public bridge, pull down or in anywise destroy any public bridge, or do any injury with in-
tent and so as thereby to render such bridge or any part thereof dangerous or

2

7 fr 8 GEO. IV. c. 30. Ixxi

iDpasable, every SDch offender shall be guilty of felony, and, being convicted
thereof, shall be liable, at the discretion of the Court, to be transported be-
yond the seas for life, or fur any term not less than seven years, or to be im-
|»r^ned for any term not ezceedina; four years; and, if a male, to be once,
twice, or thrice publicly or grivatcly whip|)cd (if the Court shall so think fit,)
in addition to such imprison men t.

XiV. And be it enacted, thai if any person shall unlawfully and maliciously Destroying a
thrown down, level, or otherwi^ destroy, in whole or in part, any turnpike- turnpike gate,
gate, or any wall, chain, rail, post, bar, or other fence belonging to any turn- ^^ hou8c,&c.
pike gate, or set up or erected to prevent passengers passing by without pay-
ing any toll directed to be paid by anv act or acts of narliaraent relating
thereto, or any house, building, or weighmg engine erected for the better cof
lecliun, ascertainment, or security of any such toll, every such otTender shall
be guilty of a misdemeanor, and, being convicted thereof, shall be punished
accordingly.

XV. And be it enacted, that if any person shall unlawfully and maliciously Breaking
break down or otherwise destroy the dam of any fishpond, or of any water down the dam
which shall be private property, or in which there shall be any private right of & fishery,
of fishery, with intent thereby to take or destroy any of tlie fish in such pond ^c* ^ °''^*
or water, or so as thereby to cause the loss or destruction of any of the fisn, or
shall oolawfully and mialiciously put any lime or other noxious material in
any sach pond or water, with intent thereby to destroy any of the fish therein,
or shall unlawfully and maliciously break down or otherwise destroy the dam
of any millpond, every sach offender shall be guilty of a misdemeanor, and,
being convicted thereof, 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; and, if a male, to be once, twice, or
thrice publicly or privately whipped (if the Court shall so think fit,) in addi-
tion to such imprisonment.

be transported beyond the seas for life, or for any term not less than seven
years, or to be imprisoned for any term not exceeding four years ; and, if a
male, to be once,iwice, or thrice publicly or privately whipped (if the Court
shall so thin& fit,) in addition to such imprisonmeuL

XVII. And be it enacted, that if any person shall unlawfully and malicioosly Sming fire to
set fire to any stack of com, grain, pulse, straw, hay, or wood, every such of- * stack of
fender ahall be guilty of felony, and, being convicted thereof, shall suffer ^°'^> ff^°»
death as a felon; and if any person shall unlawfully and maliciously set fire ^^V<h lika-
to any crop of corn, |^in, or pulse, whether standing or cut down, or to any f^^certain
part of a wood, coppice, or plantation of trees, or to any heath, gorze, furze, ^^^pg pianta-
or fern, wheresoever the same may be growing, every such offender shall be tioQs'aad
guilty of felony, and being convicted thereof, sn^ll be liable, at the discretion heath.

of the Court, to be traasported beyond the seas for the terra of seven years,
or to be imprisoned for any term not exceeding two years ; nnd, if a male, to
be once, twice, or ihrice publicly or privately whipped (if the Court shall so
think fit,) in addition to such imprisonment

XVIII. And be it enacted, that if any person shall unlawfully and raali- Destroying
rioosly cat or otherwise destroy any hopbinds growing on poles in any planta- hopbinds.
Uoa of hops, every soch offender shall be guilty ot felony, and, being con-
victed thereof, ahafi be liable, at the discretion of the Court, to be transported

beyond the seas for life, or for any term not less tlian seven years, or to be
iraprisooed for any. term not exceeding four years; and, if a maJe, to be once,
twice, or thrice publicly or privately whipped (if the Court shall so think fit,)
in addition to such imprsionment.

XIX. And be it enacted. That if any person shall unlawfully and mali- Destroying or
cioosly cut, break, bark, root up, or otherwise destroy or damage the whole damaging

or auiy part of any tree, sapling, or shrub, or any underwood, respectively grow- ^c"* shrobs,
ing in any park, pleasure ground, garden, orchard, or avenue, or in any «<^- fffowingm
grooad adjoining or belonging to any dwelling-house, every such offender tSna'^shaU be
(in case the amount of the injury done shall exceed the sum of one pound) f^iiony if the
^hall be guilty oi felony, and, being convicted thereof, shall be liable, at the value exceeds
discretion of tlie Court, to he transported beyond the seas for the term oi \u
serorycaM, or to 1^ imprisoned for any term not exceeding two years ; and,

Ixxii . ADDENDA, &c. TO VOL. II.

if a male, to be once, twice, or thrice publicly or privately whipped fif the
The like to Court shall so think fit), in addition to such imprisoninent ; and ir any person
trees sbnibs, shall unlawfully and maliciously cut, break, bark, root op, or otherwise de-
&c. growing stroy or damage the whole or any part of any tree, sapling, or shrub, or any
elsewhere, underwood, respectively growing elsewhere than in any of the situations
shall be fe- hereinbefore mentioned, every such offender (in case the amount of the in-
lony, if the jury done shall exceed the sum of five pounds) shall be guilty of felony, and,
value exceeds being convicted thereof, shall be liable to any of the punishments which the
^'* Court may award for the felony hereinbefore last mentioned.

Destroying or ^^' ^^^ ^^ ^^ enacted, That if any person shall unlawfully and maliciously
damaging cut, break, bark, root up, or otherwise destroy or damage the whole or any

trees, shrubs, part of any tree, sapling, or shrub, or any underwood, wheresoever the jame
&c. whereso- may be respectively growing, the injury done being to the amount of one
ever growing, shilling at tne lenst, every such offender, being convicted l^efore a justice of
***** <jf*"y ▼*- the peace, shall for the first offence forfeit and pay, over and above the
lue ^hore 1*., amount of the injury done, such sum of money, not exceeding five pounds,
punisbable on ^^ j^ ^|^^ justice shall seem meet? and if any person so convicted shall after-
v?^ion'for^'^" ^*''^* ^® guilty of any of the said offences, and shall be convicted thereof in
first and se- '''^^ manner, every such offender shall for such second off*ence be committed
cond offenee * ^^ ^^ common gaol or house of correction, there to be kept to hard labour
third offence,' ^^^ BO<^h term, not exceeding twelve calendar months, as the convicting jus-
felony, tice shall think fit ; and if such second conviction shall take place before two
See pott, 8. 32 Justices, they may further order the offender, if a male, to be once or twice
& 33. publicly or privately whipped, after the expiration of four days from the time
of such conviction ; and if any person so twice convicted shall afterwards
commit any of the said offences, such offender shall be deemed goHty of fe-
lony, and, being convicted thereof, shall be liable to any of the punishments
which the Court may award for the felony hereinbefore last mentioned.
Destroying, . ^XI. And be it enacted. That if any person shall unlawfully and mali-
&c. any fruit ciously destroy, or damage with intent to destroy, any plant, root, fruit, or
or vegetable vegetable production, growing in any garden, orchard, nursery ground, hot-
production in house, greenhouse, or conservatory, every such offender, being convicted
a garden, &c. thereof before a justice of the peace,' shall, at the discretion of the justice,
punishable on either be committed to the common gaol or house of correction, there to be
summary con« imprisoned only, or to be imprisoned and kent to hard labour, fo^ny term
viction for ^ ^^^ exceeding six calendar months, or else snail forfeit and pay, over and
second offence *^®^c ^^e amount of the injury done, such sum of money, not exceeding
felony. twenty pounda, as to the justice shall seem meet; and if any person so eon-
See poti, i.32 '^ic^^cd shall afterwards commit any of the said offences, such oflfender shall
& 33. '. ^ deemed guilty of felony, and being convicted thereof, shall be liable to
any of the punishments which the Court may award for the felony herein-
before last mentioned.
Destroying XXII. And be it enacted. That if any person shall unlawfully and ma-
&c. vegetable lieiously destroy, or damage with intent to destroy, any cultivated root or
productions plant used for the food of man or beast, or for medicine, or for distilling, or
not growing for dyeing, or for or in the course of any manufacture, and growing in anv
in gardens^ land, open or inclosed, not being a garden, orchard, or nursery ground,
&c. every such offender, being convicted thereof before a justice of the peace,
shall, at the discretion of^the justice, either be committed to the common
gaol or house of correction, there to be imprisoned only, or to be imprisoned
and kept to hard labour, for any term not exceeding one calendar month, or
else shall forfeit and pay, over and above the amount of the injury done,
such sum of money, not exceeding twenty shillings, as to the Justice shall
seem meet, and in default of payment thereof, together with the ccMts, if or-
dered, shall be committed as aforesaid for any term not exceeding one calen-
Sec post, 8. 32 dar month, unless payment be sooner made ; and if any person so convicted
& 33. shall afterwards be guilty of any of the said offences, ana shall be convicted
thereof in like manner, every such offender shall be coramitfed to the com-
mitted to the common gaol or house of correction, there to be kept to hard
fabour for such term, not exceeding six calendar months, as the convicting
justice shall think fit $ and if such subsequent conviction shall take place be-
fore two justices, they may further order the offender, if a male, to be once
or twice publicly or privately whipped, after the expiration of four days from
the time of such conviction.
Destroying, XXIIL And be it enacted, That if any persoin shall unlawfully and ma-
&c. any fence,

7 & 8 GEO. IV. c. 30. Ixxiii

licionsl^ cot, bTOik, throw down, or in anywise destroy any fenee of any de- will, stile, or
scription wbataoeTer, or any wall, stile, or gate, or any part thereof respec- gate.
timely, every such offender, being convicted before a justice of the peace. See pott, s. 32
shall for the first offence forfeit and pay, over and above the amount of the & 33.
injory done, such sum of money, not exceeding five pounds, as to the jus-
tice shall seem meet ; and if any person so convicted shall afterwards be
goilty of any of the said offences, and shall be convicted thereof in like man-
ner, every such offender shall be committed to the common gaol or house of
correction, there to l>e kept to hard labour for such term, not exceeding
twelve calendar months, as the convictine justice shall think fit; and if such
sobseqaeot conviction shall take place hewe two justices, they may further
order the offender, if a male, to ne once or twice publicly or privately whip-
ped, after the expiration of four dajs from the time of such conviction.

XXIY. And be it enacted. That if any person shall wilfully or maliciously Persons com-
coromit any damage, injury, or ^oil to or upon any real or personal pro- mitting da-
perty whatsoever, either of a public or private nature, for which no remedy mage to any
or punishment is hereinbefore provided, every such person, being convicted property, in
thereof before a justice of the peace, shall forfeit and pay such sum of mo- any case not
ney as shall appear to the justice to be a reasonable compensation for the da- previously
mage, injury, or spoil so committed, not exceeding the sum of five pounds ; P'^^ded for,
which sum of money shall, in the case of private property, be paid to the ^?f 5*i,^**™'
party a^^ieved, except where such party shall have been examined in proof P^gj-'ce Z nay
of the offence; and in such case, or in the case of property of a public na- compeDsati^
ture^ or wherein any public right is concerned, the money shall be applied in not exceeding
such manner as every penalty imposed by a justice of the peace under this 5/.
act is hereinafter directed to be applied ; and if such sum of money, together Application of
with costs (if ordered), shall not be paid either immediately after the convic- the money
tion, or witiiin such period as the justice shall at the time of the conviction awarded.
sqipoint, the justice may commit the offender to the common gaol or house c^ « 30
of correction, there to be imprisoned only, or to be imprisoned and kept to ^P^ *^ ^^'
hard labour, as the justice shall think fit, for any term not exceeding two ca-
lendar months, unless such sum and costs be sooner paid : Provided always, Proviso,
that nothing herein contained shall extend to any case where the party tres*
passing acted under a fair and reasonable supposition that he had a right to
do the act complained of, nor to any trespass, not being wilful and ma-
licioos, committed in hunting, fishing, or in the pursuit of game, but that
every such trespass shall be punishable in the same manner as hefore the pass-
ing of this act

XXV. And be it enacted. That every punishment aud forfeiture by this act Malice against
imposed on any person maliciously committing any offence, whether the same the owner not
be panishable upon indictment or upon summary conviction, shall equally essential to
apply and be enforced, whether the offence shall be committed from malice ^°7 offence
conceived against the owner of the property in r^pect of which it shall be ^°der this act.
committed, or otherwise.

XXVI. And be it enacted, That in the case of every felony punishable Principals in
nnder this act, every principal in the second degree, and every accessory be- the second de-
fore the fact, shall be punishable with death or otherwise, in the same man- 8Tce, and ac-
ner asthe principal in the first degree is by this act punishable ; and every ac- eeasories.
cessorv after the fact to an^ felony punishable under this act shall, on convic-
tion, be liable to be imprisoned for any term not exceeding two years ; and

every person who shall aid, abet, counsel, or procure the commission of any Abettors in
misdemeanor punishable under thb act, shall be liable to be indicted and pu- misdemean-
Dished as a principal offender. ors.

XXVII. And be it enacted. That where any person shall be convicted of 71,9 Court
any indictable offence punishable under this act, tor which imprisonment may may, for all
be awarded, it shall be lawful for the Court to sentence the offender to be im- offences with-
prisonrd, or to he imprisoned and kept to hard labour, in the common gaol in this act, or-
or house of correction, and also to oirect that the offender shall be kept in der hard la-
sohiary confinement for the whole or any pbrtion or portions of such impri- ^^^ ^^ ^^H"
sonment, or of such imprisonment with hard labour, as to the Court in its dis- ^ry confine-
rretion shall seem meet ™®"*"

XX VIIL And, for the more effectual apprehension of all offenders against Persons in the
this act, be it enacted. That any person found committing any offence against set ofcommit-
thisact, whether the same be punishable upon indictment or upon summary ^ns^i^yof*
conviction, nay be immediately apprehended without a warrant, by any peace ^p^^^ d

Ixxiv

ADDENDA, &c. TO VOL. 11.

without a war-
rant.

Limitation as
to summary
proceedings.

Competency
of witnesses.

Mode of com-
pelling the
appearance of
persons pun-
ishable on
summary con-

TlCtiOQ*

Abetitors in
offences pun-*
ishable on
summary con-
vlctioo.

Application of
forfeitures and
penalties upon
summary con-
▼ictions.

Proviso.

If a person
summarily
convicted
shall not pay,
&c. the justice
may comml^t
him.

Scale of im-
prisonment.

officer, or the owner of the property injured, or his servanti or any pjertoii ad-
thorized by bim, and forthwith taken before some neighbouring justice of the
peace, to be dealt with according to law.

XXIX. And be itenacied, That the prosecution for every offence punish-*
able on summary conviction under this act shall be commenced within three
calendar months after the commission of the offence, and not otherwise ; and-
the evidence of the party aggrieved shall be admitted in proof of the offence,
and also the evidence of any inhabitant of the county, riding, or division in
which the offence shall have been committed, notwithstanding any forfeiture
or penalty incurred by the offence may be payable to the general rate of such
county, riding, or division.

XXX. And for the more effectual prosecution of all offences punishable on
summary conviction under this act, be it enacted. That where any person shall
be charged on the oath of a credible witness before any justice of the peace
with any such offence, the justice may summon the person charged to appear
at a time and place to be named in such summons; and if he shall not appear
accordingly, tlien (upon proof of the due service of the summons upon such
person, by delivering the same to him personally, or by leaving the same at
nis usual place of abode,) the justice may either proceed to hear and deter-
mine the case ex parle^ or issue his warrant for apprehending such pei^)n and
bringing him before himself or some other justice of the peace; or the justice
before whom the charge shall be made may (if he shall so think fit), without
any previous summons (unless where otherwise specially directed), issue surii
warrant ; and the justice, before whom the person charged shall appear or be
brought, shall proceed to hear and determine the case.

XXXI. And be it enacted. That where any offence is by thi» act punishable
on summary conviction, either for every time of its commission, or for the
first and second time only, or for tlie first time only, any person who shall aid,-
abet, counsel, or procure the commission of such offence, shall, on conviction
before a justice of the peace, be liable, for every first, second, or sn1>se«[uent
offence of aiding, sliettmg, counselling, or procuring, to the same forfeiture
and punishment to which a person guilty of a first, second, or subsequent
offence as a principal offender is by this act made liable.

XXXII. And with regard to the application of all forfeitures and penalties
upon summary convictions under this act, be it enacted. That every sum of
money which shall be forfeited for the amount of any injury done (sucb
amount to be assessed in each case by the convicting justice) shall be paid to
the party aggrieved, if known, except where such party shall have been exa-
mined in proof of the offence, and in that case, or where the party aggrieved
is unknown, such sum shall be applied in the same uianuer as a penalty ; and
every sura which shall be imposed as a penalty by any justice of the peace,
whether in addition to sucb amount or otherwise, shall be ]>aid to some one of
the overseers of the poor, or to some other officer (as the iustice may direct)
of the parish, township, or place in which the offence shall have been com-
mitted, to be by such overseer or officer paid over to the use of the general
rate of the county, riding, or division in which such parish, township, or place
shall be situate, whether the same shall or shall not contribute to such general
rate ; provided always, that where several persons shall join in the comroission
of the same offence, and shall, upon conviction thereof, each be adjudged ta
forfeit a sum equivalent to the amount of the iujury done, in every sucn case
no further sum shall be paid to the party aggrieved than that which shall be
forfeited by one of such offenders only ; and the corresiMmdiug sum or sums
forfeited by the other offender or offenders shall be applied in the same man-
ner as any penalty imposed by a justice of the |>eace is herein-before directed
to be applied.

XXXUI. And be it enacted, That in every case of a summary conviction
under this act, where the sum which shall be forfeited for the amount of the
injury done, or which shall be imposed as a penalty by the justice, shall not
be paid, either immediately after tne conviction, or within such period as the
justice shall, at the time of the conviction, appoint, it shall be lawful for the
convicting justice (unless where otherwise specially directed) to commit the
offender to the common gaol or house of correction, there to be i imprisoned
only, or to be imprisoned and kept to hard labour, according to the discretion
of the justice, for any term not exceeding two calendar months, where the
amount of the sum forfeited, or of the penalty imposedi or of both (as the

J

II

7 & 8 GEO. IV. c. 30. Ixxv

case nimy be), together with the coits, shall not exceed five ponnds; anci for
aoy term act exceeding four calendar months, where the amount, with costs,
shall not exceed tea pounds ; and for any term not exceeding six calendar
nonthft in any other case; the commitment to he determinable in each of the
cases aforesaid upt^n payment of the amount and costs.

XXXI V. Provided always, and he it enacted. That where any person shall The justice
be samimrily convicted lief ore a justice of the peace uf anv offence against maydischar^
this act, and it shall be a first conviction, it shall be lawful for the justice, if ^^^ offender in
he shall so think fit, to discharge the offender from his conviction, upon his ^'^^ cases,
making soch satisfaction to the party aggrieveil, for damages and costs, or

either of them, as shall be ascertained by Uie justice.

XXXV. And be it enacted. That it shall lie lawful for the King's Majesty to Pardon for
extend his roval mercy to any person imprisoned liy virtue of this act, al- non-payment
though he shall be imprisoned for non>payment of money to some party other of money.
than the crown.

XXXVI. Aud be it enacted. That in case an^ person convicted of any of* a snmroary
fence punishable upon summary conviction by virtue of this act shall have paid coovictioo
thesom adjudged to be paid, together with costs, under such conviction, or shall be a bar
diall have received a remission hereof from the crown, or shall have suffered to any other
the imprisonment awarded for non-payment thereof, or the imprisonment ad- proceeding for
judged in the first instance, or shall have been discharged from his conviction ^^® ^°^^

in the manner aforesaid, in every such case he shall bo released from all fur- ^*^^*
ther or other proceedings for the same cause.

XXXVII. And be it enacted. That the justice before whom any person shall Form of con-
he convicted of any offence against this act may cause the conviction to be viction.
drawn np in the folhowiog form of words to the same effect, as the case shall
requiie;

Be it remembered, That on the day of in

the year of our JUord at in the countv of

[or riding, division, liberty, city, &c., as the case may be],
A. O. is eoBvicted before me J. P. one of his Majesty's justices of Uie peace
for the said county [or riding, &c.], for that he said A. O. did [specify the
offence, and the time and place when and where the same was committed, as
the caae may be; and on a second conviction,stBte the first conviction]; and
I the said J. P. adjudge the said A. O. for his said offence to be imprisoned
in the [or to be imprisoned in the and

there kept to hard labour] for the space of [or, I adjudge

the said A. O. for his said offence to forfeit and pay [here

^te the penaltv actually imposed, or state the penalty and also the amount
of the injury done, as the case may be be], and also to pay the sum of

for costs ; and in default of immediate pavtnent of the said
sums, to be imprisoned in the [or to be imprisoned in

the and there kept to hard labour] for the space of

unless the said sums shall be sooner paid ; [or, and I order
that the said sums shall be paid by the said A. O. on or before the
day of 1 ; aud I direct that the said sum of

[i. e. the penalty only] snail be paid to of

aforesaid, in which the said oflfeoce was committed, to be by him applied
aecordioff to the directions of the statute in that case made and provided %
[or that ue said sum of [i. e. the penalty] shall be paid to,

&c. as before,] aud that the said sum fi. e. the sum for the

amovnt of the injury done! shall be paid to C. D. [the party ag^grieved,
unless he is unknown or has been examined in proof of the offbnce, in which
case state that &ct, and dispose of the whole like the penalty, as before] ;
and I order, that the said sum of for costs shall be paid to

[the complainant]. Given under my hand and seal, the
day and year first above mentioned.'

XXXVIIL And be it enacted, That in all cases where the sum adjudged to AppeaL
be paid on any summary conviction shall exceed five pounds, or the imprison-
ment adjudged shall exceed one calendar month, or the conviction shall take
place before one justice only, any person, who shall think himself aggrieved
by any such conviction, may appeal to the next Court of General or Quarter
Sessions, which shall be holden not less than twelve days after the day of such

Ixxvi

ADDENDA, &c. TO VOL. IL

No certlorarii

Conncttoos
to be retained
to the Quarter
Sessions.

How far evi-
dence in fa-
tuie cases.

Venue, in pro-
ceedings
against per-
sons acting
under this act.
Notice of ac-
■^ tion.

General is-
SQCj &c.

Not to extend
to Scotland or
Ireland.

To extend to
offences com-
mitted at aefL

conviction, for tbe county, riding, or division wherein the cause of complaint
shall have arisen ; provided that such person diall give to the complainant a
notice in writing or such appeal, and of the cause aud matter thereof, within
three days after such conviction, and seven clear days at the least before such
sessions, and shall also either reinain in custody until the sessions, or enter
into a recoCTizance with two sufficient sureties before a justice of the peace,
conditioned personally to appear at the said sessions and to try such appeal,
and to abide the judgment or the Court thereupon, and to pay such costs as
shall be by the Court awarded ; and upon such notice being given, and such
recognizance being entered into, the justice before whom the same shall be
entered into shall liberate such person if in custody; and the Court at such
sessions shall hear and determine the matter of the appearand shall make such
order therein, with or without costs to either party, as to the Court shall seem
meet ; and in case of the dismissal of the appeal, or the affirmance of the con-
viction, shall order and adjudge the offender to be punished according to the
conviction, and to pay such costs as shall be awarded, and shall, if necessary,
issue process for enrorcing such judgment

XXXIX. And be it enacted. That no sach conviction, or adjudicalioa made
on appeal th/erefrom, shall be quashed for want of form, or be removed by
certiorari or otherwise into any of his Majestv's superior oourts of record ( and
no warrant of commitment shall be held voio by reason of any defect therein,
provided it be therein alleged that the party has been convicted, and there be
a good and valid conviction to sustain the same.

XL. And be it enarled. That every justice of (he peace, before whom any
person shall be convicted of any offence against this act, shall transmit the con-
viction to the next Court of General or Quarter Sessions which shall be bolden
for the county or place wherein the offence shall have been committed, there
to be kept by the proper officer among the records of the court; and upon
any indictment or information against any person for a subeeqaent offence, a '
copy of such conviction, certified by the proper officer of the court, or proved
to be a true copy, shall be sufficient evidence to prove a conviction for the
former offence, and the conviction shall be presumed to have been anappealed
against until the contrary be shewn.

XLI. And, for the protection of persons acting in the execniion of this net,
be it enacted, that all actions and prosecutions to be commeooed against any
peison for any thing done in pursuance of this act shall be laid and tried in the
county where tbe net was committed, and shall be commenced wiihia six ca-
lendar months after the fact committed, and not otherwise \ and notice in '
writing of such action, and of the cause thereof, shall be given lo the defend-
ant one calendar month at least before the commencement of the action ; and
in any such action the defendant may plead the general issue, and give this
act and the special matter in evidence at any trial to be had thereupon ; and
no plaintiff snail recover in any such action if tender of sufficient amends shall
have been made before such action brought, or if a sufficient sum of money
shall have been paid into Court, afler such action brought, by or on behalf of
the defendant} and if a verdict shall pass for the defendant, or the plaintiff
shall become nonsuit, or discontinue any such action after issue joined, or if,
upon demurrer or otherwise, judgment shall be given against the plaintiff, the
defendant shall recover his full costs as between attorney and client, and have
the like remedy for the same as any defendant hath by law in other casest and
though a verdict shall be given for the plaintiff in any such action, such i^ain-
tiff shall not have costs against the defendant, unless the judge before whom
tbe trial shall be shall certify his approbation of theaction* and of the verdict
obtained thereupon.

XLII. Provided always, and be it enacted, that nothing in this net contained
shall extend to Scotland or Ireland.

XLIII. And be it enacted, that where any felony or miBderananor punishable
under this act shall he committed within the inrisdiction of the AdalMlly of
England, the same shall be dealt with, inquired of, tried, and detennincid in
the same manner as any other felony or misdemeanor eosMnilted within that
jurisdiction.

7 «6 8 GEO. IV. c. 31. Ixxvii

•CAP. XXXI.

Jn Act for consolidating and amending the Laws in England relative
to Remedies against the Hundred [^1«^ June^ 1827.3

WxsRSAS it is expedient that the several statutes now in force in that part of

the United Kingdom called England, relatiTO to remedies against the hundred

for the damage occasioned by persons riotously and tumultuottsi? assembled,

sheold be aoieaded, and consolidated into one act; and with that view the

said statutes are, by an act of the present session of parliament, repealed,

from and after the nst* day of June in the present year, except as to ofibnees

and other matters committed or done before or upon that day : be it therefore

enacted by the King's most excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

parlianent assembled, and by the authority of the same, that this act shall Commence'

cornmence <on the first day of July in the present year. °>®°^ °^ ^^''

II. And be it enacted, that if any church or chapel, or any chapel for the The hundred
religioitt worship of persons dissenting from the United Church of England shall make
and Ireland, duly registered or recorded, or any house, stable, coach-house, fuUcompensa-
onthovse, wardiouse, office, shop, mill, malt-house, hop oast, barn, or granary, ^^^ ^^^ ^^®
or any building or erection used in carrying on any trade or manufacture, or ^"™-^ -°^
brancli thereof or any machinery, whether fixed or moveable, prepared for or ^JJ]?. ^^^
employed in any mannfiicture, or in any branch thereof, or any steam enf^ne

or other engine for sinking, draining, or working any mine, or any staith,
building, or erection osed m conducting the business of any mine, or any
bridge, wagsonwaj^ or trunk for conveying minerals from any mine, shall be
fdoaioonly demolished, pulled down, or destroyed, wholly or m part, by any
pefsons riotoosly aad tumnltaonsly aawmbled together, in every such case the
lahabilaBls of the huiidred, wapentake, ward, or other district in the nature of
a ha»k«d, by whatever name it shall be denominated, in which any of the said »
olEraces lAiali be comaiitled, shall *be liable to yield full compensation to the
person or persons damnified by the offence, not only for the damage so done
to any of the snligecti hereinbeiore enumerated but also for any damage which -
may at the same time be done by any snch off*enders to any fixture, furniture,
or goods whatever, in any such church, chapel, house, or other of the builds
iags or eroctions aforesaid.

III. Provided always, and be it enacted, that no action or summary proceed- Party damn!-
ing, as hereinafter mentioned, shall be maintainable by virtue of this act, for fied to comply
the damge caused by any of the said offences, unless the person or persons with certaia
damnified, or such of tiiem as shall have knowledge of the circumsUnces of conditions.
the offcnee, or the servant or servants who had the care of the property da-
maged, shall witbin seven days after the commission of the offence go before

some jastice of the peace residing near and having juristdiction over the place
where the oflTeooe shall have been committed, and shall state upon oath before
socb justice the names of the offenders if known, and shall submit to the exa«
nnnatioD of each justice touching the circumstances of the offence, and be-
come bound by recognizance before him to prosecute the offenders when ap*
pfdmdedt providsd also, that no person shall be enabled to bring any such Limitation of
actioo, ualaai he riiall rommencn the same within three calendar months after time for ac-
the comoMtsioD of the ofiimce. lions.

!¥• And belli ^nackti, that bo process for aapearance in any action to be Process in the
brought by virtue of this act against any hundred or other like district shall action against
be served on any inhabitant thereof, except on the high constable or some one the hundred to
of the high constables (if there be mere than one,) who shall within seven be served on
^ys after such service i^ive notice thereof to two justices of the peace of the the high con-
cooBty, riding, or division in which such hundred or district shali be situate, •table, who

IxXTiii

ADDENDA, &c. TO VOL. 11.

may defend^
or let judg-
ment go by
default, as ad-
vised.

Inhabitants of
the hundred
competent
witnesses.

If plaintiff re-
covers, the
sheriff, on re-
ceipt of the
writ of exe-
cution, shall
make out a
warrant di-
recting the
treasurer of
the county to
pay the a-
mount.

Mode of reim-
bursing the
high constable
for his ex-
pences in de-
fending the
action^ &c.

Reimbursing
the county
treasurer.

Mode of pro-
ceeding in
cases where
the damage
does not ex-
ceed 30/.

residing in or acting for the hundred or district; and such high constable is
hereby empowered to cause to be entered an appearance in the said action,
and also to defend the same on behalf of the inhabitants of the hundred or
district, as he shall be advised ; or, instead of defending the same, it shall be
lawful for hira, with the consent and approbation of such justices, to suffer
judgment to go by default; and the person upon whom, as high constable, the
process in the action shall be served, shall, notwithstanding the expiration of
bis office, continue to act for all the purposes of this act until the termination
of all proceedings in and consequent upon such action; but if such person
shall die before such termination, the succeeding high constable shall act in
his stead.

y. And be it enacted, that in any action to be brought by virtue of this act
against the inhabitants of any hundred or other like district, or against the in-
habitants of any county of a city or town, or of any such liberty, franchise,
city, town, or place, as is hereinafter mentioned, no mhabitant shall, by rea-
son of any interest arising from such inhabitancy, be exempted or precluded
from giving evidence either for the plaintiff or for the defendants.

VI. And be it enacted. That wherever the plaintiff in any such action shall
recover judgment, whether after verdict or by default or otherwise, no writ of
execution Sxali be executed on any inhaliitant of the hundred or other like
district, nor on such high constable; but the sheriff, upon the receipt of the
writ of execution, shall (on payment of the fee of five snillin^ and no more)
make his warrant to the treasurer of the county, riding, or diviston in which
sack hundred or other like district shall be situate, commanding biin to pay
to the plaintiff the sum by the said writ directed to> be levied, and soch trea-
surer is hereby required to |iay the same, as also any other sum ordered to be
paid by him by virtue of this act, out of any public money which shall then be
in his hands, or shall come into bis haniis before the next general or quarter
sessions of the peace for the said county, riding, or division ; and if there be
not aufficient money for that porpose before such sessions, be shall give no-
tice tibereof to the justices of the peace at such sessions, who shall proceed in
the manner hereinuter mentioned.

TIL And, for the purpose of indemnifying the high constable and the
county treasurer, be it enacted. That if such high constable of the hundred or
other district sued shall produce and prove before any two justices of the
peace of the county, riding, or division, residing in or acting for such hun-
dred or district, an account of the just and necessary expences which be
shall have incurred in consequence of any such action as aforesaid, such
justices shall make an order for the payment thereof upon the treasurer
of the county, riding, or division in which such hundred or district shall
be situate; and if in any such action judgment shall be given against the
plaintiff, the high constable shall in like manner be reimbursed for the
just and necessary expences by him incurred in consequence of such actioiif
over and above the taxed costs to be paid by the plaintin in such case ; aod if
it shall be proved to any two such justices, that the plaintiff in the action is
insolvent, so that the high constable can have no relief as to such taxed costs,
such justices shall make an order upon the treasurer of the county, riding,
or division as aforesaid, for the payment of the amount of such taxed costs;
and the justices of the peace at the next general or quarter sessions of the
peace to be holden for any such county, riding, or division, or any adjourn-
ment thereof, shall direct such sum or sums of money as shall have beeu paid
or ordered to be paid by the treasurer by virtue of any such warrant or order
as hereinbefore mentioned, to be raised on the hundred or other like district
against the inhabitants of which any such action shall have been brought^
over and above the general rate to be paid by such hundred or district in
common with the rest of the county, riding, or division, under the acts re-
lating to county rales ; and such sum or sums shall be raised in the manner
directed by those acts, and shall be forthwith paid over to the treasurer.

VIII. And whereas it is expedient to provide a summary mode of proceed-
ing where the damage is of small amount t be it therefore enacted { That it
shall not be lawful for any person to commence any action against the inha-
bitants of any hundred or other like district, where the damage alle^ to
have been sustained by reason of any of the offences in thia act mentioned
shall not exceed the sum of thirty pounds, but the party damnified shallt
within seven days after the commiasion of the offence, give a notice in writ-

7 & 8 GEO. IV. c. 31. Ixxix

i^ of Ins clmim for covipensBlios, accordw^ to the form in the schedule
brreaato mnoexed, to the ki<;h constable or some one of the high constables
iif tiicre be more thaa one) of the hundred or other like district in which the
(^cc ihaU have been committed; and such high constable shall, within
<oen dajs after the receipt of the notice, exhibit the same to some two jus-
tices of the peace of the county, riding, or division in which such hundred
or district shall be aitoate, residing in or acting for such hundred or district,
and they ^lall tbereopou apnoint a special petty session of all the justices of
tittpowe of the county, nainff, or division, acting for such hundred or dis-
trict, to be holden witliia not less than twenty nor more than thirty days next
after the exhibitioa of snch notice, for the purpose of hearing and determin- •

ioi^aay claim which may be then aud there brought before thera on account
of any snch damage; and such high constable shall, within three days after
todi appointment, ]|pive notice in writing to the claimant, of the day and
boor aau place appomted for holding such petty session, and shall within ten
days give tlie like notice to all the justices acting for such hundred or dis-
trict ; and the claimant is hereby re(|uired to cause a notice in writiug, in the
form in the schedule hereunto annexed, to be placed on the church or chapel
door, or other conspicuous part of the parish, township, or place in which
xach daraafEe shall have l»een sustained, on two Sundays precedmg the day of
holding soch petty session.

IX. And be it enacted, That it shall be lawful for the justices not being Such cases to
less thaa two, at such petty session or any adjournment thereof, to hear and be settled by
exaniiiie opoa oatli or affirmation the claimant, and any of the inhabitants of the justices at
the hundred or other like dblrict, and their several witnesses, concerning any ^ vpeeial petty
nch ofience, and the damage sustained thereby ; and thereupon the said jus- sesaioDs,
tices, or the major part of them, if they shall find that the claimant has sus-

tstoed any damage by means of any such offence, shall make an order for
paymeat of the amount of such damage to him, together with bis reasonable
cosis aad charges, and also an order for payment of the costs and charges (if
aay) of the high constable or inliabitants, and shall direct such order or or*
dcTs to the treasurer of the county, riding, or division in which snch hundred
or district shall he situate, who shall pay the same to the party or parties
therein named, and shall be reimbursed for the same in the manner herein-
before directed.

X. And be it enacted. That if any high constable shall refuse or neglect to Penalty on
exhibit or give such notice as is required in any of the cases aforesaid, it high constable
shall be lawful for the party damnifiea to sue him for the amount of the da- for neglect,
mage sostaineil, such amount to be recovered by an action on the case, toge-
ther with full costs of suit.

XI. And be it enacted. That every action or summary claim to recover Proceeding ia
compensation for the damage caused to any church or chapel by any of the case of
offences in this act mentioned, shall be brought in the name of the rector, damage to a
vicar, or curate of such church or chapel, or in case there be no rector, vicar, church or

or curate, then in the names of the church or chapel wardens, if there be any ^^l^^P^I*
such, and if not, in the name or names of any one or more of the persons in
wliom the property of such chapel may be vested $ and the amount recovered
in any such case shall be apnlierl in the rebuilding or re])airing such church

or chapel ; and where any or the offences in this act mentioned shall be com- in ca^e of

roitled on any property belonging to a bodv corporate, such body may recover damage to

compensation against the hundred or other like district, in the same man- property be-

■er and subject to the same conditions as any person damnified is by this act longing to a

enabled to do : provided always, that the several conditions which are herein- corporation.
before required to be performed by or on behalf of any person damnified,
nay, io the case of a body corporate, be performed by any officer of such body
«a behalf thereof.

XIL And whereas the offences for which compensation is granted by virtue Where the

of this act may be committed in counties of cities and towns, or in such li- damage is

bcffties, franchises, cities, toWns, and places, as either do not contribute at all committed in

to the payment of any county rate, or contribute thereto, but not as being ^ county of

part of any hundred or other like district; and it is expedient to provide B<^>ty»&c.

lor ail snch cases i be it therefore enacted. That where any of the offences in r;i^tv°^

this act mentioned shall be committed in a county of a city or town, or in i^hich is not

aay snch liberty, franchise, ci^, town, or place, the inhabitants thereof shall within any

be liable to yieul compensation m the same manner, and under the same con- hundred, or

Ixxx

ADDENDA, &c. TO VOL II.

does not con-
tribate to the
county rate,
each county .
liberty, &c.
shall be liable
like the hun*
dred.

Provision for
executing
writs in cer-
tain places.

Mode of re-
imbursement
in liberties,
cities, and
towns not
within any
hundred, but
contributing
to the county
rate.

Mode of reim-
bursement in
counties of
cities, and in
liberties, ci-
ties, and towns
not contribut**
ing to any
county rate.

dttibiis and restrictions in all respects, as the inhsbitants of the hundred ;
and every thing in this act in anywise relating to a hundred, or to the inha-
bitants thereof, shall equally apply to every county of a city or town, and to
every such liberty, franchise, city, town, and place, and. to the inhabitants
thereof; and where the justices of the peace of the county, riding, or divi-
sion, are excluded from holding jurisdiction in any such liberty, franchise,
city, town, or place, in every such case all the powers, authorities, and duties
by tfiis act eiven to or imposed on such justices, shall be exercised and per-
formed by the justices of the peace of the liberty, franchise, city, town or
Slace in which the offence shall be committed ; and where the offence shall
e committed in a county of a city or town, all the like powers, auUiori*
ties, and duties shall he exercised and performed by the justices of the peace
of such county of a city or town ; ana in every action to be brought or sum-
mary claim to be preferred under this act against the inhabitants of a county
of a city or town, or of such libertjs franchise, city, town or place, the
process for appearance in the action, and the notice reauired in the case of
the claim, shall be served upon some one peace officer or such county, liberty,
franchise, city, town, or place; and all matters which by this act the high
constable of a hundred is authorised or required to do in either of such cases,
shall be done by the peace officer so serveci, who shall have the same powers,
rights, and remedies as such high constable has by virtue of this act, and shall
be subject to the same liabilities: and shall, notwithstanding the expiration of
his office, continue to act for all the purposes of this act until the termina*
tion of all proceedings in and consequent upon such action or claim : hut if
he shall die before sudi termination, his successor shall act in his stead.

XIII. And, for securing the due execution of writs in the cinque ports, and
in places where writs are directed to other officers than the sheriff, and in li-
berties where the sheriff is not warranted in executing writs, be it enacted.
That all other such officers to whom any writ of execution under this act
shall be directed, by whatsoever name they shall he known, shall have the
same power of granting a warrant for payment of the sum by such writ di-
rected to be levied as isnereby given to the sheriff in case of a writ of execu-
tion directed to him ; and that every sheriff and other such officer as afore-
said shall have authority to grant his warrant under this act, notwithstanding
the offence shall have been committed in, or the treasurer or other person to
whom such warrant shall be directed shall reside or be in, any liberty where
the sheriff or officer is not warranted in executing writs.

XIV. And as to the mode of payment and reimbursement under this act in
such liberties, franchises, cities, towns, and places as contribute to the pay-
ment of the county rate, but not as being part of any hundred, be it enacted,
Tbat the warrant of the sheriff or other officer upon Any writ of execution
against the inhabitants of any such liberty, franchise, city, town, or place,
and every order of justices for payment to the party damnified therein, or to
the peace officer or inhabitants thereof, by virtue of this act, shall be directed
to the treasurer of the county, riding, or division in which such liberty, fran-
chise, city, town, or place shall be situate, who is hereby required to pay
the same; and the justices of the peace of such county, riding, or division, at
their next general or quarter sessions of the peace, or any adjournment thereof,
shall direct such sura or sums of money as shall have been so paid or ordered
to be paid by the treasurer to be raised on such liberty, franchise, city, town,
or place, over and above the g;eneral rate to be paid by the same in common
with the rest of the county, riding, or division,* under the acts relating to
county rates, and such sum or sums shall be raised in the manner directed by
those acts, and shall be forthwith paid over to the treasurer.

XV. And as to the mode of payment and reimbursement under this act in
counties of cities and towns, and in such liberties, franchises, cities, towns,
and places as do not contribute to the payment of the general county-rate,
be it enacted. That all suras of money payable either by virtue of any warrant
of the sheriff or other officer, or of any order or orders arising out of any
action or summary claim against the inhabitants of any county of a city or
town, or of any such liberty, franchise, city, town, or place, shall be paid
out of the rate (if any) in the ^ature of a county rate, or out of any fund
applicable to similar purposes, where there is such a rate or fund therein,
by the treasurer or other officer having the collection or disbursenoent of
such rate or fund ; and where there is no such rate or fund in such county.

7 & 8 GEO. IV. c. 51. Ixxxi

liberty, franchise* city, town, or place, the same shall be paid out of the rate
or fuDd for the relief of the poor of the particular parish, township, district,
or precinct therein, where the offence was committed, by the overseers or
other officers having the collection or disbursement of such last-mentioned
rate or fund ; and in every such case the warrant and orders shall be di-
rected and delivered to such treasurer, overseers, or other officers respectively,
instead of the treasurer of the county, riding, or division, as the case may
require.

XVI. Provided always, and he it enacted, That nothing herein contained This act not
ihail extend io Scotland or Ireland. to extend to

Scotland or
Ireland.

SCHEDULE.

Form of Notice to the High Constable of a Hundred or other
like District^ or to the Peace Officer of a County of a City or
Tozon^ or of a Liberty^ Franchise^ City^ Toion^ or Place,

To the high constable [or to one of the high constables]

of, &c. [or to a peace officer of, &c.]

I hereby give tou notice. That I intend to claim compensation from the
tahabitants of f here specify the hundred or other like district, or county of a
city, &c., or liberty, franchise, &c., as the case may be], on account of the
damage which I have sustained by means of [here state the offence, the time
and place where it was committed, and the nature and amount of the damage];
and J hereby require you, within seven days alter your receipt of this notice,
to exhibit the same to some two justices of the pence of the county [riding or
division^ of residing in or acting' for the said hundred, &c.

[or if in a liberty, franchise, &-c. where the justices of the county, riding, or
dt\iston have no jurisdiction, then say, * to some two justices of the peace of,'
saming the liberty, franchise, &c.], [or if in a county of a city, &c. then say,
' to some two justices of the peace of,' naming the county of the city, fire], in
order that they may appoint a time and place for holding a special petty ses-
sion to hear and determine my claim for compensation by virtue of an act
pased in the seventh and eighth years of the reign of Ki^ng George the Fourth,
mtitul^ ** An act for consolidating and amending the laws in England relative
to remedies against the hundred;*' and you are required to give me notice of
the day, hour, and place appointed for holding such petty session within three
days after the justices shall have appointed the same. Given under my hand
this day of in the year of our Lord*

(Signed) A. B.

Form of Notice to be placed on the Church er Chapel Door or
other conspicuous Part of the Parish, Township, or Place,
(as the case may be),

1 hereby give notice. That I shall ftpply for compensation to the justices of
the peace at a special petty sessions to be holden at on the

day of next, at the hour of in the forenoon,

on account of the damage which 1 have sustained by means of [here state the
offence, the lime and place where it was committed, and tne nature and
ioount of the damage, in the same manner as the preceding form.] Given
under my hand this day of in the yrar of

oariora

(Signed) A. B.

F

Ixxxii

ADDENDA, &c. TO VOL. II.

ANNO NONO

GE0RGII IV. REGIS.

CAP. XV.

An Act to prevent a Failure of Justice by reason of Variances between
Records and Writings produced in Evidence in st^ort thereof.

[9th Mayy 1828.]

Id cases where
Avsriance
•hall appear
between writ*
ten or printed
CfideDce and
the record, the
Court may
order the re-
cord to be
amended on
payment of
costs.

Wherias ^eat eipence is ofteti incurred, and delay or failure ^Jnslici takes
place at trials, by reason of tariances between writings nrodoced ill evMeoce
and the recital or setting forth thereof upon the record on wbidilkd>lnai is
had, in matters not material to the merits of the case, and "SUch recievd'eaaaot
flow in any case be amended at the trial, and in some cases cannot b^ lulleMled
at any time: for remedy thereof be it enacted by the King^s tticst tfceeUent
Majesty, by and with the advice of the liords spiritual and temporal, andCom-
roons, m this present parliament assembled, and by the authority of the same.
That it shall and may be lawful for every court of record holding pisai* civil
actions, any Judge sitting at Nisi ?rius, and any court of oyer and terminer
and general gaol delivery in England, Wales, the town of BerWKk^op^a'
Tweed, and Ireland, if such Court or Judge shall see fit so to do, to cause the
record on which any trial may be pending before any such Judge or Court in
any civil action, or in any indictment or information for any misdemeaaor,
when any variance shall appear between any matter in writing or in priut pro-
duced in evidence and the recital or setting forth thereof upon ^ record
whereon the trial is pending, to be forthwith amended in such parlicniar by
some officer of the court, on payment of snch costs (i^>^y) ^ ^^ other partV
as such Judge or Court shall think reasonable; and thereupon the trial shall

Eroceed as if no such variance had appeared i and in cas6 such trial* shall be
ad at Nisi Prius, the order for the amendment shall be iDdersedon-tlie poitea,
and returned together with the record i and thereufron tfaa papers, rolls, and
other records of the court from which such record issued, shall lio amended
accordingly.

II i< •'

"J 111.':'* Join'

»GEO. IV. c3«- kxxiii

ANNO NONO

OEOBGII IV, REGIS.

CAP. xxxn.

An Act for amending the Lam of Evidence in certain Catei.

[«7M Jiifie, 1818.]

I * ,

WacRBAS it is expedient that Quakera and Moravians should be allowed to
jriTe evidence upon their solemn affirmation in all cases, criminal as well aa
va^% sad tba&« in prosecutions for forgenr, the party interested should be
midcved a c— apet^t witness: be it ib^efi>re enacted by the King's most
tBoelleMt (Majesty* by and with the advice and consent of the Lords sptritoal
and tef patal,aad Commons, in this present parliament afisemhled, and by the
aatborit^ of Uie same. That evorv Quaker or Moravian who shall be required flaakm or
to me emdeace in any case whatsoever, criminal or civil, shall, instead of Moravians re-
takiai^^ti oaAb in the usual form, be permitted to make his or her solemn qntredtogive
affimialioi» or declaration in the words following ; that is to say, *' I, A. B. do f ^dence may,
solemnly* sincerely« and truly declare and affirm;" which said affirmation or l,^*™?^^
dedara&ton shall be of the same force and effect in all courts of justice, and t)ieir'teleiBa
other placet where by law an oath is required, as if such Quaker or Moravian sffinaatton*
had taKeo aa oath in the usual formi and if any person making such affirroa- which sbsll be
tion or declaration shall beeouficted of having wilfully, falsely, and corruptly of the same
affiroked *h declared any matter or thing, which if the same had been sworn in effoot in «U
the uftual form would have amounted to wilful and corrupt perjury, every caies, civil
soch oliender shall be subject to the same pains, penalties, and forfeitures to or cruninai.
whtcli persons convicted of wilful and corrupt perjury are or shall be subject.

11. And be it enacted, That on any prosecution by indictment or informa- '^^ 1^>^
tion, eitJbBr at common law, or by virtue of any statute, against any person, ^V^^iy^jf
for forgiog soy deed, writing, instrument, or other matter whatsoever ; or for ^ "^zLl^rt
ntterioeordjsposingof any deed, writing, instrument, or other matter what- -S/JieM^
soever, Kn4»wiDg the same to be forged ; or for being accessory before or after prosecutions
the fact to any such offence, if the same be a fdony ; or for aiding, abetting, or f^^ forgery,
counselling the commission of any such offence, if the same be a misdemeanor ;
no person shall be deemed to be an incompetent witness in support of any such
prosecution, b^ reason of any interest which such person may nave or he sup-
posed to have m respect of such deed, writing, instrument, or other matter.

III. And whereas it is expedient to prevent all doubts respecting the civil Every punish-
rights of persons convicted of felonies not capital, who have undergone the meat for felo-
punishment to which they were adjudged ; be it therefore enacted. That where uy, after it has
any offender hath been or shall be convicted of any felony not punishable been endured,
with death, and hath endured or shall endure the punishment to which such "I'^l kave the
oflSender bath been or shall be adjudged for the same, the punishment so en- ^'c®^ ^^ * 1^'
dured hath and shall have the like effects and consequences as a pardon under aonu^^d^ the
the mat seal as to the felon]f whereof the offender was so convicted : Pro- ^ "^
videa alwavs, that nothing herein contained, nor the enduring of such punish-
ment, shall prevent or mitigate any punishment to which the offender might
otherwise be lawfully sentenced on a subsequent conviction for any other fe-
lony.

Ixxxiv ADDENDA, &c. TO VOL. II.

No miade- IV. And "whereas there are certain misdemeanors which render the parties

meanor (ex- convicted thereof incompetent witnesses, and it is expedient to restore the

cept peijury) competency of such parties after they have undergone their punishment $ be

shall render a it therefore enacted, That where any offender hath been or shall be convicted

party an in- of any such misdemeanor, (except perjury or subornation of perjury,) and

competezU ii^i^h endured or shall endure the punishment to which such offender hath

witness after |^^q ^j. gi^^n ^^ adjudged for the same, such offender shall not, after the pu-

.on^rrar "i'^meot so endur^. Ee deemed to be by reasoD of such misdemeuor aa ia-

nubmeou * competeot witness ia any Court or proceeding, civil or criminal.

TREATISE

ON

^vimtn aitti illijKtiemeanor0.

BOOK THE FIRST.

OF PERSONS CAPABLE OF COMMITTING CRIMES,

OF PRINCIPALS AND ACCESSORIES,

AND OF INDICTABLE OFFENCES.

CHAPTER THE FIRST.

OF PERSONS CAPABLE OF COMMITTING CaiMBS.

It is a general rule that no person shall be excused from punish-
ment for disobedience to the laws of the country, unless be be
expressly defined and exempted by the laws themselves, {a) The
enquiry, therefore, as to those who are capable of committing
crimes, will best be disposed of by considering the several pleas
and excuses which may be urged on behalf of a person who has
committed a forbidden act, as grounds of exemption from punish-
ment.

Those pleas and excuses must be founded upon the want or Want or defect
defect of taiU in the party by whom the act has been committed. otwUi.
For without the consent of the will, human actions cannot be
considered as cidpable ; nor where there is no will to commit an
ofence, is there any just reason why a party should incur the penal-
ties of a law made for the punishment of crimes and offences, {b)
The cases of want or defect of will seem to be reducible to four
heads: — ^I. In&ncy. II. Non compos mentis. III. Subjection to
the power of others. IV. Ignorance.

(m) 4 Bla. Com. SO.

you 1.

(b) 1 Hale 14.

Of Persons capable of

[bwol u

Intots com- J. The full age of man or woman by the law of England b
mmin^mi»de«» twenty-one years : (c) under which age a person is termed an infant,

and is exempted from punishment in some cases of misdemeanors
and ofiences that are not capital, (d) But the nature of the offence
will make differences which should be observed. Thus, if it be
any^ notorious breach of the peace, as a riot, battery, or the like,
an infant above the age of fourteen is equally liable to suffer as a
person of the full age of twenty-one n (e) and if an infant judicially
peijure himself in point of age, or otherwise, he shall be punished
for the perjury ; and he may be indicted for cheating with false
dice, &c. :(/) but if the offence charged by the indictment be a
mere non-feazance (unless it be of such a thing as the party be
bound to by reason of tenure or the like, as to repair a brid^, &c.)
there, in some cases, he shall be privileged by his non-age, if
under twenty-one, though above fourteen years ^ because laches
in such a case shall not be imputed to him. {g)

It is said that if an infant of the age of eighteen years be con-
victed of a disseisin with force, yet he shall not be imprisoned ;{h)
and the law is said to be, 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 thB same, yet he cannot be
imprisoned, because his infancy is an excuse by reason of his
inciiscretion ; and it is not particularly mentioned in the statute
against forcible entries, that he shall be committed for such fine.(t)
An infant cannot, however, be guilty of a forcible entry or disseisin
by barely commanding one, or by assenting to one to his use ; be-
cause every command or assent of this kind by a person under such
incapacity is void : but an actual entry by an innint into another's
freehold gains the possession and makes him a disseisor, (k)
Infants com- With regard to capital crimes the law is more minute and cir-
mt^ capital cun^gpect ; distinguishing with greater nicety the several degrees of

age and discretion : though the capacity of doing ill or contracting
guilt is not so much measured by years and days as by the strength
of the delinquent's understandmg and judgment. (1) But within
the age of seven pears an infant cannot be punished for any capital
offence, whatever circumstances of a mischievous discretion may
appear; for ex presumptione juris such an infant cannot have
discretion; and against this presumption no averment shall be
admitted, (m)

On the attainment of fourteen years of age, the criminal actions
of infants are subject to the same modes of construction as those

(c) It is the fall age of male or fe-
Inaie according to common speech.
Lit.s. 104,959.

(i) 1 Hale SO.

ie) 4 Bla. Com. «S. 1 Hale SO. Co.
Lit. S46 b. S Inst 70S,

(/) 3 Bac. Abr. 693. Sid. S53.

(g) 1^ Hale SO. 3 Bac. Abr. 591.

(k) 1 Hale SI.

(i) 4 Bac. Abr. 591. Dalt. SOS. Co.
Lit. 357. And see 1 Hawk* P.C. c.«4.
8. 35. that the infant ought not to be
imprisoned because he shall not be
f abject to corporal punishment b j

force of the general words of any
statute wherein he is not expressly
named.

(k) 4 Bac. Abr. 591. Co. Lit 357.
1 Hawk. P. C. c. 64. s. 85.

(/) .4 Bla. Com. S3.

(m) 1 HaleS7, S8. I Hawk. c. 1.
s. I. note (I). 4 Bla. Com. SS. Apar-
don was granted to an infant within
the age of seven years, Irfao was in-
dicted for homicide % the-jniy having
found that he did Uie fiMt liefofw be
was seven years old, I Hale 87» (edU.
ISOO) note (e).

mk?.,i.^ committing Crimes. — Infawy. f

o( the rest of society ; Ibr the law preaumes them at those yeiu-»
to be doli cqpacef , and able to discem between good and evil, and
therefore aubjects^them to capital punishments as much as if they
were of full age.(n) But during the interval between fourteen years
end eevenj an infant shall be prim& facie deemed to be doli inca-
paau and presumed to be unacquainted with guilt ; yet this pre-
sumptloii will diminish with the advance of the offender's years,
and will depend upon die particular facts and circumstances of his
ease. The evidence of malice, however, which is to supply age^
should be strong and clear beyond all doubt and contradiction :
but if it appear to the Court and jury that the offender was doli
capaic, and could discern between good and evil, he may be con-
victed and suffer death. (o) Thus, it is said that an infant of eight
years old may be guilty of murder, and shall be hanged for it : {p)
and where an infant between eight and nine years old was indicted,
and found guilty of burning two bams, and it appeared upon exa-
mination that he had malice, revenge, craft, and cunning, he had
judgment to be hanged, and was executed accordingly, {q)

An in£ant of the age of nine years, having killed an infant of
the like age, confessed the felony ; and, upon examination, it was
found that he hid the blood and the body. The justices held that
he ought to be hanged ; but they respited the execution that he
might have a pardon, (r) Another infant, of the age often years,
who had killed his companion and hid himself was, however^
actnally hanged ; upon the ground that it appeared by his hiding
that he could discem between good and evil ; and malitia suppUt
eetatem.(s) And a girl of thirteen was burnt, for killing her
mistress, (t)

In the case of rape^ the law presumes that an infant under the
age of fofurteen years is unable to commit the ci'ime ; and there-
fore it seems he cannot be guiltv of it: but this is upon the
ground of impotency rather than the want of discretion ; for he
may be a principal in the second degree, as aiding and aifsisting in
this offence as well as in other felonies, if it appear by sufBicient
circnmstances that he had a mischievous discretion, (u)

The following is an important case as to the capability of an
infant of ten years old being guilty of the crime of murder; and
as to the expediency of visiting such an offender with capital
paniahment.

At Bury summer assizes, 1748, William York, a boy of ten Cawof nmrder

^ 7 • J J J by a boy often

(») Dr. and Stu. c 86. Co. Lit 79, before i)»hich the party was not pre- y®*" ^^

171,947. Dait. 476, 505. 1 Hale 25. sumed to be doli capaz. i.Tnfantia^

SBac Abr. 581. which lasts till seven years, within

(•) 1 Hale 85, 87. 4 Bla. Com. 83. which age there can be no guilt of a

Tl^ ciTiI law, as to capital pnnish- capital offence. 1 Hale 17 — 19.

ments, distiogoished the ages into [p) Dalt. Jost. c 147.

four ranks : — 1. JStas pubertaHi pie-^ (9) Dean's case, 1 Hale 25, note («).

aa, which b eighteen years. 8. Mtas (r) 1 Hale 27. F. Conme 57. B.C9-

jni«rfallv,or^iift0rla«generally, which rone 133.

b fourteen Tears, at which tirae per- (t) Spigpmal'scase, 1 Hale 86. Fits.

SMS were likewtse presumed .to be Rep. Coiyifu^ 1 18.

doticqiBces. 3s JBU$ puberiati pros* (I) Alice de Waldborougb's case, I

tea/ bat in this the Roman lawyers Hale 86.

were divided, some assigning it to ten («) 1 Hale 6S0.
ywrtukl a half^ othm t^o oleTeai

Of Persona capable of [Bpo& i.

years of age, was convicted, before Lord Chief Justice Willes, for
the murder of a rirl of about five years of am, and received sen-
tence of death ; but the Chief Justice, out of regard to the tender
years of the prisoner, respited execution till he should have an
opportunity of taking the opinion of the rest of the judges, whether
it was proper to execute him or not, upon the special circum-
stances of the case ; which he reported to the judges at Serjeants'
Inn in Michaelmas Term following.

The boy and girl were parish children, put under the care of a
parishioner, at whose house they were lodged and maintained.
On the day the murder happened, the man of the house and his
wife went out to their work early in the morning, and left the
children in bed together. When they returned from work, the
girl was missing ; and the boy, being asked what was become of
her, answered that he had helped her up and put on her clothes,
and that she was gone he knew not whither. Upon this, strict
search was made in the ditches and pools of water near the house,
from an apprehension that the child might have fallen into the
water. During this search, the man, under whose care the children
were, observed that a heap of dung near the house had been newly
turned up ; and, upon removing the upper part of the heap, he
found the body of the child about a foot's depth under the surface,
cut and mangled in a most barbarous and horrid manner. Upon
this discovery, the boy, who was the only person capable of com-
mitting the fact, that was left at home with the child, was charged
with the fact, which he sti£9y denied. When the coroner's jury
met, the boy was again charged, but persisted still to deny the
fact. At length, being closely interrogated, he fell to crying, and
said he would tell the whole truth. He then said that the child
had been used to foul herself in bed ; that she did so that morning,
(which was not true, for the bed was searched and found to be
clean,) that thereupon he took her out of the bed and carried her
to the dung-heap, and with a large knife, which he found about
the house, cut her in the manner the body appeared to be mangled,
and buried her in the dung-heap ; placing the dung and straw that
was bloody under the body, and covering it up with what was
clean ; and having so done, he got water and washed himself as
clean as he could. The boy was the next morning carried before
a neighbouring justice .of the peace, before whom he repeated his
confession, with all the circumstances he had related to the coroner
and his jury. The justice of the peace very prudently deferred
proceeding to a commitment, until the boy should have an oppor-
tunity of recollecting himself. Accordingly he warned him of the
danger he was in if he should be thought guilty of the fact he stood
charged with, and admonished him not to wrong himself: and
then ordered him into a room where none of the crowd that
attended should have access to him. When the boy had been
some hours in this room, where victuals and drink were provided
for him, he was brought a second time before the justice, and then
he repeated his former confession : — ^upon which he was coramitted
to gaol.

On the trial, evidence was ^ven of the declarations before men-
tioned to have been made before the coroner and his jury, and

cHA?. iQ committing Crimea. — Infancy. fi

befoie the justice of the peace ; and of many declarations to the
same purpose wluch the boy made to other people after he came
to gaol, and even down to the day of his tnal ; for he constantly
told the same story in substance, commonly adding that the devil
pot him upon committing the fact. Upon this evidence, with some
other circumstances tenmng to corroborate the confessions, he was
convicted.

Upon this report of the chief justice, the judges, having taken
time to consider of it, unanimously agreed, 1. That the declara-
tions stated in the report were evidence proper to be left to the
jury. 2. That, supposing the boy to have been guilty of this fact,
there were so many circumstances stated in the report which were
undoubtedly tokens of what Lord Hale calls a mischievous discre-
tion, that he was certainly a proper subject for capital punishment,
and ought to suffer; for it would be of very dangerous consequence
to have it thought that children may commit such atrocious crimes
with impunity. That there are many crimes of the most heinous
nature, such as (in the present case) the murder of young children,
poisoning parents or masters, burning houses, &c. which children
are very capable of committing ; and which they may in some cir-
cumstances be under strong temptations to commit; and therefore
though the taking away the life of a boy of ten years old might
savour of cruelty, yet, as the example of that boy's punishment
might be a means or deterring other children from the like offences,
and as the sparing the boy, merely on account of his age, would
probably have a quite contrary tendency ; in justice to the public,
the law ought to take its course ; unless there remained any doubt
touching his guilt. In this general principle all the judges con-
curred : but two or three of them, out of great tenderness and
caution, advised the chief justice to send another reprieve for the
prisoner; suggesting that it might possibly appear, on farther in-
quiry, that the boy had taken this matter upon himself at the
instigation of some person or other, who hoped by this artifice to
screen the real offender from justice.

Accordingly the chief justice granted one or two more reprieves;
and desired the justice of the peace who took the boy^s examina-
tion, and also some other persons, in whose prudence he could
confide, to make the strictest inquiry they could into the affair, and
report to him. At length he, receiving no farther light, deter-
mined to send no more reprieves, and to leave the prisoner to the
justice of the law at the expiration of the last ; but, before the
expiration of that reprieve, execution was respited till further
order, by warrant from one of the secretaries of state : and at the
summer assizes, 17^79 the prisoner had the benefit of His Majesty's
pardon, upon condition of his entering immediately into the sea
service (w)

It is said that an act making a new felony does not extend to ^^ ^"ST
an infimt under the age of discretion, namely, fourteen years old ; (s) ^ cases of
and that general statutes which give corporal punishment are not infancy,
to extend to infants ; and that, dierefore, if an infant be convicted
in ravishment of ward, he shall not be imprisoned, though the

4

(«) York*s case, Fost. 70, et $eqv. case, Plowd. Com. 465. a. And see
(X) 1 Hale 'foe. Eystoa and Stud's 1 Hale SI, 28. Bac. Ab. Infancy (H),

0 OfPerBOfis ctq^iibU of [boo& i.

Btatttte of Merton^ c. 6. be general in that case, {y^ fiat this must
be understood, where the corporal punishment n, as it were, but
collateral to the offence, and not the direct intention of the pro-
ceeding against the infant for his misdemeanour ; in many cases
of which kind the infant imder the age of twenty-one shall be
spared, though possibly the pimishment be enacted by parliament, (z)
But where a fact is made felony or treason^ it extends as well to
in&nts, if above fourteen years, as to others. And this appears by
several acts of parliament, as by 1 Jac. I. c. 2. of felony for mar-
rying two wives, in wiiich there is a special exception of marriages
within the age of consent, which in females is twelve, in mides
fourteen years ; so that if the marriage were above the age of con«
sent, though within the age of twenty-one years, it is not exempted
from the penalty. So by the statute 21 Hen. 8. c. 7*9 concerning
felony by servants that embezzle their master's goods delivered to
them, there is a special provision that it shall not extend to ser-
vants under the age of eighteen years, who certainly had been
within the penalty, if above the age of discretion, namdy, fomteen
years, though imder eighteen years, unless there had been a special
provision to exclude them. And so by the 12 Anne, c. /. (by
which it is made felony without benefit of clergy to steal goods to
the value of 40s. out of a house, though the house be not broken
open) where apprentices who shall rob their masters are excepted
out of the act. (a)
Of delaying In many cases of crimes committed by infants, the judges will

*1^'"'°inf t ^ pnidence respite the execution in order to get a pardon : and it
tscoiiTicted.^ is said that if an infant apparently wanting discretion be indicted

and found guilty of felony, the justices themselves may dismiss him
without a pardon. (6) l&ut this authority to dismiss him, must be
understood of a reprieve before judgment ; or of a case where the
jury find the prisoner within the age of seven years, or not of suffi-
cient discretion to judge between good and evil, (c)
Of penont IL It has been considered, that there are four kinds of persons

ikon eompot ^]jq ^^y \^ g^j ^ ]^ j^^ compos. 1. An idiot. 2. One made

non compos by sickness. 3. A lunatic. 4. One that is drunk, {d)
But it should be observed, that every person at the age of discre-
tion is presumed sane unless the contrary is proved : and if a
lunatic has lucid intervals, Uie law presumes the ofience of such
person to have been committed in a lucid interval, unless it appears
to have been committed in the time of his distemper, (e)
Idiou. An idiot is a fool or madman from his nativity, and one who

•never has any lucid intervals : and such an one is described as a
person that cannot number twenty, tell the days of the week, does
not know his father or mother, his own i^, &c. : but these are
mentioned as instances only; for whether idiot or not is a question

(y) \ Bac. Abr. Infaacy (H). Plowd. an infant eonvieied hj a jur^, tbe jud^e

864. 1 Hale 21. would take upon himseli to dismin

(z) Bac. Abr. Infancj (H). 1 Hale him. It is submitted that the re^lar

91. . course would be to respite eaecatioo,

(«) Bac. Abr. Infancy (H). Co. Lit and recommend the prisoner for a

147. lHale81,S2. pardon.

(») 36 Hen. VI. 1 1 and 1). * (d) Co. Lit 247. Beverley's case»

(e) 1 Hale S7. 1 Hawk. P. C. c. 1. 4 Co. 124.

t. i. And Qn. Whelhcr ia any case of {e) 1 Hale S3, 34.

CHAF. 1.3 comamlting

'J^una^, fsc.

of iKt for the jury, (e) One who is mrdus ei mutus d noHvUaie
ift in presiuiptioii of law an idiot, and the rather because he has no
pombitHy to understand what is forbidden by law to be done, or
under what penalties : but if it appear that he has the use of under-
stan^ng, which many of that conmtion discover by signs, to a very
great measure, then he may he tried, and sufier pud^ent and
execution; though great caution shoiild be used m such a pro-
ceeding. (/)

A person made non compos mentis by sickness, or, as it h^ been Non eompM
sometinies expressed, a person afiUctea with dementia accidentalis J^ckneiT^*^
vet adventitia, is excused in criminal cases from such acts as are
committed while under the influence of his disorder, (g) Several
causes have been assigned for this disorder ; such as the distemper
of the humours of the body; the violence of a disease, as fever or
palsy; or the concussion or hurt of the brains and, as it is more
or less violent, it is distinguishable in kind or degree, from a par-
ticalar dementia, in respect of some particular matters, to a total
alienaiion of the mind, or complete madness. (A)

A bmaiic is one labouring also under a species of the dementia Lvnstict.
aecidenialie vel adventitia, but distinguishable in this, that he is
aflSieted by his disorder only at certain periods and vicissitudes ;
having intervals of reason. Such a person during his frenzy is
entitled to the same indulgence as to his acts, and stands in the
same degree with one whose disorder is fixed and permanent, (t)
The name of lunacy was taken from the influence which the moon
WIS supposed to have in all disorders of the brain ; a notion which
has been exploded by the sounder philosophy of modern times.

With respect to a person non compos mentis from drunkenness, Penons dnmk.
a species of madness which has been termed dementia affisctata, it
is a settled rule, that if the drunkenness be voluntary, it cannot ex-
cuse a man from the commission of any crime, {k) but on the con-
trary must be considered as an aggravation of whatever he does

(«) Bac Abr. IdioU, &c. (A.) Dy.
S5. If oor, 4. pi. 12. Bro. Idiot 1. F.
IT. B. SS3.

if) 1 Hmle 84. And seo the note
(•) where it is said that according to
4S Akis. pi. SO, and 8 Hen. IV. S, if a
prisoner stands mute, it shall he in-
quired whether it be wilful, or by the
act of God; from whence Crompton
lafen that if it he hy the act of God,
the party shall not suffer. Cronipt
Jnst 29, a.' But if one who is hoth
deaf and dumb, may discover by signs
that he bath the use of anderstandingt
moch mors may one who is only
dnmht and consequently such a one
nay he guilty of felony \ $ed qucsre
how he s&ll Ins arraieoed. It may he
obeenred, that from Ae humane exer-
tions of many ingenious and able per-
sons, sod from the extensive chari-
tMe institotioos for the instruction
of the deaf and domh, many of thote
oofortnoate people have at the pre-
stai dMf a very perfect luiowMgs of

right and wronj^. In Steel's case, 1
Leach 461, a prisoner who could not
hear, and could not he prevailed upon
to plead, was found mute hy the visit-
ation of God, and then tried, found
guilty, and sentenced to he trans-
ported. And in Jones's case, 1 Leach
102. where the prisoner (who was in-
dicted on is Anne, c. 7. for stealing
in a dwelling house) on being put to
the bar appeared to be deaf and dumb,
and the jury found a verdict, " Mute
'* by the visitation of God (^ after
which a woman was examined upon
her oath, to the fact of her being able
to make him understand what others
said, which she said she could do by
means of signs, such prisoner was ar-
raigned, tried, and convicted of the
simple larceny.

ig) 1 Hale so. S Bac. Abr. 590.

{h) 1 Hale SO.

(0 4 Co. 195. Co.Lit«947. I Hale S Ik

(k) Co. Lit. 242. I Hale St. I.
Hawk. P. C. c« I. s. 0.

8

OfPensans capable of

[booa I.

Idiocy and
lunacy are
the prevailing
disUnctioDB.

Difficulty of
the subject.

Caiet.

amiss. (Z) Yet if a persoh, by the unakilfulttess of ^ hift physician,,
or by the contrivance of his enemies, eat or drink sach a thing as
causes frenzy, this puts him in the same condition with any otbtt
frenzy, and equally excuses him ; also, if by one or more such prac-
tices an habitual or fixed frenzy be caused, though this madness
was contracted by the vice and will of the party, yet the habitual
and fixed frenzy caused thereby puts the man in the same condi-
tion as if it were contracted at first involuntarily, (m) And, though
voluntary drunkenness cannot excuse from the commission of
crime, yet where, as upon a charge of murder, the material ques-
tion is, whether an act was premeditated or done only with sudden
heat and impulse, the fact of the party being intoxicated has been
holden to be a circumstance proper to be taken into considera-
tion, (n)

But ^ough this subject of non compos mentis may be span out
to a greater length, and branched into several kinds and degrees,
yet it appears that the prevailing distinction herein in law is be-
tween idiocy and lunacy ; the first, a fatuity d nativitatey or de-
mentia naturalis, which excuses the party as to his acts; the
other, accidental or adventitious madness, which, whether perma-
nent and fixed, or. with lucid intervals, goes under the name of
lunacy, and excuses equally with idiocy as to acts done during the*
frenzy, (o)

The great difficulty in cases of this kind is to determine wheie
a person shall be said to be so far deprived of his sense and me-
mory as not to have any of his actions imputed to him ; or where,
notwithstanding some defects of this kind, he still appears to have
so much reason and understanding as will make him accout^table
for his actions. Lord Hale, speaking of partial insanity, says, that
it is the condition of very many, especially melancholy persons,
who for the most part discover their defect in excessive fears and
griefs, and yet are not wholly destitute of the use of reason ; and
that this partial insanity seems not to excuse them in the commit-
ting of any capital oiFence. And he says further, '^Doubtless most
'^ persons that are felons of themselves and others are under a
^\ degree of partial insanity when they commit these o£knces : 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 indulgence
" given to great crimes." And he concludes by saying, "the best
^' measure 1 can think of is this: such a person as, labouring under
*^ melancholy distempers, hath yet ordinarily as great understanding
^^ as ordinarily a child of fourteen years hath, is such a person as
^' may be guilty of treason or felony.'* (p)

It will be proper to mention some of the cases which have been
decided upon this difficult and most important subject.

(0 4 Blac. Com. S6. Flowd. 19. Co.
Lit 847. Nam omne crimen ebrietu
in'cendit et detegit. And see also Be^
rerley^s case, 4 Co. 196.

(m) 1 Hale 38.

{n) By Holroyd, J. in Rex v. Grind-
ley, Worcester Sum. Aas. 1819. MS.

{0) Bac. Abr; Idiots, &c. (A.) 4 Co.
195.

(p) 1 Hale SO.

VAist. \!\ commiUmg CrirneB. — Lunacy, %c. 9

• _

In the case of JLord Ferrers^ who ivas tried before the House of ^^^^ST^^
Lords for murder, it was proved that his lordship was occasionally «"*^M!irder.
insaoe, and incajmble bom his insanity of knowing what he did, or
judging of tbe consequences of his actions.^ Bnt the murder was
deliberate ; and it speared that when he committed the crime he
had capacity sufficient to form a design and know its consequences.
It was urged, on the part of the prosecution, that complete possesr
sion 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 dis-
criminate between moral good and evil« And he was found guilty
and executed, (p)

In Arnold's case, who was triedat Kingston, before Mr. J. Tracey, ArnoM'^cise*
for maliciously shooting at Lord Onslow, it appeared clearly that ][i^^*i2^^^
the prisoner was, to a certain extent, deranged, and that he had
greatly misconceived the conduct of Lord Onslow ; but it also ap-
peared that he had formed a regular design, and prepared the proper
means for carrying it into effect. Mr. Justice Tracey left the case
to the jury, observing that where a person has committed a great
offence, the exemption of insanity must be very clearly made out
before it is allowed ; that it is not- every kind of idle and fr^mtic
humour of a man, or something unaccountable in his actions,
which will shew him to be such a madman as is to be exempted
from punishment ; but that where a man is totally deprived of his
understanding and memory, and does not know what he is doing,
any more than an infant, a brute, or a wild beast, he will properly
be exempted from justice or the punishment of the law. (q)

In Parker's case, who was indicted for aiding the kind's ene- Parker's ea«e.
mies, by entering into the French service m time of war between rr^*?"***^
France and this country, the defence of the prisoner was rested by'eiiteiteg ^
upon the ground of insanity ; and a witness on his behalf stated, into the Frettch
that his general character from a child was that of a person of very ^^^^^^
weak intellects; so weak that it excited surprise in the neighbour-
hood when he was accepted for a soldier. But the evidence for the
prosecution had shewn .the act to have been done with considerable
deliberation and possesion of reason ; and that the prisoner, who
was a marine, having been captured by the French and carried into
the isle of France, i^ter a confinement of about six weeks, entered
voluntarily into the French service, and stated to a captive com-
rade that it was much more agreeable to be at liberty and have
plenty of money than remain confined in a dungeon. The Attorney
Genmd 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 committra the prisoner did not really know right from wrong.
And the jury, after hearing the evidence suinmed up, without hesi-
tation pronounced the prisoner guilty, (r)

(p) Lord Ferrers'8 case, 19 St Tri. and wasconfined in prison thirty years,

(by Howell,) 947. till he died.

(f ) Arnold's case, MS. Collison on (r) Parker's case, tried by a special

Lnnacy, 475. SSUTri. SI7. 16 St. commission, in Horsemongcr-lane,

Tri.(by Howell,) 764, 765. The jury 1 Ith of February, 1818, for high trea-

foond the prisoner guilty \ but at son, Collts. 477.
Id« Osiiow'srequeit he was reprieved ;

K) OJ Persimi capa^ of [boq^ u

^sh^ti^ Thomas Bowler mm tried nt the Old Bail^ on the 2d July,
a pe»on ai^ ^iSif ^OT shootmg at and wounding William Burrowe^. The de^
wounding him* fence set Up foT t£e prisoner was, insanity occamned by epilepsy;

and it was deposed, by the prisoner's housekeeper, tliat he was
seized with an epileptic fit on tli\e 9th July, 181 1, and was brought
home apparently lifeless, since which time she had perceived a
eieat alteration in his conduct and demeanour; that he would
frequently rise at nine o'clock in the morning, eat hb 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 himsdf. Mr. Warburton, the keeper of a lunatic asylum,
deposed, that it was characteristic of insanity occasioned by epi-'
lepsy for the patient to imbibe violent antipathies against particular
individuals, even his dearest friends, and to have a desire of taking
vengeance upon them £ram causes wholly imaginary, which no per«
suasion could remove, and thai yet the patient might be rational
and collected upon every other subject. He had no doubt of the
insanity of the priaoner, and said he could not be deceived by as-
sumed appearances. A commission of lunacy was also produced,
dated the 17th oi June, 1812, and an inquisition taken upon it,
whereby the prisoner was foimd insane, and to have been so from
the 30tti of March h^U (s)

Mr. Justice Le Blane, after summing up the evidence, concluded
by observing to tihe jury, that it was for them to determine whe«
ther the prisoner, when be committed the offence with which he
stood ehaiged, was incfmaUe of distinguishing right from wrong,
or under the influence ot 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
tiiey should be of opinion that when he committed the oronce 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 con-
siderable ddiberation, pronounced the prisoner guilty. (I)
BelUngluun'i ^^ Bellingham's case, who was tried for the murder of Mr. Per-
case.— Murder, ceval, a part of the prisoner's defence, not urged by himself but by

his counsel, was insanity ; and upon this part of the case Mans-
field, Chief Justice, is reported to have stated to the jury^ that in
order to support such a defence it ought to be proved by the most
distinct and unquestionable evidence that the prisoner was incapable
' of judging between right and wrong; .that in fact it must be proved
beyond all .doubt, that at the time he committed the atrocious act
with which he stood charged, he did not consider that murder was
a crime against the laws of God and nature; and that there was no
other proof of insanity which would e^junise murder, or any other
criase. That in the species of madness balled lunacy, where per-
sons are subject to temporary paroxysms, in which they are gmlty
of acts of extravagance, such persons committing crimes ^en they

(«) The report of this case, in Col- W. Barrowes.
liBon on Lunacy, 673, does not state. (I) Bowler's case. Old Bailey, 9d
tbs day on which the prisoner shot at July, 18IS« Collis. 0I3» ia the note*

cHAF. 1.] cmnmitting Cruneg. — Lmuay, ^e. 11

are not aftcted Iby the malady would be^ to all intents and pux^
poses, amenable to lustice ; and that so long as they could distin-
guish good firom 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 distinguishing right from wrong, there would be no excuse for
any act of atrocity which he might commit under this descriptioa
of derangement, (tc)

James Hadfield was trifed in the Court of IQng^s Bench, in the ^^^^Jf^
year 1800, on an indictment for high treason in shooting at the the king. *
kingy in Dniry-la^e theatre ^ and the defence made for the prisoner
was insanity. It was proved that he had been a private solder in
a dragoon regiment, and in the year 1793 received many severe
woonds in battle, near lisle, which had caused partial derange*
ment of mind, and he had been dismissed from the army on account
of insanity. Since his return to this country he had been annually
out of his mind from the beginning of spring to the end of the dog*
days, and had been under confinement as a lunatic. When af-
fected by his disorder, he imappjied himself to hold intercourse
with God ; sometimes called lumself God, or Jesus Christ, and
used other expressions of the most irreligious and blasphemous
kind; and also committed acts of the greatest extravagance; but
at other times he appeared to be rational, and discovered no symptom
of mental incapacity or disorder. On the 11th of May preceding
lus commission of the act in question his mind was very much dis-
ordered, 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 agamst the bed post, and that God had ordered him to
do so ; and upon his wife screaming, and his friends coming in, he
ran into a cupboard and declared he would lie there, it should be
his bed, and God had said so ; and when doing this, having overset
some water, he said he had lost a great deal of blood. On the same
and the following day he used many incoherent and blasphemous
expressions. On the morning of the 15th of May he seemed worse,
said that he had seen God in the night, that the coach was waitinff,
and that he had been to dine with the king. He spoke very highly
of the king, the roval family, and particul^ly of the Duke of York.
He then went to his master's workshop, whence he returned to
dinner at two, but said that he stood in no need of meat, and could
live without it. He asked for tea between three and four o'clock,
and talked of being made a member of the society of odd fellows ;
and, alter repeating his irreligious expressions, went out and repaired
to the theatre. . Chi the part of the Orown, it was proved tnat he
had sat in his place in the theatre nearly three quarters of an 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 presenting a pistol loaded with slugs, fired it at the king's
person, and then let it drop ; and when he fired his situation ap-
peared fitvourable fw taking aim, for he was standing upon the

(■) Belliogham'8 esse, Old Bailej, 151fa Maj. 1818, Collis. Addsnd. SSS^ ,

• " • • •

13 Of Persons capable of [booei.

second seat from the orchestra in the pit ; and he took a deliberate
aim^ by looking down the barrel, as a man usually does when
taking aim. On his apprehension, amongst other expressions, he
said tihiat ** he knew perfectly well his life was forfeited ; that he was
^' tired of life, ana regretted nothing but the fate of a woman
'^ who was his wife, and would be his vAk a few days longer, he
^' supposed." These words he spoke calmly, and without any ap-
parent 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 any thing against the life of the
^' king ; he knew the attempt only would answer his purpose/'

The counsel for the prisoner, (t^) in his very able address to the
jury, put the case as one of a species of insanity in the nature of a
morind delusion of the intellect, and admitted that it was neces-
sary for them to be satisfied that the act in question was the imme-
diate unqualified offspring of the disease. And Lord Kenyon held
that as the prisoner was deranged immediately before, the offence'
was committed, it was improbable that he bad 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 belienng him to
have been at tijiat period a rational and accountable being, he ought
to be acquitted, {x)
Application of The application of the rules and principles laid down in these
wLdplcs^of cases, to each particular case as it may arise, will necessarily in
the foregoing many instances be attended with difficulty; more especially with
caacf. regard to the true interpretation of the expressions which state

that the prisoner, in order to be iEi proper subject of exemption
from punishment on the ground of insanity, should appear to have
been, unable "to distinguish right from iorong," or to discern
^' that he was doing a torong acty' or should appear to have been
^' totally deprived of his understanding and memory ;" as even in'
Hadfield's case his expressions when apprehended, that " he was
tired of life,'* that " he wanted to get rid of it," and that " he did
not intend any thing against the life of the king, but knew that
the attempt only would answer his purpose ;'' seem to shew that
he must have been aware that he was doing a wrong acty 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
firantic humours, actions occasionally unaccountable and extraor-
dinary, mere dejection of spirits, or even such insanity as will
sustain a commission of lunacy, will not be sufficient to exempt a
person from punishment who has committed a criminal act. And
it seems that though if there be a total permanent want of reason,
or if there be a total temporary want of it when the offence was
committed, the prisoner will be entitled to an acquittal ; yet, if
there be a partial degree of reason, a competent use of it^ sufficient
to have restrained those passions which produced the crime 3 if

(w) The late Lord Erskiae, then at ** it appearing to us that he was under

the bar. «' the influence of insaoitj, when the

(x) fiadfield's case, Collis. 480. The '* act was committed.'*
verdict of the jury was ** Not Guilty,

aup. 1.3 comnUtting Crimes. — lamacjf, %c.

1?

there be thouglit and design, a fieunilty to distinguifih the nature
of actions, to discern the difference between moral good and evil ;
then, upon the feurt of the ofiFence proved, the judgment of the law
must taJce place, (y)

If a man in his sound memory commits a ciq>ital offence, and Froceedingi
before arraignment for it he becomes mad, he ought not to be i^atiToiBtod^
arraigned for it ; because he is not able to plead to it with that en.
advice and caution that besought. And if, after he has pleaded,
the prisoner become mad, he shall not be tried ; as he cannot make
his defence. If, after he be tried and found guilty, he loses his
senses before judgment, judgment shall not be pronounced ; and
if after judgment he becomes of nonsane memory, execution shall
be stayed ; for, peradventure, says the humanity of the English
law, bad the prisoner been of sound memory, he might have
all^^ something in stay of judgment or execution, (s)

And, by the common law, if it be doubtful whether a criminal,
who at his trial is in appearance a lunatic, be such in truth or not,
the fact shall be investigated, (a) And it appears that it may be
tried by the jury, who are charged to try the mdictment(6) by an
inquest of office to be returned by the sheriff of the county wherein
the court sits (c) or, being a collateral issue, the fact may be pleaded
and replied to are tehus, and a venire awarded returnable instanter,
in the nature of an inquest of office, (e/) And if it be found that
the party only feigns himself mad, and he refuses to answer or
^lead, he shall be dealt with as oue who stands mute, (e)

But in case a person in a phrenzy happen by some oversight, or
by means of the gaoler, to plead to his indictment, and is put
upon his trial, and it appears to the Court upon his trial that he
is mad, the judge in his discretion may discharge the jury of him
and remit him to gaol to be tried after the recovery of his under-
standing, especially in case any doubt appear upon the evidence
touching his guilt, and thtsinfavorem vitce; and if there be no
colour of evidence to prove him guilty, or if there be pregnant
evidence to prove his insanity at the time of the fact committed,
then npon the same favour of life and liberty it is fit that the trial
proceed in order to his acquittal. (/)

By a recent statute, 39 and 40 Geo. 3. c. 94, it is enacted '^ that Disposaiof per-
^^ in all cases when it shall be given in evidence upon the trial of J|Jj°J[cc(Mmt of
'* any person charged with treason, murder, or felony, that such insanity.
^' person was insane at the time of the commission of such offence,
^ and such person shall be acquitted, the jury shall be required to

(jr) PerYorke, Solicitor-General,
in Lord Ferrers^s case, 19 Howeirs'SL
Tri. 947, 9 4S. el per Lawrence, J. Rex
V. Alleo, Stafford Lent Assizes, 1807,
US. And see also upon the subject of
iosanitj. Lord Thurlow^s judgment in
tbe Attorney- General v, Parnther, 3
Br. Cha. Ca. 441.

(z) 4 Bla. Com. 25. I Hale S4.

(c) 1 Hawk. P. C. c. 1. s. 4.

{h) 3 Bac Abr. 5S8. 1 Hale 33, 35^
36. 1 Hawk. P. C. c. 1. s. 4. note (5).

{e) 1 Hawk. P. C. c. 1. s. 4. 1 And.
107. 1 Sav. 50, 56. 1 Hale 35.

{i) Post 46. Kel. 13. 1 Lev. 61.
1 Sid. 72. And the proceeding by in*
quest ex officio is recommended in
cases of importance, doubt, or diffi-
culty. 1 Hale 35. Sav. 56. 1 And.
154. See 1 Hawk. P. C. c. 1. s. 4.
note (5).

(«)-! Hawk. P. C. c. 1. s. 4.

(/) 3 Bac. Abr. 528. 1 Hale 35,36.
per Foster, J. 18 St Tri. 41 1.

14 Gf PersanB capable of [Bdo&.r.

^ fltid s^eelitty'^riiether such person was insane at the time of the

^^ commission of such offisnce, and to declare whether such person

^^wasaeqiutted by them on account of such insanity ; and tf they

^ shall find that such person was insane at the time of the com-

^^ mitting such offence, the court before whom such trial shall be

^ had, shall order such person to be kept in strict custody, in such

^' place and in such manner as to the Court shall seem fit, until

^' iiis Majesty's pleasure shall be known ; and it shall thereupon

^^ be lawful for lus Majesty to give such order for the safe custodv

^ of such person during his pleasure, in such place and in such

'^ manner as to His Majesty shall seem fit.'' (a)

Dispoialof per- And by the second section of the same statute it is enacted,

"^'^uDODjJ^" ** *^* ^ *"*y person indicted for any o£fence shall be insane, and

n^iment ; ^' shall upon arraignment be found so to be by a jury lawfully im-

'^ pannelled for tfaAt purpose, so that such person cannot be tried
Or» upon trial; '^ 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, it shall be lawful for tiie Court, before
^^ whom an^ such person shall be brought to be arraigned or tried
'^ as aforesaid, to mreot such finding to be recorded, and thereupon
''to order such person to be kept in strict custody, till His Ma-
'' jesty's pleasure shall be known." And it is further enacted,
Or, upon di«« <« that if Miy person charged with any offence, shall be brought
ofuKM^UMu ** 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 suph court shall seem fit, until His Majesty's (Measure shall
^ be known." (y)

This section extends to all offences, and is not confined like the
first, to cases of treason, murder, and felony. The prisoner was
indicted for assaulting one Elizabeth Earl, and beating her with
intent to murder her. The jury found specially that he was insane
at the time of committing tiie offence, and also at the time of the
' trial, and declared that they acquitted him on account of such
insanity, and the learned Judge ordered him to be kept in strict
custody till His Majesty's pleasure should be known. &ut a doubt
being st^gested, whether the Judge had authority imder the sta-
tute to take such a finding and make such an order, the offence
being misdemeanor only and not felony, the point was submitted
to the consideration of the twelve judges. They were unaAiimously
of opinion that the second section applies to all cases, though only
misdemeanors, — ^and that though mere insanity at the time of the

(c) And see as to Ireland, stat. 1 & and 48 Geo. 3. c. 96. for seTeral pro-

S Cteo. 4. c. SS. 8. 16. visions which are thereby made for

{g) The thifd section of the statute the* better care and inaintenaoce of

cpntains a proTision for the commit- lanatics, beinr paupers or criminals

mentof persons as dangerous and stts- in custody unaer 39 and 40 Geo. 3.

pected to be'insane. Aad see 17 Geo. c. 94. As to such cases in Irdand see

S. c 6. as to the restraint and removal 1 and S Geo. 4. c. 33. s. 17.
of lunatics by order of two Justices:

GHAF. <.] cammHUng Cnme9.^''Siihjection to others. 15

oflbnce would not hare wananted the order, yet an inaanity foand
at die time of the trial did warrant it. (A)

The 56 Geo. 3. c. 117) reciting that it was expedient that pro- Persons be-
yigaon ahould be made for the due care of persona who might, after ^^^ ^^^
comnction for any criminal offence, become insane, enacts that if ^^^^^ ^ ^^
any person, having been duly convicted for any ofiSence, after such lug confine-
conviction and dwrinir impnsonment or continuance in any noL ''^^ °?y ^
prison, hulk, &c., under sentence of transportation or nnpnson- innaticMyUiiii.
ment, shall become insane, and it shall be duly gertified by two
physicians or surgeons that such person is insane, one of the prin<*
cipal secretaries of state may direct, by warrant under hia hand,
that such person shall be removed to a lunatic asylum or other
proper receptacle for insane persons. And it is provided that such
person ahall be kept there until it shall be certified by two physi-
cians or surgeons that he has become of sound mind ; upon which
the said secretary of state may, in case such person is still subject
to imprisonment, by his warrant, direct him to be removed back to
the gaol, prison, hmk, &c., or if the period of his imprisonment
be expired, may direct him to be discharged.

III. Persons are properly excused fiom those acts which are &«W«c^n to
not done of their own free will, but in subfection to the power of othmT^^
others* (i) Thus, though a legislator e^rtablish iniquity by a law,
and command the subject to do an act contrary to religion and
sound morality ; yet obedience to such laws, while in being, is a
sufficient extenuation of civil guUt before the municipal tribunal ;
though a difierent decree will be pronounced in foro conseienHiB. {J)
And actual 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 join-
ing and marching with rebels, yet an actual force upon the person
aid present fear of death nuty form such excuse, provided they
continue all the time during which the party renudns with the
rebels, (a) As to persons in privcae rekUwnSf the principal case
where constraint of a superior is allowed as an excuse for criminal
misconduct proceeds upon the matrimonial subjection of the mfe
to her husband : for neither a child nor a servant are excused the
commission of any crime, whether capital or not capital, by the
command or coercion of the parent or. master, {k)

But A feme covert is so much favoured in respect of that power Femecorert
and authority which her husband has over her, that she shall not ^lo^^of herhns-
suffer any punishment for committing a bare theft, or even a bur- bund,
glary, by the coercion of her husband, or in his company, which
Uie law construes a coercion. (/) But this ia only the presumption
of law ; so that if upon the evidence it can clearly appear that the

{k) Hex V. Little, cor. Wood, B. (I) 1 Hale 45. 1 Hawk. P. C. c. I.

SmrsySmamer Assizes, 18S0, Hil.T«> s. 9. 4 Bis. Com. 98. Kel. 31. Ac-

1 691. MS. Bayley, J. and Ross. & Ry. cording to some, if a wife commit a

4S0. larceny by the command of her hns-

(D 1 Hale 43. 4 Bku Com. 97. hand, she u notguillTi which seems

(/) 4 Bla. Com. 97. to be the law ifthe husband be pre-

(a) Per Lee, C. J., IS Sta. Tri. 303, tml, but not if he be absent at the

304. timeandplace of the felony commit-

{k) 1 Hale 44, 516. 1 Hawk. P. C. ted. I Hale 49.
C.1.S.I4. Moor. 813. 8KeLS4.

16 Of Persons capable of [book i.

wife was not drawn to the offence by her husband, but that she
Was the principal inciter of it, she is guilty as well as the husband;
And if she be any way guilty of procuring her husband to commit
the ofiience, it seems to make her an accessory before the fiict in
the. same manner as if she had been sole, (m) And if she commit
a theft of her own voluntary act, or by the bare command of her
husband, or be guilty of treason, murder, or robbery, in company
with, or by coercion of her husband, she is punishable as much as
if she were sole, (n) And she will be guilty in the same manner
of all those crimes which, like murder, are mala in se, and prohi-
bited by Che law of nature, (o) And in one case 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 procur-
ing administration, that she was guilty of the offence, though her
husband was with her when she took the oath, (p) But upon an
indictment for disposing of forged notes, it was ruled that a
woman was protected by being the wife of a man indicted, who
disposed of them in her presence, and with whom she was in-
dicted, (a)
Not tnswer- But where the wife is to be considered merely as the servant of
husbM^*!*' *^® husband, she will not be answerable for the consequences of
treachof duty, hid breach of duty, however fatal, though she may be privy to his

conduct. Charles Squire and his v^e were indicted for the
murder of a boy, who was boun^ as a parish apprentice to the
prisoner Charles; and it appeared in evidence that both the
prisoners had used the apprentice in a most cruel and barbarous
manner, and that the wife had occasionally committed the cruel-
ties in die absence of the husband. But tne 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. Upon which 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 8u£Eicient 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 with-
holden it from him, then she would have been guilty. But that
here the fact was otherwise ; and therefore, though in foro con-
scientiffi the wife was equally guilty with her husband, yet in
point of law she could not be said to be guilty of not providing
the apprentice with sufficient food and nourishment, (q)

In inferior misdemeanors a wife may be indicted, together with
her husband; and she may be punished with him for keeping a
bawdy house, for this is an offence as to the government of the
house in which the wife has a principal share ; and also such an
offence as may generally be presumed to be managed by the in-

(m) I Hale 516. S Hawk. P. C. c. (p) Rex r. Dicks, in 1781, 2 MS.

89. s. 34. Sum. tit. Of Offenders, and MS. Bay-

(fi) 1 Hawk. P.C. c. 1. 8. 1 1 . 1 Hale ley J.

45, 47, 48, 516. Kel. SI. 8 Bla. Coin. (a) Rez v. Atkinson, p^tt 80.

89. The reason given is the heinous- (q) Rex v. Squire and his wife, Strf'

nesB of those crimes. ford Lent Assizes, 1799. MS.

(0) 4 Blac Com. 89.
8

CHAP. 1.3 committing Crimes. — Subjection to others. 17

trigaes of the sex. (r) But a prosecution for a conspiracy is not
Biaintainable against a husband and wife only ; because they are
esteemed but as one person in law, and are presumed to have but
one will, (s)

In all cases where the wife ofiends alone without the company But in some
orcoeTcionof her husband, she is responsible for her offence as cases a feme
much as any feme sole, {t) Thus she may be indicted alone for a sponsible for
riot; (u) may be convicted of selling gin against the injunctions her offence,
of the 9 Geo. 2. c. 23. {w) or for recusancy, (.r) And she may be
indicted for being a common scold; (y) for assault and battery ; (2)
for forestalling ; (a) for a forcible entry ; (b) or for keeping a
bawdy house, if her husband do not live with her ; (c) and for
trespass or slander, (d) And she may also be indicted for receiv-
ing stolen goods of her own separate act without the privity of h6r
husband ; or if he, knowing thereof^ leave the house and forsake
her company, she alone shall be guilty as accessory ; (e) and
thou^ in a serious offence, such as that of sending threatening
letters, the husband be an agent in the transaction, yet if he be
so ignorantly, by the artifice of the wife, she alone is punish^
able. (/) And generally a feme covert shall answer as much as
if she were sole for any offence not capital against the common
law or statute ; and if it be of such a nature that it may be com-
mitted by her alone, without the concurrence of the husband, she
may be punished for it without the husband, by way of indict-
ment ; which being a proceeding grounded merely on the breach
of the law, the husband shall not be included in it for any offence
to which he is in no way privy, (g)

It is no excuse for the wife that she committed the offence* by Coercion of
her husband's order and procurement, if she committed it in his ^^^5^^*°*^
absence ; at least it is not to be presumed in such case that she sumcd whenhe
acted by coercion. Sarah Morris was tried for uttering a forged is not present
order knowing it to be forged, and her husband for procuring her ^\^^? ^^^\u
to commit the offence ; and it appeared that her husband ordered ^^^^^^ though

(r> 1 Hawk. P. C. c. 1. s. 12. Wil-
liams's case, 10 Mod. 69. Salk. 384.
S« C. So also for keeping a gaming
house. Rez v. Dixon and wife, 10
Mod. SS5. where by the . iDdictment
the husband and wife, el uterque eorum
were charged with the offence.

(#) 1 Hawk. P. C. c 72. & S.

(f) 4 Blac. Com. 89. But if a wife
iacor a forfeitore by a penal statute,
the husband may be made a party to
ao action or information for the same,
and ahall be liable to answer what
shall be recovered thereon. 1 fiawk.
P. C. c l.s. IS.

(s) Dalt. 447.

(v) Croft's case, Str. 1120. And
she may be committed for disobeying
an order of bastardy. Rex v, Ellen
Taylor, SBorr. 1679.

{t) Hob. 96. Foster's case, 11 Co.
§2. 1 Sid. 410. Sav. 85.

(jr) Foxley's case> 6 Mod, 213. 299.

iz) Saik. 884.

fOU h

(a) Sid. 410. 2 Keb. 634. Qii. and
see Bac. Ab. Baron and feme (G.)
notes.

(b) 1 Hale 21. Co. Lit. S57. 1
Hawk. c. 64. s. 35. That is in respect
of such actual violence as shall bo
done by her in person, but not in
respect of, what shall be done by
others at her command, because such
command is void.

(c) 1 Hawk. P. C. c. 1. s. 13. n. 11.
where I Bac. Abr. 294. is cited : $ed
qu.

(d) 1 Bac. Abr. Baron and feme^
(6.) notes.

(e) 22 Ass. 40. Dalt. 157.

(/) Hammond's case, 1 Leach 447.

(g) 1 Hawk. P. C. c. 1. s. 13. 1 Bac.
Abr. Baron and feme (G.) where it is
said in the notes, that she cannot be
indicted for barratry, and Roll. Rep.
S9. is cited. But qu, and see 1 Hawk.
P. C. c. 81. 8.6. And poit. Book lU
Chap. xxii.
C

18 Of Persons cdpabh of [loo&i.

it were com- her to do it, but that she uttered the uistrument in Ms absence*
mitted by his Upon a case reserved, the Judges held that the presumption of
^e husband Coercion at the time of the uttering did not arise, as the husband was
may be acces- absent at that time ; and that the wife was properly convicted of
feT^th^* *^* *^^ uttering, and the husband of the procuriilg. (A) And in a case
felony of the which occurred a short time before that which has been just
wife. cited, this question of coercion in the offence of forgery came

under the consideration of a very learned judge. The prisoner,
Martha Hughes, 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'^ shop; that the
husbimd was not present, but that he saw the prisoner, who
beckoned him to go into an inner room ; that she followed him
into the room, and that he there told her what hex husband had
said to him ; upon which they agreed about the business, and 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. He further stated, that when he was putting
the notes into his pocket book, 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 carefiil.
Upon this evidence 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, (x) But Thomson B. (stop-
ping the counsel for the prosecution) said, ^^ I am very clear as to
*f 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, 3nd prima facie only, as is clearly laid
'' down by Lord Hale, that it was done under his coercion : (y)
'^ 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 con-
" sequence 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. The coercion must be at the time of the
^^ act done, and then the law out of 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/' (z)

(Jk) Rex V. Morris, East T. 1614. (^) 1 Hde5l6.

VS. B^yley J. and Russ. aodRy. 270. (s) Rex v. Martin Hughes, doram

(jr) He Kferf ed to S Bast. P. C. Thomsda B. LaiMcttiUr UnA Attues

c. le.s. 8.,p. 559. 1 Hale 40. Kel. 37, 1819. MS.

ciAP. I.]] cmnmitting Crimes. — Subjection to others. 19:

A fe$ne covert is not guBty of felony in itefUtng her husband's The wife la not
goods, because a husband and wife are considered but ais 6ne ^Q%|'^t^^.
person in law, and the husband, by endowing hiib wife at the inghcrhns-
marriage with all his worldly goods, gives her a kind of interest in band's goods.
them : for which cause even a stranger cannot commit larceny in
taking the goods of the husband by the delivery of the wife, as he
may by takhig away the wifie by force and against her will,
togedier with the goods of the husband. (A)

And in a case where the prisoner was an apprentice to the pro- And a stranger
seentor, and it appeared that the prosecutor^s wife had continual c»°°^' oTthe'
cnstody of the key of the closet where her husband's plate was husband^s
usually locked up, and that she had pawned some articles of it in goods by the
order to supply the prisoner with pocket money, but the articles ^fg^^^iew^
she pawned were not those which the prisoner was charged with ^Ther^uL-
stealing; and the prisoner confessed that he took the articles terer«
maitioned in the indictment from the closet, and a pawnbroker
proved that he received them in pledge from the prisoner, but it
did not appear by what means the prisoner had gained access to
the doeet from which they were taken, the prisoner was acquitted.
Tlie Court held, that the prosecutor's wife, having the constant
keeping of the key of the closet where the plate was usually
lodced up, and it appearing that the prisoner could not have taken
it witiiout her privity or consent j it might be presumed that he
had received it from her. (t) But it should be observed, that if
the wile steal the goods of her, husband and deliver them to B.
who knowing it carries them away, J7. being the adulterer of the
wife^ this, according to a very j;^ood opinion, would be felony
in B.; for in such case no consent of the husband can be pre-
sumed. (Ar)

A feme covert shall not be deemed acessory to a felony for Feme coyert
receiving her husband who has been guilty of it, as her husband not accessory
shall be for receiving her ; nor shall be a principal in receiving her J^'husbimd.
husband when his flSfence is treason; for she is sub potestate viri^
and bound to receive him. (Q Neither is she affected by receiving,
jointly widi her husband, any other offender, (m)

It is no ground for dismissing an indictment for burglary or indictment
larceny as to the wife, that she is charged with her husband and v^!^"'%
described as his wife; for the indictmept is joint and several ^^ ^^'
according as the facts may appear ; and on such an indictment the
wife may be convicted, and the busband acquitted, (x)

(k) \ Hale 514. where it is put thus i And see l Hawk. P. C. c. 88. s. 99.

'' If she lake or steal the goods of her 3 Inst. 1 16. S East P. C. 558.

'* hosbaod and deliver them to B., (0 BarrisoD's case, 1 Leaeh 47.-

whoy knowing it, carries them away, 2 East P. C. 5(9.

iC
•4

this seems no feloo? in B. $ for they {k) Dalton, cap. 104, pi. 866, 269,

** are taken quoH by the consent of her (new edit. c. 157. p. 504.)

" husband. Yet trespass lies against (/) 1 Bale 47. 1 Bawk. P. C. c. 1.

** B. for such taking ; for it is a tres- s. 10.

** pass: bat infavQTem tfUis it shall (fii) 1 Hale 48, 621. But if the wife

not be adja<ilged a felonj, and so I alone, the husband being ignorant,

take the law to be, notwithstanding do knowingly receive B, a felon, the

the varioQS opinions.'' And he cites wife is accessory and not the hus-

DdtoD, cap. 104. p. 268, 269. ex lee band. 1 Hale 621.

iwe Cecke (new ed. c. 157. p. 504.) (x) I Hale 46.

c 2

It

C4

20 Of Persons capable of committing Crimes, [book i*«

Evidence of And in burglary or larceny if a man and woman are indicted^

bein^^Sewife. *°^ ^® woman pretends to be the man's wife, but is not so

described in the indictment, the onus of proving that she is his
wife is upon her. Thus where Thomas Wharton and Jane Jones
were indicted for burglary, and the woman pleaded that she was
married to Wharton, and would not plead to the name of Jones,
the grand jury who found the bill were sent for; and in their

Sresence, and with their consent, the court inserted the name
ane Wharton, otherwise Jones, not calling her the wife of
Thomas Wharton, 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 Wharton before the burglary, she should
have the advantage of it : but on the trial she could not,* and was
found guilty, and judgment given upon her. (y) But cohabitation
and reputation will be sufficient evidence upon such point..
William Atkinson and Mary Atkinson were indicted for disposing
of forged country bank notes ; and it appeared that the man dis-
posed of them in the presence of the woman at a public house, to
which they went together to meet the person to whom they were
disposed of; that the man went thither by appointment, and the
woman had a bundle of the same notes in her pocket. Iliere was
evidence, on the part of the prosecution, that they had lived and
passed as man and wife for some months ; upon which it was put
to Gibbs C. B., whether the woman was not entitled to an ac-
quittal, and he thought she was; and the counsel for the pro-
secution at once acquiesced, {z)
ignorance. IV. Upon the plea or excuse of ignorance, it may be shortly

observed, 'that it will apply only to ignorance or mistake of fact,
and not to any error in point of law. For ignorance of the muni-
cipal law of the kingdom is not allowed to excuse any one that is
of the age of discretion, and compos mentis, from its penalties
when broken; on the ground Ihat every such person is bound to
know the law, and presumed to have that knowledge, {n) But in
some instances an ignorance or mistake of the fact will excuse ;
which appears to have been ruled in cases of misfortune and
casualty; ps if a man, intending to kill a thief or housebreaker in
his own house, by mistake kills one of his own family, this will
not be a criminal action, (p)

(jf) Rex o. Jones, Kel. 37. tur iclrey neminem exeumif is a maxim

{%) Rex V, Atkinson, O. B. Jan. as well of our own law as it was of

ScsB. 1814. MS. Bayley J. the Roman. Plowd. 349. Ff. S8. 6. 9.

^fi) 1 Sule 48. 4 Blac. Com. 87. (o) LevetVs case, Cro. Car. 538.

tpunrtintii jurU^ quod quisqve iene- 4 Biac Com. 87. 1 Hale 48, 43.

21

CHAPTlfiR THE SECOND.

OF PRINCIPALS AND ACCESSORIBS.

Whbrs two or more are to be brought to justice for one and the
same felony, they are considered in the light either, — I. of principals
in the first degree ; II. principals in the second degree ; III. acces-
sories before Uie fact ; or, IV. accessories after' the fact. And in
either of these characters they will be felons in consideration of
law ; for he who takes any part in a felony, whether it be a felony
at common law or by statute, is in construction of law a felon^
according to the share which he takes in the crime, (a)

I. Principals in the first degree are those who have actually and PrincipaU in
vciih their otvn hands committed the fact ; and it does not appear «l»cflwt degree,
necessary to say any thing in this place by way of explanation of

the nature of their guilt, which will be detailed in treating of the
different offences in the course of the work.

II. Principals in the second degree are those who were present principals ia
aiding and abetting at the commission of the fact. They are ge- the second
nerally termed aiders and abettors j and sometimes accomplices ; ^^fS^^^
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. (£) The distinc-
tion between principals in the first, and principals in the second
degree ; or, to speak more properly, the course and order of pro-
ceeding against offenders founoed upon that distinction, appears to
have been unknown to the most ancient writers on our law ; who
considered the persons present aiding and abetting in no other
light than as accessories at the fact, (c) But as such accessories
they were not liable lo be brought to trial till the principal offenders
should be convicted or outlawed ; a rule productive of much mis-
chief, as the course of justice was frequently arrested by the deiith
or escape of the principal, or from his remaining unknown or
concealed. And with a view to obviate this mischief the judges by
d^rees adopted a different rule ; and at length it became settled
law that all those who are present aiding and abetting when a
felony is committed are principals in the second degree, {i)

(a) Fosl. 417. settled till after the time of Edw. 3. }

(*) Post. 341. and so late as the first of Queen Mary

(e) Post. 347. a chief Justice of England strongly

(4f) Coal-heavers' case, 1 Leach 66. doubted of it, though indeed it had

And see Fost. 428. and Rex v, Towle , been sufficiently settled before that

and others, Mich. T. 1816. Russ. and time.

By. 314. This law was by no means

22 Of Aiders tnd Abettors. [book i.

How far a In order to render a person a principal in the second degree, or

theTMc^d^de- ^^ aider and abettor, he must be present aiding and abetting at the
gree must be fact^ or ready to afford assistance if necessary : but the presence
present at the need not be a strict actual immediate presence, such a presence
commuted/*^' *^ would make him an eye 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 desfgii, be it mur-
der or other felony, or for any other purpose unlawful in itself, and
each takes the part assigned him ; some to commit the fact, others
to watch at proper distances and.station? to prevent a surprize, or
to fevour, if need be, the escape of those who are more immediately
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 countenance, encouragement, and protection to the whole
gang, and to insure the success of their common eotcn^prlze. (e)
But there must be some participation ; therefore, if f^ specisd verdict
against a man as a principal does not shew that lie did the act, ox
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 we aatne ex-
pectation of mutual defence and support with those who did the
fB^Aj the prisoner cannot be convicted, {x) So, if several are out
for the purpose of committing a felony, and upon alarm and purduit
tun different ways^ and one of thetn majim a pursuer to Skvcm being
taken, the others are not to be considered as principala in that
maiming, (y) And it is 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 tvhere
they put up a little before he uttered it, joined him again in the
street a short time after the uttering, and at a little distance from
the place of uttering, and ran away when the utterer was appre-
hended« (c) This case has however been considered as haying been
decided upon the principle, that the circumstances which will
amount to a constructive presence at common law will not be suffi-
cient for the same purpose upon an indictment under a statute* {d)
The general rule however applies to offences by statute i as well as
at common law, viz. that all present at the time of committing an
offence are principals, althoi^h one only acts, if they are confede-
rates, and engaged in a common design, of whieh the offence is
part, (a) And it has been considered, in a case where three per-
sons were chained mth uttering a forged note, that other acts
done by all of them jointly, or by any of them separately, shortly
before the ufienc^, may be ^ven m evidence to shew the confede-
racy and .comm(xi purpose, although such acta constitute distinct

ie) Post. 350. 2 Hawk. P. C. c. 89. Ry. 1 1 3.

S' '^i 8. {d) By Graham, B. .in the case of

{X) Rex tf, Borthwiok, Poiigl. 207v Brady and others, 0. JB. Jane, 1813,

• ijf) Rex o. White aad Richardson., 1 Stark. Criro. Plead. 80. in the note.
Bil. T. 1806. RusB. and Ry. 90, p9«l, . (n) Rex v, Tattersall, Sedgewick

Book 141. €faap. x. . and Hodgson, Bast. T. 1801. MS. Bay-

{e) Rex V. Davis and Hall, East*T« ley, J.
1806. MS. Bay ley, J. and Russ. and

CHAP. 11,"] . Of Aiders and Abettors. 83

felonieti, (6) And also that what was found upon each may bd
proved against each to make out such confederacy, although it were
not found until some interval after the commission of the offence, (cr)

Going towards the place where a felony is to be committed, in
order to assist in carrying off the property, and assisting accord-
ingly, will not make the party a principal k he was at such a dis-
tance at the time ol 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 judges thought the prisoner an accessory only,
not a principal, because he was not present at the original taking, (flf)

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 accom-
plice wa^ indicted and convicted as a receiver; and the learned
judge before whom he was tried was of 'opinion, that as the thief
stole the property in bis own room, and ^required no assistance to
commit the felony, the conviction of the accomplice 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 (whose defence
was that he had* picked up the bundle in the street) was in waiting
to receive them, he thought th^ 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. («)

When an offence is committed through the medium of an inno-
cent agent, the employer, though absent when the act is done, is
answerable as a principal. Thus, if a child under years of discre-
tion, a madman, or any other person of defective mind, is incited to
coounit a murder or other crime, the inciter is the principal ex
necessttatej though he were absent when the thing was done, (e)
And if a man give another a forged note that the other may utter
it, if the latter be ignorant of the note being forged, the uttering
by the latter is, it seems, the uttering of the former, though the
former were absent at the time of the actual uttering. (/) But if
the person who received the note knew that it was forged, the per-
son who gave it would not, as it should seem, be punishable as a
principal. For 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
princip«d ; but is puiii^able as a principal if the person laying the
poison is not so amenable, {g) Where poison is laid for a man,
and all who were present and concurred in laying it are absent at

{h) I d ibid. end Mood. C. C. R. 96.

(r) Id. ibid. {€) Post. 840. Kel. 52. Post, Book

{d) Rex r. Kdly, Mich. T. 18S0. 111. Chap. i.

MS.BajJej, J. and ff^uss.aod Ey.42l. (/) Rej[ v. Palmer and Hudson, t

And see post. Book I V. Chap. xxi. Of New Rep. 96. Post, Book lY.Chap. zxx.

Tfceiving stolen goods. {g) Post. 349.

(€) Rex V, OwcB, £ast. T. 1 825. Ry.

24

Of Aiders and Abettors.

I^BOOK I.

the time it is taken by the party killed by taking it, all are princi-
pals ; otherwise all would escape punishment. (A)

It has been held, that to aid and assist a person to the jurors
imknown to obtain money by the practice of ring-dropping is
felony, if the jury find that the prisoner was confederating with the
person unknown to obtain the money by means of this practice, (y^
And if several act in concert to steal a man's goods, and he is in-
duced by fraud to trust one of them in the presence of the others
with the possession of the goods, and then another of the party
entice 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 felo-
nious taking by aU. (a)
Murder by If a fact amounting to murder should be committed in prosecti-

several in prt)- tion of some unlawful purpose, thoufi^h it were but a bare trespass,

Becution of ^^ '^ 1 1 J ' • J ^ • • ^ '£ J

8ome unlawful ^" persons who had gone m order to give assistance, if need were,
purpose. for carr3dng such unkwful purpose into execution, would be guilty

of murder. But this will apply only to a case where the murder
was committed in prosecution of some unlawful purpose, some
common design in which the combining parties were united, and
for the effecting whereof they had assembled ; for unless this shall
appear, though the person giving the mortal blow may himself be
guilty of murder, or manslaughter, yet the others who came toge-
ther for a different purpose will not be involved in his guilt, (g)
Thus where three soldiers went together to rob an orchard ; two
got upon a pear-tree, and the third stood at the gate with a drawn
sword in his hand ; and the owner's son coming by collared the
man at the gate, and asked him what business he had there, where-
upon 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 tres-
pass, 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 pro-
secution of their original purpose. (A)

{h) Fost. S49. Kel. 52. 4 Co. 44 b.

(/) Moure's case, 1 Leach 314.

(a) Rex V. Standlcy, East. T. 1816.
MS. Baylcy, J. and Ru.S8.'aud Ry. 305.
Rex V. County, MS. Bayley, J. Post,
Book IV. Chap. vi. s. 1.

ig) Fost. 351, 359. 2 Hawk. P. C.
c. 29. s. 7.

(h) Fost. 353. Case at Sarum Lent
Assizes, 1697, MS. Denlon and Chap-
pie^ 2 Hawk. P. C. c. 29. s. 9. And
see Rex v. Hodgson and others, 1
Leach 6. : and an ^non, case at the
Old Bailey, in December Sessions,1664.
1 Leach 7. note (a) where several sol-
diers, who were employed by the mes-
sengers of the Secretary of State to
assist in the apprehension of a person,
unlawfully broke open the door, of a

house where the person was supposed
to be ; and having done so, some of
the soldiers began to plunder, and
stole some goods. The question was,
whether this was felony in all; and
Holt, C. J. citing the case, says, " That
*' they were all engaged in an unlawful
'* act is plain, for they could not jus-
" tify breaking a man's bouse without
" making a demand first $ yet all those
'* who were not guilty of the stealing
^* were acquitted, notwithstanding
" their being engaged in one unlawful
** act of breaking tlie door ; for this
'* reason, because they knew not of
*' any such intent, but it was a chance
*' opportunity of stealing, whereupon
'' some of them did lay bands,''*

tHAt". II. 3 Of Aiders and Abettors. 25

For where there is a general resolution against all opposers, p^ where there
whether such resolution appears upon evidence to have been ac- JJ^^^dd^
tnally and explicitly entered into by the confederates^ or may be againit all
reasonably collected from their number, arms, or behaviour, at or oppoaen.
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 homi-
cide is committed will be involved in the guilt of him that gave the
mortal blow, (t)

Bat it must be observed that this doctrine respecting the whole But where the
party being involved in the guilt of one or more, will apply only to purpose waa
such assemblies as are formed for carrying some common purpose uL''^'^'^^
unlmoful in itself into execution. For if the original intention only in the
was lawful, and prosecuted by lawful means, and opposition is party kuiiog
made by others, and one of the opposing party is killed in the J^^^^*"^
straggle, in that case the person actually killing may be guilty of abettors,
murder or manslaughter, as circumstances may vary the case : but
the persons engaged with him vdll not be involved in his guilt,
unless they (Ktually aided or 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 agiunst them beyond their ori^al intention, {k) •

When the rule v^as first settled that aiders and abettors should As*® *J»c
be deemed principals in the second degree, and not accessories at ^^ ^^
the fact, the object in view was probably to bring such ofiienders abettors.
more speedily and certainly to their trial ; (/) without any intention
of enhancing the measure of their punishment upon conviction.
Xor would the consequence of an increased punishment have im-
mediately followed from the rule, as the distinction between prin-
cipals and accessories did not at that time affect the life oi the
party upon conviction : and all were then alike liable to suffer
dealii, from the principal in the first degree to the accessory in the
lowest, unless tne privilege of clergy, which in those days was
founded solely on the clerical fimction or capacity of the delin-
quent, interposed. Whether principals or accessories, therefore,
the punishment would have been capital to those who were not
entitled to the privilege of clergy ; and to those who were entitled,
the punishment would not have been capital, though principals in
the highest degree. But in later times the question of principal
or accessory has become a matter of the greatest importance. to the
prisoner; in many cases life or death to him ; for by wiser regula-
tions the allowance or non-allowance of clergy no longer depends
upon the function and capacity of the offender but upon the nature
of the offence ; and is extended, in cases in which it is allowable,
to all ranks and orders of men. (ni)

Now, it being admitted as a settled rule that aiders and abettors Whether liable
are to some purposes at least principals in the second degree, it has ^ ^^^^ti
been made a question whether they ought to be so considered to the first degree.

(i) Fost. 353, 354. 2 Hawk. P. C. (m) 3 & 4 Will, and Mary, c. 9. s. 6.

c. 29. s. 8. 5 Ano. c. 6. s. 4. Vide Post. 359. By

{k) Post. 354, 355. 2 Hawk. P. C. 6 Geo. 4. c.S5. s. 3. clerks ia holy

c. 29. s. 9. And see further upon this orders convicted of felony are made

point, ^#/, Book IlL Chap. ill. on ^To- liable to punishment, as other per-

midir. sons not in holy orders.

WAnte, p. 21.

26

Of Aiders and Jbetter^.

[book I,

Onmndi for
consldcrfiig
thMi M not 10
IkMe.

all purposes and in all cases ; and especially with r^ard to new
felonies created by statutes which take away clergy from those
who shall be guilty in such manner and under such circumstances
as are therein particularly set forth, without express mention of
aiders and abettors, or any words which manifestly extend to
them : whether sdders and abettors also shall be ousted of their
clergy in the construction of such statutes.. The point is very ably
and elaborately argued by Mr. Justice Foster, who thinks that if a
departure from the ancient rule had in such cases affected the pri-
soner's life upon conviction, the judges would still have adhered to
it, notwithstanding the mischiefs by which it was attended, (n)

It is allowed on all hands that aiders and abettors have been
always ousted of their clergy, and properly so, by the construction
of the statutes which oust clergy in murder, robbery, rape, and
burglary, (o) But then it is said that the Legislature in these sta-
tutes has made use of terms which at the time when the acts were
made, and long before, were well known to include aiders and
abettors ; that in these statutes clergy is taken away from the
several offences described by legal technical terms of well known
signification ; namely, murder ^ robbery, rcqpe, and hirglary ; and
timt the objects of these acts are persons convicted of murder, rob-
bery, rape, and burglary ; aiders and abettors being, at the time
these statutes were made, clearly liable to be convicted as princi-
pals in those offences. Whereas in many other statutes aiders and
abettors are not once named, nor described by any terms in^porting
that the Legislature intended to oust them»{p)

It certainly appears that in general the judges have been ex-
tremely tender in the construction of statutes which take away
clergy ; and have in several instances carefully distinguished be-
tween the cases of principals in the first and second degrees, the
actual perpetrators, and mere aiders and abettors. Thus, in a case
upon the statute of stabbing, Avhich enacts, '^ that every person
^^which shall stab or thrust, &c." (0) two persons were present
aiding and abetting a third person, who in fiict made the thrust,
and was denied his clergy ; and these persons, though agreed to
have been principals in manslaughter at common law, were admit-
ted to their clergy j for it was considered that though in judgment
of law every one present and aiding is a principal, yet in construe^
tion of this statute, which is so penal» it shall be extended only to
such as really and actually made the thrust ; not to those who in
construction of law only may be said to make it. (r) So in a case
upon the statute 39 Eliz. c. 15., against robbery in dwelling-
houses, {s) where two persons put a ladder against a chamber-

(fi) See Mr. Justice Foster's arga-
flnents, Fost. 955 — 860. and 416— 4S0.

(4>) I Hale 537. S Hale 950. Fosl.
957. The sUttttesarei 1 £d. 6. c. IS.
8. 10. as to murder and robbery ; and
18 Eliz. c. 7. as to rape and burglary.

(ff) Fost 857» 958.

(q) 1 Jac. 1. c. 8.

(r) Page and Harwood^s case, Fost.
955. Aleyn. 49. Str. 86. 1 Hale 468.
And tlie case of the Queen v. Whistler,
Salk. 548. 2 Lord Raym. 84S.

(ff) The enactment of the statute is,
*' that if any person shall be convict-
'' ed for the felonious taking away in
** the day-time of any money, goods,
'* or chattels, being of the value of
" five shUIings, or upwards, m any
** dwelling-house or bouses, or any
** part thereof, or any outhouse, &c.
** although no person be in the said
•< house, &c. at the time of such fe-
*' lony committed,^' he shall be ex-
cluded the benefit of clergy.^

■t

J

3

t

CHAP. II.3

s and Abettors.

%1

window, one of them cmiied the window^ got into the chamW^
and stole 40/., but the other stood on the ladder in the view of him
who entered, saiw him in the chsmdierj ^sisted in the robb^, wA
had a share of thebootjr, but did not enter the chamber; it waA
held that as he did not enter he ahoidd have his clergy, thou^^h
plainly a principal aiding and abettin{f,(Q And the same rvde oi
construction has been held to govern in the ca3e of larceny dam
et mcrei^ a perwnd upon the stat. 8 £liz. 0. 4.,{u) where the per-
son who acti^v picked the pocket was held to be ousted 01^ hia
d^gy, but not he who was present aiding and abetting ; though
without some accomplice ready at hand to take off the bpoty^ thia
sort of theft could seldom have succeeded, (tc;)

Upon the two first of these cases Mr. Justice Foster makes the
following remarks : — *^ Why did not a constnictive thrust in one
'^ case and a constructive entry in the other operate so as to oust
^ the m;complices, present and abetting, of clergy ? The reason ia
'^ phun^ and hath oeen already hinted at ; the Judges were upon.
^ the construction of statutes very penal, which were to be taken,
'* literally and strictly ; aiders and abettors are not named ar
^ describe^ and therefore could not, as they conceived, be brought
'* within the statutes.'' {x) And Mr. Justice Foster cites, the fol^-
lowing passage from Lora Hale as seeming to foyour the construo*
^aa for which he contends ; — ^^ An act uiat makes an offence by
'^ name, as rape, &c. to be felony, virtually makes all that are
'^ present' aiding and assisting pnncipals, tnou^h one only doth
'^ the fact. Though as to the point of clergy m some cases it
^ differs \" (y) and he thinks that the difference which Lord Hale
faints at must arise from the different penning of the several
acts, (z)

But some of the points insisted upbn by Mr. Justice Foster, in Grounds for
his able argument, will probably appear to rest upon grounds ra&er considering
too subtle and refined ; particularly his distinction, between the liiaaer*"^
phrase '^person so offending,^' in the statute 9 Geo. 1. c. 22., and
^^ person offending in any such offence/' in 25 Hen. 8. c. 6. {a)
And it appears that a great majority of the judges differed with bun
upon this subject. It is stated that they gave great weight to the
construction which had been ccmstantly put on acts of parliament
touching high treason, and on those which take away clergy from
murder, robbery, rape, and burglary ; aiders and abettors, though
not named in the statutes, having always been brought within the

(I) Rex V, Svans and Finch, Cro.
Car. 473. Hate, in citing this case,
sajs that the offence roust be a.steal-
iog hi the houses and therefore he
that steals, or is »irly to the stealing,
bein^ out of the nouse, is not ousted
of his clergj. The law stood thus
with regard to this statute, and also
to the 6th and 6lh Kd. ft. c. 0. against
u offence of the like kind, till by 3
& 4 W. & M. c. 9. aiders and abettors
were e^rewly ousted. And see as to
tbb point, |Mi/, Book IV. Ch. iii.

(a) By which it was enacted, " that
"no person indicted for the felonious

** taking of any money, goods, or
** chattels from the person of any
*' other, priyily without his know-
*' ledge, snail liave benefit of clergy.'*
This act is repealed by 48 6. 3. c. 129.

(w) 1 Hale &i9. Re^ v. Baynes
and Others, 1 Leach 7. Rex r. Mary
and Bridget Murphy, 1 Leach 206.
Sterne*s case, 1 Leach 413.

(x) Post. 357.

{y) 1 Hale 704.

(z) Post. 417, 418.

(c) Re?ived by 5 Bliz. c. 17. See
Fost. 417, 428, 423.

28 Of Aiders and Abettors. [book i.

eompa&s of them to all intents, and Buffered accordingly, {b) And
contrary fo this opinion they decided upon the 9th Geo. 1. c. 22.,
(by which it was enacted, that ^ if any person shall unlawfully and
'^ maliciously kill, maim, or wound any cattle, every person so
^^ offFendingy being thereof lawfully convicted, shall be adjudged
'^ guilty of felony, .and shall suffer death, as in cases of felony,
^^ without benefit of clergy*') that an aider and abettor was ousted
of his clergy, (c) And in a subsequent case, called the Coal-heavers'
case, seven men were convicted and executed on the same statute,
9 Geo. 1 • c. 22, (d) by which clergy was taken away in express terms^
only from those who maliciously shot at another person, three of
them not having discharged a gun or pistol. The Judges determined
that this offence was a new created felony ; and therefore that it
must necessarily possess all the incidents which appertain to felony
by the rules and principles of the common law; uiat the statute
did not merely take away the privilege of clergy from an ofience
which was before known, but ordained that those who were guilty (e)
of the thing prohibited by it should be adjudged felons without benefit
of clergy ; and therefore by a necessary implication made all the
procurers and abettors of it principals or accessories upon the
same circumstances which would rndke them such in a felony by
the common law ; and that it had been long settled that all those
who are present aiding and abetting when a felony is committed,
are principals in the second degree. (/)
n\' k"to ^*' ^* should be observed, however, that Mr. Justice Blackstone,

op^mu ^^ ' ^^ ^ excellent work, adopts, to a great extent, the distinctions

endeavoured to be established by Mr. Justice Foster, and lays
down the following rules : — ^That when the benefit of clergy is
taken away from the offence, (as in case of murder, bug^ry^ rob-
bery, rape, and burglary,) a principal in the second degree, being
present aiding and abetting the crime, is as well excluded from his
clergy as he that is principal in the first degree ; but that where it
is only taken away from the person committing the offence (as in
the case of stabbing, or committing larceny in a dwelling-house,
or privately from the person,) his aiders and abettors are not ex-
cluded, through the tenderness of the law, which has determined
that such statutes shall be taken literally. (^) And in a late case
the distinction was acted upon in the construction of the 10 & 11
W. 3. c. 23. (now repealed by 1 Geo. 4. c. 1 17 • and 4 Geo. 4.
c. 53.) which took away clergy from all who privately stole in a
shop, &c. and from all who assisted, hired, or commanded them.
The Judges were clear that this took away clergy from a person
present aiding and assisting, upon the principle that although a
statute taking away clergy from an 'oflender may not include per-
tons present aiding' and abetting unless there are words for that

*

(b) Post. 421. (/) Coalheavers* case, 1 Leach 66.

(c) Rex V. Midwinter and Sims, And all theJudgeswereof opinion that
Post Append. 415. 1 Leach 66, note this case was goed law in Wells's case,
(a). See also Dodson's Life of Foster, 1 East. P. C. c. 8. s. 7. p. 414. 1 Leach
30^35, S60, in the note. And see also 8 Hawk.
. (d) Commonly called the Black Act. c. 33. s. 98, 99.

(e) The words aire, *' every person (g) 4 Bla. Com. 373, citing 1 Hale
so offendiDg.'* 589. Post. 356, 357.

CHJLP. n.] Of Accessaries before the Fact. 29

poxpose ; yet a statute, taking away clergy from the . offender and
all who assist him, includes aiders and abettors present, (a)

When several are present and abet a fact, an indictment or ap- Indictment
peal may lay it generally as done by all, or specially, as done by ^dabetton^
one and abetted by the rest, (b) And even in offences in which
there could have been only one principal in the first degree, as in
rape, a charge against all as principals in the first degree is valid,
if there be no difference in the punishment between the principals
in the first and those in the second degree ; though it should seem
that the more correct form in a case of this kind would be to charge
the parties according to the facts as they will be proved, (c)

An indictment against the principal in the second degree in
murder should shew distinctly that he was present when the mor-
tal stroke was given ; and it should seem that it would not be suf-
ficient to state that both of their malice aforethought made the
assault; that the principal in the first degree then and there
gave the mortal stroke, and so that both murdered : at least it
would not be sufficient if, before the allegation that both murdered^
it is stated that the one (the principal in the second degree) coun-
selled and incited the other to do the act. (d)

III. jin accessory before the fact is he who, being absent at the ^- "^*A*fart!
time of the offence committed, doth yet procure, counsel, com-
mand or abet another to commit a felony. (A) And it seems that
those who by hire, command, counsel, or conspiracy, and those
who by shewing an express liking, approbation, or assent to ano-
ther's felonious design of committing a felony, abet and encourage
him to commit it, but are so isx absent when he actually commits
it that h^ could not be encouraged by the hopes of any immediate
help or assistance from them, are accessories before the fact. But
words that 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, (i) And it
seems to be generally agreed that he who barely conceals a f^ony
which he knows to be intended is guilty only of misprision of
felony, and shall not.be adjudged an accessory. (A) The same per-
son 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. (/)

The offence of an accessory before the fact differs so much from Offence of ac-
that of a principal in the second degree, that where a person was ^h^fJUt diffen

(«) Bex «. Go^y, Hil. T. 1818* (/) 2 Hawk. P. G. c. 29. s. 1., where principal in the

MS. Ba|leT. J. Buss, and By. 343, it is said also that he may he charged second degree.

wsApoUf Book IV. Chap. vii. as principal and: accessory in the same

{h) 2 Hawk. P. C. c. 23. s. 7S., and inoictment; but 911. if this would be

c S5. s. S4. allowed at the present day. In At-

(e) Bex V. Vide, Fitz. Corone, pi. kios^case^ who was tried for the mur-

86. Bex V. , Tr. T. 1813. Poit^ der of Sir E.Godfrey, two indictments

Book III. Chap. ti. were found against him, one as prin«

(d) Bex V. Winifred and Thomas cipal, the other as accessory $ and he

GordoDt 1 Leach 515. 1 £ast P. C. was arraigned upon both at the same.

352. time. But the first was abandoned,

(A) 1 Hale 615. and evidence given only in support of

(0 2 Haw^. P..C. c. 29. 8. Id. the second .* the verdicts appear, how-

W 1 Bale 61 0* 2 Hawk. P. G. c. 29. ever, to have beeii pronounced success-

I, SS. sively. 7 Howell's St. Tri. 231.

Qf ^ceskorwa h^bn ike Fad. [book i:

Micted m bmx nccemory before the &ct) it wat held that she could
not be (A>nvicted of that chacge upon evidence proving; her to have
been present adding and abetting ; it being dearly admitted to be
necesaaiy to duusge a principal in the aeoond degree with being
fnesent aiding and abetting* (an)

In a modem case, where one Danelljr was indicted for a bur-
glary, and Vaughan av an accessory to such felony and burglary,
and Danelly had been acquitted of the bni^lary but found guilty
oi laioeny, and Vaughan nund guilty as accessory, it was objected
tfapl as the jury had acquitted the princiral of the burg^lary, the
accessory must be acquitted alt(^;elher. JBut as a great majority
of the Judges upon a case reserved were of opinion that Danelly
was free from any felonious intent, the chaige against Vaughan, as
accessory, of course could not:be supported. (»)
Desotptlonof It is to be observed that the Legislature, in statutes made from
aoceMoriei be- time to time concerning accessories before the fact, has not con-
. .^..... ^^ itself to any certain mode of expression; but has rather
chosm to make use of a variety of words all terminating in the
same genend idea. Thus some statutes make use of ti^e word
accessories, singly, without any words descriptive of the oflence : ( p)
olh»« have the words abetment, procurement, helping, nudntam-
ing, and counselling; (o) or aiders, abettors^ procurers, and coun-
sellors, (r) One describes the offence by the words command,
Gounsd, OT hire; («) another calls the offisnders procure^ or aoces-
eoffies. {t) One having made use of the wprds comfort^ aid, abet,
assist, counsel, hire, pr command, immediately afterwards, in de-
soribing the same offence in another case, uses the words counsel,
Ure, or coiqmand only. («) One statute calls them counsellors
and contrivers of felonies; {w) and many others make use of the
terms counsellors, aiders, and abettors, or barely aiders and abet-
tors. Upon thes^ difforent modes^of expression, all plainly descrip-
tive of the same oflbnce, Mr. Justice Foster thinks it may safely be
conoluded tiiat in the constructicHi of statutes which oust clergy in

fore the fact in
different sta-
tutes.

(m) Rex V. Winifred and Thomas
Gordon, 1 Leach 51 5. S. C. 1 Satt
]p. €. SdS. And see ^aydon's ease» 4
Co. 42 b. In Gordon's case it was the
opinion of all the judges that the pri-
soner who was discharged npon this
Ejection night be indicted ag^n as
princioal. So in 1 Hale 625 it appears
that if one person be indieted as prin-
oipal and another as accessory, and
both be-acquttted, yet the person in-
dieted as accessory may be indicted as
principal, and^he former acquittal as
accessory isno bar. But it is said that
if a penon »be indieted as principal.
aBdacquitted^heshall not beindioted
asaoeessoty befi^e. 1 Hale 6S6. i yet
qu. and see Post. S6S. It seems to be
admitted, that if Bt man be indicted as
prineipal and acquitted, he may be
indicted as. accessory tfieri and so if
he be -fodleted as accessory > before,
and acqoiUeii, be^ amy be4ndicldl^ai

accessory, after. 1 Hale 0S6.

(») Rex o. Danelly and Vaughan,
Mich. T. 1816. S Marsh 571. and 1
Russ. dc IVy- 310. PoH^ Book IV. Cb.
Ti. s. 1. It was urged that Vaughan
could not be guilty as accessory to
the '^said felony and hurg^ary** as
charged in the indictment, the jury
having negatived the bui^^lary ; that
an accessory must be conviotied of a
felony of the same species as the prin-
cipal, and that his offence, though
distinct, is yet derivative from that
of the principal.

(p) SI Bliz. c. 12. 8. 5. -21 Jac 1.
c. 6.

(9) 28 Hen. 8. c. 1.8.3^

(r) 1 Bd. 6, c. 12. s« 18.

(«) 4 & 5 Ph. & M. c. 4.

(t) 39 Eliz. c. 9. s< 2.

(tt) 8lk4W.ftM.c.9.

(t») PAane tt.«« c. 9.

€fei#. 11.3 Cf Acces8&r{e8 before the Fact.

ti

tte case 6i parficipes crimmis, we are not to be gofvmed bv tSie
bare aoimd^ but by the true legal import of tbe words ; and ailaa
that every person wbo comes within the description of these sta-
tutes, various as they are in point of expression, is in the judgment
of tbe Legialatutv an accessory before ttie fact; unless he is present
at the &ct, and in that case he is undoubtedly A principal, (x)

Whoever procures a fslony to be committed, though it be by tiie Accessories by
interv^ition of a third person, is an accessory before the fact : for ?** "Ij^f ?".
there is nothing in the notion of commandiB^, hiring, oounBeUing, ^i*"^
aiding, or abetting, which may not be effected by tbe intervention
of a third person withoat any direct immediate connection between
the first mover and Uie actor. It is a prinie^le in hw which can
never be controverted, that he who procures a felony to be done is
a felon. Set that if A. bid his servant hire somebody, no maVter
whem^ to nmrder B. and famish him with money for that pnipose,
and tbe servant procure C. a person whom A. never saw nor heard
of to do it, A. who is manifestly the first mover or contriver of the
morder is an accessory before the feet, (y) And a nobleman was
found gnilty of nuii*der by his peers upon evidence wfaicti satisfied
them thsEt lie had odntributed 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 con-
versed wil2i the person who was the only principal in the murder,
or had corre^Kinded wMh him directly by letter or message, (x)

In high treason there are no accessories but aU are principals, on In wbat crimei
accoont of the heinousness of the crime, (a) But in petit treason^ llccessories^
murder, and felonies in general, there may be accessories, except
only in those offences which by judgment of law are sudden and
unpremeditated, as manslaughter and the like : which therefore
caanot have any accessories before the feet. (&) In petit larceny
thepe can be no accessories either before or after the fact, although
it be felony, because it is not such as judgment of death ought by
law to be passed upon it ; but procurers and counsellors are prin-
dpals as in trespass, (c) In forgery it is laid down generally in ^

(jt) That is, a principal in the first
decree if the actual perpetrator, or a
pnocipal 10 the second o^ree if only
an aider and abetlor. Fost. 131. And
see Fost. 130, where speaking of a
case in 1 And. 195. in which an in-
dictment was held to be sufficient,
though the words of the statute of Ph.
& M. were not pursoed, the words
escHmtfiit mndt^ ek pr^euravU^ being
deemed laatamonnt to the words of
tbe statnte and descriptive of the same
offence, he says that he takes that
erne to be good law, though he cob-
fotes it is the only precedent he has
set with where tbe words of the sta-
tute have been totally dropped.

O) feetbecaseof Macdantel,Bgan,

lod Berry, Fost. 125. « Hawk. P. €.

0. W. ». I, 10. 19 Howeirs St. Tri.

M, 7S9. Tlie opinion was, that the

ftfties clearlj wonld hare been an-

swerable as accessories in the manner
cliarged if the offence had been a rob-
bery 7 bnt as it appeared that the per«
son robbed was a party to the conspi-
racy, and gave his money freely, to
that there was no robbery. Judgment
was given for the prisoners.

(«) The case of the Earl of Somer-
set indicted as an accessory before the
fact to the murder of Sir Thomas
Overbury, 19 St Tri. 804.

(a) t Hawk. P. C. c. 99. s. «, 5.

1 Hale 613. Fott. 841. 4Blac.Com.
85.

(5) 4 Blac. Com. 36. 1 Hale 615.

2 Hawk. P. €. c. 29. s. 24.

(c) 2 East. P. C. 743. 1 Hale 530,
616. 2 Inst. 183. 12 Rep. 81. Evans's
case, Fost. 73. 4 Blac. 36. It appears
however that in Reddeard*s case, E.
11, Ann. (De Orey's MS.) Powell, J.
said UwasaJTulgarerrortO'ttiDk'that

2

as

In felonies
created by
ttatnte.

Accessorius
sequitur na-
turam sui
principalis.

Uow&ran

acceasory ia
implicated
whin the prin-

Of Accesaories btfore the Fact. [book h

tihe books Hiat all-are principals^ and that whatever would make a
i^ian accessory before m felony would wake him a priaoipal in for^
gery -, (d) but it is conceived that this must be understood of for^
gery at common law^ and where it is considered only as a misde-
meanor, (e) And where three persons agreed to utter a forged
bank note, and one uttered it at Gosport, and the other two, by
previoub concert, waited at Portsmouth ; the two latter were held
to be accessories ; and having been tried and convicted as princi*
pals were recommended for a pardon. (/) In crimes under the
degree of felony there can be no accessories ; but all persons con-
cerned therein, if guilty at all, are principals, (g)

It should be observed as to felonies created by acts of parlia-
ment, that regularly if an act of parliament enact an offence to be
felony, though it mention nothing of accessories before or after,
yet virtually and consequentially those that counsel or command
the offence are accessories before the fact, and those who know*
ingly receive the offender are accessories after, (h)

It is a maxim that accessorius sequitur natitram sui prtnci"
palisj (t) and therefore an accessory cannot be guilty of a higher
crime than his principal. So that if a servant instigates a stranger
to kill his master, this being murder in the stranger as principal,
of course the servant is accessory only to the crime of murder ;
though had he been present and assisting he would have been
guilty as principal of petty treason and the stranger of murder. (Ar)
But a statute excluding accessories from the benefit of clergy does
not thereby exclude the principals ; nor does a statute excluding
the principals thereby exclude the accessories. (/) And if a statute
takes away clergy from accessories, and a subsequent statute makes
accessories persons who were not so before, the latter shall have
their clergy, (m) Certain accessories after the fact, namely re-
ceivers of stolen goods, are in some instances punished with more
severity than the principal offenders, (n)

It has been occasionally much considered how &r an accessory
is involved in the guilt of the principal when the principal does
not act in conformity with the plans and instructions of the acces-

petit larceny or any felony, capital or
not, might not have accessories after
the fact. SerJ. Forater's MS. cited
8 East. P, C. 743. But the principle
as stated in the text seems well ^ta-
blished; and in the case of Evans,
(Foster 73), Mr. J. Foster expressly
says, '* Evans ought not to have been
*' pat upon his trial ; for the acts
*' which makereceiyersof stolen eoods ,
" knowingly accessories to the felony
" must be understood to make them
*' accessories in such cases only where
** by law an accessory may be, and
" there can be no. accessory to petty
" larceny."

(4 Bothe*s case, Moor 666. 1 Sid.
312. 8 Hawk. c. 29. s. 2. and autho-
rities cited in 2 East. P. C. 973.

{e) 2 East. P. C. 973. And see post^
Book IV. Chap, on Forgery, And see

Morris's case, 2 Leach 1096 note (a).

(/) Rex V. Soares, Atkinson aod
Brighton, MS. S. C. 2 East. P. C. 974.
Buss, and Ry. 25.

(g) 4 Blac. Com. 36. 1 Hale 613.

(A) 1 Hale 613, 614, 704. 3 Inst. 59.

(0 3 Ii^st. 139.

(k) 4 Blac. Com. 36.

(/) 2 Hawk. P. C. c. 33. s. 26. But
see 2 East. P. C. c. 21. s. 9. where it
is said that Lord Hale and Foster, J.
were decidedly of opinion, that prin-
cipals in arson were virtually excluded
from the benefit of clergy by the stat.
4 & 5 Ph. & M. c. 4. which excluded
the accessory before.

(m) Post. 372, 373. 2 Bast. P. C. c.
16. s. 47. p. 616.

(») 4 Geo. 1. c. 11. 29 Geo. 2. c.
30. s. 1 . and 2 Geo. 3. c. 28— fourteea
years* transportation.

cHiLP. n.j Of Accessories before the Fact. S3

soiy. With regard to this, it appears that if the principal totally cipal varies
and Mubsiantiailp varies from the terms of the instigation, if being ^™g^of t^e
solicited to commit a felony of one kind, he wilfully and knowingly inatigation.
commit a felony oi another, he will stand single in that ofience,
and the person soliciting will not be involved in his guilt, (n)
Thus if A. command B. to bum 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
unconsequenlial nature, (o) 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, (x) He is however accessory to the steal-
ing, (z) But if the principal complies in substance with the insti-
gation 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. command 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 C. was the object
prin€npally in contemplation, and that is effected, (p) And it
seems that 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, (a) And 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 advised, the person giving
such orders or advice will be an accessory to that felony. As if A.
advise B. to rob C, and in robbing him B. kills him, either upon-
resistance made, or to conceal the fact, or upon any other motive
operating at the time of the robbery : or if A. solicit B. to bum
the house of C, and B. does it accordingly, and the flames taking
hold of the house of D., that likewise is burnt. In these cases A.
is accessory *to B. both in the murder of C. and in the burning of
the house of D. The advice, solicitation, or orders, were pursued
in substance, and were extremely flagitious on the part of A. ; and
the events, though possibly falling out beyond his original inten-
tion, were, in the ordinary course of thingn, the probable conse-
quences of what B. did under the influence and at the instigation
of A. (9)

Where A. counselled a pregnant woman to murder her child Counselling a
when it should be born, and she murdered it accordingly, A. was prcffnant
held to be accessory to the murder: the procurement before the murderer
birth being considered as a felony continued after the birth, and child.
until the murder was perpetrated by reason of that procurement, (c) *

But the more difficult questions arise where the principal ^y A. being conn-
mistake commits a different crime from that to which he was soli- J^**®^ lomur-
dted by the accessory. It has been said, that if A. orders B. to dcni d"*"'
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, (r) And in support of this position Saun*

(s) Fort. 369. c. S9. s. 80.

{0) I Hale 617. 4 Blac. Com. S7. (a) Bac. Max, Reg. 16.

(X) Plowd. 475. (g) Fort. 370.

(z) 1 Hale 617. (e) Rex v. Parker, Dy. 186. a. pi. 2.

(p) Fost 369, 370. 9 Hawk. P. C. (r) 1 Hale 617. 3 Inst 51.

rou I. P

34

Criteria in
iuchcafei.

Accessory re-
pents sod
counter mands
tbejrincipal.

Ofi

after the jGict.

Of Accessories after the Fact. [book i.

ders' case («) 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 remaiuder to their child, Sannders (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 affcerwaixls died^ And it was held, that though Saunders
was clearly guilty of the murder of the child, yet Archer was not
accessary to that murder. But Mr. Justice Foster thinks, that this
case of Saunders does not support the position (which he calls a
merciful opinion) to its full extent ; and he proposes the following
case as worthy of consideration. '^ B. is an utter stranger to the
'^ person of C; A. 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. answer-
ing 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 lamentable mistake ; — ^but who is an-
swerable 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 bis
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." (0
Mr. Justice Foster then proposes the following criteria, as
explaining the grounds upon which the seveftd cases falling under
this head will be found to turn. '^ Did the principal commit the
'^ felony he stands charged with under the Influence of the flagi-
'^ tious advice; and was the event, in the ordinary course of
things, a probable consequence of that felony ? or did he^ follow-
ing the suggestions of his own wicked heart, wilfully and
knowinriy oHnmit a felony of another kind, or upon a dinierent
" subject.^' {w)

A. commands B. to kill C, but before the execution thereof
repents and countermands B;, yet B. proceeds in the execution
thereof ; A. is not accessory, for his consent continues not, and he
gave timely countermand to B. : but though A. had repented, yet if fi.
had not been actually countermanded before the fact conmiitted,
A. had bem accessory, {x)

IV. 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, (y) And it seems to have been
agreed, that any assistance given to one known to be a felon, in
order to hinder* his being apprehended or tried, or suffering the

u

€C

(9) Plowd. 475. I Hde 481.
(I) Post 370, "il? I.
(v) Post S7S.

(x) 1 Hale 617.

(y) 1 Hale 618. 4 Blac. Com. 57.

CHAP. 11.3 0/ Accessories after the Fact 35

paobhment to which he is condemned, is a sufficient receipt to

make a man an accessory of this description : as where one assists

a felon with a horse to ride away, or with money or victuals to

support him in his escape, or where one harbours and conceals in

hia 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 ^uch a felon, by reason whereof the

pursuers dare not take him. (2) Also whoever rescues a felon

from an arrest for the felony, or voluntarily and intentionally

suffers him to escape, is an accessory to the felony : (a) and it has

been said, that those are in like manner guilty who oppose the

apprehending of a felon, (b) It is agreed, by all the books, that a

man may be an accessory after the fact by receiving one who was

an accessory before as well as by receiving a principal, (c) And it

has been holden, that a man may make himself an accessory after

the fact to a larceny of his own goods, or to a robbery on himself,

by harbouring or concealing the thief, or assisting in his escape, (d)

Where an act of parliament enacts an offence to be felony, '°**^?^,*'
though it mentions nothing of accessories, yet virtually and con- gu^ute. ^
sequentially those that knowingly receive the offender are acces-
^oti€& after, {e) It has, however, been said, that if the act of par-
liament that makes the felony in express terms, comprehend
accessories be/arcj and make no mention of accessories after, it
seems there can be no accessories after; the expression of pro-
curers, counsellers, abettors, all which import accessories before,
making it evident that, the Legislature did not intend to include
accessories after, whose offence is of a lower degree than that of
accessories before* (/) But by others it is considered to be set-
tled law, that in all cases where a statute makes any offence
treason, or felony, it involves the receiver of the offender in the
same guilt with himself, in the same manner as in treason or
felony at common law, unless there be an express provision to.
the contrary, {g) And although it be generally true, that an act
of parliament creating a felony renders consequentially accessories*
before and <ifter within the same penalty, yet the special penning
of the act sometimes varies the case : thus, the statute 3 Hen. 7-
c. 2. for taking away women, makes the taking away, the pro-
curing and abetting, and also the wittingly receiving, all equally
felonies and excluded from clergy. So that acts of parliament may
diversify the offences of accessory or principal according to their
various penning, and have done so in many cases. (A)

There is no doubt but that it is necessary for a receiver to "^^ acceiioiy
have had notice, either express or implied, of a felony having ^ekiony^^
been committed, in order to make him an accessory by receiving committed,
the felon : (i) and it is also agreed, that the felony must be com- "^ *Hf ^^^^^^

' ^ ^ ^ ' / mast be com-

(*) 9 Hawk. P. C. c. 89. 8. 86. (c) 8 Hawk. P. C. c. 89. «. 1. ^**'

I Hale SIS, 619. 4 Blac. Com. 38. (d) Post. 183. Cromp. Just. 41 b.

& Aoiu e. 31. S4 5. pi. 4 and 5.

(«) 8 Hawk. P. C. c. 89. 9. 87. (e) 1 Hale 613. Ante p. 38.

1 Hale 619.: bot not the merely snf- (/) 1 Hale 6l4u

Ceria^ him to eseape, where it is a {g) 2 Hawk. P. C. c. 89. a. 14.

hn onodoB. I Bale 619. 8 Hawk. (ft) 1 Hale 614, 616,

P. C. c. 89. s. 89. (0 8 Hawk. P. C. €. 89. s. 39.

W 8 Hawk. F» C. c. 89. s. 87.

]>3

36

Feme corert.

Prosecvtione
against acces-
Boriei after
the fact at
common law
not firequent.

Of the pro-
ceedings
against acces-
sories.

Of Accessories after the Fact. [booh i.

plete* at the tltne of the assistance given, else it makes not the
assistant an accessory. So that if one wounds another mortally,
and after the wound given, but before death ensues, a person
assists or receives the delinquent ; this does not make him acces^
sory to the homicide, for till death ensues therie is no felony com-
mitted. (A)

' The law has such' a regard to the duty, love, and tenderness,
which a wife owes to her husband; that it does not make her an .
accessory to felony by any receipt whatever which she may give
to him; considering that she ought not to discover her hus-
band. (/}

' It is not thought necessary to discuss further the general prin-
ciples of law relating to accessories after the fact, since prosecu-
tions against such persons grounded on the common law are
seldom instituted at the present time ; nor do they appear to have
been frequent for many years past, nor to have had any great
effect, (m) With respect to receivers of stolen goods, who by the
3 and 4 W. and M. c. 9. and by the 5 Anne, c. 31 , are made acces-
sories after the fact, it is intended to treat of their offence in a
subsequent chapter, (n) It may be observed, however, that the
statute 5 Anne, c. 31. s. 5. enacts, that if any person shall receive,
harbour, or conceal, any burglars, felons, or thieves, knowing
them to be so, he shall be taken as an accessory to the felony, (o)
And in the case of hofse-stealing, a statute of Elizabeth {p) has
taken away clergy as well from the accessory after as before the
fact. But this statute extends only to such persons as were in
judgment of law accessories at the time the act was made^ namely,
accessories at common law ; not to such as are made accessories
by subsequent statutes; and therefore a person knowingly re-
ceiving a stolen horse, who is made an accessory by later statutes,
is not ousted, {q)

The principal and accessory may be indicted in the same in-
dictment and tried together, which is the best and most usual
•course : (r) and the accessory shall not, without his own consent,
he brought to trial, tUl the guilt of the principal is l^ally ascer-

(k) 8 Hawk. c. S9. s. 33. 4 BUc.
.Coni. S8.

(D « Hawk. c. 29. s. S4. 1 Hale
681. ante, p. 19. But this applies to
no other relation besides that of a
wife to her husband: and the hus-
band may be an accessory for the
receipt or his wife. 1 Hale-4S8 1 .

(«) Post. 37V.

(») Atf, Book IV. Chap. xiii. bf
Reeifiving iioien Good»,

{6) Fid. 8 Ea$t. P. C. 744. as to
the constroetion of this statute.

{p)S\ Eliz. c. 18. s. 5.

ia) Post 373. citing MSS. Tracy
and l)enton.

(r) 1 Hale 683. Post 365. Rex v.
Danelly and Vaughan, Old Bailey,
Sept 1816, ante, p. SO. It' seems to
have been settled that if the princi-
pal and accessory appear together.

sod the principal plead the gene-
ral issue, thf^ accessory shall be pnt
to plead also, and that if he like-
wise plead the general issue, both
may be tried by one inquest; but that
the principal must be nriit convicted;
and that the jury shall be charged,
that if they find the principal not
guilty, they shall find the accessory
not guilty. Btit it seems agreed, that
if the principal ^lead a plea in bar,
or abatement, or a former acquittal,
the acce«u>ry shall not be forced to
answer till that plea be determined ;
for if it be found for the priocipal,
the accsssorv is discharged ; if against
the principal, yet he shall atlerwards
'plead orer to the folooy, and may be
acquitted. S'Hawk.'PrC. c. t9i 6. 47.
1 Hale 684.

cVLkP. 11.3 Of the Proceedings against Accessories. 37

tained by conviction or outlawry^ unless^ they are tried toge^
ther. (j) This, however, must be understood, with the exception
of those accessories after the fact, commonly called receivers of
stolen goods, and certain accessories before the fact in cases of
burglary, robberv, and grand larceny, who, by the enactments of
several statutes^ (/) may be proceeded against by indictment for a
misdemeanor, though the principal may not have been convicted ;
as will be shewn more at length in subsequent parts of this
Work. (t<) Where the proceedings are ag^nst the accessory only,
the nam^ of the principal should be slated in the indictment, if it
is known ; and where it was stated in an indictment against an
accessory to a felony, that the felony was committed by a person
to the jurors unknown, and it appeared that the principal felon
was a witness before the grand jury, it was held that the indict-
ment could not be supported, {w)

An indictment against an accessory should state that the prin-
cipal committed the ofience ; and it is not sufficient merely to
state that he was indicted for tbe ofience, as the indictment is'
only an accusation, and it does not follow that he really com*^
mitted the offence because he was indicted for it. (o)

Formerly if a man had been indicted as accessory in the same" a man may be
felony to several persons, he could not have been arraigned till 1^ arraigned as
the principals were convicted and attainted : but as the law now ^^^^^fl\^
stands, if a man be indicted as acce. sory to two or more, and the principals as
jury find him accessory to one, it is a good verdict, and judgment ■« convicted^
may pass upon him. (or) And therefore the Court in their dis-
cretion may arraign him as accessory to such of the principals as
are convicted ; and if he be found guilty as a%,ce88ory to them or
any of them, judgment shall pass upon him. {y) An acquittal in
such case would not formerly have discharged him as accessory
to the others; (z) but by the statute 43 Geo. 3. c. 113. s. 5. it is
provided that no person shall be tried more than once for the
same offence of being accessory before the fact.

If A. be indicted as principal, and B. as accessory, and both be Former ac-
acquitted, or if B. only be acquitted, yet B. may be indicted as quittal wben
principal in the same offence, and his former acquittal is no ?.^*L!^* ♦
bar. (a) But it seems to be agreed, that if A. be indicted as
principal and acquitted, he cannot be afterwards indicted as
accessory before the fact, {b) If, however^ a man be indicted as

(f) 1 Hale 6«S. 2 Hawk, c 20. s. 45.
Post S60.

(f > 1 iinoe, sess. 2. c. 9. s. 2. 5 Anne,
c. 31. s. 6. 22 Qeo. S. c. 5S. 3 Geo. 4.
c. 38. a. 4.

(s)iVsf,Book IV. Cbap.i. of But-
glMr^t and Chap. ziii. of Receiving
tioleHCe0de^

{m} Rex V Walker, 3 Campb. 264.
So ID an indsetiiieni for larceny,
though tlie goods may be laid to be
tiie property of per$on$ unknewn^
neb so alleffaliofi i» improjper if the
owner be really known. 2 East. P. C.
651. 781. A«l, Book IV. Chap. iv. on

(o) Lord Sanchar*s case, 9 Co. 1 1 7
a.

(x) Fost. 861. 9 Co. 119.

iy) 1 Hale 624. 2 Hawk. P. C. c. 29.
s. 46. PloTTd. 98, 99. Post. 361.

{z\ 2 Hawk. P. C. c. 29. s. 46.

(a) 1 Hale 625. Rex v Winifred
and Thomas Gordon. 1 Leach 515.
S. C. 1 Kast. P.C. 35.

(b) 1 Hnle 626. 2 Hale 244. Bui
Mr. Justice Foster says, that he know»
not upon what grounds; as in con-
sideration of law the offences of prin-
cipal and accessory are quite dif:>
ferent. See Fost. 361 » 362*

39

Of the Proceedings

[fiOOR I.

principal and acquitted, he may be indicted as acceesory ^fter
the fact; and so if he be indicted as accessory be/ore the fact
and acquitted, he may be indicted as accessory afUsr the
fact, (c)
Aceesaory may Anciently an accessory could not be tried unless the principd
Ae^prindw?* ^'^®'® attainted : so that if the principal stood myte of malice, or
offender hai challenged peremptorily above the legal number of jurors, or re-
beenconyict- fused to answer directly to the charge, the accessory could not
w!t^s^e(L^ have been put upon his trial, (rf) But the statute 1 Anne, stat. 2.
c. 9., provides a remedy for this defect ; and enacts that *' if any
'^ principal offender shall be convicted of any felony, or shall stand
" mute, or peremptorily challenge above the number of twenty
^' persons returned to serve of the jury, it shall and nuiy be lawful
'' to proceed against any accessory, either before or after the fact,
'' in the same manner as if such jmncipal felon had been tUiainted
*^ thereof, notwithstanding any such principal felon shall be ad-
'^ nutted to the benefit of his clergy, pardoned, or otherwise deli*
*^ vered before attainder ; and every such accessory shall suffer the
^' same punishment, if he or die be convicted, or shall stand mute,
^^ or peremptorily challenge above the number of twenty persons
^^ returned to serve of the jury, as he or she should have suffered
^^ if the principal had been attainted." Upon this statute it has
been held that it is sufficient, in an indictment for felony against a
receiver of stolen goods, to state that the principal was '* tried
and duly convicted^** without going on to shew Utat judgment was
passed upon him, or how he was delivered, {e) And where an in-
dictment for receiving stolen goods averred that the principal felon
had been duly convicted^ upon an objection that the record which
was produced was not sufficiently formal and correct to support
' the averment, it was held that the judgment was not necessary,
and might be rejected; that the conviction was sufficient ; that m
the common case, where the receiver is tried with the thief, there
is no judgment on the thief before the verdict against the receiver;
and that although the record produced was full of errors, yet an
erroneous attunder of the principal is sufficient, as against the
accessory, until it is reversed. (/)

(e) 1 Hale 6S6.

\d) Fost S62, where the doctrine is
reprobated : and see 1 Hale6?5, where
it is said that it was for this reason
that fFettPH^ the principal actor in
the murder of Sir Thomas Overbur^^
could not for a long while be prevail-
ed upon to plead, that so the Earl and
Countess or Somenet^ who were t)ie
movers and procurers, intght escape.
1 St Tri. 314.

(e) Hyman's case, 2 Leach 085. 8
East. P. C. 782.

(/) Ba1dwin*8 cme, 3 Campb. S65.
Cor. Thomson, B. Manmouik Sum«
mer assizes, 1818. The Judgment was
verv informal, concluding '' and the
said Isaac Powell in mercy ^ &c.** See
further as to the sufficiency of an
erroneous attainder of the principal

while unreversed, 1 Hawk. P. C. c.
89. s. 40. And see in Lord Sanchar's
case, 9 Co. 119, that if the principal
be erroneously attainted, yet the ac-
cessory shall be attainted ; for ihc at-
tainder against the principal standstill
it is reversed. And by Lawrence, J.
in Holmes o. Walsh, 7 T. R. 465, '' the
*•*' judgment upon an indictment must
*' be taken to be good until it t« re-
^' versed by a writ of error ; as in the
«» case of proceedings against the ac-
*^ cessory. So if there be a judgment
'' against the husband for iroasoii not
^' revened by error, it is sufficieat to
*^ deprive the wife of her dower.** And
see 1 Hale 685. But by the reversal
of an attainder ajgaiost a prittcifial,
the attainder against the accessory,
which depencb upon the attainder of

CHAP. 11.3 against Accessories. S9

Where l^e principal and accessory are tri^d together upon the 'The accessory
same indictment, there is no doubt but that the accessory may Se pliu oTthe
ent«r into the full defence of the principal, and avail himself of principaU.
every matter of fact and every point of law tending to his acquittal f
for the accessory is in this case to be considered as particeps in
lite J and this sort of defence necessarily and directly tends to his
own acquittal. And where the accessory is brought to his 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 prin-
cipal was convicted did not amount tofelonj/ in him, or not to that
^tecies of felony toith which he was charged, the accessory may
avail himself of this, and ought to be acquitted, (g) For though
it IB not necessary upon such trial on the part of the prosecution
to enter into a detail of the evidence on which the conviction
was founded, and the record of the conviction is deemed suffi-
cient evidence against the accessory to put him upon his 'defence ;
yet the presumption raised by the record that every thii^g in
the former proceeding was rightly and properly transacted must,
it is conceived, give way to facts manifestly and clearly proved j
and that as against the accessory the conviction of the prin-
cipal will not be conclusive, being as to him res inter aHos-
actOm (A) This was the opinion of Mr. Justice Foster ; and upon^
Uiis (pinion the court, in a case at the Old Bailey, permitted the
counsel for a prisoner indicted as an accesory to controvert the
propriety of the conviction of the principal by vivd voce testi-
mony^ and to shew that the act done by the principal did not
amount to sl felony, and was only a breach of trtist.{i) And in a
later case in the same court it was also admitted that the record of
the conviction of the principal was not conclusive evidence of the^
felony against the accessory, and that he has a right to controvert
thepropriety of such conviction.(A:)

But how far an accessory can defend himself in point of fact,
by shewing that the principal was totally innocent^ has been
considered as a question of more difficulty, and one which should
be handled with caution; because facts for the most part de-
pend upon the credit of witnesses ; and when the strength and
hinge of a cause happen to be disclosed, as they may be by
one trial, daily experience convinces us that witnesses for very
bad purposes may be too easily procured. Upon this point,,
however, Mr. Justice Foster cites some authorities, which he
apprehends to be strong, to shew that the accessory may insist
upon the innocence of 'the prbicipal ; and then gives his own
opinion. He says, " if it shall manifestly appear, in the course
" of the accessory's, trial, that in point of fact the principal was-
'^ innocent, common justice seems to require that the accessory

the priociral, is iptofucio utterly de- (Xr) Prosser's case, (mentioned in a

feated aad annulled « Lord Saacnar's note to Smith*s case, 1 Leach 290.)

case, 9 Co. 119. Fost 366. Cor, Gould, J. who is considered to

(g') Fost 96ft. Rex o.M'Dantelaiid have been a very accurate crown law-
Others, 19 Sla. Tri. 60&. yer. And see Hex v. M*Daniel and

(Jb) /Mtf. Others, 19 St. Tri. 806.

(4 Smith's, case, 1 Leach S88.

40

Of the Proceedings

[itooiL I.

Inwbttcoanty
they shall be
tried.

43 6.3. c« 113.
1. 5.

'' should be acquitted. A. is convicted upon dbrctimstaAtial evi-
'^ dence, 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 incontestible evidence, that B. is
^' still living; (Lord Hale somewhere mentions a case of this kind)
'^ Is C. to be convicted or acquitted ? The case is too plain to
" admit of a doubt. Or, suppose B. to have been in fact nror-
'' dered, and that it should come out in evidence, to the satisfac-
'' tion 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.''(/)

Where a person is feloniously stricken or poisoned in one
county, and dies thereof in another county, the accessory may be
indicted in the county where the death shall happen, (t/t)

And where a murder or felony was committed in one county,
and the person was accessory m another county, the accessory
may be indicted in the county where he was accessory. And the
judges of assize, or two of them, of the county where the oflTence
of the accessory shall have been committed, on suit to them made,
shall write to the keeper of the records where the principal shall
have been convicted, to certify them whether such principal be
attainted, convicted, or otherwise discharged, which he shall cer^
tify under his seal.(9i)

In the case of accessories to any felony before the fact, whether
the principal felony be committed within the body of any county
or upon the high seas, and whether the procuring, &c^ or abetting,
or otherwise becoming accessories before the fact be committed
within the body of any county^ or upon the high seas, the offence
of such accessories may be tried (in case the principal felony was
committed within the body of any county) by the course of the
common law, either within the county where the principal felony
was committed, or in the county where the offence of becoming
accessory before the fact was committed ; and in case the princi-
pal felony was committed upon the high seas, then the offence of
becoming accessory before the fact may be tried in such court, &c.
as is directed by the statute 28 Hen. 8. c. 15. for trying felonies
committed upon the high seas, (o)

The 33 Hen. 8. c. 23, intituled " An Act to proceed by com-
^' mission of oyer and terminer against sucli persons as shall con-
^' fess treason, &c. without remanding the same to be tried in the
*' shire where the offence was committed,"(p) gives certain powers
for making commissions of oyer and terminer for the speedy trial

(i) Post. 367, 378 ( and see 3 Esp. R.
134, (in the case of Cook v. Field,)
ivhere it was stated by Bearcroft, and
assented to by Lord Kenyon, that
Where the principal has been convict-
ecf, it is nevertnelesB on the trial of
the accessory competent to the de-
fendant to prove the principal inno-
cent. And see Rex v. M'Daniel and
Others, 19 St Tri. S06.

(m) S & 3 Edw. 6. c. 84. t. 2, 3.

(n) 8 & 3 Bdw. 6. c. 84. s. 4. Lord
Sanchar*s case, 9 Co. 117, where seve-
ral questions were moved upon this
statute. Such accessory was dispu-
nishable at common law, 8 Hale P. C.
623.

io) 43 G. 3* c. 113. s. 5. Rex v.
Morris, Russ. & Ry. 270.

(p) 1 East. P. C. 369.

CHAP. J1.3 agaiMt Accessaries. 4r\

of peraoDB ezanuued before the King's council, or three of them,
upon any murders or other ofiences therein mentioned under such
circumstancea and in such cases as in the said act are mentioned ;
but no provision is therein made for the trial of accessories be/ore
the feet in murder : it is therefore provided by the statute 43 G. 3.
c. 1 13. sw 6b that the powers and authorities of the former statute
shall be extended to the offence of procuring, &c. or otherwise
befOOUDg mck accessory before the fact to any murder, (q)

(f ) Bjs. 7. this act ii not to extend to Irelaod.

42

CHAPTER THE THIRD

OF INDICTABLE OFFKNCES.

Offencss which may be made the subject of indictmetit, and are
below the crime of treason^ may be divided into two claues,
felonieB and misdemeanors,
Felony defined. The term febmy appears to have been long used to signify the

degree or class of crime committed, rather than the penal conse-
quence of forfeiture occasioned by the crime, according to its
original signification. The proper definition of it, however, as
stated by an excellent writer, recurs to the subject of forfeiture,
and describes the word as signifying — an offence which occasions
a total forfeiture of either lands or goods, or both, at the common
law ; and to which capital or other punishment maj/ be superadded
-according to the degree of guilt, {a) Capital punishment does by
no means enter into the true definition of felony : but the idea of
felony is so generally connected with that of capital punishment,
that it is hard to separate them ; and to this usaee the interpreta-
tions of the law have long conformed. Thererorc, if a statute
makes any new oflfence felony, the law implies that it shall be
punished with death as well as with forfeiture, ^unless the offender
prays the benefit of clergy, which all felons are entitled once to
have, unless the same is expressly taken away by statute, (b)
^^tiJe'^"* With regard to felonies created by statute^ it seems clear that
ale a fdonj.* ^^^ ^^fy those crimes which are made felonies in express words,
but also all those which are decreed to have or undergo judgment
of life and member by any statute, become felonies thereby, ,whe-
ther the word ^^ felony*' be omitted or mentioned, (c) And where
a statute declares that the offender shall, under the particular cir-
cumstances, be deemed to have feloniously committed the act, it
* makes the offence a felony, and imposes all the common and

ordinary consequences attending a felony, (c/) But an offence
shall never be made felony by me construction of any doubtful
and ambiguous words of a statute ; and therefore, if it be pro-

(a) 4 Bla. Com. 95, and see I Hawk. xngofprHiumfeudi^ see Spelm. Gloss.

c. S5. 8. 1. ** The higher criraes, rape, Fehn^ 4 Bla. Com. 95.

** robberr, murder* arsoo, &c., were (b) 4 Bla. Com. 9S. Rex v. John-

** called fdoDT; and beio^ interpreted son, S M. & S. 549. Po9t^ Book IV.

•* want of fidelity to his lord, made Chap. xv.

«« the vassal lose bis fief.*' 9 Hume, (r) 1 Hale 70S. 1 Hawk. P.C. c40.

App. ii. p. 129. As to ^e derivation 8.8.

ot the word/ef9t»y , fromy^Jk, or fee, ( 4) By Bayiey, J, in Jobason^s castf»

the fief or estate, and ton, the priee or 3 M. ft S. 556.
f alue \ and ascribing to it the mean-

I

CHAP» 111.3

Of Indictable Offences.

43

hibited under ^' pun of forfeiting all that a man has/' or of '^ for-
feiting body and goods/* or of being *^ at the King's will for body,
land, and goods/' it shall amount to no more than a high misde-
meanor, (e) And though a statute make the doing of an act
feUnucuSj yet if a subsequent statute make it penal only, the latter
statute is considered as a virtual repeal of the former, so far as
relates to the punishment of the offence. (/) And it should also
be observed, that where a statute makes a second offence felony,
or subject to a heavier punishment than the first, it is always
implied that such second offence ought to be committed after a
conviction for the first ; from whence it follows, that if it be not so
laid in the indictment, it shall be punished but as the first offence :
for the gentler method shall first be tried, which perhaps may
prove ^Bctual {g) Where a statute makes an offence felony
which was before only a misdemeanor, an indictment will not lie
ibr it as a misdemeanor. (A)

The word misdemeanor, in its usual acceptation, is applied to Misdemeanorv
aU those crimes and (deuces for which the law has not provided a d^**^'^^^'-
particular name; and they may be punished, according to the
decree of the offence, by fine or imprisonment, or both, (t) A
misdemeanor is, in truth, any crime less than a felony ; and the
word is generally used in contradistinction to felony; misde-
meanors comprehending all indictable offences which do pot
amount to felony, as peijuryi battery, libels, conspiracies, and
public nuisances, (k) 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 one
who is guilty of felony or treason may be proceeded against for a
misprision only, if the king please. (/) But generally misprisioti
of felony is taken for a concealment of felony, or a. procuring the
concealment thereof, whether it be felony by the common law, or
by statute; (m) and silently to observe the commission of a felony,
without using any endeavours to apprehend the offender, is a mis-
prision; a man being bound to discover the crime of another to a
magistrate with all possible expedition, (n) If this offence were
accompanied with some degree of maintenance given to the felon,
the party committing it might be liable as an accessory after the
fact, (o)

It is clear that all felonies, and all kinds of inferior crimes of a indicuble of*
public naiure^ as misprisions, and all other contempts, all dis- f^ncen.
turbances of the peace, oppressions, misbehaviour by public offi-
cers, and all other misdemeanors whatsoever oiujmblic evil example

(e) 1 Hawk. P. C. c. 40. s. 8.

</) I Hawk. P. C. c. 40. %. 5.

ig) 1 Hawk. P. C. c. 40. 9. 4.

U) Rex 9. Cross, 1 Ld. Raym. 711.
SSslLlPS.

ii) 3 Barn. Just, tit Misdemeanarj
citii^ Rtrlow*8 Justice, tit. MUdem,

ik§ 4 B\tL^ Com. 5, note S. 3 Burn.
Just tit Misdemeanor.

(/) 1 Hawk. c. 80. s. 9. and c. 50. ft.
1, ^. Burn. Just. tit. Felony,

(m) 1 Hawk. P. C. c. 59. %. 8. i^tl.
Book II. Chap. xiii.

(ft) 3 Inst. 140. 1 Hale 371—375.

(o) 1 Hawk. P. C. c. 59. s. 6. The
concealment of tresBure tr0ve is mis*
prision of felony. 4 Blac Com. I8K
3 lost. 133.

4^

Of Indictable Offenees.

[fioet L

Neglect of
children of
tender years.

Attempts to

commit

crimes.

against the common law, may be indicted, (p) And it eeems to
be an egtablished principle, that whatevcf? openly outrages de-
cency, and is injurious to public morals, is a misdemeanor at
common law. (q) Also it seems to be a gbc^ gemenH ground,
fbat 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 Sjggrieved, 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. (r) But no injuries of
a private nature are indictable, unless they in some way concern
the king, (s)

It is an indictable offence, in the nature of a misdemeanor, to
refuse or neglect to provide sufficient food or other necessaries for
any infant of tender years, unable to provide for and take care of
itself, (whether such infant be child, apprentice, or servant,) whom
the party is obliged by duty or contract to provide for; so as
thereby to injure its health, (a)

So long as an act rests in bare inieniian, it is not punishable :
but immediately when an act is done, the law judges not only of
the act done, but of the intent with which it is done; and if ac-
companied with an unlawful and malicious intent, though the act
itself would otherwise have been innocent, the intent being cri-
minal, the act becomes criminal and punishable. (0 Thus^ an

(p) 8 Hawk. P. C. r. 85. s. 4. As to
misbehaviour bv public officers, see
jwfff, Book II. Cliap. xiv.

(q) 4 Blac. Com. 65 (n). \$ih edit.
1 Hawk. P. C. c. 5. s. 4. 1 East. P. C.
c. 1. s. 1. and see Rex v. Sir Charles
Sedley, Sid. 168. 1 Keb. 680. and
Bex V, Crunden, 8 Campb. 89. Cases
of men indecently exposing their
naked persons.

' (r) 8 Hawk. P. C. c. 85. s. 4. and
see 1 Hawk. P. C. c. 88. s. 5. where it
is laid down that every contempt of a
statute is indictable. .But it is ques-
tionable, where the party offend ine
has been fined, if he may aflerwariU
he indicted : and where a statute ex-
tends only to private persons, or
chiefly relates to disputes of a private
nature, it is said that offences against
it will hardly bear an indictment.
8 Hawk. P. C. c. 85. s. 4.

rf> 8 Hawk. P. C. c. 85. s. 4. Rex
r. Richards, 8 T. R. 637. This dis-
tinction is stated also to have been
taken in Rex r. Bembrtd^ and
Powell (cited in Rex v. Soutbertoo,
6 East. 1S6^), who were indicted for
enabling persons to pass their ac-
counts with the Pay-office in such a
way as to enable them to defraud the
Governracut. It was objected, that
this was only a itrivate matter of ac-

count, and not indictable: bat thcf
Court held otherwise, as it related to
the public revenue.

(a) Rex t^. Friend and his wife,
February 1808, MS. Bay ley J. and
Russ. and Ry. 80. Chambre J.'dif-
fered, thinking it not an indictable
offence, but a matter founded wholly
on contract, in this which was the
case of an apprentice. The indict-
ment should state that the infant was
of lender years, and not able to pro-
vide for itself. And see Rex r. Ridlevy
8 Campb. 650. Rex v. Squire and wiie,
pMt, Book III. Chap. i. of Murder, As
to the neglect of paupers by overseers
of the poor, see fios/. Book 11. Chap^
xiv. Ojfeneei by per»on$ in Qfice,

it) Per Lord Mansfield, C. J. in
Schofield^s case, Cald. 397. The an-
cient writers, in treating of felonious
homicide, considered the felonious
intention in the same lizht id point of
guilt as homicide itself. V^lunlaM
repuiabatur pro faelo^ a rale which
has long been laid aside as too rigo-
rous in the case of common persons,
though retained in the statute of
Treasons, 85 Ed. S. st 5. c. 8. But
when the rule prevailed, it was neces-
sary that the intention should be ma-
nife^Aed by plain facts, not hj bare
words of any kind. H^cvoiwmimt non

CHAP. 111.3 Of Indictable Offences. ^

attempt to commit a felony is^ tn many cases, a misdemeanor : {u)
and an attempt to commit even a misdemeanor has been decided
in many cases to be itself a misdemeanor. (Uf) And the mere
soliciting another to commit a felony is a sufiBcient act or attempt
to constitute the misdemeanor. Thus, to solicit a servant. to steal
his master's goods is a misdemeanor, though it be not charged in
the indictment that the servant stole the goods, nor that any
other act was done except the soliciting and inciting, (x) It was
held not to be necessary, in order to shew that this was only a
misdemeanor, to negative the commission of the felony ; as none
of the precedents of indictments for attempts to commit rape or
robbery contain any such negative averment : but it is left to the
defendant to shew, if he please, that the misdemeanor was merged
in the greater offence. And it has been held, that the completion
of an act, criminal in itself, is not necessary to constitute, cri-
minality, (y) It should seem that an attempt to commit a sta-
tutable misdemeanor, is as mucli indictable as an attempt to com-
mit a common law misdemeanor, (a)

Upon the same principles some earlier cases appear to have
proceeded. Thus, it was held indictable to attempt to bribe a
cabinet minister and a member of the privy council to give the
defendant an office in the colonies, (z) And an information was
granted agamst a man for promising money to a member of a
corporation, to induce him to vote for the election of a mayor: (t)
an information also appears to have been exhibited against a
person for attempting by bribery to influence a juryman in giving
his verdict. (^) And it is laid down generally, that if a party

MuneeiufuUdevoitmUtemUUBverbit ^* aitempU as tend to the prejodice

mui $criptia propaUtta^ Bed mundo ma- *' of the community are indictable.*'

w^eUaUi fidl per aperlum facium, {x) Higgins*s case, 2 East. R. 5. in

) InsL 4. Post. 19S. wbicn see many cases cited, where

(>0 Higfios's case, S East. R..SI. attempts to commit felonies and mis-
Rex V. Kmnersley and Moore, 1 Sir. demeanors have been considered as
1§6. But in 1 Hawk. P. C. c. S5. s.S. misdemeanors,
if the following passa^ : — ** The bare- {y) By Lord Mansfield in Rex v.
** intention to commit afelony is so Schofield, Cald. 400.
** very criminal, that at the common (a) This was the opinion of LeBlaoc,
'' bw it was punishable as felony J. inRextf.Cartwright,Ea$LT. 1806,
** where it mined its effect throogn Russ. and Ry. 107, : but it seems
** some accident, no way lessening the Judges did not go into the point,
** the guilt' of the offender. But it as they decided that the paper by the
^' seems agreed at this day, that felony production of which the defendant
*' sliall not be imputed to a bare in- bad attempted to obtain money at a
** tention to commit it; yet it is cer^ banker*s, and which was stated to be
** tain that the party may be very an order, was. really no order. MS.
'* severely fined for such an inten- Bay ley, J.

** tion.** Probably the latter part of (z) Vaughan's case, 4 Burr. 8494. ^

this passage was intended to relate to • and see Rex v. Pol I man and Others,

an intention manifested by some act. 8 Campb. 889. where a conspiracy to

And see 1 Hawk. P. C. c. 56. obtain money by procuring from the

(w) Per Grose, J. in Higgins's case, • Lords of the Tre«»ury the appoint-

•8 Ea%l. R, 8. and see Rex v. Phillips, ment of a person to an ofiice in the

6 East. 464. where an endeavour to • Customs, was held to be a misde-

provoke another to commit the mis- meaner at comraoa law.

demeanor of seodinr a challenge to (t) Plympton's case, S^Lord Rayra. '

ii^, was held to^ he an indictable 1 37 7.

msderaeanor. And by Lawrence J. (^)'ioung's> case ciiea i

ia Higgins'i etse, ** all such acts or -casey 8 East. R. 14 and 1&

46 0/ Indictable Offences. [book i.

oflbta a bribe to KJuigQ, meaning to corrupt him in the cause de-
pending before him, and the judge takes it not^ yet this is an
offence punbhable by law in the party that offers it. (c) And an
attempt to suborn a persoa to commit pequry, upon a reference
to the. judgei^.was unanimously holden by them to be a mis-
demeanor.. (//)
An act done, ^ In a case where the defendant was indicted for a misdemeanor
intentioa'"^'^ in having coining instruments in his custody, with intention to
Joined to that Coin half guineas, shillings, and sixpences, Mid to utter them as
act, are suffi- and fo£ the legal cursent coin, jLord Hardwicke doubted what the
^^^ offence was; and the defendant being convicted, the indictment

was. removed into the King's Bench by certiorari for the opinion
of that Court. . Upon aigument, and several cases cited, the Court
held the offence to be a. misdemeanor, and the conviction right;
Lee, C. J« saying, that '^ all that waa necessary in such a case,
'^ was an act cluffged, and a crinunal intention joined to that
'^ act/'(tf) But thongh this doctrine of the learned jud^e be
admitted to be correct, it does not appear to have been applicable
to the facts c€ thn case as charged, which did not amount to a
criminal, act by the defendant. And it is understood tliat this
case, was considered imd thought untenable in a late case, in which
it was holden that having counterfeit silver in possession with
intent to uttev 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 mtent to utter it
as good : but, on a case reserved, 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. (/) But the having a
large quantity of coimterfeit coin in possession, under suspicious
circumstances and unaccounted for, appears to have been con-
sidered a& evidence of having procured it with intent to utter it as
good, which is clearly a criminal o^f' punishable .as a misdemeanor.
Thus upon- an- indictment for procurmg counterfeit shillings with
, intent to utter them as good, the evidence was that two parcels
were found upon the prisoner containing about twenty shillings
each, wrapped up in soft paper to prevent their rubbing, and
tbete' was nothing to induce a suspicion that the prisoner had
coined them ; and on a case reserved, the Judges were of opinion
unanimously, that procuring with intent to utter was an offence,

<c) 3 Init. \A%A sod 860 in Rex v, to break, houses and steal goods;
Caasaiio, 6 fopi fiSL aa infomiation . Rex v. Lee and Others. Old BaUey^

for attempttttf to .bribe aaofficer of 16S9 % and a case of an indictment for

the Customs. making coining instruments, and bav-

(4) ^nos. ' before Adaro8% B. at ing tbem in possession wUk intemt to

5%r«ii«Aiif;yv -cited In SchofieldJs ease, make connterfeit money, Braodon*s

CaldA 400< aad in- Hig|in»'ft- ease, 8 case, Old Bailey ^ 1698; and also a case

Bast* R. 14, 17, es. • This case is pro- where the p^ty was indicted for

bably. the same as Rex v. Bdwards, buying connterfeit shillings with an

MS. Sam. tit. Petjurjf* intent to utter tbem in payment,

(^ Sutton*scase,B[ep. temp. Hardw. Cox*s case. Old Baileg^ 1600.

370. 8 Str. 1074. In this case there (f) Rex v. Stewart, Jliich. t. 1814.

were cttad, ip support of the pro- Russ. and Ry. 288. S. P. Rex v.

secution, a case of a conviction of Heath, Bast T. ISj^O. Russ. and Ry.

three persons for having hi their cus- 184,
tody diTen. picUock kcjs. wi(^ «piMil

CHAP. III.]

Of Indictable Offences.

47

and that the having in possesrion nnacoounted for^and witboujb
any circumstaneea to induce a belief that tine prisoner was the
maker, was evidence of procuring, {g) But the effect of such
evidence would be removed by circmn^tances aufficient to induce
a suspicion that the prisoner waa the> makes of the coin found in
his poaaeaaion: and, upon the argument in the last case, Thomi-
son, C. B» mentioned a case where he had directed an acquittal, be-
cause, from certain pOwder found upon the pjdsoner, thej« was a
presumption that he was the maker of the coin». (A)

With respect to persons having implements for house-breaking, Penons bar-
&c. in their possession with a felonious bU^nt, the Legislature has ^f^^^f^'
made some provisions. The 23 Geo. 3. c. 8&. enacts, that if house-break-
any person shall be apprehended, having upon him any picklock ing with feio-
key, crow, jack, bit, or other implement, with an intent felor *"^"* intent.
nicmsly to break and enter into any dwelling-house, warehouse,
coach-house, staUe, or outhouse; or shall have upon him anv
pistol, hanger, cutlass, bludgeon, or other offensive weapon, with
intent feloniously to assault anv person, or shall be found in or
upon any dwelling-house, warefaouae, coach-house, stable, or out*
house, or in' any inclosed yard, or garden, or area belonging to
any house, with an intent to steal any goods and chattels, every
such person shall be deemed a rogue and vagabond within the
intent and meaning of the 17th Q&o. 2. c. 5. And in some ia*-
stances an act, accompanied with a certain intent, has been made
a felony by particular statutes ; as by the 25th Geo. 2. c. 10. s. L
the breaking or entering by force into any mites ef black lead
with intent to i steal,, is made felony punishable by imprisonm^ot
and whipping, or by transportation. And the 4tk Geo. 4. c. 46.
s. 2. enacts, that if any person shall, by day or night, break into
any house or other place mentioned in die act with intent t6 cut^
destroy, &c. any woollen, silk, &c. he shall be guilty of felony.

Where an oflknce is not so at commcm law, but made an <mehce ^^*?^
by act of parliament, an indictment will lie where there isa substan- g^i^t^, wbea
tive prolubitory clause in such Statute, though there be afterwards indictable.
a particular provision and a particular remedy given, {k) And it is
stated as an established principle that when a new offence is created
by an act of parliament, and a penalty is annexed to it by a sepa-
rate 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 misdemeanor. (/) And wherever a sta-

ig) Rex r. duller and RobiosoD,
East T. 1816. MS. Bajley J. Rims.
and lEly. 308. In the marginal note
to Parker^! case, I ImcH 4|, it is
stat^, that baviog the possessioo of
couBterfeit money vith intentton to
pay it away as and for good raonejs
IS an indictable offence at comfnon
Uw. This may be criminal in some
cases of such possession as we have
seen above: bat gii. if the point, as
slated in the marginal note, was ac-
toally decided in Parker's case.

(A)Foller and R4>binsoB^s case,
Mif , note ig).

{k) Rex ty« Wright, 1 Burr. 54S.

(/) By Ashhursl J. in Rex v. Harris,
4 T. R. 805. And this principle has
been held to apply, where the clause
annexini^ the penalty was in the same
section of the statute. Thus the
repealed clause 5th Elix. c. 4. s. St.
enacted '' that it 9haU not b9 UwJW
** to any person to set up, ftc, any
*< craft, mystery, ftc. except he shall
'* have been brought up therein seven
'* years as an apprentice, &Ci*' upm
pain- that every person willingly of-
fending or doing 'the contrary Toifut
for every defeult forty Ailfiags fojr

i8 OJ Indictable Offences. [book t.

tute forbids the^oing of a thing, the doing it wilfully, although
"without any corrupt motive, is indictable, (m) If a statute ef^om
an act to be done, without pointing out any mode of punishnient,
an indictment will lie for disobeying the injunction of the Legisla-
ture, (n) And this mode of proceeding in such case is not taken
away by a subsequent statute pointing out a particular mode of
punishment for such disobedience, (o) Where the same statute
which enjoins an act to be done contains also an enactment pro-
viding for a particular mode of proceeding, as commitment^ in case
of neglect or refusal, it has been doubted whether an indictment
will lie. (a) But where a' staikute only adds a further penalty to
an offence prohibited by l^e common law, there is no doubt but
that the offender may still be indicted, if the prosecutor *think fit,
at the common law. (p) Where a statute makes that felony which
before was a misdemeanor only, the misdemeanor is merged, and
there can be no prosecution anerwards for the misdemeanor : but
if it gives a new punishment or new mode of proceeding for what
before was misdemeanor, without altering the dass or character of
the offence, the new punishment or new mode of proceeding is
cumulative only, and the offender may be proceeded against as-
before for the common law misdemeanor. Therefore, notwith-
standing the provisions of 9 and 10 W. 3. c. 32. against blasphemy,
it was held that a blasphemous libel might be prosecuted as a
common law offence, (z) It may be observed also^ that it is an
•ofSence at common law to obstruct the execution of powers granted
by statute, (q) But where a public act regulates rights wluch are
merely private, an indictment will not lie for the infringement of
those rights : as if a statute empowjers the setting out of private
roads and the directing their repairs, an indictment does not lie
for not repsiring them, (b)
^^ tod b*"^ ^^^'^ ^^ statute making a new offence only inflicts a for-
tDtoareiu>t fciture and specifies the remedy, an indictment will not

every month; and the method of pro- implication. By Ashhurst J. in Gates v.
ceeding upon thfs statute was cither Knight, 3 T. R. 443.
by information qui Urn in the court («) Rex v. Commings and another,
of oyer and terminer or sessions of the 5 Mod. 1 79. Rex o. Kin^t S Sir. 1 968 :
county, &c. where the offence wa4 Cases of indictments against OTerseers
.committed, to recover the penalty, or for neglecting to account, and for not
by in tfielmni^ in those courts. Seethe paying over the balance within the
cases collected in tbe note to Rex v. time limited by the statwte. Bol: see
Kilderby, l.Sauod. 318 a. Rut it theautiiorittesi aMi.tia f Noi #. L^it
should be observed that a subsequent is stated that an indictment will lie in
section (89) gave aathoritf to pro- these cases, though the statute pro-
ceed hj indSehnentj or ^ inwrtAation, vides anothfer rem^ hy etfmtaarlment.
dc^. . • • {p) 9 Hawk. P'.'Ci c. as. 9. 4. Ret
(m) Rex m gaimibary, 4 T. R. 467, 9. Wigg^, I.ord M^m.'l lOB. eSldk.
wMwitwaskeldt^beamMemisaaor 4601 And see the cases eoHectd^;!^
in magistrates io grant an ale lieenee Rm i*. t)iekensM»» I tidfead. 'tS^a.'
where they had no jurisdietioa. See nat«(4}. ' ' ^ '^ 'J^
p§$i\ Book 11. Chap. «W. . <fe) Ret «. Carlisle, 9V?& A^mt
(») Rex V. Davis, say. Its. I04t ^ .*.. -^..i. *;.« t^*- »
(o) Rest o. BoyaU S Burr. S9t. Rex (q) Rex v. Smllfa atttf«dl»rs.fMW^I.
tPiBafane,'€owa. 048. Giled in 4ho notes .441. And an fodKdtiiieal4l>f%^of-
io a Hawk. -Vj 0. e. 99. % 4, And, go^ fence need not, and oBghl*lidV;^ coa-
nevaHy apaakiag, tho Coarlr of S. B. elude e&nt^ajiv^ihSm ^iai/ii:*^ '
canaol boonsM of Hf Jdrisdietion {b) Rex v. Richard^ ^^^^|?«^
but by express iftalar, or by ok««s«Mpy ';' ' '^" ' ^

CHAP. III.] Of Indictable Offences. 49

lie. (r) The true nite \a stated to be this : Where the oiFence
wnB punishable by a oommon law proceeding, before the passing
of m statBte which prescribes a particular remedy by a sum^
mary ffroceediog, then either meuod may be pursued, as the
partieuJ»r remedy is cumulative, and does not exclude the common
lav poniebraent : but where the statute creates a new oSence by
prohibiting and making unlawfiil anv thing which was lawful
before, and appoints a particular remedy against such new offence
by a paiticolar sanction and particular method of proceeding, such
method •of proceeding must 'be pursued and no other. («) The
menlScvi of other methods of proceeding impliedljr excludes that of
indictment : (/) unless such methods of proceeding are given by
a separate and substantive clause, (i) Thus it has been held, (ti)
and seems now to be settled, (i&) that where a statute making
a new oCfence not prohibited by the common law appoints in
the smae clause a particular manner of proceeding against
the olBender, as by commitment or action of debt or informa-
tiotiy without menticniing an indictment, no indictment can be
maintained. By 21 H. 8. c. 13. s. 1. no spiritual person shall
take land to farm on pain to forfeit 10/. per month ; and it was
decided on this statute, that as the clause prohibiting the act
speirified the punishment, the defendant was not liable to be in-
dicted. (/) And it was held not to be an indictable offence to keep
an alehouse without a licence, because a particular punishment,
namely, that the party be committed by two justices, was pro
vided by the statute, (x) And an indictment for assaulthig and
beating a custom-house officer in the execution of his office was
quash^, because the statute 3 Car. J . c. 3. appointed a particular
mode of punishment for that offence, (t/) So an indictment for
killing a hare was quashed, on the ground that it was not indict-
able ; the statute 5 Anne, c. 14. having appointed a summary mode
of proceeding before justices, (z) In one case, where no appro-

C nation of the penalty, nor mode of recovering it, was pointed out
y the statute, the Court held that it could not be recovered by
iDdictment ; but was in the nature of a debt to the crown, and
suabfe for in a Court of revenue only, {a)

Amongst other decisions as to cases which cannot be made the f^Jf^-IJI*
subject of indictment, it appears to have been ruled that an indict-
ment will not lie for setting a person on the footway in a street to
distribate handbills whereby the footway was impeded and ob-

(r) R«x 0. Wright, I Burr. 543. (jt) Aooa. S Salk. 95. S.P.Watoon*8

Rex 9. Doom, 1 Lvrd Rayjiu 678. case, 1 Salk. 45. and Hex v. Edwards,

(«) Rex 9. RobiaMftD, < Barr. 805. S Salk. 97. And see Fautkner^s case.

Rex 9. Carlisle, 3 B. & A. I6S. Rev 1 Saund. S48. and Mr. Seij. Williams*s

V. Bojall, 8 Bttrr. 839. See also Harl- note (3) at page 950 e.

Sf V. Hooker, Cowp. 594. Rex v. (g) Anoa.9LordRajrai.99l. SSalk.

right. 1 Bvnr. MS, Rex v. Baline, 189. Rex v. James, cited in Rex p.

Cowp. 060. And see Faulkner*s case« Buck, 1 Stra. 679.

I SammL 9AA» sole (S). (a) Rex v. Buck, 1 Stra. 670.

(f> 2 Haidu c sa a 4. (a) Rex v. Mallaad, 9 Slra. S98.

(0 Jmjg^^ 47* case upon the 19tb Geo. 1. c. 95. which

(a) 6la«*a eaae» S Salk. 350. iiBposes a penally of twenty shiUmga

(i^ 9 Hawk. c« 96. «. 4. per thousand for burati^; place bricks

V if) Rem p. Wrifbt, 1 Burr. 543. and stock bricks to^^tbcr.

VOIm f • B

60

Of Indictable Offences. ,

[book. I.

stnicted ; (&} nor for throwing down skins into a public way, by
which a personal injury is accidentally occasioned ; (c) nor for act-
ing, not being qualified, as a justice of peace ; {d) nor for selling
short measure ; {e) nor for excluding commoners by inclosing ; (/)
nor for an attempt to defraud, if neither by false tokens or con-
spiracy ; (g) nor for secreting another ; (A) nor for bringing a
bastard child into a parish ; (t) nor for entertaining idle and vagrant

(b) Rex V. Sermon, 1 Burr. 516. But
it was held by Lord Ellenborough that
every unauthorised obstruction of a
highway, to the annoyance of the
king*s subjects, is an indictable offence
in Rex v. Cross, 3 Campb. 897. where
it was held to be an indictable offence
for stage coaches to stand plying for
passengers in the public streets.

(c) Rex V.Gill, 1 Stra. 190.

(d) Castle's case, Cro. Jac. 643.

(e) Rex V. Osbora, 3 Burr. 1697:
but selling biffaUe meaaure is indict-
able. Ibid.

if) Willoughby's case, Cro. Eliz.
90.

(g) Rex V. Channell, 2 Stra. 793.
Indictment against a miller for taking
and detaining part of the corn sent to
him; and Rex v. Bryan, 8 Stra. 866.
Anon. 6 Mod. 105. Rex v, Wheatley,
2 Burr. 1125* Rex v. Wtlders, cited
2 Burr. 1 128. and Rex v. Haynes, 4
M. & S. 214. This last case was an
indictment against a miller, for receiv-
ing good baney to erind at his mill,
and delivering a mixture of oat and
barley meal, aifferent from the pro-
duce of the barley, and which was
musty and unwholesome. On the part
of the prosecution, a note in 1 Hawk.
P. C. c. 71. s. 1. referring to 1 Sess.
Ca. 217. was cited, where it is laid
down, " that changing corn by a mil-
** ler, 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 pub-
" lie :** but it was held that the in-
dictment would not lie. Lord Ellen-
borough, in giving judgment, said,
that it the allegation had been that the
jniller delivered the mixture as an ar-
ticle for the food of man, it might
possibly have sustained the indictment,
out that he could not say that its being
musty and unwholesome 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
•ustentation of man, but only that it
was a mixture of oat and barley meal.
His Lordship then proceeds: **as to
** the other point, that this is not an
'* indictable offence, because it rea-

** pects a matter transacted in the
'* course of trade, and where no to-
** kens were exhibited by which the
'* party acquired any greater degree
** 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 confi-
" dence of this his situation, had made
*' it a colour for practising a fraud,
'* this might have present^ a differ-
** ent aspect ; but as it now is, it seems
'Mo be no more than the case of a
** common tradesman, who is guilty
*' of a fraud in a matter of trade or
** dealing; such as is adverted to in
"Rex V. Wheatley, and the other
** cases, as not being indictable.** And
see also Rex v. Bower, Cowp. 323, as
to the point that for an imposition,
which a man's own prudence ought to
guard him against, an indictment docs
not lie, but he is left to his civil re-
medy. But in Rex v. Dixon, 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 introduced into the
bread, although he gave directions for
mixing it up m a manner which would
have rendered it harmless. See Post,
Book II. Chap. ix. s. 2.

(h) Rex V. Chaundler, 2 Lord 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. But qu.

(i) Rex t). Warne, 1 Stra. 644, it
appearing that the parish could not
be burthened,the child being born out
of it. But see a precedent of an in-
dictment for a misdemeanor at com-
mon law, in lodging an inmate, vHio
was delivered of a l»stard child, which
became chargeable to the liberty. 2
Chit. Crim. Law, 700. And see also
id. 699. and 4 Wentw. 353. Cro. Circ.
Comp. (7th ed.) 648, precedeats of
indictments for misdemeanors at com-
mon law, in bringing such persons
into parishes in which they nad no

CHAP. III.] Xlf IndicUAle Offences. 51

persojas in the defendant's house ; (A) nor for keeping a bouse to
receive women with child, and ddiver them. (/) And eases of
nonr^feasQiice and particular wrong done to another are not in
general the subject of indictment : but wc haTC seen that cir«
eumstances may exist of mei*e non^fectsance towards a child of
tender years (such as the neglect or refusal of a master to provide
sufficient food and sustenance for such a child, being his servant
and under his dominion and controid),. which may amount to an
indictable offence, (m)

It has been held, that where a mayor of a city, being a justice,
made an order that a company in the city should admit oue 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, (n) And an indictment will not lie for not
curing a person of a disease according to promise, for it is not a
public offence, and no more in effect than a ground for an action
on the case, (o) To keep an open shop in a city, not being free of
the city, contrary to the immemorial custom there, has been held
not to be indictable, (p)

With regard to trespasses^ it has been held that a mere act of Trespastes not
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 the Court quashed such indictment
on motion, (q) And an indictment against one person for pulling
off the thatch of a man's house, who was in the peaceable posses-
sion of it, was also quashed on motion, (r) So an indictment for
taking away chattels must iniport that such a degree of force was
used as made the taking an offence against the public. An indict-
ment 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 ; and, after a convic-
tion, a motion was made in arrest of judgment on the ground that
the charge did not amount to an indictable offence. Perryn, B.
took time to consider to the subsequent assizes, and had the case
argued before him ; and then held the objection valid, as the iudict-

setttemeDts, and in which they shortly (/) Rex v. Macdonald, SBurr. 1646.
died» whereby the parishioners were (m) Ante, p. 44.

pat to expense. In a late case it is (n) Rex v. Atkinson, S Salk. 188.

stated to have been held, that no in- (a) Rex v. Bradford, 1 Lord Rayin.

dictment will He for procuring the 366. 8 Salk. 189. In an anon, case,

marriage of a female pauper with a 8 Salk. 582, it appears to have been

labooring man of another parish, who held, that if a pawnbroker refuses,

is not actually chargeable. Rex v. upon tender of tne money, to deliver

Tanner and Another, 1 Esn. 304. But the ^oods pledged, he may be in-

if the facts of the case will warrant a dieted. But Rex v» Jones, 1 Salk.

charge of conspiracy, the offence 379. is contra,

wouul be substantiated, if under the (p) Rex v. George, 3 Salk. 188.

circumstances the parish might pos- Nor is it an indictable offence to ex-

sibhr be pat to expense. See 1 Nol. ercise trade in a borough contrary to

P. L. SeUiemeni by Marriage^ Sect I. the bye-laws of that borough. Rex v.

in the notey. Sharpless, 4 T. R. 77 7.

(*) Bex V. Langley, 1 Lord Raym. {q) Rex «. Storr, ? Burr. 1699.
790. (**) R^x V' Atkins, 3 Burr. 1706.

jb2

5«

Of Indictable Offences.

[book I.

ment charged nothing but a. mere private trespasfl, find neither the
king' nor the public appeared to have any interest therein, {a)

But where the 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. {s) And an indictment will lie for
taking goods forcibly, if such taking be proved to be a breach of
the peace : {t) and though such goods are the prosecutor's own pro-
perty^ yet, if be take them in that manner, he will be guilty, (ti)

{a) Rexo.Gardioer,Silii»iif3f,1780,
MS. Bayiey J.
(f) Rex V. Storr, 3 Burr. 1699.

(I) Anon. 3 Salk. 187.

53

BOOK THE SECOND.

OF OFFENCES PRINCIPALLY AFFECTING THE

GOVERNMENT, THE PUBLIC PEACE, OR

THE PUBLIC RIGHTS.

CHAPTER THE FIRST.

or COUNTBBFBITINO OB IMPAIRING COIN — OF IMPORTING INTO .
THB KINGDOM CODNTBRrBIT OR LIGHT MONBT — AND OP BX-
PORTING COUNTBRFBIT MONBY.

SECT. I.

Of Counterfeiting Coin.

Tab Legislature has made several provisions against the coun-
terfeiting of the following descriptions of coin, namely : — I. The
king's money, properly so callea. — II. Foreign gold, silver, or
copper coin. — ^And, III. The copper money of this realm.

I. The first of these, the king's money, is protected by enact- of coanter-
ments, which place the offence of counterfeiting it in the highest felting the
class of crimes, upon the ground that the royal majesty of the '"^'* "■^^"•r
crown is a£fected by such oleifce in a great prerogative of govern-
ment ; the coining and legitimation of money, and the giving it
its current value, being the unquestionable nrerogatives of the
crown, (a) The statute 25 Edw. 3. st. 5. c. 2. declares it to be
Ugh treason " if a man counterfeit the king^s money." And, as
there are no accessories in treason, it follows that all who, by ftir-
nishing the necessary tools, or by any other means, aid or assist in
the coining, are guilty of the offence as much as he whose hand is
employed, {b)

It appears that the coin or money of this kingdom consists pro- Wbatis the
perly of gold or silver only, with a certain alloy, constituting what '"^^ «n«»«r-
IS called sterling, coined and issued by the kind's authority ; and
that the statute of Edward the Third, in mentioning ** the king's
money'* generally, refers to such money; which is supposed also
to be referred to by any other statute naming *' money" generally, [c)
The weight, alloy, impression, and denomination, of money made

.(«) 1 Hale 188. I East. P. C. 148. (r) I East.?. C. 147. And see I Hale,
W Kel. SJ. cha|i. 17 » 1 8, 1 9, and 20.

54 Of Counterfeiting the King's Money, [book ii.

in this kingdom are generally settled by indenture between the
king and the master of the mint : but the statute, 56 Geo. 3. c. 68.
provided, with respect to the new silver coinage, that the bul*
lion shall be coined into silver coins of a standard and fineness
of eleven ounces two pennyweights of fine silver, and eighteen
pennyweights of alloy in the pound troy, and in weight after the
rate of sixty-six shillings to every pound troy, whether the same
be coined in crowns, half-crowns, shillings, or sixpences, or pieces
of a lower denomination. A proclamation has in some cases been
made as a more solemn manner of giving the coin currency : but
the proclamation in general cases is certainly not necessary, and in
prosecutions for coining need not be proved, (c) And it is not
necessary in such prosecutions to produce the indentures ; though
it may be of use in case of any new coin with a new impression,
not yet familiar to the people, to produce either the indentures, or
one of the officers of the mint cognizant of the fact, or the stamps
used, or the like evidence. But in general, whether the coin, upon
a question of counterfeiting or impairing it, be the king's money
or not, is a mere question of fact which may be found upon evi-
dence of common usage or notoriety, (d) It should be observed^
that any coin, once legally made and issued by the king's autho-
rity, continues to be the current coin of the kingdom until recalled,
. notwithstanding any change in the authority by which it was con-
stituted, (cf)

Some verbal difference is observable in the wording of several
of the statutes on the subject of the coin since the Revolution.
The statute 8 and 9 W. 3. c. 26. speaks of the gold and silver coin
Hof this kingdom," or ^' current virithiu this kingdom." The 8t»«
tute 15Geo. 2. c. 28. .in one part expresses by name ^'guineas
and half-guineas,^' and ^' shillings and sixpences/' and is conse-
quently confined to those identical coins. In another part it
speaks of counterfeit money generally. The statute 1 1 Geo. 3. c.
40. as to the copper coin, and the statute 37 Geo. 3. c. 126. s. 2.
' as to gold and silver coin, describe each as the coin of ^Hhis realm,"
following the words of the more ancient statutes. No stress can
be laid upon such verbal differences between statutes passed in
pari materia: the construction which the reason of the thing
points. out must be such as the words are capable of receiving
without violence to their proper or accepted legal signification. (/}
Marking the Besides the counterfeiting of the king's money within the sta-
edges of coin, tute 25 £dw. 3. St. 5. c. 2. which has been alreaay mentioned, the

(e) 1 East. P. C . 1 49, where see some
cases in which proclamation bj the
writ of proclamation under the great
8ea1,or a remembrance thereof, is con-
sidered to be necessary to prove a coin
current; and it is also stated^ that by
the act of the 37th Geo. 3. c. 186. s. 1.
relaiive to a copper coinage, the king's
proclamation is made necessary ; and
seems, therefore, to be required in
proof of any indictment upon that
statute.

(d) 1 East^P. C. U9. But in the

case of old coin which has gradually
fallen into disuse, though stillthe legal
coin of the king, there can be no ge-
neral notoriety of the fact.

(<?) 1 East. P. C. 148. where it is
said also, that this recal may be by
proclamation; and long disuse may,
it is conceived, be evidence of it. It
has also been effected by act of Par-
liament, as by 9 W. 3. c. 8. and 6 Geo.
8. c. 86.

(/) 1 East. P. C. 157.

CHAP, I. $ 1 '3 ^f Counterfeiting the King's Money. 55

offence of Ugh treason may also be committed by marking on the
edges of any of the current or diminished coin of this kingdom, or
counterfeit coin resembling the coin of this kingdom, with letters
orgrainings, or other marks or figures, like those on the edges of
money coined in his Majesty's mint. This provision is by stat. 8
and 9 W. 3. c* 26. s. 3. (g) which enacts, that *•* if any person
'^ (other than the persons employed in his Majesty's mint or mints,
^^ or such as shall have authority from the Lords Commissioners of
^^ the Treasury, or Lord High Treasurer of England for the time
" being,) (A) shall mark on the edges any the current coin of this
" kingdom ; or if any person whatsoever shall mark on the edges
^' any of the diminished coin of this kingdom, or any counterfeit
'^ coin resembling the coin of this kingdom, with letters, or grain-
'^ ings, or other marks or figures like unto those on the edges of
" money coined in his Majesty's mint ; every such offence shall be
'^ adjudged high treason ; and the offenders therein, their counsel*
'^ lors, procurers, aiders, and abettors, being thereof convicted or
" attainted, shall suffer death, &c." (t)

Making shillings or sixpences to resemble guineas or half- Making shil-
guineas, and making halfpence or farthings to resemble shillings J^nces'to^e-
or sixpences, amount also to the crime of high treason. The sta- semblegai-
tute 15 Geo. 2. c. 28. s. 1. provides, "that if any person shall °«?"°'^*^^j
" wash, gild, or colour any of the lawful silver coin called a shil- SiSSg half-
" ling or a sixpence, or any counterfeit or false shilling or six- pence or far-
" pence, or add to or alter the impression, or any part of the ^I'^^jJ?^™"
'^ impression, of either side of such lawful or counterfeit shiUing or o/gixpencea.
" sixpence, with intent to make such shilling resemble, or look
^' like, or pass for a piece of lawful gold coin called a guinea, or
^^ with intent to make such sixpence resemble, or look like, or pass
^^ for a piece of lawful gold coin called a half-guinea ; or shall file
'^ or anywise alter, wash, or co)our, any of the brass monies called
" halfpennies or farthings, or add to or alter the impression, or
'^ any. part of the impression, of either side of a halfpenny or
'^ farthing, with intent to make an halfpenny resemble, or look
" like, or pass for a lawful shilling, or with intent to make a farthing
"resemble, or look like, or pass for a la-^ful sixpence; such
'^oflfenders, their counsellors, aiders, abettors, and procurers, shall
" be guilty of high treason." {k)

ig) Made perpetual by 7 Ann. c. York, upon an indictment which had

S5. not such an averment ; and for this

% This exception seems unneces- reascm it was holden bad, and that the

sarj, and would have been implied by prisoner ought to be tried a^ain,which

law on behalf of persons so employed was done at the Lent Assizes, 1702,

bj his Majesty *s authority. But yet before Powis, J. when the prisoner was

it was holden about Hil. T. IS W. S. attainted and executed. 1 East P. C.

by all the Judges, that in an indict- 166, 167.

neot on that act, it ought to be aver- (i) By 7 Ann. c. S5. s. S. the prose-
fed, that the party was not employed cution is to be commenced in six
IB the Mint, or authorised by the trea^ months after the offence.
»Drer,&c.; because the exception of (Ar) But the fourth section provides,
tticfa persons is within the enacting that the blood shall not be corrupted,
tiaose ; and the want of such an au- By the fiAh section, offenders are to
tbority is part of the description of be indicted, arraigned, tried, and con-
the offence itself. This question was victed, by such like evidence, and in
moved by Mr. Justice Turton, who such manner, as were then used and
M convicted ooc upon this statute at allowed against any offenders for

56

Gilding or ^
silrering coin
or blanks, or
ffildiDg silver
blanks.

Of counter-
feiting foreign
gold, silver, or
copper coin.

Of CountcrfeUing the King's Money, [book ii-

There are other acts which are only preparatory to and in the
progress of actually- counterfeiting the coin which are made high
treason by the fourth section of the statute 8 and 9 W. 3. c. 23,
which provides that ^' if anv person shall colour, gild, or ease over
^ with gold or silver or witli any wash or mateiials producing the
*' colour of gold or silver, any coin resemUii^ any of the current
^' coin of this kingdom, or any round blanks of base metal, or of
*' coarse gold or coarse silver, of a fit size and figure to be coined
^ into counterfeit milled mOney resembling any the gold or silver
** coin of this kingdom, or if any person shall gild twer any xitver
^* blanks of a fit size and figure to be coined into pieces resembling
^ the current gold coin of this kingdom ;'* all such ofienders, their
counsellors, procurers, aiders, and abettors, shall be guilty of high
treason. (/)

The statute 56 Geo. 3. c. 68. s. IJ, relating to the netv silver
coinage, enacts that all and every act and acts in force immediately
before the passing of that act respecting the coin of this realm, or
the clipping, diminishing, or counterfeiting of the same, pr respect-
ing any other matters relating thereto, and all provisions, pro-
ceedings, penalties, forfeitures, and punishments therein contained
or directed, not expressly repealed by that act, and not repugnant
or contradictory to the enactments and provisions c( that act, shall
be and continue in full force and effect; and shall be applied and
put in execution with respect ^to the silver coin to be coined in
pursuance- of the directions of that act as fully and efiectually to all
intents and purposes whatsoever, as if the same were repeated and
re-enacted in that act.

These statutes of 25 Edw. 3. 8 and 9 W. 3. 15 Geo. 2. and 56
Geo. 3. c. 68, relate only to the coin of the realm usually called^ in
the sense which has been before given, the king's money. We
come now to the counterfeiting of foreign coin.

II. The counterfeiting of foreign corn either of gold, silver, >or
copper, is made highly penal by several statutes. Oounterfeitiag
such gold or silver foreign coin as is cttrrent here was made trea-
son for the first time by the statute 4 Hen. 7* c. 18. That statute
was repealed by 1 Mar. c. 1.: but itaproviaiona- were revived, by
1 Mar. St. 2. c. 6. which enacts that ** if any person or persona
fakely forge or counterfeit any such kind of coin of gold or silver,
as is not the pniper voin of thb realm, and is or shall be cnrreni
witliin this realm by the consent of the crown, they and their
*^ counsellors, procurers, aiders, and abettors, shall on conviction
'^ be adjudged guilty of high treason.** (m) ^ The statute 14 £liz*

connterfeilinfT the hwful coin ; pro-
vided that there shall be no prosecu-
tion for any of the offences made trea*
lion or tetony hy this act, unless such
4>ro8ecution be comnienced within S'X
nonthK next after the offence com-
mitted. The eighth section provides,
that the offender shall he paraoned in
case (being out of prison) he discb-
vers two or more offenders of the
same kind mentioned in the act, so as
the J shall be thereof cuniricted.

(/) No corroption of blood,
cutions are to be commenced within
three months after the offence com-
mitted, s. 9. 8dl ill Wiltace^s. ease,
1 East. P. C. c. 4. s SI. p. 18^ ft iras
held that the* information and pro-
ceeding before a magistrate yfem the
commencement ' of the proseelition,
and not the preferring the indictment.

(m) The consent of the crown most
be notified tinder the great semi hy
proclamation, and a writ aniiexvd

CHAF. I. ^ 1.] Of Counterfdling Pareign Coin.

c. 9, enacts that ^ if any person falsely forge or counterfeit any
^ kmd of coin of gold or sdver df other realms as is not the proper
" coin of this redloi^'nar permitted to be current within this reaun ;
'* soch ofience shall be adjndged mspririon of high treason ; and
** the offenders, their procurers, aiders, (n) and abettors, being con-
'^Tict, shaU be imprisoned, and forfeit such lands, goods, and
''chattels, as in case of misprision of treason.'' Both these sta-
tutes are to be understood of the coimterfeiting of such foreign
cob as is for the most part gold or silver: (o) and the offence
described in the statute of Elizsweth was only punishable at com*
mon kw as a misdemeanor, {p)

The statute 37 Geo. 3. c. 1%., recites the great increase of the
practice of cfounterfeiting gold or silver cofai not currpit here ; and
enacts *' that if any person or persons shall hereafter make, coin,
^ or counterfeit, any kind of com not the proper coin of this realm,
'* nor permitted to be current within the same, but resembling or
^ made with intent to resemble or look like any gold or silver coin
^ of any foreign state, &c. or to pass as such foreign coin ; such
** person or persons offending therein shall be deemed gmlty of
"felony, and may be transported for any term of years not ex-
'* ceeding seven." By the words '^ not permitted to be current
*^ within the realm," must be understood not permitted to be cur-
rent by proclamation under the great seal, (q)

The statute 43 Geo. 3. c. 139. s. 3. relates to the counterfeiting
of foreign coin of copper, or of other metal of less value than sil-
ver not current here, and enacts *' That if any person shall within
^ any part of the united kingdom make, coin, or coimterfeit, any
" kind of coin not the proper coin of this r^m, nor ordered by
'* the royal proclamation of His Majesty, his heirs, or successors,
'' to be deemed and taken as current money of this realm, or any
" part thereof, but resembling or made with intent to resemble
" any copper coin, or any other coin ^made of any metal or mixed
" metals of less value than the silver coin of any foreign prince,
" fitafte, or country, respectively, or to pass as such foreign coin,
" then every person so offending shall be deemed and taken to be
" guilty ^of a misdemeanor and breach of the peace ; and being
'' thereof convicted according to law, shall for the Jirst offence be
" imprisoned for aiiy time not exceeding one year; and for the
^ second offence be transported to any of His Majesty's colonies
" or plantations for the term of seven years.". The act further
provides that persons against whom any bill of indictment shall
be found shall not be entitled to traverse the same to any subse-
quent assizes or sessions, but shall be tried upon the bill being
found, unless there shall be good cause why the trial should be

57

tbeietot the statute 17 Rirh. «. c. I.
Wtioi^ provided that foreign aiia shall
not ran io |iftynient in Rowland.
.(") Bt*' aiders*" is meaoi such as
«d IB tae fact« and nat aiders of tbe
•ffisB^er after Che fact. 1 Hale 376.

(•) I Hale SIO, 311, 388.

<f) 1 BaaL P. C. c. 4. s. 10. p. ISO.

(f> I EnL P.C. c. 4, s. 10. p. 161.
iod €. 10. 5. 3, & 6. The 6tb sect.

of the 37 Geo. 3. c 186. makes per*
sons bafioi^ in their custody more
than five pieces of such counterfeit
foreign coia liable to a penaftj not
exceeding 5/. nor less than. 40«« upon
conviction before a Justice of peace,
for ever jrsiich piece of coin, ^ndthe
proceed^igs betore the justice are not
to be quashed for want of form, or
removed bj cerliorsri.

58 Of Counteifsiling the Copper Coin, [book ii.,

postponed, (r) And a provision is also made for tbe certificate of
a former conviction being 8u£ficient evidence of that fact in cases
where persons are tried for second ofiEences. (s)
Of counterfeit- III. The statute 15 Geo. 2. c. 28. s. 6. reciting that the coining
ing copper mo- py counterfeiting the capper money of this kingdom was only a
^^' misdemeanoTy and the punishment often very small, enacts that

any person making, coming, or counterfeiting any brass or copper
money^ commonly called a halfpenny ^ or a farthing, his aiders,
abettors, and procurers, shall suffer two years' imprisonment, and
find sureties iov good behaviour for two years more, {t) But the,
1 1 Geo. 3. c. 40. s. 1 . makes the offence felony, enacting ^^ that
'^ if any person shall make, coin, or counterfeit, any of the copper
'^ monies of this realm commonly called a halfpenny or k farthing,
^^ such offender, his counsellors, aiders, abettors, and procurers,
^^ shall be adjudged guilty of felony." But clergy is not taken
away, and the punishment under this statute appears to be only a
year's imprisonment ; which punishment is founded on the general
statute of 18 Eliz. c. 7> s. 3.(t/)

The statute 37 Geo. 3. c. 126. enacts that the provisions of the
15 Geo. 2. c. 28., relating to the copper monies of the realm com-
monly called a halfpenny and a farthing, and also the statute 1 1
Geo. 3. c. 40.^ and all other acts concerning the copper monies of
the realm commonly called a halfpenny and a farthing, or any
other copper money of the realm, shall extend ^' to all such pieces
of copper money as shall be coined and issued by order of Hia
Majesty, his heirs and successors, and as shall by his or their
'^ royal proclamation be ordered to be deemed and taken as cur-*
'' rent money of this realm," in the same manner as if such pieces
had been particularly mentioned and described in such acts respec-
tively. From the manner in which the King's proclamation is here
made necessary to the currency of the coin, it seems to be required
in proof of any indictment upon this statute. («;)

It is stated as a question whether under this statute it is not
optional to prosecute either for a misdemeanor as the offence is
made by the statute 15 Geo. 2. ; or for a felony as it is made by
that of the 1 1 Geo. 3. ; since the provisions of both statutes are ex-
tended to any new copper coinage. But yet it is observed, that such
an option, without varying circumstances; is unusual, and incon-
gruous with the general rule of law, that the misdemeanor is
merged in the felony, {x)
The offence of With respect to the offence of counterfeiting the coin in general
thccoin'may^ ^^ °^y ^^ observed, that not only all such as counterfeit the King's

be committed

by officers in (r) Sect 4. (t) If offenders being out of prison

the mint. («) Sect. 5. By the 6th section of impeach two others so that they shall

the act persons having more than h\e be convicted, the offenders so im*

pieces of such counterfeit foreign peaching shall be pardoned; sect. 8.

coin in their possession are liable to (u) Rex v. West and Others, I East,

a penalty not exceeding 40«. nor less P. C. c. 4. s. U. p. 162. The stat. 18

than lOf. upon conviction before a Eliz. c. 7. s. 5. provides that upon al-

justice of the peace. And by sect. 8. lowance of clergy the offenders may

DO proceeding touching the convic- be imprisoned for any time not ex-

tion of any offender before any justice CQeding a year,

of the peace shall be quashed for want (w) 1 East. P. C. c. 4. s. 8. p. 149.

of form, or removed by certiorari. (x) 1 East. P. C. c. 4. s. II. p. 162.

cc
((

CHAP. I. § 1*3 Of Counterfeiting Coin. 59

coin without his authority, but even such as are employed by him
in the mint, come within the statutes,' if for their own lucre they
make the money of baser alloy, or lighter than by their indentures
they are authorized and bound to do: for they can only justify
their coining at all under such an authority ; and if they have not
pursued that authority, it is the same as if they had none. But it
is not any mistake in weight or alloy that will make them guilty
of high treason ; the act must be wilful, corrupt, and fraudulent,
for it must be laid and proved to be done traitorously.(j^)

The monies charged to be counterfeited must resemble the true What will be
and lawful coin : (5^) but this resemblance is a matter of feet of g^j'^^rf^jj^ *
which the jury are to judge upon 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, (a) Thus a
counterfeiting with some small variation in the inscription, 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 appear*
ance it be nude to resemble the true coin, {b)

It is quite clear that there will be a sufficient counterfeiting Round blanks
within the statutes, where the counterfeit money is nuide to re- }^l *^*^**°S!

,- .^, .^ * i»T_i_i. I A' worn smooth

demble coin, the impression on which has been worn away by time, by circulation.
In one case the shillings produced in evidence against the prisoner
were quite smooth, without the smallest vestige of either head or tail,
and without any resemblance of the shillings in circulation, except
their colour, size, and shape ; and the master of the mint proved
that they were bad, but that they were very like those shillings
the impression on which had been worn away by time, and might
very probably be taken by persons having less skill than himself
for good shillings. And the Court were of opinion that a blank
that is smoothed, and made like a piece of legal coin, the im-
pression of which is worn out, and yet sufiered to remain in cir-
culation, is sufficiently counterfeited to the similitude of the cur-
rent coin of this realm to bring the counterfeiters and coiners of
such blanks within the .statute; these blanks having some reason*^
able likeness to that coin which has been defaced by time, and yet
passes in circulation, (c) In a subsequent case the point received
the more solemn consideration of the twelve judges, the counsel
for the prisoners having objected, upon the fact 01 no impression
of any sort or kind bemg discernible upon the shillings produced
in evidence, that they were not counterfeited to the likeness and
sinrilUude of the good and legal coin of the realm. But the
Judges were of opinion, that it was a question of fact whether
the counterfeit monies were of the likeness and similitude of the
lawful current silver coin called a shilling. And the jury having
so found it, the wajit of an impression was immaterial; because,
from the impression being generally worn out or defaced, it was
notorious that the currency of the genuine coin of that denonii^
nation was not thereby a^cted ; the counterfeit therefore was .

(jr) 1 East P. C. c. 4. 9. 15. p. 166. (b) 1 East. P. C. c. 4. s. IS. p. 164»

I Bale 81 S. 1 Hawk. P. C. c. 17. s. citing 1 MS. Sum. 50. and Ridgeley's

55. 3 lost 10, 17. 4 ^la. Com. S4. case. Old Bailej, Dec. 1778.

(») I Hawk. P. C. c. 17. s. 81. (<?) Wilson's case, Old Bailey, 1783.

(«) 1 Bale J7S, 1 84, 81 1, 815. 1 Leach 885.

60 Of Counterfeiling Coin. [book ii.

Krfect for circulation^ and possibly might deceive the more readily
mk having no appearance of an impression ; and in the decep-
tion the ofience consists, (d)
ivbert the But where the imitation of the real coin has not proceeded so

fftiie coin b so £^ as to fabricate a false coin sufficiently perfect to be circulated,
Dot^be pan- ^® ofiFence of counterfeiting will not, it seems, be complete.
^ie,theof- Thus where the prisoner had forged the impression of a half-
fence of coun- guinea on a piece of gold, which was previouslv hammered, but
noif becoX^^ was not round, nor would pass in the condition it then was, upon
plete. reference to the judges, it was held that the crime of. counterfeiting

was incomplete, (e) And where the prisoners were convicted upon
a count in the indictment framed upon the statute 25 £dw. 3. c. 2.
and upon the evidence it appeared that no one piece of the base
metal found upon the prisoners was in such a state as to make it
passable, the conviction was held to be wrong. (/)
Ai to what Besides the ofience of counterfeiting to the resemblance which

wQl be aco- hag been already mentioned, the statutes extend to the offence of
^e"uSute8 colouring anjr false coin or blanks of base' metal j and it has been
i9W.3. C.26. made a question upon the statute 8 and 9 W. 3. c. 26. s. 4. what
will amount to a colouring. In an indictment upon this statute
the jury found the prisoners guilty upon very dear and satis-
factory evidence : but it appeared that the colour of silver was
produced by melting a sdoaU portion of good silver with a large
portion of base metal, and throwing it, after it had been cut into
round blanks, into aquafortis, which has the effect of drawing to
the sur&ce whatever silver there may be in the composition, and
giving the metal the colour and appearance of real silver. A
doubt therefore arose, whether this process of extracting the
latent silver by the power of the wash from the body to the sur-
face of the blank was colouring with ^' a wash and materials"
within the meaning of the statute; or whether the Legislature did
not intend such a colouring only as is produced by some external
application on the surface of the blank. But the judges thought
that this process of extracting the latent silver from the body to
the surface of the base metal by the power of aqua fortU was'a
colouring within the words ot the statute ; {g) and they also
thought that it might be charged as a colouring with silver) for
the eflfect of the aqua forHs is to corrode the base metal, and
leave the silver only on the superficies; and so the coj^r is
coloured or cased with silver. (A)

htA though it be necessary that the blanks should be rubbed
after they are taken out of the wash, in order to give them tiie
appearance of silver, the preparing and steeping them in the
wash will be a colouring within the statute. A cabc was reserved

' (d^ Aez v« FAtrickmnd John Weli^, And qu. if the case was not disposed

1 hmdk ai64. 1 JSast. P. C. ^. 4. a. 13. of upon a /Aefect in the iudicUneot

pJ- JbS4. ' Besides tl^e count on the S5lh RAw- 3.

. (*} Farlei'a case, 1 Letch. 76* 1 c. 9. there was another cqubI upon the

' EmI. F« C» c« 4. a. 13. p. 164. S filac. . 8th and Qth W. 3. c. 2^ a. 4..

, AepkaB^i. '* ' (^)Rex «• I^vej aod Paik^r., 1

. .-: ii/yt^x^ift Harris and* Minion^ 1 LeMh, 163.

Leach 135. The case wi^i referred to (A) S. C. .1 £ost. P. Cl c. 4..'s. 14.

the Judges: but the. praiiods erf- their . p. 16&

decisioaare ii#t stated ia Ihe report. . . .^ ,

CHAF. I. i 1.] Of CtmfUefrfeitmg Coin.-^AcceBiOTies. 61

for the ojnxiion of the Judges upon the iirilowing facts. The
prisoner was apprehended in the very act of steeping round blanks
composed of brass and silver in aqua foriis: none of them were
in a finished state ; but many were taken out of the liquor, and
others were found dry. These blanks exhibited the appearance of
lead^ and some of them had the impression of a shilling, and iiy
rubbing them they might be made perfectly to resemble silver
coin; but in their then state the jury found that none of them
would pass current. The question was, whether the o£knce was
completed, inasmuch as the colour of silver had not been pro-
duced on any of the blanks. There was some diffsrence of opinion
amongst the fudges. One judge said, he understood the words
" colour, &c. to mean producing on die piece of metal the
coloor of silver, which was not done here; for, without rubbing,
the money coined would not pass : and another observed, that the
word in die statute was '' producing'* in the present tense, and
not materials which would produce. But the other judges (t)
tfioiight the conviction ri^t. They considered that the o£fence
was complete when the piece was coloured; for it was then
coloured with materials wmch produce the colour of silver ; and
that it was not necessary that the piece so coloured should be
current, for the colouring of blanks was an ofience within the
clause. And it was observed, that a contrary construction would
prevent any conviction until a wash was discovered, which would
m the first instance produce a perfect bright shilluig or six-
pence. (Jk)

It shoidd be observed, that if there be a counterfeiting in fraud ^^^'^[f^^^
of the king, the o£fence within the respective statutes is complete ouratterin!^
before any uttering, or attempt to utter. (/)

There appears to have been a difference of opinion with respect Of prindpali
to receivers of such as counterfeit money, whether they are guilty ^ acceiio-
of more than misprision of treason, (m) Lord Hale says, that
tbou^ the more probable opinion may be that such receivers are
tnutors, yet the more merciful opinion is against such a con-
struction ; (n) and a case appears to have been ruled upon this
milder ground, (o) But the case did not pass without doubt ; and
the more strict construction is stated to have been adopted by the
best modem authorities, in which it was considered to result
necessarily from the general ride of law, that whatever will make
a man accessory before or after in felony will make him a prin-
cipal in treason ; and that the stat. 25 Edw. 3. baring declared
these offences to be high treason, the consequence follows of

(0 Absent JVrrjnr, B. and Butter^ J,

(ft) Rex V. Case, 1 East. P. C. c. 4.
a. 14. p. 165, 166. 1 Leach 154.
note (a).

(I) 3 Inst 61. 1 Hale 815, Sf8.
1 Hawk. c. 17. 8. 55. I East. P. C.
€.4. 8. IS. p. 165.

(») Misprision of treason is where
a person knowin|^ of a treason, but
BO party or consenter to it, does not
rsfcal it b^ a fair and full disclosure
in conTeaieni lima to the kin^^, or
bb privj counsel 9 or to some magis-

trate or person having authority to
take the examination. The punish-
ment for misprision of hieh treason is
the loss of the profits of landa during
life, forfeiture of eoods, and impri-
sonment during lifet but misprision
of petty treason is only punishanle by
fine aod imprisonment, as in case of
misprision or felony. 1 Hale S 1 4« S71 «
3, 4, 5. S Inst 94. 4 Blac. Com. ISO.
1 East. P. C. c. S.

(n) 1 Hale SS7.

M Conier*8 case, Dy. <S6 a.

Oi2

E?idence.

Coining tools
and baae mo-
ney to be pro-
duced in evi-
dence.

Of CoimierJeUing Coin. — Acceesories. [boo&ii.

^urse. 0>) With respect to tbe light in which accomplices or
receivers are considered in those ofiences concerning the cdoL
Which amount only to felony, it is settled that they follow the
general tule' applicable to felomr. Two agree to counterfeit, and
one does it in consequence of that agreement; they are both
guilty. One counterfeits, and another by agreement beforehand
iafterwards puts it off; the latter is a principal: so if he put it off
afterwards, knowing that the other coined it; for that makes him
an aider : so if he furnished the coiner with tools, or materials
for i!oining. {q)

Procurers who are named in the statutes 1 Mary^ stat. 2. c. 6.
and 14 Eliz. c. 3. are not mentioned in the statutes 37 Geo. 3.
C. 126. : but the offence being made felony all the incidents of felony
at common law are attached to it ; and consequently there may be
accessories. But it is questioned if they are liable to transporta-
tion, or to any other punishment than is authorised by the general
act of the 18th EHz. c. /. s. 3. (r)

With respect to the evidence in cases which amount to treason,
it appears that there is not the same necessity for two witnesses
to prove the treason as in the higher species of that offence ; but
the offenders may be indicted, tried, convicted, or attainted by
such like evidence, and in such manner and form as felons in
general; except that they are entitled to a peremptory challenge
of thirty-five, {s) 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 the apprehension,
he endeavoured to escape, and was found to. have bad money
about him ; is not sufficient evidence to implicate him, as coun-
selling, procuring, aiding, and abetting the coining. Two women
were indicted for colouring a shilling and sixpence, and a man
(Isaacs) as counselling them, &c. The evidence against him was,
that he visited them once or twice a week ; that the rattling of
copper money was heard whilst he was with them ; that once he
was counting something just after he came out; that on going to
the room just after the apprehension he resisted being stopped,
and jumped over a wall to escape ; and that there were ^im found
upon him a bad three shQling piece, five bad shillings, and five
bad sixpences ; but upon a case reserved the Judges thought the
evidence too slight to convict him. (z)

In many instances of offences relating to the counterfeiting
coin, the Legislature have made special provisions for securing
the base coin> and also the tools of the offenders ; in order that
they may be produced In evidence, and afterwards be disposed of

(p) 1 East P. C. c. 2. s. S5. p. 95,
where it is also stated, as greatly
strengthening this construction, that
otherwise the receipt of a common
ifelon would be a hi^ber offence than
the receipt of. a traitor of tbis kind,
which appears to be Incongruous.
But Mr. Bast says, (hat having con-
tented himself wiUi stating how the
question stands, (which he dees at

9

some length) he shall forbear to ad-
vance any direct opinion of his own.
• {q) I East. P. C. c. 4. s. 31. p. 186.

(r) 1 East. P. C. c. 4. s. 10. p. 161.
See as to the stat. IS Eliz. ante^ p. 58,
note (ii).

(«) 1 East P. €. c 4. s. SI. p. 187.

(«) Rex «. Isaacs, Hil. T. 181S. M^*
Bayley, J.

CHAP. I. S 1 .] Of Count&rfeiting Coin. — Evidence.

ia a proper manner. By the 8 and 9 W. 3. c. 26. a. 5. coining
tools may be seized and carried to some justice of the peace^
secured by him in order to be produced in evidence, and after-
wards destroyed ; and counterfeit or diminished money produced
in any court of justice, in evidence, or otherwise, is directed to be
cut in pieces in open court, or in the presence of some justice of
the peace, and then to.be delivered to such persons to whom the
same of right shall appertain. The 11 Geo. 2. c. 40. s. 3. pro-
vides, that any justice of the peace, on complaint that any person
is or has been concerned in counterfeiting copper monies, may,
by warrant, cause the house, &c. of such person . to be searched
for coming tools; and if any such be found, the person discovering
the same is required to seize them, and carry them to some justice
of the peace of the county, city, or place, where the same shall be
seized, who is directed to cause the same to be secured and pro-
duced in evidence ; and directions are also given fw de&cing and
destroying sueh tools. Provisions of a similar kind afe made by
the 37 Geo. 3. c. 126. s. 7* with respect to searching for coun-
terfeit gold or silver foreign coin, or for tools, implements, or
materials for coining such coin, and securiug the same, aud pro-
ducing- them in evidence, and afterwards destroying or otherwise
dispcwing of them. And the 43 Geo. 3. c. 139. s. 7* authorises
searching for counterfeit foreign coin of copper or metal of less
value than silver, and the tools or implements for coining the
same, (t)

iBS

(/) The Legislature has made other
provisions for the suppresBioa of base
coiD, or coin inferior in value, ivhere
there is no criminal charge imputed
to the person who may happen to
tender it. By the slat. 9 and 10 W. S.
c 91. s. 1. any person to whom auy
silver money, and by stat. 13 Geo. 3.
c 71. ft. 1, any person to whom anv
gold money shall be tendered, which
shall be diminished otherwise than
by reasonable wearing, or which, from
the appearance of it, he shall suspect
to be counterfeited, may cut, break,
or deface the same : but if the same
shall afterwards appear to have been
lawful money, the person who cut,
&c. shall take the same at the rate
it was coined for % and every question
respecting the validity of such coin
shall be finally determined by the
chief magistrate of the place. The
S6 Geo. 3. c. 68. s. 7. also <$nacts,
that after the period to be mentioned

in a proclamation, any persons are
required to cut, &c. any piece or
pieces of old silver coin of this realm,
current at any time before the passing
of that act, which shall be tendered
to them in payment, and which shall
be of less value than the denomina-
tion thereof shall import, and the
person tendering the same shall bear
the loss: but if any such piece so cut,
&c. shall appear to be of the full
value which its denomination shall
import, the person who shall cut, &c.
is required to take the same at the
rate it was coined for; and disputes
about the value are to be determined
by the mayor, &c. or other chief
officer of any city, &c. where such
tender shall be made; or if the tender
be made out of any city, &c. then by
some J ustice of the peace of the county
inhabiting or being near the place
where the tender shall be made.

64

Of Impairufg Cpin.

[909K, II.

SECT, Ih

Clippinfrf
wastdngy

rouDdiiig,

or filing.

Of impairing,
diminishing,

•caling, or
lll^tening.

New tUTer
coinage.

O/InyHiirmg Coin.

By the statute 5 £liz. c. 11. s. 2. clipping, woibmgf rmmdmg^
orfiUngjSov '^wicked lucre or gain's siJce, of any ofth^ t>roper
^^ monies or coins of this realm, or the doihiaions thereof,* at this

present, or that hereafter at any time shall be the lawful monies

or coins of this realm, or of the dominions thereof, or of any
'^ other realm and by proclamation allowed and suffered to be cur-
^' rent here, shall be taken, deemed, and adjudged treason ; and
'* the oflbnders therein, their counsellors, consenters, and aiders,
'^ shall be taken, deemed, and adjudged as offenders in treason ;
'^ and beinff thereof lawfully convicted or attamted, shall wBst
'^ mins of death." (ti)

jSut there were methods of falsifying, impairing, diminishing,
and lightenii^ the coin, which were not comprehended in this aet
of Elizabeth. A subsequent statute, 18 Eliz. c. 1. was ^ereiwe
passed, which enacts, ^' that if any person shall for wicked lucre or
^^ gain's sake, (icr) by any art, ways, or means whatsoever, impair^
*^ diminish, falsify J scale, or lighten, the proper monies or coi&s 6f
*' this realm, or any the dominions therecH, or the monies *or coins
'' of any other realms, allowed and suffered to be current at dK
^' time of the oflfence committed within this realm of England, or
*' any the dominions of the same, by proclamation, &c. -shairbe
'' taken, adjudged, and deemed to be treason ; and thA cffemista
" therein, their counsellors, consenters, and uders, shall be Kke-
'^ wise deemed and adjudged as offenders in treason ; and being
'^ thereof lawfully convicted or atUunted, shall suffer pains of
« death, &c." (x)

The impairing of Irish coin, though not current in England, is
within the express words of these statutes, (v)

The statute relating to the new silver coinage, 56 Geo. 3. c. 68.
s. 17* enacts, ^' that lul acts in force immediately before the jlaasing
*^ of that act respecting the coin of this realm, or the eHpping,
^' diminishing, or counterfeiting the same, or respecting any other
^' matters relating thereto ; and all provisions, proceedings, penal-
'^ ties, forfeitures, and punishments, therein contained or directed.

(«) And see I Hale St 6. 990, S67,
SIS. By the provisions of Ibis sUta te,
all the goods and chattels of snch of-
fendeis are forfeited, aod all their
lands and tenements during their liTess
but hy s. 4. the offences make no cor-
ruption of blood, or forfeiture of
dower.

(v) The clipping, ftc. within these
statutes roust be for gmin or lucrv, and
moit be so laid in the indictment,
which moil also pursae the words of

the statute in describing the offence 1
and conclude against the fomr of the
statute, because they were In some
respects introductive of a new law.
1 Eaut P.C. c. 4. s. so. p. 174. 1 Hale
SSO, 898.

(jf) The same provisions are made,
as in the last statute, as to forfeitnie
and corrnption of iilood. s. 1,S.

(y) I East. P. C. c. 4. s. SO. p. 174.
1 Hale SSI, SSS.

CHAP. I. § 2.] Of Impairing Coin. 65

^^ not ejqnreBsly repealed bjr that act, and not repugnant or contra-
" dictory to the enactments and provisions of that act, shall be
" and continue in full force and effi^ and shall be applied and put
*^ m execution with respect to the silver coin to be coined in pur-
^ suanoe of the directions of that act, as fiiUy and e£kctually to all
" intents and purposes whatsoever, as if the same were repeated
^ and re-enacted in that act"

Witti a view of more eflectually preventing the clipping, dimi- Ba^ng clip- '
nbhing, or impairing the current coin of the kingdom, the statute ^*^J^ *Jij "*
6 and 7 W, 3. c. 17. s. 4. enacts, "that if any person whatsoever P**"^*
'^ shaH boy or sell, and (z) knowingly have in his custody or pos-
^ session any clippings or filings of the current coin of this king-
^ dom, he shall, for every such offence, forfeit the said clippings or
** filings, and also the sum of five himdred pounds, one moiety to
^' his Majesty, and the other to the informer, (a) and shall be also
^ branded in the right cheek with a hot iron with the letter R; and
" until payment of the said five hundred pounds, shall suffer im-
'^ prisonment." The eighth section of the statute makes provisions
for breaking open houses and searching for bullion : and the per-
son in whose possession bullion is found, not proving it to be lawful
silver, and that the same was not before the melting thereof coin,
nor clippings, shall be committed to prison; and in case, on an
indictment against such offender for melting the current silver coin Melting coin,
of the realm, he shall not prove, by the oath of one witness at the
least, the bullion so found to be lawful silver, and that the same
was not the current coin of the realm, nor clippings thereof, he
shall be found guilty and imprisoned for six months. Provisions
coDceming melting down coin are made by other statutes. By the
17 £dw. 4. c. 1. no person shall melt down any mon^y of gold or
sihcr sufficient to run in payment, upon pain of forfeiture of the
value : and by 13 and 14 Car. 2. c. 31. melting down any current
silver money of the realm is to be punished with forfeiture of the
same, and double the value ; and ii done by a freeman of a town,
with disfranchisement ; if by any other person, with six months'
imprisonment. And if money, false or clipped, l>e found in the
hands of any that is suspicious, he may be imprisoned till he hath
found his warrant per statutum de moneta, (&)

It was agreed by all the Judges, that one witness was sufficient Eridence.
in clipping as well as counterfeiting the coin ; though it appeared
that tke opinion and practice had once been otherwise in the case
of cUppiBg* (c)

(s) It is so in the statute: but qv, (a) To be recovered as directed in

«b«ter it«h«MM not be **er'' instesd the act

ti *'Mmd,r . the Mine qm. is sUted ia (1^ 8 Inst. IS.

tkc maffgho of 1 Bast. P. C. 174. (c) I Bast. P. C. c S. s» 64. p. ISO*-

. ^.

-^»-

VOL. I.

66

Of Importing Counterfeit Motuy. [b«ok n.

IinpcMtiBK
counierfiBi^
money of

Importing
foreign coin
current here.

Importinp^
goldorsilrer
foreign coin
not current.

SECT. m.

Cf Importing into the Kingd<m^counterfeit or light Money.

Thb statute 25 Edw. 3« st. 5. c. 2. enacts, that '' if a man bring
^' false moAey into this realm, coutUer/eit to the money of England,
^ as the money called Lushburg, or other like to the said money of
^'England, knowing the money to be false, to merchandite or
^' make payment, in deceit of our said lord the king and his peo-
^' pie," it shall be high treason.

By the statute 1 and 2 Ph. and M. c. 11. it is enacted, that ^^if
^' any person shall bring from parts beyond the sea into this realm^
*^ or mto any of the dominions of the same, any false or counterfeit
'* coin or money being cutrent within this realm as aforesaid,.
'' knowing the same coin or money to be false and counter£»t, to
^ the intent to utter or make payment with the same within this
^^ realm, or any the dominions of the same, by merchandizing or
^' otherwise ; such offenders, their eounsellors, procurers, aiders,
'^ and abettors, shall, on conviction or attainder, be deemed
^' traitors.^' The words, current within this realm, refer to gold
and silver coin of foreign realms, current here by the sufferance
•and consent of the crown, which must be by proclamation, or by
writ under the great seal. And the money, the bringing in of
which is prohibited by these statutes, must be brought troia some
foreign place out of the king's dominions into some place within
the same, (d) It may be observed also, that these acts are con-
fined to the importer, and do not extend to a receiver at second
hand ; and such importer must also be averred and proved to have
known that the money was counterfeit, (e)

It seems to be the better opinion, that it is not necessary that
such false money be actually paid away or merchandized wiUi, for
the words of the statute 25.Edw. 3. are to '^ merchandize or make
payment, &c." which only import an intention to do so, and are
fuUy satisfied whether the act mtended be performed or not : (/)
and it is clear, that bringing' over money counterfeited according
to the similitude of foreign coin is treason within 1 and 2 Ph. and
M. c. 11.^)

The 37 Geo. 3. c. 126. recites, that the practice of bringing into
the realm, and uttering within the sam^, false and counterfeit
foreign gold and silver coin, and particulaiiy pieces of gold coin

(d) 1 East P. C. c. 4. b. 1, 4, 5, 6,
91,88.

(e) 1 Hale887, 888, S17. 1 Hawk.
C. 17. B. 86, 88. 1 East. P. C. c. 4. s.
88. p. 175.

(f) 1 Hawk. c. 17. $. 89. But Lord
Coke and Lord Hale seem to have
thoagbt differently. 3 Inst. 18. 1 Hale
989. But see 1 East. P. C. c.4. s.88.

p. 175, 176. where it is gaid that
though the best trial and proof of an
intent be by the act done ; yet it may
also be evinced by a variety of circa Di-
stances, of which the jury are to
judge. At any rate such intent mast
be averred in the indictment.
(g) 1 Hawk. c. 17. s. 89.

CSAF. I. $ 3.] OfhnpoHktg Light Siher Cdin. 69^

comnionly called lonin d'or, and pieces of silver coin commonly
called dollars, had of late greatly increased, and that it was expe-
dient that provision should be made more effectually to prevent the
same ; and then enacts, that ^^ if any person or persons 8haU.bring
^* into this realm any such falye or cccimterfeit coin as aforesaid,
*' (namely, the coin described in sect. 2. as 'any kind' of coin not
^' the proper coin of this realm, nor permitted, to be cmrent within
" die same') resembling, or made with intent to resemble, or look
^' like any gold or silver coin of any ftnreign prince, state, or coun-»
'^ trv, or to pass as such foreign coin, knowing the same to be
" false or counterfeit, to the intent to utter the same within tliis
'I realm* or withip anv dominions of the same ; every such person.
'^ shall be deemed guilty of felony, and may be transported for any.
^ term of years not exceeding seven/' Accessories before are not.
mentioned in this statute ; there may however be such accessorxf^s,.
as they are incident to every felonv ; but it is doubted whether
they are liable to the punishment ox transportation, {h) From the.
words of the statute, an importation with intent to utter is clearly,
sufficient, without any actual uttering. The intent must be col-
lected from circumstances : and though an actual uttering may be
the best evidence of such intent, it is s^id to b^ safest that the.
indictment should follow the words of the statute, (t) It seems,
that this statute does not provide for the case of a person collecting
the base money therein mentioned, from the venders of it in this
country, with intent to utter it within the realm, or the dominions,
of the realm, {k)

Considerable quantities of old silver coin of the realm, or coin Of importing
purporting to be such, below the standard of the mint in weight, coin.** ^^^
were formerly imported, to the public detriment at that time ; in
consequence of which the 14 Geo. 3. c. 42. prohibited the bringing
into the kingdom any such coin, and provided that if any silver
coin being or purporting to be the coin of this realm, exceeding in
amount the sura of five pounds, should be found by any officer of
his Majesty'^ customs on board any ship, &c^ or in the custody of
any person coming directly from the water side ; or upon the inform*
ation of one or mote persons, in any house or other place on
srarch there made in tfie manner directed bir a statute of 14 Car. 2.,
the officer might seize the samej and ii upon exaiiunation it
should appehr to be of the standard weight, it should be restored j
but if it should be less in weight than the standard of the mint, that
is to, say, at and after the rate of sixty- two shillings to every poun^
troy, it should be forfeited. This act was revived and made per*
petual by 39 Geo. 3. t. Jb : but the recent act 66 Geo. 3. c. 68.
s. 2. oiaets that so much of the 14 Geo. 3. c. 42. as enacts that any
silver* coin of the realm less in weight than after the rate of sixty*
two shillings for every pound troy shall be forfeited, and of any act
or acts for reviving or continuing or making peipetual the provi-
sions of the said act, in this respect, shall from the passing of that
act be repealed.

(t) See «it/e, 62, note (r), and 68, (t) 1 Kast P. C. c. 4. s. 2S. p. 176.

Mte(«),aod 1 East P. C. c. 4. s. 83. (k) 1 East. P.C. c4. 9.SS. p. 177,
p. 176.

f2

68 Of Exporting Counterfeit Money, [book ii.

SECT. IV.

0/Ejsporting Counterfeit Money.

Of sending Thb Statute 38 Geo. 3. c. 67. s. 1. enacts that ^' All copper coin
countCTfeit <* whatsoever, not being the legal copper coin of this kingdom, arid
of the kin^om *' ^ counterfeit gold or silver coin, made to the similitude or res^m-
for the purpose ^' blance, or intended to resemble, any gold or silver coin either of
of its bcmg ti this kingdom or of any other country, which shall under any pre-
tSf Britishl' ^^ tcncc, name, or description whatsoever, be exported or shipped,
colonies in ^^ or Iciden or put on board any ship, vessel, or boat, for the purpose
w'^rLadf ^ *' ®^ being exported from this kingdom to the island of Martinique

'^ in the West Indies, or any of his Majesty's islands or colonies, in
*' the West Indies, or America, shall be forfeited," 8cc. And the
second section enacts that ^' every person who shall so export^ or
^' ship, lay, or put on board any ship, vessel, or boat, in order to be
'' so exported, or caused to be shipped, &c. or shall have in their
'' custody, in order to be so exported, any such coin as aforesaid/
'^ shall forfeit 200/. and double the value of such coin, to be reco-'
" vered by bill, suit, action, or information, in any court of record'
•' at Westmmster."

SECT. V.

Of the Judgment in dues of Treason respecting the Coin.

In all cases of treason respecting the coin whether newly created
such or not, and so in pettv treason, the judgment is to be drawn
pn a hurdle and hanged ; u>r that was the judgment before the
statute 25 Ed. 3. st. 5. c. 2. and was not intended to be altered
thereby : and these being all ofiences in pari materid, and auxiliary
to the original law, have the same judgment. (/)

(0 1 East P. C. c. S. 8. 70. p. ISS.

69

CHAPTER THE SECOND.

OF FRAUOS RBJLATING TO BULLION, AND OF COUNTBR-

FBITING BULLION.

SECT. I.

Of Frauds relating to Bullion.

Bullion signifies properly either gold or silver in the mass : but
is sometimed used to denote those metals in any state other than
that of authenticated coin; comprising in this latter sense gold and
nlver wares and manufactures. Many statutes have been passed
for the prevention of frauds with respect to such bullion by creating
offences in makuig, working, putting to sale, exchanring, selling. Making gold
or exporting, any gold or silver manufactures of less fineness than and silver
the standards respectively fixed at the time by the several acts. 2I^!JJl°^oy
But it is not intended to make any particular mention of those sta-
tutes ; (a) the punishments inflicted by them being in general cer-
tain penalties and forfeitures, or, in default of payment, commitment
to the house of correction. It should be observed, however, that
the statute 28 Ed. 1. st. 3. c. 20, is still in force, which prohibits
any goldsmith from making any vessel or other thing of gold or
silver, except it be of good and true alloy, namely, gold not worse
than the touch of Paris, and silver of sterling alloy or better ; and
provides that all silver vessels shall be assayed by the wardens of
the goldsmiths' company, and marked with the leopard's head.
The punishment of a goldsmith so offending against this act is im-
prisonment and ransom at the king's pleasure ; and, as the statute
IS a prohibitory law, the proper remedy under it is by indictment, (b)
Though the description of the offence in this statute is not so large
as in the subsequent statutes, it has been held that it is n6t repealed
by any of the subsequent statutes against the same offence, but that
they only add accumulative penalties, (c) But the knowingly ex^
posing to sale and selling wrought gold under the sterling alloy for
gold of the true standard, though indictable in goldsmiths^ is a
private imposition only in a comfnon person, and the party injured
is left to his civil remedy, (c/)

It is conceived also that offenders fraudulently affixing public Frandnlenav
and authentic marks on goods of a value inferior to such tokens are jf^^bE^t

(«) See them collected in 1 East (c) Rex«. Jackson, Cowp. 897. 1 common Uw.
P.C.c4.s.3!2. p. ISS to 194. East. P. C. c. 4. a. S4. p. 194.

(*) By .Lord. Mansfied. in lies v. (d) Rex v. Bower, Cowp. S8S.
JackiOfi,Cofrp. S97.

'iKi Of Frauds relating to BulUon. [booh it.

liable to suflier at common law tipon an indictment for a cheat*
Joseph Fabian^ a working goldsmith^ was indicted for falsifying
plate, by putting in too much alloy, and then corrupting one of the
assay master's servants to help him to the proper marks, with
which he stamped his plate, and sold it to the goldsmiths ; and
being convicted, he was fined 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. This judg-
ment must have been at common law. (e)

The offences of coimterfeiting the assay marks on bullion or

plate, or transposing such marks firom one piece of manufacture to

another, will be mentioned in a subsequent part of the Work.

Of frauds In It was provided by the stat. 15 Car. 2. c. 7* 8. 12, that any per-

^al^dlfon ^^ might export any foreign coin or bullion duty free, first making

an entry thereof at Uie custom-house : but under colour of this re-
gulation it was found that English money or wrought plate had
been melted down into the form of foreign coin or bullion for the

furpose of exportation. The statute 6 and 7 W. 3. c. 17> and the
and 8 W. 3. c. 19. s. 6. contain some enactnients for the preven-
pon of this eviL The 6 and 7 W. 3. c. 17. prohibits making ingots
pr baxB of silver in imitation of Spanish bars or ingots, (0 t^^
^nacta that no person shall export molten silver, unless stamped at
goldsmiths' ball, or without a certificate from one of the wardens
of the goldsmiths' company that oath has been made of the same
t>eing lawful silver, and that no part thereof was (i^efore it was
molten) the current coin of the realm, nor clippipgs thereof, nor
plate wrought within this kingdom, (g) The 7 and 8 VV. 3. c. 19.
8. 6. provides that no person shall ship, &c. any molten silver, or
bullion, imless a certificate be first obtained from the court of the
Lord Mayor and Aldermen of London, oath having been made
before the court by the owners and two witnesses that the same was
and is foreign bullion, and that no part thereof was the coin of the
realm, or the clippings thereof, nor plate wrought within this
kingdom, &c.; and that such oath shall be circumstantially certified
by the said court to the commissioners of the customs, before any
cocket shall be granted for shipping the same. The regnlations of
these statutes are enforced in most mstances by pecuniary penalties
and forfeitures. Some alteration, however, has been made in them
by a recent statute 43 Geo. 3. c. ^. which reciting that the East
India company and others may be possessed of large quantities of
foreign molten silver- or bullion, brought from parts beyond the
seas, and not be able to prove that no part of it was coin of the
realm or clippings, nor plate wrought within Great Britain, so as to
obtain the necessary certificates for the exportation of it, enacts
that the treasury may grant licences for the exportation of molten
silver or bullion, and that persons so licensed may export bullion
without the usual certificate.

hSiteTf^'Sr ^^ ^^^ ''^t^te of 6 and 7 W. 3. 4%,. 17, enacts also (A) that " if
Wtag and ^' &ny broker, not being a trading goIi^miUi or refiner of silver,

«e«Dg buUioD.

(e> Eabiaa*8 ca§e» Old Bailey, Dec. (g) S. 5. Other provisions as to the

Sem. 1664. 1 Bast P. C. c 4. s. 34. seizure of raokten silver or Mli»B«re

p.404. Kol.SO. oonlaiBed in s. 6, IS, aad U.

(/) S. S. (*) S. 7.

CHAP. u. 4 2.] (y Counterfeiting BtUlion. 71

^* shaU buy or aell any bullioo or molten silver, he shall suffer
^^ imprisoninent for six months without bail;" a regulation whicb
i« supposed to have been intended to prevent gambling specula-
tions which might enhance the price of the precious metals, (t)

SECT. II.

Of Counterfeiting Bullion.

Thb statute 8 and 9 W. 3. c. 26. s. 6. reciting that several mix- BlancMog.

tares of metals had been invented in imitation of gold and silver, <»PP«'* *«•

and that blanched copper was principally made use of in imitationr

df silver, and seldom if ever for any honest or good purpose, enacta

^ that if any person shall blanch cupper lor sale, or mix blancheii

^ copper with silver, or knowingly buy or sell or offer to sale

** blanched copper alone or mixed with silver, or shall knowingly

^^ and fraudulently buy or sell or offer to sale any malleable compo*

^^ sition, or mixture of metals, or minerals, which shall be heavier

^ than silver, and look and touch and wear like standard gold, but

^ be manifestly worse than the standard," such person shall be

adjudged guilty of felony, and being thereof convicted or attainted

dmll suffer death, (k)

(0 I Bast. P. C. c. 4. s. S7. p. 196. , be made nnlem conimeiired within
(k) The seventh section provides three months after the offence cum-
tliat there shall be no corruption of mitteil. This statute id made per-
blood or forfeiture of dower i and by petual bjr 7 Ann. c. ^5.s. S*
the niath section oo prosecution is to

72

\.

f .>

I •

1 1

CHAPTER THE THIRD.

» ' ■

»

OF TAB MAKIKO^ MBNPINO^ OR HAVING IN POSSBSSION ANY

IN8TRDMBNTS FOR COINING.

^tiiDgymend' Ths statute 8 &9 W. 3. c. 26. 8. 1. enacts, that ^'no smithy en-

isg« or having
in possession
coining instrn-
nients, high
treason.

*' graver, founder, or other person or persons whatsoever, (other
'** than and except the persons employed, or to he employed in or
** for His Majesty's mint or mints in the tower of London or else-
** where^ arid for the use and service of the said mints only, or
** persons lawfully authorised by the lords conmiissibners of the
*' treasury^
« shall

iry, or lord high treasurer of England for the time be|n&;)(aj
knowingly make or mend, or begin or proceed to maK<k or
^ mend, or assist in the making or mending of any punchem^
^' coiinter-puncheoriy mairis, siampy die, pcUtem, or mould of stee|,
** iron, silver, or other metal or metals, or of spaud or fine founders'
^' earth or sand, or of any other materials whatsoever, in or upbn
*' which there shall be, or be made or impressed, or which .vitl
** make or impress the figure, stamp, resemblance, or similitude pf
'^ both or either of the sides or flats of any gold or silver coin cur-
'^ rent within this kmgdom ; nor shall knowingly make or mend,
^^ or begin or proceed to make or mend, or assist in the making or
*^ mending of any edger or edging tool, instrument or engifie, not
^' of common use in any trade, but contrived for marking (A) of
^* money round the edges with letters, grainings, or other marks
*^ or figures resembling those on the edges of money coined in His
" Majesty's mint, nor any press for coinage, nor any cutting en-
" gine for cutting round blanks by force of a screw out of flatted
'' bars of gold, silver, or other metal ; nor shall knowingly buy or
" sell, hide or conceal, or without lawful authority or sufficient
'^ excuse for that purpose knowingly have in Ms, her, or their
*^ houses, custody or possession, any such puncheon, counter-pun-

(ff) It was holden bj.all the Judges,
about Hilary Term 13 W. 9. that it
ought to be averred in an indictment
•n this statute that the party was not
employed in the mint, or authorised
by th% treasurer, &c. 1 East. P. C. c.
4. s. 15., where it is stated that the
question was moved before Mr. Jus-
tice Turton, who had convicted one
upon this statute at York upon an
indictment which had nut such an
averment \ and for this reason it was
holden bad, and that the prisoner

ought to be tried again; which was
done at the Lent Assizes, 17051, before
Powis, J., when the prisoner was at-
tainted and executed.

{b) The word is making in the black
letter folio copy of the Statutes; and
Mr. East has so copied the wofd, (1
East P. C. c. 4. s. 16. p. 167.) adding
in the margin '' quaere a misprint in
the printea statute for marking.** In
the octavo edition of the statutes, by
Pickering, the word is wuirking^ as in
the text.

CHAP. 111.3 Of making, ^c. Coining Instruments. 73

" cheon^ matrix f siamp^ die, edger, cutting engine^ or other tool or
'' instrument before mentioned" And every such ofiender and
offendens, their counsellors, procurers, aiders, and abettors, shall
be guUty of high treason, and being thereof convicted or attainted
shall suffsr death, as in case of high treason.

The second section of the same statute creates another offence, Convexiiig oat
and enacts, ** that if any person shall, without lawful authority <>' ^« ™*J»*
" for that purpose, wittingly or knowingly convey, or assist in the ^ |^^ ^^
^ conveying out cfJSBi^MMMy^^wniWii^Hdft^^V^T of London, or son;
^' out of any other of His Majesty's mints, any puncheon, counter^
" puncheon, matrix, die, stamp, edger, cutting engine, press, or
^* other tool, engine, or instrument, used for or about'the "eDiiniig
" of monies, there, or any useful part of such tools or instruments,''
such offenders, their counsellors, procurers, aiders or abettors, as
also all and every person and persons knowingly receiving, hidr And rcceiriggv
bg, or concealing the same, ehaU be adjudged guilty of high trea- J^^^i^^^^
son, and being convicted or attainted therectf*, shall suffer death, as treasoo. ^^
in case of high treason.

This statute was only temporary, but afterwards made perpetual ProsccutUwi
by 7 Anne, c. 25, s. 1. ; and by the second section of that statute ^^^"^^^
the prosecution of such as offend against the said act of 8 & 9 W. 3. in gome cuet
c. 26. by making or mending, or beginning or ^roceedin^ to make within tbree
or mend any coining tool, or instrument therein prohibited, may ™<>'***^'
be commenced within six months after such offence committed.
Tbe act of \V. 3. provides that no prosecution shall be made for
any offence against that act, unless such prosecution be commenced
within three months (c) after such offence committed. In cases
still within this provision it is incumbent on the prosecutor to
shew that the prosecution was commenced within three months.
And it has been holden that proof by parol that the prisoner was
apprehended for treason I'especting 'the coin, within the three
months, will not be sufficient, if the indictment be after the three
months^ aiid the warrant to apprehend or to commit be not pro-
daced. The indictment was for having in possession a die on
which was impressed the resemblance of the head side of a shilling.
The offence appeared to have been committed above three months
before the indictment was preferred ; and neither the warrant to
take or to commit, nor the depositions before the magistrates,
were given in evidence ; but parol evidence was given that the
prisoner was apprehended upon transactions for high treason re-
specting the coin within the three months. On a case reserved
the Judges were of opinion that this evidence was not sufficient,
and a pardon was recommended, (d) .

Several points have arisen as to the tools or instruments wWh
are to be considered as within the words of the statute 8 & 9 W. 3.

In one case the prisoner was indicted for having in his custody Having posses*
a press for coinage without any lawful authority, &c. One ef the J?®"^* *'^'"
questions -raised was, whether a presft for coinage was one of the Vmon^^^' ^^
^ts or instruments within that clause of the act on which the in- within s & 9
dictment was founded^ and a majority of the Judges held that it W.3.c, 26.

{c) yye Willace's case, antt, p. 56. Mich. T. 1818, MS. Bajley, J. Rubs.
^ote (/) ; and po9t, 79, note (A). * & Ry- 369.

{(t) Rex V. Phillips and Another,

74 Of making J %c. and having in ' [book, ii.

w^.(i/) In another case the prisoner was indicted for having in
his custody €md possession f without any lawful or sufficient excuse,
one mould made of lead, on which was made and impressed the
figure^ stamp, resemblance, and similitude of one of the sides or
flats of a shilling, viz. the head side of a shilling : and the prisoner
being convicted, it was submitted to the Jindges whether the mould
found in the prisoner's custody was comprised under the gener^
words ^^ other tool or instrument he/ore mentioned,*' so as to make
the unlawful custody of it high treason ; and also whether, if it
were so comprised, it should not have beaa laid in the indictment
to be a tool or instrument in the words bf tlie act* And the Judges
were unanimously of opinion that this mould was a tool or in^tn^i
m^ent mentioned in the former part of the statute^ and therefore
comprised under these general words f and that as a mould is
expressly mentioned by name in thie first clause of the act which
r^pects the mciking or mending, it need not be averred to be a tool
or instrument so mentioned, (e)
What sballbe A case has also been decided as to what shall be considered a
considered a puncheon within the meaning of this statute. The prisoner was
ir^e ineaning u&dicted for having in his custody Knd possession a puncheon msde
of the statutes, of iron and steel in and upon which was made and inipressed the

figure, resemblance, and similitude of the head side of a shilling,
without any lawful authority, &c. It was fully proved that several
' . puncheons were found in the prisoner's lodgings, together with a
Quantity of counterfeit money, and that he had them knowiijigly
tor the purposes of coining : but the opinion of the Judges was
taken as to the point, whether the puncheon in question was or
was not a puncneon within the meaning of the Legislature^ upon
the following evidence of the engraver of the mint.

The puncheons found in the prisoner's custody were complete
and' hardened ready for use : but it was impossible to say that the
shillings which were found were actually made with these pun*
cheons, the impressions being too faint to be exactly compared;

(i) Bdrs case, Fost 430. In this and imfvent the resemblajice, staiap,
case the snfferinff the defendant tu be &c. rather than an instromeot on
convicted of high treason, subject to which the same were made and im-
the opinion of the Judges, instead of preiscd, as laid ta this indictment, the
directing a special verdict, which statiiteseeming to distinguish between
ought to have been done, was oiucfa . such as wili make and imf^reu Iho si-
censured amon^ the Judges, and als9 militude, &c. as the matrix, die, and
by Lord Hardwtcke when the defend- mould ; and ftuch on which the same
ant^s pardon came to the great seal. U made and impreued^ as a puncheon,

{e) Lennard*s esse, 1 Leach 90. 1 counter-puncheon, or pattern. But a

Bast. P. C. c. 4. s. 17. p. 170. Another great majoritj of the Judges were of

poinit was afterwards raised in this opinion that ibis evidence sufficientiy

case upon the form of the indictmenL maintained the indictment ; because

llie doubt was, whether the mould the Mtamp of the current coin was cer-

whfch was found in the prisoner^ ens- tainly impressed on the mould in or-

todjt it having only the resemblance derto form the cavities thereof. They

of a sbiiJing inverted^ \\%. the convex agreed, however, that the indictment

parts of the shilling being concave in would have been more accurate had

the mould, and i^ice vcrtd, the head it charged that '^ he had in his custody

or profile being turned the contrary *' a mould that would make and un-

way of the coin, and all the letters of '* prest the similitude* &c." and in

the iascription reversed, was not prp« this opinion some, who otherwi!>e

perly an instrument which wotiitfma&^ doabt^, ac(|[uiesced. ,

1

but they had the appeafance of baring been made if ith them*
The manner of making these puncheons is as follows : s^ true
shiliing is cut away to the outline of the head ; that outliqe is fisied
on a piece of steely which is filed or eut clpse to the putlioey ^d
tins makes the puncheon ; the puncheon makes the die, ifhich
is tiie counter-puncheon ; a puncheon is complete without let-
ters, but it may be made with letters upon it ; though from the
difficulty and inconvenience it is neyer so made at the inint;
but after the die is struck the letters are engraved on it ; a pun-*
cheon alone, without the counter-puncheon, will not make the
figure ; but to make an old shilling or a base shilling current, no-
thuig more is necessary than the instrument now produced. They
may be used for other purposes, such as making seals, buttons^
medals, or other things, where such impressions are wanted.

Eleven of the Judges (absente Lord C. J. De Grey) were unani-
mously of opinion that this was a puncheon within the meaning
of the act ; for the word '' puncheon" is expressly mentioned in the
statutes, and will, by the means of the counter-puncheqn or ma-
trix, '*make or impress the /{rare, stamp, resemblance, or simi-
^ lUude of the current coin; and these words do not mean an .
exact figure, but if the instrument impress a resemblance in fact,
BQch as will impose on the world, it is sufficient, whether the let*
ten are apparent on the puncheon or not ; otherwise the act would
be quite evaded, for the letters would be omitted on purpose. The

C cheon in question was one to impress the head of King Wil-
\ 'y and the shillings of his reign, though the letters are worn
out, are current coin of the kingdom. The puncheon made an
impression like them, -and the coin stamped with it would resem-*
ble them on the head side, though there were no letters. This
vas compared to the case mentioned by Sir Matthew Hale,(/)
that the omission or addition of words m the inscription of U)e
tnie seals, for the purpose of evading tiie law, would not alter the

It has been decided that having a tool or instrument (of such Himng ■ tool
sort as is included in that branch of the statute 8 & 9 W. 3. c. 26. ^ ^SS^'
which makes it treason to have the same knowingly in the party's for the purpose
CMtody) in possession /or the purpose of coining foreign gold coin ^^^''JJJS-^*^
^^ current here, is not within the statute. A majority of the igf^t^riti^^s
Judges considered that this act was only intended to prevent the &9W.3.c.26.
counterfeiting the current coin of this kingdom, and not foreign ^^ *"•
eoin. But ijord C.J. Rvder and Mr. J. Foster dissented ; coiisider-
tog that the act, though principally levelled against counterfeiters
of the current coin of the kingdom, was not confined solely to that
<^ect. That the intention of the Legislature was to keep out of
private hands, as far as possible, all means of counterfeiting the
coin I and therefore make it high treason to be knowingly pos-
sessed of such instruments, in fact, without lawful authority or
efficient excuse. That it was therefore incumbent on the defend-
ant to shew such lawful authority or sufficient excuse. But that,
Bupposmg his mere intention to be an ingredient in the case, the

(/) I H«le 184. S Hale 913, 915. ig) Rid^^elay's case, 1 Leach 190.
nobia9oo*8 cafte, S Roil. Bep« 60. 1 1 East. P. C. c. 4. s. IS. p. 171.
Hst P. C. c. «. a. 25. p. 86.

76 Of making, ^c. and having in [book. ii.

i^tentkHi found of using the tool or inBtrument in question for the
purpose stated did not amount to a sufficient excuse ; and upon the
fullest consideration afterwards Mr. Justice Foster was of opinion
that the case did fall urithin the act ', in which opinion it appears
that Lord Hardwicke fully concurred. (A)
Proof of a die On an indictment for having in possession a die made of iron
iron^ ^^'tteL^ ^"^ Steely proof of a die made of either material will be sufficient :

and it seems that if the indictment should state tharthe die were

made of iron, steel, and other materials, proof that it was made of

any material would be sufficient ; and that it would not be neces*

sary even to prove the exact material. In a case where the indict*

ment was for having in possession a die made of iron and steel,

a witness who saw the die said it was made of iron ; another of

the witnesses who had not seen it, scdd that dies were usually

made of steel, and that iron dies would not stand : and upon the

point being saved whether this evidence would support the indict*^

ment, the Judges held that it would, 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 this charge, (t)

It b not necet* It was agreed by all the Ju(4^> that in proceedings upon this

sary to prore statute 8 and 9 W. 3. c. 26. it is not necessary to prove that

^SSSert^u. money was actually made with the instrument in question, (j)

ment. The having tools for coining in possession, with intent id use

Haidng tools them, has been held to be a misdemeanor at common law. An

for coining in indictment, which was framed as for a misdemeanor at coamion

witiTintent to ^^> charged that the defendant, without any lawful authority,

use them, is a had in his custody and possession two iron stamps, each of which

misdemeanor would make and impress the figure, resemblance, and similitude of

a common w. ^^^ ^j ^y^^ sceptres impressed upon the current gold coin of this

kingdom, called half-guineas, with intent to make the impression
of sceptres on divers pieces of silver coin of this realm, called
sixpences, and to colour such pieces of the colour of gold, and
fraudulently to utter them to his Majesty's subjects as lawful half-
guineas, against the peace, &c. Lord Hardwicke, at the assizes,
doubted whether the bare possession was unlawful, unless made
use of, or unless made criminal by statute : but upon the indict-
ment being removed into the Court of King's Bench by cer-
tiorari y (k) Page, Probyn, and Lee, Justices, held, that the bare
• - having such instruments in possession, with the intent chai^d,

was a misdemeanor. (/)
The tool or in- It seems that the degree of similitude to the real coin which the
^b^im^ **^^® ^^ instruments must be capable of impressing in order to
exact resem- bring the case within the statute 8 and 9 W. 3. c. 26. must be
blance to tiie governed by considerations similar to those which have been
stated with respect to the counterfeit coin itself. (?«) Whether
the instrument in question be calculated to impress the figure,

(h) Qeirs case, 1 East P. C. c. 4. s. c. 4. s. 18. p. 17;2.

17. p. 169, 170. Post. 430, and Pre- (k) The defendant was brought up

face to the 3d edition of Post. p. 8. bv Habeas Corpus, and committed to

(i) Rex V. Oxford, East. T. 1819. ifewgaie.

MS. Bayley, J. and Russ. & Ry. 388. (/) Rex v. Sutton, Rep. temp.

Si P. Rex V. Philliiis, Uuss. '& Ry. Hardw. 370. But see the remarks on

369. -^ this case, anle, p. 46. >

(/) Ridgelay's case, 1 East. P. C. {m) 4ntef }^, 59. et tequ,

2

com.

CHAP, iti.] po8se99um Coinmg In^rvments. 77

stamp, resemblance, or sin^tude of the coin current is a question
for the jury: and it is ciear, that the ofifence is not confined
to an exact imitation of the ori^al and proper effigies of the
coin, (ft)

The 8 and 9 W. 3. c. 26. s. 5. enacts, that ^^ if any puncheon, seizing tools,
^die, stamp, edger, cutting engine, press, flask, or other tool, ftcto^fro-
" instrument, or engine, used or designed for cohiing or coun- ^^^^ *^*
" terfeiting gold 'or silver money, or any part of such tool or
^ engine, shall be hid or concealed in any place, or found in the
^ house, custody, or possession of any person, not thdn employed
^* in the coining of money in some of his Majesty's mints, nor
'^ having the same by some lawful authority, then any person
'^ discovering the same mav seize and carry them forthwith to
^ some justice of peace of tne county or place, to be produced in
" evidence at the tirial of the offender ; and further provides,
that they shall afterwards be de&ced and destroyed by order of

the Court.

♦...', ' . ■

(n) 1 Bast. P. C. c. 4. 8. 18. pr 171.

, I

t

< I

• » •

< • I

78

CHAPTER THE FOURTH.

In «ome cases
Ueason,

CheAtind
misdemeaiior.

09 llXCBiyiNO| UTTJBRING^ OB TBNDXBINO COUNTERFEIT COIN.

In some cases Ae putting off counterfeit money may amount to
treason ; as if A. counterfeit the sold or silver coin current, and
by agreement before that counterfeiting B. is to take off and rent
the counterfeit money, B. is an aider and abettor to sucli coun-
terfeiting, and consequently a principal traitor within the law. (a)
And in me case of the copper cpih, B. acting a similar part will be
an accessory before the fact to the felony, within the statute 11
Geo. 3. c. 4U. [b) And if B., knowing that A. hath counterfeited
money, put off tibis false money for him after the fact, without any
such agreement precedent to the counterfeiting, he seems to be as
a receiver of A. because he maintains him. Ajid if B. know that
A. counterfeited the money, and conceal his knowledge, though
he neither receive, maintain, nor abet A., he will be guilty of ims-
prision of treason, (c)

If A. counterfeit money, and B. knowing the money to be
counterfeit vent the same for his own benefit, B. is neither guilty
of treason, nor misprision of treason. But he may be proceeded
against under the provisions of the 15 Geo. 2. c. 28. whiph will
be presently noticed, before which statute he was only liable to be
punished as for a cheat and misdemeanor, {d) And upon the
principles which have been mentioned in a former part of this
Work, {e) the unlawful procuring of counterfeit coin with intent
to circulate it, though no act of uttering be proved, is a mis-
demeanor; and the possession of counterfeit com unaccounted for
was held to be evidence of an unlawful procurement with intent to
circulate. (/) But the uttering and tendering in payment coim-

tioned a« a misdemeanor in Ihe recital
to the 16 Geo. S. c. 88. s. 2. There
is also a precedent for a misdemea*
nor at common law, in uttering, and
causing; to be uttered, gnineas filed
and diminished as good ruineas. Cro.
Circ. Comp. 317. (7th Ed.) andS Chit.
Crim. Law, 1 16, and also a precedent
for a misdemeanor at common law in
selling counterfeit Dutch guilders.
Cro. Circ. Comp. SIS. (7lh Ed.) 8 Chit.
Crim. Law, 119, 180.

(e) Anie, Book 1. Chap. ifi. p. 46,
47.

(/) Rex r. Fuller and Rohinson,
aniet 47. The possession in this case
was under particularly su^icious cir-

(«) 1 Hale 814.

(b) I East. P. C. c. 4. s. 86. p. 178.

(c) I Hale 814.

(d) 1 Bast. P. C. c. 4. s. 86. p. 179.
1 Hale 814. See precedents of in-
dictments for a misdemeanor at com*
mon law in uttering a counterfeit
half-guinea, Cro. Circ. Comp. 315.
(7th Ed.) Starkie 466. 8 Chit. Crim.
Law, 116. See also a precedent of an
indictment for a misdemeanor at com-
mon law, against a man for uttering a
^counterfeit sixpence, and having ano-
ther found in nis custody, Cro. Circ.
Comp. 315. (7th Ed.) 8 Chit. Crim.
Law, 117. The uttering of false mo-
ney, knowing it to be false, is men-

CHAP. IT. § 1 3 Ofrecewing, ^c. CounterfHt Coin.

terfeit capper money has been held not to be an indictable
oflence. (g)

But the receiving, attering, or tendering in payment comit^rfeit Statutes.
money^ have been made the suMect of legislative provision by
several statates. I. By the 8 and 9 W. 3. c. 26. 11 Geo. 3. c. 40.
and 15 Geo. 2. c. 28. relating to the coin of the realm; and^ IL
By the 37 Geo. 3. c. 126. relating to foreign coin.

79

€€

SECT. I.

€f reoeimngf payings putting-^j ifc. Counterfeit Coin of the *

Realm.

I. Tb^ statute 8 and 9 W. 3. c. 26. s. 6. enacts, that « if any 8 & 9 W. 3.

person shall take^ receive, pay, or put oflF, any counterfeit milled (iuSle'perpe-

money^ or any milled money whatsoever, unlawfully diminished tualby7 Ann.
^ and not cut in pieces^ at or for a lower rate or value than the «. «5. s.3.) as
** same by its denomination doth or shall import, or was coined or ^^S^) ©r put-
'^ counterfeited for, he shall be guiltv of felony." The seventh ting off; &c.
section saves the corruption of blood; and by section 9. no pro*
secution is to be made for any offence against this act, unless it be
commenced within three months after the offence committed. (A)
The act was at first only temporary^ but was made perpetual by
7 Ann. c. 25. s. 3.

Under this statute there must be an actual passing or getting whatsliailbe
rid of the money, and not merely an attempt to do so. In a case considered aa
at the Old Bailey, in the year 1784, a question was rdsed upon \^^^^^
thia point. It appeared in evidence that the prisoner had carried money within
a large quantity of counterfeit shillings to the house of a Mrs, 8&9W.3.
Levey, which she agreed to receive from him, and which he agreed ^
to put off to her at the rate of twenty-nine shillings for every
guinea. In pursuance of this bargain, the prisoner laid a heap of
counterfeit shillings on a table, and Mrs. Levey proceeded to count
them out at the rate beforementioned : and had counted out three

c«

«<

cmnataiices ; the coin being wrap-
ped uf in parcels with soft paper to
prerent it from rubhiog. The mar-
ginal note to Parker's case, 1 Leach
41. stales, that *' having the possea-
»' sion of counterfeit money, with in-
teotion to pay it away as and for
good money, 18 an indictable olTeDce
at common law.** But qu* if the
point stated in the marginal note was
aetimlly decided in Parker's case;
aod see anU^ 41. r

ig) Cirwsn*s case, Osfvri, Sum. A$«
siz. 1794, MS. Jud. 1 Kast. P. C. c. 4.
s. 98» p. 18^. The defendant was in-
dicted for *' unlawfully uttering and
'* tendering in payment to J. H. ten

" counterfeit halfpence, knowing
*' them to be' counterfeit*' Upon
reference to the Judees, this was held
not to be an indictable offence.

(Jk) But the proceedings before a
magistrate, ana not the preferriog
the indictment, will *be considers
as the commencement of the pro-
secution, as in Willace's case, ante^ 56,
note(/). S. P. ruled by Le Blanc, J.
StaffQTd Sum. Ass. 1812. in Barker]s
case, who was indicted under this
statute, for putting off counterfeit
milled money. The prisoner had beei|
in gaol upwards of three months be-
fore the assizes.

80 Of recewing, paying, ptUting-off', ^c. [book ii.^

parcels, containii^ eighty-seven counterfeit shiUtngs, for which

she was to pay the prisoner three guineas; but before she had.

paid him, and while the counterfeit money lay there exposed upon

the table, the officers of justice entered the room and apprehended

them. Mrs. Levey was admitted as a witness for the crown ; and

swore that she had boi^ht the three parcels of shillings, and was

going to pay the prisoner three guineas for them at the moment

they were detected. Thb was ruled not to be a completion of the

offence charged^ and the prisoner was acquitted, (t)

The meaning A case has also been decided upon the meaning of '^ miUed

MlvwUhin'' mon^'' in this statute. The prisoner was indicted for putting off

Uuli tutttte. to one J. P. nine pieces of false and counterfeit milled money and

coin, each counterfeited to the likeness of a piece of legal and
current milled money and silver coin of the realm, called a shilling,
at a lower rate and value than the same did by the denomination
import, and were counterfeited for ; t. «• at so much, &c. The
fact of knowingly putting off the shillings at a lower value than
according to their denomination was fiiUy proved ; but there was
no appearance of milling on them : and it was proved by officers
from tne Mint, that this money never had been miUed, nor any
attempt made to counterfeit on them the milling which is always
put on the shillings coined at the Tower. iJpon thb the prisoner's
counsel contended, that the evidence did not prove the offence as
' described in the statute, or charged in the indictment, but directly
the contrary, as it proved that the money illegally put off was not
milled. The case was reserved for the opinion of the Judges;
who thought that the expression '' milled monetf" could not have
any. reference whatever to the edging which is put on real and
, . lawful coin, and which is properly termed graining. That the
^ money-coin at the Mint in the Tower is milled money before it is
edgei^ that is, before those marks, which had been falsely imagined
to constitute milled money, are put upon it; for that all current
money b passed through a mill or press to make the plate out of
which it b cut of a proper thickness ; and that from this process
it receives its denomination of milled money f and not, as gene-
rally but erroneously imagined^ from the grainings on its edges.
The Judges, therefore, thought it unnecessary that the counterfeit
money should appear to have been milled : for considering milled
money ais one word, (as if written with a hyphen,) and descriptive
of the money now current, if the counterfeit resemble the money
which, if genuine, would have been milled, it is enough, {k) '
Thenoaey ^^ ^ necessary, in order to bring a case within this statute, that

most be Tented the money be vented at a lotoer value than the coin imports, and
JL*]^ ^' *^* ^* should be so stated in the indictment. (/) And if the
Names of per- names of the jpersons to whom the money was put off can be

•oaa to whom

paC off to be CO Wooldridge*8 ease, 1 Leach. 307. the like resolution. It seems that

etstcd. 1 Bast. P. C. c. 4. s. 87. p. 179, milled monev was so called to dis-

(iir)BanniDg*8case,OlaBailej,1704. tin^uish it Irbm hammered monej«

9 Leach 684. 1 East. P. C. c. 4. s. 87. which was prohibited by 9 W. 3. c.8.

p. 180. The case of Hannah Dor- Mr. East says <p. 180. note (a)) that

rtngton, and the case of Jacobs and he had been informed that there had

Lazarus,, were, considered by the been no hammered money since the

Judges at the same time, and being time of Car. 8.

precisely similar, were disposed of by (1)1 East. P. C. c. 4. s. 87. p. 160.

cpAP. HF. ^ 1.3 CounterfsiU Cwn of the Realm. 81

asceftaine^^ tbey ought to l)e mentioned, and laid severally in the
ifldictoient : but if they cannot be ascertained^ the same rule will l^e indlct-

ay which prevailB in th# case of stealing the property of perscM» Siarg^Sat the
lovm. (m) If th^ indictment be for putting off diminished monevwasuo-
money at a lower rfite, it must be aFcrred that it was unlawfuUy lawfully dimi-
^iniiiMie4- («i) And it has been held, .that an indictment upon AndV should
Ibis statute was bad, for omitting to state that the counterfeit be stated that
money wiw " not cut in pieces^*' as those words are a material Jj*® money was
part of the description df the offence* (o) pieces."^

This statute, mentioning ^^counterfeit money" generally, has 11 Geo. 3.
been eonpidered as confined to gold or silver coin:(!p) but with c 40. 8.2. rc-
lespect to copper com, it is enacted by 11 Geo. 3. c. 4b. s. 2. that {jflfor^urt^ng
if any person '^ shall buy, sell, take, receive, pay,, or put off, any off counterfeit
" counterfeit copper coin, not melted down or out in pieces, at or c*>pp^ coin.
^ for a lower rate or value than the same by its denomination
^ imports, or was oounterfeited for, he shall be adjudged guilty of
" felony/'

The punishment under these statutes of 8 and 9 W. 8. and 11 Punbhnmit.
Geo. 3f was originally burning in the hand, and imprisonment not
exceeding a year, under the statute 18 Eliz. c. 7* b. 3. : {q) but in
lien of this punishment a moderate fine or whipping, at the discre-
tion of the Court, may be imposed upon the offender by 19 Greo. 3.
c. 74, s. 3. (r)

The statute 8 and 9 W, 3. relating only to the putting off coun-
terfeit moqey at a lower rate or value than that imported by its
deoominatioti, the offence of uttering such money in the course of
traffic was punishable only as a misdemeanor, until, from its be-
coming very frequent, it was thought proper to subject it to more
severe punishment.

The statute 16 Geo. 2. c, 28. s. 2. enacts « that if any person 15 Geo. 2.
^ shall utier er tender in payment any false or counterfeit money, ^/if^w "i^or* *^
'^knowing the same to be false or counterfeit, to any person or tendering in
"persons," and shall be thereof convicted, he shall suffer six payment
months' imprisonment, and find sureties for good behaviour for six ^oncy. ^'^
months further; and on conviction for a second offence shall
suSer two years' imprisonment, and find sureties for two years
more; and on conviction for a third offence shaQ be adjudged
guilty of felctoy without benefit of clergy. The statute further
provides by the third section '* that if any person shall utter or
** tender in payment any false or counterfeit money, knowing the
" same to bo false or counterfeit, to any person or persons ; and
^ shall either the same day, or within the space of ten days then

(m) I East- P-C. C.4. s.«7. p. 180. (fi) 6 T.R. 217. note(a) to the case

eittng a case from MS. Tracy, of a of Tookeo. HoUtDgworth. Tbccoia

woimia vbo ^wms indicted at the Old might be diminished by reasonable

Bailey, 1 70S, for putting off ten pieces wearing.

of counterfeit gilt money like guineas, \o) Palmer^s case, 1 Leach 1 09.
Mi vcri persons onknowit; Holt, C. J. (p) 1 East. P. C. c. 4. s. 1, 9, 27.
Slid, tiiat the mimes of the persons (9) 1 Bast. P. C. c. 4. s. 27. citing
ongbt to be mentiotied and laid se- Rex v. West and Others, Old Bailey,
^^BnlJy ; yet he tried the prisoner, and Sept. 1780. I MS. Sum. 91 .
she was convicted. ' Probably tho (r) This act iras originally tempo-
names of Hne persons to whom the rarr, but continued by several acts,
money was put off could not be as- and afterwards made perpetual by 39
cerlaiaed. Ueo. 3. c. 45.
VOL. I. G

83

Thiistetute
does not in-
clude copper
coin.

The statute
will apply to
the case of
passing coun-
terfeit money
by the trick
of ringing the
changes.

Where the in-
dictment
charges two
uttcrings on

Of Uttering or Tendering in Payment [book ii,

'' next^ utter or tender in ps^yment any more or other &lse or
*' counterfeit money, knowing the same to be false or counterfeit,
*' to the same person or persons, or to any other person or per-
'^ sons ; or shall at the time of such uttering or tendering have
" about him or her, in his or her custody, one or more piece or
" pieces of counterfeit money besides what was so uttered or
'* tendered; then such person so uttering or tendering the same
^' shall be deemed and taken to be a common utterer of false
" money; and being thereof convicted shall suffer a year's impri-
** sonment, and find sureties for his or her good behaviour for two
years more, to be computed from the end of the said year; and
if any person having been once so convicted as a common
utterer of false money, shall afterwards again utter or tender in
payment any false or counterfeit money to pny person or per-
" sons knowing the same to be false or counterfeit, then such
" person being thereof convicted, shall for such second offence be
" adjudged guilty of felony without benefit of clergy." (<)

This statute like that of the 8 and 9 W. 3. c. m. mentioning
counterfeit money, generally, is confined to the gold and silver
coin of the realm, {u) In a case where the defendant was indicted
for " unlawfully uttering and tendering in payment to I. H. ten
*' counterfeit halfpence, knowing them to be counterfeit;" and
this was laid in one count against the form of the statute, and in
another generally; and the defendant was convicted on the general
count ; it being admitted at the trial that there was no statute ap-
plicable to the fact ; upon reference to all the Judges they held the
conviction wrong, it not being an indictable offence, (w)

The words of the statute " utter or tender in payment" are in
the disjunctive, and will therefore apply to an uttering of coun-
terfeit money, though it be not tendered in payment, but passed
by the common trick called ringing the changes, as in the follow-
ing case. The prosecutor having bargained with the prisoner, a
Jew, who was selling fruit about the streets, to have five apricots
for sixpence, gave him a good shilling to change. The prisoner
put the shilling into his mouth, as if to bite it in order to try its
goodness ; and, returning a shilling to the prosecutor, told him it
was a bad one. The prosecutor gave him another good shilling
which he also affected to bite ; and then returned another shilling,
saying it was not a good one. The prosecutor gave him another
good shilling, with which he practised this trick a third time; the
shillings returned by him being in every instance bad. The court
held that the words of the statute were sufiicient to include this
case ; and that uttering and tendering in payment were two dis-
tinct and independent acts, (x)

Some points have arisen as to the form of the indictment upon
this statute of 15 Geo. 2. c. 28. In one case the indictment
charged the prisoner in the first count with having on the 15th

. . (I) By section 4 of this statute cor-
ruption of blood is saved; and by s. 8,
any offender out of prison discover-
ing two or more persons guilty of
jwy of l;^e said. offences, so as they be
thereof convicted, shall be pardoned.

(if) Ante, p. 56.

(w) Cirwan*s case, Oxford Sato, Ass.
1794,MS.Jud. lEastP.C. C.4.S.28.
p. 1 82. 2 Leach' 834, note (a).

{x) Franks's case, 2 Leach 64.

CHAP. IV. § 1.] Counterfeit Coin of the Realm. 83

December, 39 Geo. 3. uttered to one G. S. a counterfeit half- the same day,
crown, knowing it to be so, and in the second count with having ferent coun*^
on the said 1 5th December, &c. uttered another counterfeit .half- the court can-
crown to the same person : and the prisoner was convicted on ^^^ pronounce
both counts. The question was raised whether, the uttering the punfs'^h*'ent
counterfeit money twice on the same day being stated in two of the third
counts^ the court could pronounce the greater punishment in- section of the
flicted by the third section of the statute, or must give only the •'**^*®'
smaller punishment inflicted by the second section ; and, upon re-
ference to the Judges, they held that this indictment was not suffi-
cient to subject the prisoner to the larger penalty, as for uttering
two pieces of counterfeit coin on the same day, there being no
distinct averment of that fact, (y) But where two utterings are But where two
charged in one count of the indUctment, on a certain day therem cemin^ay* *
named, the day will be held to be material, and the fact of an named are
uttering twice on the same day to be sufficiently averred. As charged in one
where the indictment charged that the prisoner on the 14M of ^°iu°be^8uffici-
Februaryy &c. uttered base coin to W. C; and that on the said ently arerred.
14/A February y &c. he uttered to J. L. other base coin, it was
held sufficient to warrant the higher punishment of the third
section of the statute } the utterings, on the face of the indictment,
appearing to be on the same day. And the Judges held^ at a con-^
ference upon this case, that though, when the day is not material,
the fiact may be proved on a day different from the day laid, yet
where the day is not indifferent, the precis^ time laid must be
proved: and that in this case it must be taken that it was proved
that the defendant uttered counterfeit coin at two different times
of the same day. (z)

When the former of these cases was considered by the Judges, The indict-
it appears that some doubt was entertained whether a count in an °^^"' ueed not
indictment, charging two utterings on the same day, should not, offcnder^waa^*
in order to Wing an offender within the third section, conclude common ut-
with an averment that the offender was a common utteret of false terer of false ^
money y as that clause declares him to be. But this point was dia- ^nt^thc ^^'
posed of in a case, which ocairred shortly afterwards, where the g:reater pu-
prisoner was indicted for uttering false money knowingly, and ".^^^^^^f'^' °^
having about him, at the time of such uttering, other false money; yxon of the ^'
without any averment that he was a common utterer of false statute.
numey. Upon conviction, judgment was respited to take the opi-
nion of the Judges upon the question, whether, in order to bring
the case within the third section, the indictment should not have
concluded with a distinct averment that the defendant was a
common utterer of false money, or whether that were not the
necessary conclusion of law from the facts stated. And the
Judges, upon search of precedents for many years back, finding
that jndgment had been given for the greater punishment upon

iy) Tandy^s case, S Leach 83S. I singly, and not on each of the counts.

East P. C. c. 4. s. S9. p. 182, 183. And see Smith's case, 2 Leach S56.
Eyre, C.J. BuUer, J. and. Heath, J. (z) Martin's case, Derbjf Lent Ass.

were absent when thi$ .opinion was 1801, coram Graham B. decided upon

^▼en, r£B. Hil.T. 1799. The J.a dees by tbe. Judges in June in the same

^thou^bt it advisable to give judg- }ear. S Letich. 923. 1 East. P. C. Ad--

nent of imprisonment for six months dend, xviii. MS. Bayley J.

g2

84

In an indict*
ment for a
second of-
fence against
the 15 Geo. 2.
c. 28. s. 3. it
is not neces-
sary to state
that the Courty
on the former
trial, did ad*
Judge the de-
fendant to be
a cooimoQ
utteier.

Indictment
upon 8. 2. of
15 Geo. 2. for
the felony
must set out
the former
conTictions
and judgments
with a prout
patetper re-

Of Uttering or Tendering in Payment [boos. ii.

indictments drawn in this form, although some were to be found
containing the averment in question, held that such averment,
though it would not hurt, was not necessary in order to warrant
the greater punishment, (a)

Consistently with this determination it was held, in a subse-
quent case, not to be necessary, in an indictment for a second
offence against this statute, to state that the court, before which
the former trial was had, did adjudge the defendant to be a
common utterer. The indictment charged that the defendant was
before that time in due form of law tried and convicted at the
Guildford Quarter Sessions, on a certain indictment against him
for uttering false and counterfeit coin, knowing it to be such;
having about him at the time, in his custody and possession, other
false and counterfeit money ; and that it was thereupon adjudged
by the Court that he should be imprisoned for a year, and until
he found sureties for his good behaviour for two years more; and
then averred, that, having been so convicted as a common utterer
of false money J he afterwards uttered other false and counterfeit
money. The objection taken in arrest of judgment, and which
was reserved for the opinion of the Judges, was this, that in stat-
ing the original record and judgment jof the Court of Quarter
Sessions, it is not stated that the Court did adjtidge the defendant
to be a common utterer^ but only tliat they considered and ad-
judged the prisoner to be imprisoned twelve months, and to find
surety for his good behaviour for two years more. . But the
Judges held that it was not necessary that the Court should
adjudge the defendant to be a common utterer, though the statute
says he shall be deemed and taken to be a common utterer ; that
being a conclusion of law: and it being sufficient for the Court
before which a defendant is convicted of an offence within the
statute to adjudge him to suffer the punishment inflicted by law
on the offence. (A)

An indictment upon the second section of this statute, 15 Geo.
2., for feloniously uttering counterfeit money after two convictions,
and judgments for misdemeanors on the same statute, must set out
the former convictions, and judgments, with a prout patet per
recordum ; and judgment for a misdemeanor cannot be given upon
an indictment for felony, bad for want of such an averment. The
prisoner was tried and convicted before Holroyd, J. for feloniously
uttering a false and counterfeit shilling, well knowing the same to
be false and counterfeit, contrary to the statute, &c. having been
twice before convicted of. similar utterings, as misdemeanors, con-
trary to the same statute. It was objected after the trial in arrest
of judgment, that the present indictment, in setting forth the trials
conviction, and judgment, upon the second indictment for the se-
cond offence, (and which were essential to constitute the crime a
felony as charged in the present indictment,) was defective in not
stating or alleging a, prout patet per recordum in respect of those

(a) Rex V. Smith, Hil. T. 1800. 2
Leach 858. 8 Bos. and Pul. 127. 1
East P. C. c. 4. S.SO. p. 183. Rusb.
and Rj. 5. The same Judgment was
given on another case of Benjamin

Levi, reserved at the same time.

{b) Rex V. Michael, East. T. 1809.
9 Leach. 038. 1 East P. C. j4Mend.
xix. Russ. and By. 99. 8. P. Rex v.
Booth, Russ. and Ry« 7.

H

CHAP. IV. § 1.] Counterfeit Coin of the Realm. 85

proceedings, as appeared to have been done in the second inclict-
n:ent, in stating the prDceedings had under the first indictment.
It was also objected that there ought to have been an allegation
that the former convictions and judgments remained in force
unreversed, &c. And further, it was objected that the present
indictment did not allege as facts the actual committing of the two
former oSehces, or even the trials, convictions, and judgments upon
both of them, but only the trial, conviction, and judgment, upon
the second indictment, whereas the second indictment appeared to
hare alleged a trial, conviction, and judgment^ upon the first*
Upon these objections judgment was respited by the learned judge,
who submitted to the Judges whether the judgment should be
arrested, or whether, in case the indictment should be deemed
defective, as an indictment for felony, it would warrant a judgment
for the ofifence as for a misdemeanor. The Judges held that the
indictment was bad for want of a prout patet per recordum in the
statement of the conviction and judgment for the second ofience ;
and that no judgment could be given for the misdemeanor upon
this record. And the judgment was therefore arrested. (A)

By the fifth section of the 15 Geo. 2. c. 28., it is provided that Trial and cvi-
offenders shall be indicted, arraigned, tried, and convicted, by such ***^''*^®'
like evidence and in such manner as counterfeitors of the coin ;
with a proviso that the prosecution be commenced within six
months next after the offence committed.

For the purpose of proving the act charged in the indictment to Evidence of a»
have been done knowitigfyy it is the practice to receive proof of more ^^!^^^ know-
Aan one uttering committed by the party about the same time, though ^ ^ '
only one uttering be charged in the indictment. This is in con-
formity with the practice upon indictments for disposing of and
pntting away forged bank notes, knowing them to be forged ; (c)
upon one of which, the counsel for the prisoners, objecting to such
evidence, contended that it would not be allowed upon an indict-
ment for uttering bad money ; and stated that the proof in such
case was always exclusively confined to the purticular uttering
charged in the indictment. But Mr. Baron Thomson said, that
he by no means agreed in the conclusion of the prisoner's counsel^
that the prosecutor could not give evidence of another uttering on
the same day to prove the guilty knmvledge, " Such other utter-

{D Rex V. Turner, Mich. T., 1834.
Ry. & Mood. C. G. R. 47. And aee
Rex p. Smith, Russ. & Ry. 5. 1 East.
P- C. 183. 2 Leach 858. Rex v.
Booth, Russ. & Rt. 7.

{c) Rex V, Whiley aad Haines, %

Leach 983. 1 New R. 92. Tatter-

slttirs case, cited in Whtiey & Haines.

And see Ball's case, 1 Cnnipb. 325.,

where npon atn indiciment at Lewes,

Sum. Asftifzes, 1807, against the pri-

s<w*r for knowingly uttering a forged

Wak note, the note in qnestion was

pr|»ved to have been uttered by the

pi^oer on the 17th of Junet and

evidence was then given of his having

altered another forged note of the

same manufacture on the 20th March

preceding; and that there had been
paid into the bank of England various-
forged notes, dated between Decem-
ber 1806, and March 1807, all of the-
same manufacture, and having differ-
ent indorsanents upon them in the-
hand-writing of the prisoner; but it
did not appear at what times the Bank,
of England had received these notes.
The indorsements, however, in the-
hand -writing of the prisoner, were-
considered as evidence of such notes
having been in his possesiion. Upon
reference to the Judges, they were all
of opinion that the evidence as given
in this cas^ was properly admitted.^
And seq Fhill. on fivid. 137.

86

Associate not
co-operating.

In prosecu-
tions for a se-
cond offence,
a transcript of
the former
conviction
shall be evi-
dence.

Of Uttering or Tendering in Payment [book ii.

^^ ing/' he observes, ^' 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 shillings and fifty other
*' bad shillings are found upon him, this would bring him within
^' the description of a common utterer : but if the indictment do
^^ not contain that charge, yet these circumstances may be given
^^ in evidence on any other charge of uttering, to shew that he
" uttered the money with a knowledge of its being bad." (rf)

An associate, not present nor co-operating at an uttering of bad
money, is not liable to be convicted with the actual utterer, merely
on the ground that he is an utterer also, and has other bad money
about him for the purpose of uttering. And it appears not to be a
sufficient ground for convicting a person of the second offence, of
having other bad money in possession at the time, that such per*
son was associating with another, not present at the uttering, who
had large quantities of bad money about him for circulation ; or
that such person on the day after the uttering had in possession a
small number of pieces of bad money. The prisoners. Job and
Sarah Else, were indicted for uttering a bsid shilling, having other
bad shillings in their possession at the time. Upon the evidence
it appeared that the uttering was by the woman alone, on the 30th
of January, in the absence of the man ; that they both slept toge-
ther on the 29th and 31st ; and that on the 30th *the man offered
for sale a large quantity of bad shillings and sixpences 5 and also
that they were both searched on the SIst; when upon the man
was found a large quantity of bad shillings, and upon the woman
were found six bad shillings. The prisoners were upon this evi-
dence both convicted of the double offence, on the ground that
both being engaged in the same illegal traffic, the act of one was the
act of both : but, upon the case being reserved, the Judges held the
woman alone liable to be convicted, and that of the single offence
only, (e)

By the ninth section of the 15 Geo. 2. c. 28., it is enacted, that
" if any person be convicted of uttering or tendering any false or
^' counterfeit money as aforesaid^ and shall afterwards be guilty of
the like offence in any other county or city, the clerk of the
assize, or clerk of the peace of the county or city, where such
conviction was had, shall, at the request of the prosecutor, or
^^ any other on His Majesty's behalf, certify the same by a tran-
^^ script, in a few words, containing the effect and tenor of such
^' conviction, for which certificate two shillings and sixpence, and
*^ no more, shall be paid ; and such certificate, being produced in
'^ court, shall be sufficient proof of such former conviction. (/)

ti

{d) Hex r. Whiiey and Haines, 8
Leach 983.

(e) Rex V. Else, East. T. 1 808. MS.
Bay ley, J. and Russ. & Ky. 14%. And
see Rex t;. Soanes and Others, (utter-
ing a forged Dole;) Ru». & Ry. S5. ;
and other cases, postt Book IV. Chap,
xxvii. s. 4,

(f) By UitK it seems that the justices
of the peace in sessions have power to

try such offenders: otherwise this di-
rection to the clerk of the peace to
certify the conviction is incongruous $
for he is not the proper person to cer-
tify what is done in another court,
where he is not necessarily supposed
to he present: but no power is given
to the sessions by any express words
in this statute to hear anil determine
such offences.

CHIP. IV. § 2.] Foreign Counterfeit Coin.

87

SECT. II.

0/ UUeringy Tendering, 8fc. Foreign Counterfeit Coin,

This offence, particularly with respect to the gold coin called

Louis d'Or, and silver dollars, is stated, in the statute 37 Geo.

3. c. 126, to have greatly increased; and the third section of that

statute makes the following provision against it : — " That if any ^i^^^^^(^^'

" person or persons shall, from and after the passing of this act, imprisonmenty

*^ utter J or tender in payment j or give in exchange, or pay or put and sureties

" ^ to any person or persons, any such false or counterfeit coin for •smooths.

'^ as aforesaid (namely, by the second section, coin not the proper

'^ coin of this realm, nor permitted to be current within the same)

" resembling, or niade with intent to resemble or look like any

" gold or silver coin of any foreign prince, state, or country, or to

" pass as such foreign coin, knowing the same to be false or coun-

" terfeit, and shall be thereof convicted, every person so offend-

'^ ing shall suffer six months' imprisonment, and find sureties for

" his or her good behaviour for six months more, to be computed

" from the end of the said first six months ; and if the same per- ?J' * ■«cond

^' son shall afterwards be convicted a second time for the like yean' impri-

" offence of uttering or tendering in payment, or giving in ex- sonment, and

" change, or paying or putting off any such false or counterfeit ■^'**>«« ^^^

^^ coin as aforesaid, knowing the same to be false or counterfeit, ^ ^

^^ such person shall for such second offence suffer two years' im-

'^ prisonment, and find sureties for his or her good behaviour for

*' two years more, to be computed from the end of the said first

*' two years ; and if the same person shall afterwards offend a third ^^ ■ *^*7*

t^ ^ ' . /. . A J • * • X ... T_ offence felony,

" time, in uttering or tendering m pajonent, or giving m exchange, without bene-
" or paying, or putting off any such false or counterfeit coin as fit of clergy.
'' aforesaid, knowing the same to be false or counterfeit, and shall
^ be convicted of such third offence, he or she shall be adjudged
" to be guilty of felony without benefit of clergy."

A certificate of a former conviction is made sufficient evidence ?^^*°*^*^^ _
upon the trial of an offender for a further offence. The fifth sec- Uon by means
tion of the statute enacts, that if any person shall be convicted of of aceVtificau.
uttering or tendering any such false or counterfeit coin as afore-
said, and shall afterwards be guilty of the like offence in any other
county, city, or place, the clerk ot the assize, or clerk of the peace
for the county, city, or place where such former conviction shall
have been had, shall, at the request of the prosecutor, or any
other on His Majesty's behalf, certify the same by a transcript, in
few words, containing the effect ana tenor of such conviction ; for
which certificate two shillings and sixpence, and no more, shall
be paid ; and such certificate, being produced in court, shall be
sufficient proof of such former conviction.

Having in custody a greater number than five pieces of counter- ^tHn^cu^itodT
fcit foreign coin, whether current here or not, makes the party aborc a cer-

88

tain nnmber
of pieces of
coaDterfeit fo-
reign coin may
be proceeded
against before
a magistrate.

cc

a
u

€C

(C

Of Uttering^ %€. Foreign Counterfeil Coin, [book ii.

liable to punishment by proceedings before a justice of the peace.
The sixth section of the statute enacts, that ^^ if any person or
persons shall have in their custody^ without lawful excuse, any
greater number than five pieces of false or counterfeit coin, of
any kind or kinds, resembling, or made with intent to resemble
or look like any gold or silver coin or coins of any foreign prince,
state^ or country, or to pass as such forei^ coin ; every such
^^ person, being thereof convicted upon oath before one justice of
'^ the peace^ shall forfeit all such false and counterfeit coin^ which
*^ shall be cut in pieces by order of such justice ; and shall for
*' every such offence forfeit a sum not exceeding five pounds^ nor
** less than forty shillings^ for every such piece of false or coun-
'^ terfeit coin which shall be found m the custody of such person ;
^^ one moiety to the informer, the other to the poor of the parish
" where the offence was committed; and In default of payment
'^ forthwith shall be committed to the common gaol or house of
^^ correction^ there to be kept to hard labour for three calendar
'^ months^ or until such penalty be paid."

89

CHAPTER THE FIFTH.

OF RECB1VIN6 OR PAYING FOR TUB CURRBNT COIN ANY MORE Oil

LHSS TtlAN ITS LAWFUL VALUE.

The statute 5 & 6 £dw% 6. c. 19. reciting that divers covetous 5 & 6 Ed. 6. t.
persons, of their own authorities, and notwithstanding a statute of ^^'
25 £dw» 3. St. 2. c. 12. had of late taken upon them to make
exchanges^ as well of coined gold as of coined silver, receiving
and paying therefore more than the current value as it had been
declared by the King's proclamation ; enacted, that if anjr persQn
should exchange any corned gold, silver, or money, giving, receiv-
ing, or paying any more in value, benefit^ profit, or advantage for
it uian the same was or should be declared by the King's procla-
mation to be current for within this realm, and the King's other
dominions^ that then all the said coined gold, silver, and money
80 exchanged should be forfeited, and the offenders be imprisoned
for a year, and fined at the King^s pleasure.

It was objected in two recent cases, that the exchanging guineas BtebAbgiag
for bank Jiotes, taking the guineas in such exchange at a higher P'^^' ^^^
value than they were current for by the King's proclamation, was wkhin th^au^
not an ofiTence within this statute : and, after solemn arguments at tute.
several times before the Judges, the point was decided in favour of
the ob}ection.(a} In consequence of tnis decision the 61 G. 3. c.l27. 51 G.3. c. 127.
and the 62 G.3. c. 60. (continued by the 63 Geo. 3. c. 6. to the 25th JS^^^^'re-'''
March, 1814, and further continued by the &4th Geo. 3. c. 62. ctiy^gor^^-
duiing the continuance of any act imposing any restriction on the ing for gold
bank of England with respect to payments in cash) made several ^"JUJ^I?*^
proviuons upon this subject which have now ceased by the opera- iue»#lradierbi
tion of the 59 Geo. 3. c. 49. s. 1. which removed the restrictions money or bank
on payments in cash under the several Bank acts, on the 1st of ^^^^'
May, 1823.

The provisions made upon this subject by the 56th G^o. 3. c. ^^ Geo. 3. c.
68. 8. 13. as to receiving the current gold coin for more or less recclVinir or^
than its value, according to its denomination, should however paving for gold
be here mentioned. That statute enacts, that " no person shall co»n "o" ^
" by any means, device, shift, or contrivance whatsoever, receive JSiue accord-
^' or pay for any gold coin lawfully current within the United ing to its de-
^ Kingdom of Great Britain and Ireland any more or less in value, nomination.
" benefit, profit, or advantage than the true lawful value which
" such gold coin doth or shall by its denomination import ; nor

(<) Rex V. Dc Yooge, 14 East 408.; and Rex v. Wright, cited 14 East 404.

90

Second of-
fence.

FanishmenU

Subsequent
offence.

Sect. 14. Per-
sons convicted
and bein^ a-
gain guilty-^
clerk of the
peace shall
certify former
conviction.

Sect. 15. In-
dictment not
to be trarers-
ed*

Proviso.

Sect, 16. On
prosecution,
not necessary
to prove mo-
ney lawful.

IS

(C

Of buying and selling the Current Coin, [book ii.

^' shall utter or receive any piece or pieces of gold coin of this
*' realm at any greater or higher rate or value, nor at any less or
'^ lower rate or value than the same shall be current for in pay-
^^ ment according to the rates and values declared and set upon
them pursuant to law, and that every person who shall offend
herein shall be deemed and adjudged guilty of a misdemeanor,
and being thereof convicted by due course of law, shall suffer
^^ imprisonment for the term of six calendar months, and shall
^* find sureties for his or her good behaviour for one year more, to
'^ be computed from the end of the said six months ; and if the
^^ same person shall afterwards be convicted of the like offence,
^^ such person shall for such second offence suffer one year's im-
'^ prisonment, and find sureties for his or her good behaviour for
*' one year more,, to be computed from the end of the said last-
'^ mentioned year ; and if the same person shall afterwards offend
" against this act, and shall by due course of law be convicted of
'^ any subsequent offence, he or she shall be imprisoned for the
** term of two years for every such subsequent offence."

The 14th section enacts '^ that if any person who shall be con-
** victed of receiving or paying any such gold coin contrary to this
'^ act, shall afterwards be guilty of the like offence, the clerk of
*' the assize or clerk of the peace for the county, city, or place
^' where such conviction was so had, shall, at the request of the
'^ prosecutor, or any other person on his Majesty's behalf, certify
^' such conviction, for which certificate two shillings and sixpence,
and no more, shall be paid ; and such certificate, being produced
in court, shall be sufficient proof of such former conviction."
The 15th section enacts, *^ that no person against whom any
biU of indictment shall be found at any assizes or sessions of
the peace, for any offence against this act, shall be entitled to
'^ traverse the same to any subsequent assizes or sessions; but
'' the court, at which such bill of indictment shall be found, shall
** forthwith proceed to try the person or persons against whom the
" same shall be found, unless he, she, or they shall shew good
** cause, to be allowed by the court, why his, her, or their trial
should be postponed."

The 16th section enacts, *' that on any prosecution or trial of
any offender or offenders hereafter to be prosecuted or tried for
any offence against this act, it shall not be necessary to prove
that the gold coin received or paid, or uttered contrary to this
act, is the current gold coin of this realm, but the same shall
be deemed and taken so to be, if received or paid, or uttered as
such, until the contrary thereof shall be proved to the satisfac-
tion of the judge, justice, or court, before whom any such
offender or offenders shall be prosecuted or tried."

((
((

€(

f(
U
U

tc

t(
f(

u

91

CHAPTER THE SIXTH.

OF SBRVING^ OR PROCURING OTHERS TO SERVE,

FOREIGN STATES.

Entering into the service of any foreign 6tate without the con- Semng fo-
sent of the king, or contracting with it any other engagement JJUJ^JJ^^Ij/'
which subjects the party to an influence or controul inconsistent atcomoMm
with the allegiance due to our own sovereign, is, at common law, iaw,
a liigh misdemeanor, and punishable accordingly, (a) Indeed it is
considered as so high an oifence to prefer the interest of a foreign
state to that of our own, that any act is criminal which may but
incline a man to do so ; as to receive a pension from a foreign
prince without the leave of the king. (6)

But with respect to serving, or procuring others to serve, g^i^'ag'to' *
forei^ states, provisions have been made by several statutes, subjecte going
The 3 Jac. 1. c. 4. s. 18. enacts, that "every subject of this realm out of the
" that shall go or pass out of this realm to serve any foreign &c. fclonyT**
" prince, state, or potentate, or shall pass over the seas, and shall
" voluntarily serve any such foreign prince, state, or potentate,
*^ not having before his going taken the oath of obedience, (c) shall
" be a felon." The nineteenth section of the statute enacts, that
" if any gentleman or person of higher degree, or any person which
** hath borne, or shall bear any office, or place of captain, lieu-
*^ tenant, or any other place, charge, or office, in camp, army, or
*^ company of soldiers, or conductor of soldiers, shall after go or
^^ pass voluntarily out of this realm to serve any such foreign
*' prince, state, or potentate, or shall voluntarily serve any such
'^ prince, state, or potentate, before that he and they shall become
" bound by obligation, with two sureties, &c." with a condition,
to the effect that he will not be reconciled to the see of Rom^,
nor enter into any conspiracy against the king (as particularly set
forth in the act) '* he shall be a felon."

Upon the construction of this statute it has been considered, Coutructioik

(a) 1 East P. C. c. 8. s. 23. p. 81. but it ha^ been since taken away bj

4 Blac. Coin. 122. 1 W. and M. sess. 1. c. 8. s. 2. and new

{h) lHawk.P.C.c.22. S.3. 4 Blac. oaths of allegiance and supremacy en-

Com. 121. 3 Inst. 144. joined in its room.

{t) The oath is set forth in the act :

93

Trial,

59 0. 3. c. 69.
Aay subjects
of his Majesty
enlisting or
engaging to
enlist or serve
'in foreign ser-
vice, or en-
gaging to go
into a foreign
country with
intent to en-
list, &c. with-
out licence,
&c.; and any
person pro-
enrlng or at-
tempiingto
procure others
to enlist, &c.
shall be
deemed guilty
of a misde-
meanor, and
punishable by
fine and im-
prisonment.

Of serving, or procuring others [book ii.

that if a party go out of the realm with intent to sen'e a foreign
state^ although there be no service in fact ; or if a party do actusdly
so serve, though he did not go over for that purpose^ but upon
some other occasion, it will be within the statute, (rf)

The trial of an oifence against this statute is to be where the
offence is committed, which is at the place where the partypassed
out of the kingdom, (e)

The statute 59 Geo. 3. c. 69. reciting that the enlistment or
engagement of his Majesty's subjects to serve in war in foreign
service, without his Majesty's licence ; and the fitting out^ and
equipping, and arming of vessels by his Majesty^s subjects, with-
out his Majesty's licence, for warlike operations in or against
the dominions or territories of any foreign prince, state, &c. or
against the ships^ goods, or merchandize^ of any foreign prince,
state, &c., might be prejudicial to, and tend to endanger the
peace and welfare of this kingdom, repeals the statutes, 9 Geo. 2.
c. 30. and 29 Geo. 2. c. 17*^ and also the two Irish statutes, 1 1
Geo. 2. and 19 Geo. 2. ; and then enacts, that ^^ if any natural bom
'' subject of his Majesty, his heirs and successors, without the
^' leave or licence of his Majesty, &c. for that purpose first had
^ and obtained under i;he sign manual of his Majesty, his heirs or
" successors, or signified by order in council, or by proclamation
'* of his Majesty, his heirs or successors, shall take or accept, or
^' shall agree to take or accept, any military commission, or shall
" otherwise enter into the military service as a commissioned or
'* non-commissioned officer, or shall enlist or enter himself to en-
'^ list, or shall agree to enlist or to enter himself to serve as a
*' soldier, or to be employed or shall serve in any warlike or mili-
*^ tary operation, in the service of, or for, or under, or in aid of,
" any foreign prince, state, potentate, colony, province, or part of
** any province or people, or of any person or persons exercising,
*' or assuming to exercise, the powers of government in or over
" any foreign countiy, colony, province, or part of any province, or
*' people, either as an officer or soldier, or in any other military
*^ capacity; or if any natural bom subject of his Majesty shall,
" without such leave or licence as aforesaid, accept, or agree to
'^ take or accept, any commission, warrant, or appointment, as aa
'^ officer, or shall enlist or enter himself, or shall agree to enlist or
" enter himself, to serve as a sailor or marine, or to be employed
" or engaged, or shall serve in and on board any ship or vessel of
" war, or in and on board any ship or vessel used or fitted out, or
*' equipped or intended to be used foi any warlike purpose, in the
^^ service of, or for, or under, or in aid of, any foreign power,
" prince, state, potentate, colony, province, or part of any province,
" or people, or of any person or persons exercising, or assuming to
** exercise, the powers of government in or over any foreign coun-
*^ try, colony, province, or part of any province, or people ; or if
^^ any natural born subject of his Majesty shall, without such leave
^ and licence as aforesaid, engage, contract, or agree to go, or shall

(d) 3 Inst. 80. 1 East P. C. c. 8.
s. 83. p. 82.

{e) 3 Inst 80. 3 Jae^ 1. c. 4. s. 36.

CHAP. V1.3 to 9€rv€ Foreign States. 93

^ go to any foreign state, country, colony, province, or part of any
^^ province, or to any place beyond the seas, with an intent or in
" order to enlist, or enter himself to serve, or with intent to serve,
^' in any warlike or military operation whatever, whether by land
^ or by sea, in the service of, or for, or under, or in aid of any
^' foreign prince, state, potentate, colony, province, or part of any
** province, or people, or in the service of, or for, or under, or in
'^ aid of, any person or persons exercisipg, or assuming to exercise,
'^ the powers of government in oi* over any foreign country, coloqy,
^' province, or part of any province, or people, either as an p|Bcer or a
^ soldier^ or in any other military capacity, or as an officer, or sailor,
^ or marine, in any such ship or vessel as aforesaid, although no
'^ enlisting money, or pay, or reward, shall have been, or sbcdl be^
^' m any or either of the cases aforesaid, actually paid to or re*
" ceived by him, or by any person to or for his use or benefit $ ov
^ if any person whatever, within the united kingdom of Great
^' Britain and Ireland, or in any part of his Majesty's dominiona
^ elsewhere^ or in any country, colony, settlement, isLEmd, or place,
^ bebnging to or subject to his Majesty, shall hire, retain, engage,
^ or procure, or shall attempt or endeavour to hire, retain, engage,
'^ or procure, any person or persons whatever to enlist, or to entev
** or engage to enlist, or to serve or to be employed in any such
^^ service or employment as aforesaid, as an of&cer, soldier, sailor,
^^ or marine, eidier in land or sea service, for, or under, or in aid
'' of, any foreign prince, state, potentate, colony, province, or any
^^ part of any province, or people, or for, or under, or in aid of, any
^'person or persons exercising, or assuming to exercise, any
^ powers of government as aforesaid ; or to go, or to agree to go,
'^ or embark, from any part of his Majesty's dominions, for Qie
^^ purpose or with intent to be so enlisted, entered, engaged, or
^ employed, as aforesaid, whether any enlisting money, pay, or
^' reward, shall have been, or shall be, actually given or received or
^* not ; in any or either of such cases, every person so o&nding
^^ shall be deemed guilty of a misdemeanor, and upon being con-
^'victed thereof, upon any information or indictment, shall be
^ punishable by fine and imprisonment, or either of them, at the
<< discretion of the court before which such offender shall be con-
" victed." (o)

The seventh section of the statute enacts, that '^ if any person, Any person
^^ within any part of his Majesty's dominions beyond the seas, without li-
** shall, without the leave and licence of his Majesty for that pur- pi^f ac^of
^^ pose, first had and obtained as aforesaid, equip, furnish, fit out, procurjDg to
"or arm, or attempt or endeavour to equip, furnish, fit out, ^equipped,
^ or arm, or procure to be equipped, fiu'nished, fitted out, or armed, gei^'wU^hitent
" or shall knowingly aid, assist^ or be concerned in the equipping, that it shau
"furnishing, fitting out, or arming of, any ship or vessel, with j>««jnployed
^ intent or in order that such ship or vessel shall be employed in ^ony for^Sga
^' the service of any foreign prince, state, or potentate, or of any pniifie,&c.ar

(a) S. S. contains a proviso except- procured others to enlist, &c. before
ing persons from the operation of tne the time therein specified.
a4:t who shall have enlisted, &c. or

94t Of serving, or procuring others [book h;

to cruize, &c. ** foreign colony, province, or part of any province, or people, or

*^*c? &*/ " ^^ *^°y person or persons exercising, or assuming to exercise,

withwhomhiB '* any powers of government in or over any foreign state, colony,

Migesty shall ^^ province, or part of any province, or people, as a transport or

ffuU^of a'"' *' store ship, or with intent to cruize or commit hostilities against

misdemeanor. '^ any prince, state, or potentate, or against the subjects or citi-

^' zens of any prince, state, or potentate, or against the persons

^' exercising, or assuming to exercise, the powers of government

*' in any colony, province, or part of any province, or country, or

^^ against the inhabitants of any foreign colony, province, or part

** of any province, or country, with whom his Majesty shall not

^^ then be at war ; or shall, within the united kingdom, or any of

'^ his Majesty's dominions, or in any settlement, colony, territory,

^^ island, or place, belonging or subject to his Majesty, issue or

*^ deliver any commission for any ship or vessel, to the intent

^^ that such ship or vessel shall be employed as aforesaid^ every

<^8uch person so offending shall be deemed guilty of a misde-

^' meanor, and shall, upon conviction thereof, upon any informa-

'' tion or indictment, be punished by fine and imprisonment, or

'' either of them, at the discretion of the court in which such

" offender shall be convicted." (6)

Any person The eighth section enacts, ^* that if any person in any part of

inm^'^''^ " ^^^ Umted Kingdom of Great Britain and Ireland, or in any

procuring to '^ part of his Majesty's dominions beyond the seas, without the

be increased, " leave and licence of his Majesty for that purpose first had and

foTCrofany " obtained as aforesaid, shaU, by adding to the number of the

ship, &c in the ^' guns of such vessel, or by changing those on board for other

service of any *' guns. Or by the addition of any equipment for war, increase or

&r*|aiUy oT* ^' augment, or procure to be increased or augmented, or shall be

misdemeanor. *' knowingly concerned in increasing or augmenting the warlike

*^ force of any ship, or vessel of war, or cruizer, or other armed

*' vessel, which at the time of her arrival in any part of the United

^' Kingdom, or any of his Maj,esty's dominions, was a ship of

f' war, cruizer, or armed vessel, in the. service of any foreign

'* prince, state, or potentate, or of any person or persons exercis-

" mg, or assuming to exercise any powers of government in or

** over any colony, province, or part of any province or people

'^ belonging to the subjects of any such prince, state, or potentate,

" or to the inhabitants of any colony, province, or part of any

" province or country under the controul of any person or persons

. ** so exercising, or assuming to exercise the powers of government^

'^ every such person so offending shall be deemed guilty of a mis-

'' demeanor, and shall, upon being convicted thereof, upon any

** information or indictment, be punished by fine and imprison-

*^ mentj or either of them, at the discretion of the court before

" which such offender shall be convicted."

Apprehension Any justice of peace residing at or near any port or place within

of offenders; the United Kingdom, where any offence made punishable by this

act as a misdemeanor shall be committed, may issue his war-

r

(b) And the ship, with the tackle, seized by the officers of excise, &c.
&c. is to be forfeited, and may be s. 7.

CHAP. VI.]

to. ierve Foreign Slates.

V3

rant for the apprehension of the offender, to brmg hun before
the same or any other justice, who may commit unless bail is
given, (a)

It is further enacted, that all such offences as shall be com- And trial for
mitted within that part of the United Kingdom called England, offences com-
shaU be tried in the Court of King's Bench at Westminster, and Sie united**"*
the venue laid at Westminster, or at the assizes, or session of kingdom.
oyer and terminer and gaol delivery, or at any quarter or general
sessions of the peace for the county or place where the offence
was committed; that when committed in Ireland they shall be
prosecuted in the Covat of King's Bench at Dublin, and the venue
there laid, or at any assizes, &c. for the county or place where
the offence was committed ; and when committed in Scotland that
they shall be prosecuted in the Court of Justiciary, or any other
Court competent to try criminal offences committed within the
coanty, &c. within which the offence was committed, {b)

The statute also provides for the apprehension of offenders. Apprehension
when the offence shall have been committed out of the United * Jg^I*** ^^
Kingdom, and for their trial in any superior court of his Majesty's where the of-
dominions competent to try, and having jurisdiction to try cri- fences have
minal offences, at the place where the offence shall have been ^d oiu ofUie
committed, (c) And with respect to offences committed out of united king-
the United Kingdom, the i^nth section enacts, that they may be <iom«
prosecuted in the Court of King's Bench at Westminster, the
venue being laid at Westminster, in the county of Middlesex, (d)

The mutiny actj 6 Geo. 4. c. 5. d. 155. enacts " that if any 6 0.4. c.5. s.
" person or persons shall in any part of his Majesty's dominions, ^uSiM""
"directly or indirectly persuade or procure any soldier or sol- soldiers to de-
" diers in the service of his Majesty, his heirs or successors, to »ert, to he pu-
" desert or leave such service as aforesaid, every such person or or'^mprison-*
"persons so offending as aforesaid, and being thereof lawfully ment, orboth.
" convicted, shall suffer such punishment by fine or imprison-
** ment, or both, as the court before which the conviction may
" take place shall adjudge."

It may be observed, though not strictly applicable to the sub- Disobedience
ject of this Chapter, that disobedience to the king's letter to a commands^to
subject commanding him to return from beyond the seas, or to return, or to
the ]ang'B writ of Ne exeat remo, commandinsr a subject to stay »t*y ** ^ome^

^1 • I'-L • •• J M, 4./«\ Aj»^» 1 "^orto refuse to

at home, is a high mispnsion and contempt, (z) And it is also a assist the king

high offence to refuse to assist the king for the good of the public, in council or

either in councils, by advice, if called upon, or in his wars by per- ^*^*
sonal service for the defence of the realm against a rebellion or

(«) Sect. 4.

(k) Ibid.

(c) Ibid,

(4 By 8. 5. vessels with persons on
board engaeed in foreign service may
he detained in an^ part of his Ma-
jestT*fl dominions, information bein^
laid upon oath. By s. 6. a penalty is
imposed on roasters of vessels, &c.
knowingly taking on board persons
enlisted contrary to tibe act. But by

s. 12. the penalties of the act are not
to extend to any person entering into
the service of any prince, &c. in Aria^
with leave from the Governor Gene-
ral in Council, &c. at Bengal,

(i) 4 Blac. Com. 12«. And if the
subject neglects to return from be-
yond the seas, when commanded,
his lands ^shali be seised till he does
return, 1* Hawk. P. C. c. 22. s. 4.

96

Of seducing Soldiers, 4?c. te $erve Foreign States, [ppok ii.

invaaioa: {k) under which class may \)e ranked the neglecting
to join thcpofse camitattu, or power of the county, being there-
unto required by the sheriff or justices, according to the statute
2 Henry 5, c. 8. which is a duty incumbent, upon all tliat are
fifteen years of age, under the degree of nobility, and able to
travel. (/)

(fr) 1 Ba^rk. P. C. c. 82. s. 9.

(I) 4 Bla. Com. 12!?. Lamb. £ir. 315.

^

97

€£
€€

CHAPTER THE SEVENTH.

OF SSDUCINO SOLDIBRS AND SAILORS TO DBSBRT OR MUTINT.

In coiuequence of the attempts of evil disposed persons by the 37 G. 3. c 79^
publication of written or printed papers^ and by malicious and J^"""*^'
advised speaking, to seduce soldiers and sailors from their dutv fefJi^J^lnthoiiS
and allegiance to his Majesty, the 37 Geo. 3. c. 70. was passea^ benefit of
enacting '^ that any person who shall maliciously and advisedly ^^^"fSf'
'^ endeavour to seduce any person or persons serving in his
' Majesty's forces by sea or land, from his or their duty and alle-
giance to his Majesty, or to incite or stir up any such person or
persons to commit any act of mutiny, or to mfuce, or endeavour
to make, any mutinous assembly, or to commit any traitorous or
mutinous nractice whatsoever, shall, on being legally convicted
of such onence, be adjudged guilty of felony, and shall suffer
" death as in cases of felony without benefit of clergy." The
third section of the act provides, that any person tried, acquitted,
or convicted, of any offence agfdnst this act shall not be liable to
be prosecuted again for the same offence or fact, as high treason,
or misprision of high treason; and that nothing in the act con-
tained shall prevent the trial of any person who has not been
tried for an offence against this act from being tried for the same
as high treason, or misprision of high treason. And it is pro-
vided by the second section, that any offence against this act,
whether committed on the high seas or in England, may be pro-
secuted and tried before any court of oyer and terminer, or gaol xrial;^
delivery, for any county in England, as if the said offence had
been therein committed. It was decided that a sailor in a sick
hospital where he had been for thirty days, and therefore was not
entitled to pay, nor liable for what he then did to answer before a-
court martial, was nevertheless a person serving in his Majesty's
forces by sea within this statute, so as to niake the seducing;
him an cmence within its provisions, (a)

It has been decided, that an indictment upon this statute need Ibdiocmfntu
not set out the means used for seducing the soldier from his duty
and allegiance ; and that it need not aver that the prisoner kneto-
the person endeavoured to be seduced to be a soldier,. It seems
also that a double act, namely, that the prisoner endeavoured
to incite a soldier to commit mutiny, and also to commit traitor*
OQs and mutinous practices, may be charged in one count of the-
indictment. (£)

(fl) Rex V. Tiemey, Mich. T. 1804^ East P. C. c. S. s. 38.- p. 98. 1 Bos^
Rnsi. and Ry. 74. aad PuL 180.

W Paller's case, % leach 790. l

▼OL. I. B

98 Of seducing Soldiers and Sailors, [book it.

This act of the 37 Geo. 3. c. 70. was only temporary: but, after
having been continued from time to time by different statutes,
was recently made perpetual (together with an act upon the same
subject, passed at the same time in the parliament of Ireland,) by
the 67 Geo. 3. c. 7.

By the statute 1 Geo. 1. c. 47* persons persuading or procuring
soldiers to desert are subjected to a penalty, and under certain
circumstances to imprisonment: and the late mutiny act, 6 Geo. 4.
c. 5. s. 155., subjects persons so offending to punishment by fine
or imprisonment, or both.
1 G. 1. c. 47. The statute 1 Geo. 1. c. 47. enacts, that if any person (other
8ua!dUnff/l!c. ^^^^ enlisted soldiers, against whom it is stated sufficient remedy
Boidiera'to de- was already provided by law,) shall, in Great Britain, Ireland,
sert, liable to Jersey, or Guernsey, persuade or procure any soldier to desert, he
impri^nment. ^^^^ forfeit 40/. to be recovered by any informer; and if he has
not property to that amount, or from the heinous circumstances
of the crime it shall be thought proper, the court before whom
he is convicted shall imprison him, not exceeding six months.
6 G. 4. c. 5. Sect. 155 of the 6 G. 4. c. 5. enacts that if any person or persons
shall, in any part of His Majesty's dominions, directly or indi-
rectly persuade or procure any soldier or soldiers in the service
of his Majesty, his heirs or successors, to desert or leave such
service, every such person or persons so offending and being law-
fully convicted, shall suffer such punishment by fine or imprison-
ment, or both, as the court before which the conviction may take
place shall adjudge. The punishment of the pillory was added,
to the imprisonment by former mutiny acts, but a statute 56 Geo.
3. c. 138. enacts, that from the passing of that act judgment shall
not be given and awarded against any person convicted of any
offence, that such person do stand in or upon the pillory, except
for the offences £ of perjury and subornation of perjury, any law,
statute, or usage to the contrary notwithstancUng. The statute
1 Geo. 1. c. 47* also added the punishment of the pillory; and
upon an information filed in the Court of King's Bench upon that
statute, prior to the 56 Geo. 3. c. 138. and tried at the assizes, it
was held that it was necessary, if the court awarded imprison-
ment in addition to the 40/. penalty, to award the pillory also.(c)
It was also decided in the same case, that the Court of King's
Bench was the proper Court to award the punishment upon such
information, and that it ought not to be awarded at the assizes
where the trial and conviction took place, (d) The 6 Geo. 4. c. 5.
8. 154. imposes^ a pecuniary penalty on persons concealing de-
serters.
ConMquences With respect to the consequences to the party deserting, it
the^Mity de^ may^be observed, that desertion in time of war was made a capital
serting. crime by 18 Hen. 6. c. 19. enforced by 2 and 3 £dw. 6. c. 2. s 6.

repealed as to the felony by 1 M. sess. 1. c. 1. revived by 4 and
5 rh. and M. c. 3. s. 9. and extended to mariners and gunners by
5 Eliz. c. 5. s. 27- But these statutes are now fallen into disuse,
as well on account of the manner of retaining soldiers therein
referred to being no longer adopted^ as because^ since the annual

(r) Rex V. Read, 16 East. 404. {d) U Ibid,

CHAP. Til.] Of seducing Soldiers and Sailors. 99

acts for punishing mutiny and desertion^ a more compendious and
convenient system of military coercion has obtained, (e) The
mutiny act, 6 Geo. 4. c. 5. s. 1., reciting that no man can be fore-
judged of life or limb, or subjected in time o/jpeace to any kind of
punishment within this realm by martial law, or in any other
manner than by the judgment of his peers, and according to the
knoini and established laws of the realm ; yet that nevertheless,
it being requisite for retaining the forces in their duty that an
exact discipline be observed, and that soldiers who shall mutiny,
or stir up sedition, or desert, be brought to more' exemplary and
speedy punishment than the usual forms of law will allow, enacts,
that if any officer or soldier shall, during the continuance of the
act, commit any of the offences therein enumerated, amongst
which is desertion^ the offender shall suffer death, or such other
punishment as shall be awarded by a court martial.

(e) 1 East P. C. c. 2. s. 34. p. 93.

b3

100

CHAPTER THE EIGHTH.

OF PIRACY.

In treating shortly of this offence, we may consider, I. Of piracy
at common law, and by statutes. II. Of the places in which the
offence may be committed. III. Of the court by which it may be
tried.

SECT. I.

Piracy at
common law.

PSraqrby
Btatates.
llaiidl2W.
3* c« /• s* 8«
af to acts done
under the
commiuion of
n foreiffn Btate.
And 18 Geo.
2. c. 30. as to
jdncy com-
mitted under
an enemy's
commission.

Of Piracy at Common Law, and by Statutes.

The offence of piracy at common law consists in committing
those acts of robbery and depredation upon the high seas, which,
if committed upon land, would have amounted to felony there, (a)
But it is no felony at common law, and it was only punishable by
the civil law before the statute 28 Hen. 8. c. 15.; and this statute,
though it makes the offence capital, and provides for the trial of it
according to the course of the common law, by the king's special
commission, does not make it a felony ; therefore, a pardon of all
felonies generallv does not extend to it. (£)

The offence of piracy is also provided against by the enactments
of several statutes. The II and 12 W. 3. c. 7- &• 8. enacts, that
^ if any of his Majesty's natural bom subjects, or denizens of this
' kingdom, shall commit any piracy or robbery, or any act of hos-
' tility against others 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 being duly convicted thereof, accord-

(a) 1 Hawk. P. C. c. S7. s. 4. 4 Blac.
Com. 78. 8 Bast P. C. c. 17. s. 3. p.
796.

{b) 1 Hawk. P. C. c. S7. s. 13. 3
Inst. 118. 8 East P. C. c. 17. 8. 3. p.
796., where it is said that the offence
does not extend to corruption of

blood, at least where the coaviction
is before the Admiralt? jurisdiction i
though the contrarj is nolden bv con-
siderable authority upon attainder be-
fore commissioners, under the statute
of Hen. S.

CHAP. Till. § 1.] Of Piracy — by Statutes. 101

ing to that act, or the statute 28 Hen. 8. c. 16. shall suffer such
paina of death, and loss of lands, goods, and chattels, as pirates,
&c. upon the seas ought to suffer. And the 18 Geo. 2. c.30. enacts,
'^ that all persons being natural bom subjects or denizens of his
" Majesty, who during any war shall commit any hostilities upon
^ the sea, or-in any haven, river, creek, or place, where the admiral
^^ or admirals have power, authority^ or jurisdiction, against his
^ Majesty's subjects, by virtue or under colour of any commission
" from any of his Majesty's enemies, or shall be any other ways
^ adherent, or giving aid or comfort to his Majesty's enemies upon
'^ the sea, or in any haven, river, creek, or place, where the admiral
" or admirals have power, authority, or jurisdiction, may be tried
^' as pirates, felons, and robbers in the said court of Adnuralty, on
'^ ship-board, or upon the land, in the same manner as persons
^ guilty of piracy, felony, and robbery, are by the said act {c) di-
^' rected to be tried ; and such persons being upon such trial con-
'^ victed thereof, shall suffer such pains of death, loss of lands, &c.
^^ as any other pirates, felons, and robbers, ought, by virtue of the
'^ statute 1 1 and 12 W. 3. c. 7- or any other act, to suffer." {d)

The ninth section of the statute 11 and 12 W. 3. c. 7- enacts, Commandew,
that " if any commander or master of any ship, or any seaman or J^"^"' ^^y
'^ mariner, shall, in any place where the admiral hath jurisdiction, with ship or
'^betray his trust, and turn pirate, enemy, or rebel 5 and piratically ••'S?'*^-
^ and feloniously run away with his or their ship or ships, or any yolnintarSy to
^' barge, boat, ordnance, ammunition, goods or merchandize ; or pirates, or
"yield them up voluntarily to any pirate; or shall bring any confc^ratlng
'^ seducing message from any pirate, enemy, or rebel ; or consult, JlttempUng to
*^ combine, or confederate with, or attempt or endeavour to cor- corrupt the
" nipt any commander, master, officer, or mariner, to yield up or ^^''^ ^^' ^
'^ run away vnth any ship, goods or merchandizes, or turn pirates, Sog^forcir
^' or go over to pirates; or if any person shall lay violent hands upon the
'* on his commander, whereby to hmder him from fighting in de- commander.
'^ fence of his ship, and goods committed to his trust, (e) or shall
" confine his master, or make or endeavour to make a revolt in the
" «»hip, he 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 death and loss of lands, goods,
^ and chattels, as pirates, felons, and robbers upon the seas, ought
« to suffer."

By the statute 8 Geo, 1. c. 24. s. 1. " in case any person or per- Forcibly en-
" sons belonging to any ship or vessel whatsoever, upon meeting ^"nf JhSa
^' any merchant ship or vessel on the high seas, or in any port, and destroying

(e) 11 and 18W. 9. c. 7.

\i) Section 8« contains a proviso
that any person tried and acquitted,
or eonTicted mccording to the act,
shati not be liable to be indicted, &c.
again in Great Britain or elsewhere,
for the same crime or fiict as high
treason. But by g. S. the act is not to
preTeatany offender, who shall not be
tried according thereto, from being
tried for high treason within this realm,
sccordingto tho stat. 28 Hen. 8. c. 15.

(i) ,Thi8 last provision is similar to
one in the stat. SS and 23 Car. 2. c.
11.8. 9. which enacts generally, that
such an offender shall suffer death as
a felon; but does not specify anj
mode by which he is to be tried. This
statute of Car. 2. contains also some
provisions as to yielding wiLho'ut
fighting, and as to mariners declining
or refusing to fight and defend the
ship when commanded by the master. '

iO!l

Of Piracy — by Statutes.

[aook ti.

foods, 8 Geo.
. c. 24. s. 1.
made per-
petual by 2
Geo. 2. c. 28.
8. 7.

Trading with
pirates, fur-
nishing them
with ammuni-
tion, &c. com-
bining or cor-
responding .
with them,
&c. 8 Geo. 1.
c. 24. 8.1.

Ransoming
illegally neu<^
tral ships
'which have
been made
)Mrize,32GeOi
2. c. 25. 8.12.

Dealing in
slaves on the
high seas, 5
Geo. 4. c. 113.

Cases of
piracy.

" haven, or creek 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 overboard or destroy any part of
'^ the goods or merchandizes belonging to such ship or vessel; the
" person or persons guilty thereof, shall in all respects be deemed
" and punished as pirates as aforesaid."

The same statute of Geo. I. s. 1. enacts also, that '^ if any com-
'^ mander or master of any ship or vessel, Qr 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 hind ; or shall fit out any ship or vessel know-
*^ ingly, and with a design to trade with, or supply, or correspond
** with any pirate, felon, or robber upon the seas ; or if any person
'^^ or persons shall any ways consult, combine, confederate, or cor-
"** respond 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." The act further provides, that
every offender convicted of any piracy, felony, or robbery, by virtue
of the act shall not be admitted to have the benefit of clergy. (/)

The statute 32 Geo. 2. c. 25. s. 12. provides that in case any
commander of a private ship or vessel of war duly commissioned
by the 29 Geo. 2. c. 34. or that act. shall agree with any commander
or other person belonging to any neutral or other ship or vessel
(except those of his Majesty's declared enemies) for the ransom of
any such neutral or other ship or vessel, or the cargo, after the
same has been taken as a prize ; and shall in pursuance of such
agreement quit, set at liberty, or discharge, any such prize, instead
of bringing it into some port of his Majesty's dominions ; such
offender shall be deemed and adjudged guilty of piracy, felony^ and
robbeiy, and shall suffer death. {§)

By a late statute 5 Geo. 4. c. 113. dealing in slaves upon the
high seas, or in any haven, &c. where the admiral has jurisdiction,
except as by that act is permitted, is made piracy, felony, and rob-
bery, and the offenders made punishable as pirates, felons, and
robbers upon the seas, (z)

Prior to these statutes (except the statute of Hen. 8.) the fol-
lowing case was decided upon the subject of piracy. Several
mariners on board a ship lying near the Groyne seized the captain,
he not agreeing with them ; and, having put him on shore, carried
away the ship, and afterwards committed several piracies. This

(/) S, 4. and by s. 8. every vessel
fitted out to trade, Ac. with pirates,
and also the goods, shall be forfeited,
half Jto the crown and half td the in-
former. Offenders against this act
are to be tried according to the S8
Hen. 8. c. 15. and 1 ! and 18 W. 8. c. 7.
(g) Section 18. allows contraband
goods to be taken firom a neutral ves-
sel, liable only to the forfeiture of
* snch goods, and that tbereupoQ the
neutral vessel may be discharged, A

question is made whether this act is
still in force in 1 East. P. C. c. 17. s. 7.
p. 801. The statute 22 Geo. 3. c S5,
prohibits ransoming any ship belong-
ing to any subject of his Majesty, or
foods on board the same which shall
e captured by the subjects of any
state at war with his Majesty^ or by
any^ persons committing hostilities
against his Majesty^s subjects.

(X) See p0«l, Chap, xviii. Of dealing
in tlaveim

CHAP. vin. § 1.] Of Piracy. — Cases. 103

force upon the captain, and the carrying away the ship, which was
explained by the use of it afterwards, was adjudged piracy ; and
they were executed, (h) But in a subsequent case where the mas-
ter of a vessel loaded goods on board at Rotterdam, consigned
to Malaga, which he caused to be insured, and after he had run the
iToods on shore in England the ship was burned, when he protested
both the ship and cargo as burned, vAlh intent to defraud the
owner and insurers.; the Judges of the common law, who assisted
the Judge of the Admiralty, directed an acquittal upon an indict-
ment for piracy and stealing the goods; because, being only a
breach of trust and no felony, it could not be piracy to convert the
£:w>ds in a fraudulent manner until the special trust was deter-
mined. (/)

It has been decided to be an offence within the statute 11 and 12 Case «pon
W.3. c. 7- s. 9. to make a revolt in a ship, or to endeavour to make 3.^^;.^^ 9. '
one, though the object was not to run away with the ship, or to Making a
commit any act of piracy, but to force the captain to redress sup- revolt in a
posed grievances. The prisoners were charged by the first count **'
of the indictment with betraying their trust and turning pirates,
luid with confederating piratically and feloniously to steal and run
an-ay with the ship; by the second, with piratically and feloniously
attempting to corrupt other persons of the crew so to steal and run
aw ay with the ship ; by the third, with piratically and feloniously in- •
citing a revolt in the ship, the master being on board ; and, by the
fourth, with endeavouring to make such revolt. All the counts con-r
eluded against the form of the statute. It appeared clearly from the
evidence that there wias a revolt in the ship, and that the prisoners
participated ; refusing to obey orders, and being guilty of many
acts of insubordination and violence. The counsel for the prisoners
endeavoured to shew, that the prisoners and their adherents had in
view a redress of supposed grievances, and not the intention of
a^jtuniing the command for the purpose of carrying off the ship :
and though there was some evidence that the prisoners had an
ulterior object than that of redressing ill-usage, of which it ap-
peared they had complained, yet their acquittal upon the two first
counts led to the conclusion that the jury did not impute to them
any other real intention than that of redressing their supposed
grievances. The point made by the prisoners' counsel, and sub-
mitted to the consideration of the Judges, was, that in order to
satisfy the intent of the statute, and the words of the indictment,
"piratically and feloniously revolted," the object of the revolt
must have been to take possession of or to run away with the ship,
or to enable the prisoners to commit some act of piracy, and not
merely to resist the captain's authority in order to force him to
redress alleged grievances. But the Judges who (with the excep-
tion of Best, L, C. J. and Littledale, J.) met and considered this
ca»e, were unanimously of opinion, that making or endeavouring to
ms^e a revolt, with a view to procure a redress of what the pri-
soners thought grievances, and without any intent to run away

^ (I) Bex V. May, Bishop, and others, (/) Mason*s case. Old Bailey, 9 Geo.
Nov. 1696, MS, Tracy 77. 2 East. P. C. 1 . on a special commission, 8 Mod. 74.
c. 17. s. S. p. 796. 8 East. P. C. c. 17. s. 3. p. 796. S. C.

IM

Of Piracy. — Accessories.

[boor it.

Case on the
18 Geo. 9. c.
30. adhering
to the kioff^i
enemies tria-
ble as piracy.

Receiving* &c«
stolen an-
chors, &c.

Of accessories
11 and 12 W.
3. c. 7,

With the ship, or to commit any act of piracy, was an offence within
1 1 and 19 W. 3. c. 7- b. 9., and that the conviction was therefore
right, (a)

Upon an indictment on the statute 18 Geo. 2. c. 30. a question
was made whether adhering to the King's enemies in hostilely
cruising in their ships could be tried as piracf/ under the usual
commibsion granted by virtue of the statute 28 Hen. 8. c. 15.
The statute 18Geo. 2. recites that doubts had arisen whether sub-
jects entering, into the service of the king's enemies, on board pri-
vateers 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 ^thin the intent of the act of 11
and 12 W. 3. c.v> And be triable by the court of Admiralty ap-
pointed by virtue of the said act ; and then enacts that persons who
shall commit hostilities upon the sea, &c. against his Majesty's
subjects by virtue or under colour of any commission from any of
his Majesty's enemies, or shall be anfj^ otherwise adherent to his
Majesty's enemies upon the sea, &c. may be tried as pirates^ felons,
or robbers, in the said Court of Admiralty in the same manner as
persons guilty of piracy, felony, and robbery, are by the said act
directed to be tried : but it does not say that they shall be deemed
pirates, &c. as in the stat. 11 and 12 W. 3. c. 7- The prisoner
having been convicted, the question was reserved for the considera-
tion of the Judges ; and it was agreed by eight who were present, ( Ar)
that the prisoner had been well tried under the commission. For
that taking the two statutes of 11 and' 12 W. 3. and 18 Geo. 2«
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 €u such by a jury. (/)

The 48 Geo. 3. c. 130. s. 7, 10. 49 Geo. 3. c. 122. s. 1. and s. 13,
16. and 1 and 2 Geo. 4. c. 7^. (a) relate to the unlawfully keeping
possession of anchors and other materials belonging to ships^ and
the receiving of such stolen articles, &c.

Accessories to piracy were triable only by the civil law if their
offence was committed on the sea, and were not triable at all if
their ofience was committed on land, mitil the statute 11 and 12
W. 3. c. T. The tenth section of that statute enacts, ^^ that every
person and persons whatsoever, who shall 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 persons whatsoever, to do or commit any piracies
'^ or robberies upon the seas ; and such person and persons shall

(s) Rex r. Hastings and Meharg,
East. T. 18S5. Rr. and Mood. 8S.

(At) Lord Loligbboroueh, Lord C. B.
Skynner, Gould, J. WUIes, J. Ash-
hurst, J. Eyre, B. Perryn, B. and
Heath, J., who met Nov. II, 178S.

(1) Evans's case, MS* Gould, J. 1 East.
r.C.c.l7.s.5.p.799,79g. The third

section of the 18 Gto, 2. c. SO, pro-
vides that the act shall not prevent
any offender who shall not be tried
according thereto frombeing tried for
high treason within this realm accord-
ing to the stat. S8 Hen. 8. c. 15.
(a) PofI, Book IV. Chap, xxiii.

'r-

. •.-., "'

CHAP. VIII. § !•] 0/* Piracy. — Acces^ries. 109

" thereapon do or commit any such piracy or robbery, their all and

^^ eyery such person or persons whatsoever^ so as aforesaid setting

^ forth any pirate, or aiding, assisting, maintaining, procuring,

^ commanding, counselling, or advising, the same either on the

^ knd or upon the sea, shall be and are hereby declared^ and shaH

^ be deemed and adjudged to be accessory to such piracy and robn ' !j, ,',^

^ bery, done and comnutted ; and further, that after any pinurv oi:

'* robbery is or shall be committed by any pirate or robber WAf^tP ' • ' " '* '^•

^' soever, every perscm and persons, who, knowing that suoh pi^O

*^ or robber has done or committed such piracy and robbery^ 8)m1}

^ cm the hmd or upon the sea, receive, entertain, or conceal^ prff

^ such pbate or robber, or receive or take into bis custody any ship,

' vessel, goods, or chattels, which have been by any such pirate ov

^ robber piratically and feloniously taken ; shaU be, and are hereby

^ likewise declarea, deemed, and adjudged, to be accessory to suca

^ jMracy and robbery/' And then the statute directs ^^ that all

^ such accessories to such piracies and robberies shaU be inquired

^ of, tried, heard, determined, and adjudged, after the common

^ course of the laws of this land, according to Uie statute 28 Hen. 8,

^ as the principals of such piracies and robberies may and ought to

^ be, and no otherwise : ana being thereupon attainted, shall suffeif

^ such pains of death, losses of lands, goods, and chattels, and ini

'^ like manner, as such principals ought to suffer, according to thtf

^ statute 28 Hen. 8. which is thereby declared to continue in fidi

« force/'

A subsequent statute, however, makes an alteration with respect But acces-
to the accessories described in 11 & 12 W. 3., and declares them S^*to 4*"
to be principals, and that they shall be tried accordingly. The principals,
statute is the 8 Geo. 1. c. 24., which in the third section reciting •^f.*" ^J^
that *' whereas there are some defects in the laws for bringing ^^^^
^ persons who are accessories to piracy and robbery upon the seas Geo. i. c 24.
^ to condign punishment, if the principal who committed such
'^ piracy or robbery is not or cannot be apprehended and brought
^ to justice,'' enacts, '' that all persons whatsoever, who by the
^ Stat. II & 12 W. 3. 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 enquired of, heard, determined, and adjudged, in the same
^ manner as persons guilty of piracy and robbery may, accordii^g
'^ to that statute ; and bemg thereupon attainted ana convicted,
^ shall suffer death and loss of lands, &c. in like manner as pirates
^ and robbers ought by the said act to suffer." And the fourth
section of the statute excludes all such offenders from the benefit
of clergy.

It has been fully settied that one who knowingly receives and
abets a pirate within the body of a county is not triable by the
common law, the original offence being cognizable alone by ano-
ther jurisdiction, (m)

(ai) Admiraltv case, 13 Co. 53. And a pirate to escape oat of prison; and,

a little before this case the law appears on a return to a habeas eorputttbe

to hare been so considered in the case prisoner was remanded, though it ap-

of one Scaddinf, who was committed peared that the fact was committed by

by the Court or Admiralty for aiding nimi?ithin the body of a county. The

106 Of Piracy. — Clergy, [booh ii.

OfeUrgy in fhe 28 H. 8. c. 15, takes away clergy in the cases of piracy to
Mdoffenccs^' which that statute applies :(n) and some of the offences inade
committed on piracy by subsequent statutes are also expressly excluded from
the high seas, clergy. The statute 4 Geo. 1. c. 11. s, 7. enacts that all persons
who shall commit any offence for which they ought to be adjudged
pirates, felons, and robbers, by the statute 11 & 12 W. 3. c. 7*»
shall be excluded from their clergy, (o) And by the 8 (^eo. 1.
c. 24. s. 4, all offenders convicted of any piracy, ac. by virtue of
that act are also excluded from clergy. With respect to other
offences than piracy committed upon the high seas, the 39 Geo. 3,
c. 37* makes a provision, after reciting the statute 28 Hen. 8. c.
15., and the offences of treason, felony, robbery, murder, and con-
federacy, thereby directed to be tried under the King's commis-
sion, and that it would be expedient to declare that other offences
committed on the seas might be enquired of, tried, and determined
in like manner. It enacts, and declares that all offences which
shall be committed upon the high seas out of the body of any
county of the realm, shall be (and they are thereby declared to be)
offences of the same nature respectively, and liable to the same
punishments respectively, as if they had been committed upon
the shore, and shall be enquired of, heard, tried, determined, and
^judged, in the same manner as treasons, felonies, murders, and
confederacies, are directed to be by that statute, llie second sec-
tion of this statute, 39 Geo. 3., enacts, that when any person shall
be tried for the crime of murder or manslaughter committed upoa
the sea, by virtue of a commission under the 28 Hen. 8., and shall
be found guilty of manslaughter only, such person shall be en-
titled to the benefit of clergy as if such manslaughter had been
committed on the land. .This enactment appears to have occa-
sioned some doubts whether persons so tried under a commission
for any other crime than those of murder and manslaughter were
entitled to the benefit of clergy ; (p) and, consequently, it is
enacted by 1 Geo. 4. c. 90. s. 1. that when any person shall be
tried for any capital offence committed upon the sea, out of the
body of any county of this realm, and within the jurisdiction of
the Admirdty, by virtue of any commission directed under the
said act of the 28 Hen. 8., and shall be found guilty of any offence
which, if committed upon land, would be clergyable, such person

«

Court of K. B. holdiDgi that because niitted on the high seas, and those

Scaddiog^s oflTence depended on the comniitted in creeks and rivers within

"piracy committed by the principal, of the body of a county ; considering the

which the temporal judges had na cog-, latter as within the restoring clause of

Jiizance, and was, as it were, an acces* 1 Ed. 6. c. 19. : and &s intimating that

sorial offence to the first piracy which the distinction will reconcile 1 1 Rep.

was determinable by the Admiral, it Sib. with the other authorities,

was a sufficient ground for remanding (o) It should be observed of this

him. Yelv. 134. 8 Bast P. C. c. 17. act of Geo. 1. that by s. 8. it is not to

s. 14, p. 810. extend to such as are convicted or at*

(fi) See the stat. s. S., and 2 East, tainted in Scotland ; but that by s. 9.

P. C. c. 17. s. 15. p. 810.^ where the it is to extend to all the King's domi-

reasons are given why clergy is not nions in America,

iextended to this offence by the statute (p) See the preamble to t Geo. 4. c.

1 Ed. 6. c. 12. : and 2 Hawk. P. C. c, 90. And see 1 Ed. 6. c. 18. s. 10. and

33. s. 41. is referred to as distinguish- 8 Hale 17,
in^ between such piracies as are com*

CHAP. VIII. § 3.] Of Piracy. — Place where, Sgc. 107

shall be entitled to receive the benefit of clergy in respect of such
offence in like manner, and shall he subject to the same punish-
ment for such clergyable offence as if it had been committed upon
the land.

SECT. II.

Of the Place in which the Offence may be committed,

Thb statute 28 Hen. 8. c. 15. s. L enacts that all treasons, 28H. 8.c.i5.
felonies, robberies, murders, and confederacies, committed in or Offences to b«
upon the sea, or in any haven, river, creek, or place, where the piacia limited
Admiral has, or pretends to have, power, authority, or jurisdic-^ bj commis-
tion, shall be enquired, tried, &c. in such shires and places as ^^^
shall be limited by the King's commission, as if any such offences
had been committed upon the land.

In a late case at the Admiralty session, of a murder committed Concnrrentja*
in a part of Milford Haven where it was about three miles over^ rwdiction of
about seven or eight miles from the mouth of the river, or open lawandAdmi-
sea, and about sixteen miles below any bridges over the river, a nl^ in Mil-
question was made whether the place where the murder was com-* ^^ l>«^en»
mitted was to be considered as within the limits to which com-
missions granted under the statute 38 Hen. 8. c. 15. do by law
extend. Upon reference to the Judges, they were unanimously of
opinion that the trial was properly had. And it is said that dur-
ing the discussion of the point the construction of. this statute by
Lord Hale(2) was much preferred to the doctrine of Lord Coke;(a)
ftnd that most, if not all of the Judges, seemed to think that the
common law has a concurrent jurisdiction with the Admiralty ia
this haven, and in all other havens, creeks, and rivers, in this
realm. (A) It appeared to them that the ,28 Hen. 8. applied to all
great waters frequented by ships ; that in such waters the Admiral
in the time of Henry 8. pretended jurisdiction ; that by havens,
&c., havens in England were meant to be included, though they
are all within the body of some county ; and that the mischief
from the witnesses being seafaring men was likely to apply to all
places frequented by ships, (c)

It is dlear that upon the open sea-shore the common law and High and low
the Admiralty have alternate jurisdiction between high and low water-mark,
water-mark :{d) but it is sometimes a matter of difficulty to fix

{z) 8 Hale 16, 17. the sea, and in none other places of

(a) S Inst. 111. 4 Inst. 134. the same rivers; which jurisaiction is

(5) Bruce's case, S Leach 1093. Kuss. only concurrent with, and not in ev-

& Ry. 243. This was a case of mur- elusion of, the common law. 1 East.

<fer. The stat. 15 Rich. 8. c. 3. ^ves P. C. p. 368. ,

theAdmiral jurisdiction to enquire of (c) MS. Bayley, J.

the death of a man, and of a mayhem (d) 3 Inst US. 2 Hale 17. i and see

ilone in ^eat ships hoTering in the 8 Hawk. c. 9. s. 14. as to the jurisdic-

main stream of ^reat rivers, beneath tion of the coroner in offences on the

the bridges of the same riTcrs nigh to sea-shore.

108 Of Piracy. [bookii.

the line of demarcation between the oonnty and the high sea in
harbours^ or below the bridges in great rivers. ^The question is
often mo^ a matter of fact than of law^ and determinable by local
General rules, evidence : but some general rules upon the point are collected by
Mr. East. He says, 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,
" Lord Hale, in his treatise Dejure maris, says, that the arm or
^' branch of the sea which lies within the fauces terras, where a
'^ man may reasonably discern between shore and shore, is, or at
'^ least may be, within the body of a county. Hawkins, however,
'^ considers 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, may see what is done on the other ; and the reason
'^ asrigned by Lord Coke in the Admiralty case (s) in support of
^ the county coroner's jurisdiction, where a mam is killed in such
^^ places, because that the county mioy well 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." (/)

The question, whether the fact were committed on the sea or
within tne body of a county, is of main importance. For if it
turn out that the goods were taken any where within the body of
a county, the commissioners under the statute of Hen. 8. can have
no jurisdiction to enquire of it; and if it should appear that the
goods were tdcen at sea and afterwards brought on shore, the
offender cannot be indicted as for a larceny in that county into
which they were carried, because the original felony was not a
taking of which the common law takes cognizance, {u) And the
statute 99 Geo. 3. c. 37- (v) relates only to offences committed on
the high seas, and out of tiie body of any county.
tbeTand^ and* '^ ^*® decided that where A., standing on the shore of a har-
kuiing on tlie bour, fired a loaded musket at a revenue cutter, which had struck
upon a sandbank in the sea, about one hundred yards from the
shore, by which firing a person was maliciously killed on board
the vessel, it was piracy ; for the offsnce was committed where
the death happened, and not at the place from whence the cause
of death proceeded, (w) And if a man be struck upon the high
sea, and die upon the shore after the reflux of the water, me
Admiral, by virtue of his conmiission, has no cognizance of the
offsnce.(j:) And as it was doubtful whether it could be tried at
common law, it is provided by statute that the offender may be
indicted in the county where the party died, (y)

The second section of the 28 Hen. 8. c. 15. introduces ^^ man-
slaughters }*' and uses the words *^ havens, &c/' without the qua-
lification in the first section, where the Admiral has a jurisdiction.
One of the mischiefs recited in the first section is, that the wit-

(t) IS Co. 58. (w) 1 Hawk. P. C. c. S7. s. 17.

(0 8 East. P. C. c. 17. s. 10. p. 80S, Coombes's case, 1 Leach 388. 1 Bast

804. P. C. c. 5. s. 181. p. 867.

(If) 8 Sast P. C. c. 17. 9. 18. p. 805. («) 8 Hale 17, 80. I Bast P. C. c.

8 Inst 118. 5. 8. 181. p. 885, 368.

(v) AfUe, p. 106. 00 8 Geo. 8. c. 8K

I

CHAP. VIII. § 3.] OfPiracif. — Court by which tried. W9

nesses being commonly mariners and shipmen, d^art without
long tarrying or protraction of time. This statute is almost in
terniB with 27 Hen. 8. c. 4., except that it adds *' treaauns" to the
offences.

It seems that the stat. 27 Hen. 8. does not authorize the trial of
felonies created by subsequent statutes, for which provision was
Aeref<»e made by the 89 Geo. 3, c. 37. (2) The prisoner was in-
dicted for maliciously shootings and tiie offence was within a fW
weeks afte^ the passing of the 39 Geo. 3., and before notice of it
coald have reached the place where the offence was committed i
and/upoki a case reserved, none of the Judges supposed that the
p^rty could have been tried if the 39 Geo. 3. had not passed ; and
as he cbuld not have known of that act, they thought it right thai
he should have a pardon, (a) And it was decided that a party was
not triable under both or either of these statutes for maliciously
shooting, within 43 Geo. 3. c. 58. : but this decision proceeded
opon the terms of the 43 Geo. 3., which confined its operation to
England and Ireland,{b)

SECT. in.

Of the Court by wMch the Offence of Piracy may he tried^

This offence of piracy was formerly cognizable only by the Admi-
ralty Courts, which proceeded without a jury, in a method much
conformed to the civil law. But it being inconsistent with the
liberties of the nation that any man's life should be taken away^
unless by the Judgment of his peers or the common law of the land,
the statute 2o Hen. 8. c. 15. established a new jurisdiction. By
that statute it was enacted, that this offence should be tried 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
proceemngs should be according to the law of the land. Amongst
the commissioners there are alw^s some of the common law
Judges ; (c) and by the Admiralty Court thus constituted the of-
fence of piracy, and other marine offences, are now tried. But the
statute m Hen. 8. merely altered the mode of trial in the Admi-
ralty Court; and its jurisdiction still continues to rest on the same
foundations as it did before that act. It is regulated by the civil
law, et per consuetudines marinas grounded on the law of nations^
which may possibly give to that court a jurisdiction that our com-
mon law has not. (d)

(z) JniCf 106. Rex v. Snape, East, tended by 1 Geo. 4. c. 90. s. 1. See

P. C. 807. poffi. Book HI. Chap. z.

M Rex V. Bailej, Hil. T. 1800. MS. (c) GeDerally two. 4 Bla. Com. S69.

Bayfrj, J. and Russ. & Ry. 1. (d) By Mansfield, C. J. Rex v. Dc-

(ft) Rex V. Amarro, Mich. T. 1814. pardo, 1 Taunt. 29.
Hus. and Rj. S86. The act was ex-

110 ' Of Piracy. — Court by which Tried, [book n*

Tid^ \ ''^^ statute 32 Geo. 2. e. 25. b. 20. for Uie more speedy bringing

court?* ^ * df offenders to justice, &c. enacts, that a session of oyer and ter-
32 Geo. 2. miner and gaol delivery for the trial of offences committed upon
c. 25. 1. 20. the high seas, within the jurisdiction of the Admiralty of England,
ishall be holden twice at least in every year ; viz. in March and
October, at the Old Bailey ; (except when the sessions of oyer and
tenniner and gaol delivery for London and Middlesex shall be
there holden) or in such other places in England as the Lord High
Admiral, &c. shall, in writing under his hand, directed to the Judge
of the Court of Admiralty, appoint.
Offenoeicom- The statute 11 and 12 W. 3. c. 7* s« L made provisiou for the
'"^"^^m'^* trial of piracies, felonies, &c. conmiitted upon the sea, or in any
bT^ed inany haven, &c. and a later statute 46 Geo. 3. c. 54. enacts, that all
ofhisMajet- treasons, piracies, felonies, robberies, murders, conspiracies, and
2c*b**^irtue ^^®' offences of what nature or kind soever, conmiitted upon the
orhis'com- " B^ Or in any haven, river, creek, or place, where the admiral or
miuion under admirals have power, authority, or jurisdiction, may be enquired
direct3^&^' of, tried, ficc. according to the common course of the laws of this
' realm used for offences committed upon the land within this realm,

and not otherwise, in any of his Afajestv's islands, plantations,
colonies, dominions, forts, or feu^tories, unaer and by virtue of the
King's commission 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 Commis-
sioner 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 thenr,
shall hare such and the like powers and authorities for the trial of
all such murders, &c. within any such island, &c. as any commis-
sioners appointed according to the directions of the statute 28
Hen. 8. by any law or laws then in force 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 liable to the same pains, &c. as by any laws then 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 28 Hen. 8.

Ill

CHAPTER THE NINTH.

OP NSGI.ECTING QUARANTINE^ OF SPREADING CONTAGIOUS
DISORDERS^ AND OF INJURY TO THE PUBX.IC HEAI^TH.

SECT. I.

Of tieglectvig Quarantine,

The performance of quarantine^ or forty days' probation^ when
ships arrive from countries infected with contagious disorders, hav-
ing been considered as of the highest importance, with reference to
the public health of the nation, has been enforced from time to
time by various legislative enactments. These were formerly of
considerable severity : but the recent statute 6 Geo. 4. c. 78* repeals
all former acts upon this subject, and enforces the performance of
quarantine principally by pecuniary penalties. Some offences how-
ever subject the offender to imprisonment, and some are of the
degree of felony. It may be here observed, that in a case which
arose upon a former statute 26 Geo. 2. c. 6. which enacted, that all
persons going on board ships coming from infected places should
obey such orders as the King in council should make, but did not
award any particular punishment, nor contain a clause as to the
jurisdiction of justices of the peace, it was holden that disobedience
of such an order of council was an indictable offence, and punish-
able as a misdemeanor at common law. (a)

The seventeenth section of this statute 6 Geo. 4. enacts, that ^' if 5 gco. 4.
'^ any commander, master, or other person, having charge of any c.7S. s. 17.
" vessel liable to perform quarantine, and on board of which the J^*^5i ^&c
" plague, or other infectious disease or distemper, shall not then quitting vei-
" have appeared, shall himself quit, or shall knowingly permit or scls, or pcr-
" suffer any seaman or passenger coming in such vessel to quit ™„g*°5 J^^^
'^ such vessel, by going on shore, or by going on board anv other them> or not
" vessel or boat, before such quarantine shall be fully permrmed, conveying-
" unless by such licence as shall be granted by virtue of any order ip^i^a
^ in council, to be made concerning quarantine as aforesaid, or in place*, 400i:
*^ case any conunander or other person having charge of such ves-
^ sel shall not, within a convenient time after due notice given for
^ that purpose, cause such vessel, and the lading thereof, to be
** conveyed into the place or places appointed for such vessel and

(a) Rex V. Harris, 4 T. R. SOff. 8 Leach 549.

112

0/ Neglecting Quarantine. [book ii.

ec

lading to perform quarantine ; then and in every such case every
" such commander, master, or other person as aforesaid, for every
'^ such offence shall forfeit and pay the sum of four hundred poimds;
'' and if any such person coming in any such vessel liable to qua-
^^ rantine (or any pilot or other person going on board the . same,
'^ either before or after the arrival of such vessel at any port or
'^ place in the united kingdom, or the islands aforesaid), shall,
'^ either before or after such arrival, quit such vessel, unless by
'^ such licence as aforesaid, by going on shore in any port or place
'^ in the united kingdom, or the islands aforesaid, or by going on
". board any other vessel or boat, with intent to go on shore as
'^ aforesaid, before such vessel so liable to quarantine as aforesaid
^' shall' be regularly discharged from the performance thereof, it
^^ shall and may be lawful for any person whatsoever, by any kind
^^ of necessary force, to compel sucn pilot or other person so quit-
'^ ting such vessel, so liable to quarantine, to return on board the
" same ; and every such pilot or other person so quitting such
" vessel so liable to quarantine shall for every such offence suffer
^^ imprisonment for the space of six months, and shall forfeit and
^^ pay the sum of three hundred pounds/'
The Slst section enacts, ^Hhat if any officer of his Majesty's
Mvwi ^^ customs, or any other officer or person whatsoever, to whom it
pe^imioff ' ^ ^^ ^' ^^^^ appertain to execute any order or orders made or to

quarantiney

Persons com-
ing in such
vessels, or
goiag on
Doai^yBod
quitting them
before dis-
charged from
quarantine, to
•uifer impri-
sonment for
six months,
and forfeit
300/.

Penalty on
rsons em-

e

neglecting or
deserting their
duty, or per-
mitting per-
sons, vessels,
Slc to depart
without autho-
rity, or giving
false certifi-
cates, or da-
maging goods.

ABh oflwcrs,
Ac. deserting
tlidr dn^, or
givinrfolw
eertlftcateof

'^ be made concerning quarantine, or the prevention of infection,

'^ and notified as aforesaid, or to see the same put in execution,

^^ shall knowingly and wilAilly embezzle any goods or articles per-

'^ formine quarantine, or be guilty of any other breach er neglect

^' of his duty in respect of the vessels, persons, goods, or articles,

^ performing quarantine, every such officer or person so offending

^ shall forfeit such office or employment as he may be possessed of,

'' and shall become from thence incapable to hold or enjoy the

'^ same, or to take anew grant thereof; and every such officer

'* and person shall forfeit and pay the sum of two hundred pounds >

" and if any such officer or person riudl desert from his duty when

'' employed as aforesaid, or shall knowingly and willingly permit

^' any person, vessel, goods, or merchandize, to depart or be con-

" veyed out of the said lazaret vessel or other place aa aforesaid,

'^ unless by permission under an order of his Majesty, by and with

to SigiSto^ ** *^^ advice of his council, or imder an order of two or more of the

fUoi^. ^ lords or others of his privy council ; or if any person hereby au-

** thorized and directed to give a certificate of a vessel having duly

^ performed quarantine or airing, shall knowingly give a felse oer-

^ tificate thereof, every such person so offending shall be guilty of

'' felony; and if any such officer or person i£all knowingly or

'^ wilfully damage any goods performing quarantine under his di-

^ rection, he shall be liable to pay one hundred pounds' damages,

'^ and full costs of suit, to the owner of the same/'

Pabllcation The publication in the Jxmdon Gazette of any order in councU,

o^o"^*" »^ or of any order by two or more of the lords or others of the privy

fn the London ^^ouA^^^s made in pursuance of the act, or his Majesty's royal pro-

Gaaettetobe clamation made in pursuance of the same, is to be deemed and

sufficient no- taken to be sufficient notice to all persons concerned, of all matters

^^' therein respectively contained.

CHAP. IX. § 2.3 Of Spreading Contagious Disorders, ^c. 113

Hie statute also enacts, that in any prosecution, suit, or other ^^' ^^-

j- .. ' -i_x r The atiswers

proceedings against any person or persons wnatsoever, for any of the com-
oifence gainst this act, or any which may hereafter be passed mander, &c.
concerning quarantine, or for any breach or disobedience of any y® ^ *^th^"
order made by his Majesty by the advice of his privy council, con- place from
ceming quarantine, and the prevention of infection, notified or which the
published as aforesaid, or of any order or orders made by two or t^^hc?^ ^
more of the privy council, the answers of the commander, master, and the harinf^
or other person, having charge of any vessel, to any question or hceo directed
interrogatories put to him by virtue and in pursuance of the act, or !J?,fl*!l[i"' .

-^ ^ !_• L I- i 1 J • -.• quarantine i»

of any act which may hereafter be passed concerning quarantine, to he recmved
or of any such order or orders as i^oresaid, shall be received as tapHma fade
evidence so far as the same relate to the place from which such ^^^ye^d^**
vessel came, or to the place or places at which she touched in the were liable
course of her voyage: and also 'that where any vessel shall have thereto; and
been directed to perform quarantine by the superintendant of qua- Jj^rf^rmance of
rantine, or his assistant, or, where there is no superintendant or quarantine to
assistant, by the principal officer of the customs at any port or be proof of
place, or other officer of the customs authorized to act in that ™^ntiJl^.
behalf; the having b^en so directed to perform quarantine shall be ^^ havinJ
given and received as evidence that such vessel was liable to qua- been directed
nmtine, unless satisfactory proof be produced by the defendant to to perform ^
shew that the vessel did not come from, or touch at, any such place t" ^^vidcnce
or places, as is or are stated in the said answers, or that such vessel, that the vessel
although directed to perform quarantine, wm not liable to the per- ^m i»*We to
fonnance thereof. KnA it fuAher enacts, that where any vessel 2nie88"the*dc-
shall in fact have been put under quarantine by the superintendant, fendant shew
&c. and shall actually be performing the same, such vessel shall, the contrary,
m any prosecution, &c. for any offence against this act, or any other Where any
act hereafter passed concerning quarantine, or against any orders fa'tha'^^becn
of council as aforesaid, be deemed liable to quarantine, without pat under
proving in what manner or from what circumstances such vessel ^""*°'|l*?»
became liable to the performance thereof. J^orming

the MUBe» it ihall be deemed liable without proof of the manner in which it became liabte..

SECT. II.

Of Spreading Contagious Disorders, and of Injury to the

Public Health.

Wrra the same regard to the public", health, upon which the sta- Persons in-
tates relating to quarantine have proceeded, the Legislature appears ^<b<^^^ ^^^ ^^
to have acted in former times, in making persons guilty of felony Abroad andln-
who, bdng infected with the plague, went abroad and into com- fecting others,
pany, with infectious sores upon them, after being commanded by

VOL. I. . I *

114 Of Spreading Contagious Disorders, [book ii.

the magistrates to stay at home, (t) The statute which contained
this enactment^ after being continued some time, is now expired :
but Lord Hale puts the question, whether if a p^son infected with
the plague should go abroad taith intent to infect another, and
another be thereby infected and die, it would not be murder by the
common law. {k) And he seems to consider it as clear, that
though where no such intent appears it cannot be murder, yet, if
by the conversation of such a person another should be infected, it
would be a great misdemeanor. (/)
It is an indict- In a late case in the Court of King's Bench, relating to the
able offence small-pox infection, it was held that the exposing in the public
injmioully to^ highway, with a full knowledge of the fact, a person infected with
carry a child a contagious disorder is a common nuisance, and as such the sub-
infected with ject of an indictment. The defendant was indicted for carrying
alonlTapiSSu: ^^^ child, while infected with the small -pox, along a public high-
highifay, in way, in which persons were passing, and near to the habitations of
which persons the king's subjects ; and having suffered judgment to go by defoult,
and nw to'thc ^* ^^^ niovcd on her behalf, in arrest of judgment, that it was con-
habitations of sistent with the indictment that the child might have caught the
the king's disease, and that it was not shewn that the act was unlawful, as
»u ijec . ^j^^ mother might have carried it through the street, in order to

* procure medical advice ; and that the indictment ought to have

alleged, that there was some sore upon the child at the time when
it was so carried. It was also urged, that the only offences against
the public health of which Hawkins speaks are spreading the
plague a^d neglecting quarantine ; {m) and that it appeared that
Lord Hardwicke thought the building of a house for the reception
of patients inoculated with the small-pox was not a public nui-
sance, and mentioned that upon an indictment of that kind there
had been an acquittal, (n) But Lord EUenborough, C. J. said that
if there had been any such necessity as supposed for the conduct
of the defendant, it might have been given in evidence as matter
of defence : but there was no such evidence ; and as the indict-
ment alleged that the act was done unlawfully and itguriouslyf it
precluded the presumption that there was any such necessity. Le
Blanc, J. in passing sentence observed, that although the Court
had not found upon its records any prosecution for this specific
ofience, yet there could be no doubt in point of law, that if any one
unlawfully, injuriously, and with full knowledge of the fact, ex-
poses in a public highway a person infected with a contagious dis-
order,- it is a common nuisance to all the subjects, and indictable
as such. That the Court did not pronounce that every person
who inoculated for this disease was guilty of an ofience, provided
it was done in a proper manner, and Uie patient was kept from the
society of others, so as not to endanger a communication of the
disease. But no person, having a disorder of this description upon

(0 8 (vulgo 1.) Jac. 1. c. SI. s. 7. 1 Crim. Law 656, there is an iDdictment

Hale 4SS, 695. 8 Iiisl.90. against an apothecary for keeping a

{k) I Hale-4S2. comraoD inocvlaittBg hmise near the

(/) /4. iUdn church in a town: and the Cm. Circ.

(m) I Hawk. P. C. c. 5$, 53. A. 865, is lefeowd to.
(fi) Anon. 8 Atk. 750. In 2 Chitt.

cvAF. IX. § 2.] and Injuring the Public Health. 115

hiniy oagbt to be publicly exp6(Utdy to the endangering the healtii
aod lives of the reflt of the subjects, (o)

In a sabseqoent case, m the slEtme Cotnt^ the indictment was And it is alto
against an apothecary for unlawfully and injiliiously inoculatmg an indictable
chUdren with the small-pox, and, while they were sick of it, wn- l^^^^^^J^^^
lawfiiUy and injuriously causing them to be carried along the after having
public street, llie defendant was found guilty : but it was moved inoculated
in arrest of judgment, that this was not any offence ; that the case fg^^f'^nd'
differed materially from that of Rex v. Vatitandillo, as it appeared injuriously to
that the defendant was by profession a person qualified to inoculate cause them to
with this disease, if it were lawful for any person to inoculate with i,Jthe*pS,ric
it. That as to its being alleged that the defendant caused the street to the
children to be carried along the street, it was no more than this, ^*?p'^^tK.
that he directed the patients to attend him for advice instead of ^" ^^
Tisiting them, or that he prescribed what he might deem essential
to their recovery, air and exercise. And it was observed that in
Rex v. Sutton, (p) which was an indictment for keeping an inocu-
lating-house, and therefore much more likely to spread infection
than what had been done here, the Court said that the defendant
might demur.

fiut Lord EUenborough, C. J. said, that the indictment laid the
act to be done unlawfully and injuriously ; and that in order to
support this statement it must be shewn, that what was done was,
in the manner of doing it, incautious, and likely to affect the health
of others, lliat the words unlawfully and injuriously precluded
all legal cause of excuse. And that though inocidation for the
small-pox may be practised lawfully and innocently, yet it must
be under such guards as not to endanger the public health by
communicating this infectious disease.

And Le Blanc, J. in passing sentence in this case observed, that ^"^ ** '^
the introduction of vaccination did not render the practice of aicta^le of- '
inoculation for the small-pox unlawful ; but that in idl times it fence to ex-
was unlawful and an indictable offence to expose persons infected p""^™"
with contagious disorders, and therefore liable to communicate pUcesofpub-
them to the public, in a place of public resort, {q) lie resort.

The public healdi may be injured by selling unwholesome food ; Injury to the
and it is an indictable offence to mix unwholesome ingredients in pWic health
any thing made and supplied for the food of man. And if a master unwhoieLmo
knows that hb servant puts into bread what the law has pro- food,
hibited, and the servant, from the quantity he puts in, makes the
bread unwholesome, the master is answerable criminally, for he
should have taken care that more than is wholesome was not in-
serted. The indictment was against the contract baker for a
military asylum, for delivering for the use of the children belonging
to the asylum divers loaves containing noxious materials, which
he knew. The evidence was that they contained crude lumps of
alum, and that aliAn was an unwholesome ingredient, and that the
defendant's foreman made the loaves : but the jury found that the
defendant knew he used alum. Upon a motion for a new trial the

(t) Rex 0. yantaadillo, 4 M. and S. {q) Rex v. Burnett, 4 M. and S. 272.
79. The defendant was sentenced to six

(f) 4 Burr. 2116. months* imprisonment.

i2

116

Of Reading Contagious Disorders, %c. [book ii.

C!ourt thought^ that if the master suffered the use of a prohibited
article^ it was his duty to take care that it was not used to a
noxious extent, smd that he was uiswerable if it was. A rule for
arresting the judgment was then moved for, on the ground that
the indictment did not specify what the noxious ingredients were,
or state that the loaves were delivered to be eaten by the children :
but the Court held the former not necessary because the ingre-
dients were in the defendant's knowledge; and the allegation that
the loaves were delivered for the use and supply of the children,
must mean that they were delivered for their eating ; and the rule
was refused, (r)

(r) Rex V. Dizon, 3 M. and S. 11. penalties upon bakers for vaang alanny
And see 1 and 8 Geo. 4. c. 60. as to &c. in making bread. «

117

CHAPTER THE TENTH.

OF OVFBNCBS AGAINST THE RBVENUB LAWS^ RBIATINO

TO THB CUSTOMS OR BXCISB.

Amongst the offences against the revenue laws, that of smuggling
is one of the principal. It consists in bringing on shore, or in
carrying from the shore, goods, wares, or merchandize, for which
the duty has not been paid, or goods of which the importation or
exportation is prohibited : an ofience productive of various mis-
chiefs to society, (a) In order to prevent the commission of
offences of this kind, many statutes were passed from time to time,
which, in addition to the proceedings at common law for assaulting
and obstructing revenue officers when acting in the execution ot
their duties, {b) gave to those officers extraordinary powers and
protections, and punished persons end^vouring to resist or evade
the laws relating to the customs and excise. The recent statute
6 Geo. 4. c, 105. recites that the laws of the customs had become
intricate, by reason of the great number of acts relating thereto,
which had been passed through a long series of years ; and that it
was therefore highly expedient for the interests of commerce and
the ends of justice, and also for affording convenience and facility
to all persons who might be subject to the operation of those laws,
or who might be 'authorized to act in the execution thereof, that aU
the statutes then in force relating to the customs should be re-
pealed ; and that the purposes for which they had from time to
time been made should be secured by new enactments, exhibiting
more perspicuously and compendiously the various provisions con-
tained in them : and then it proceeds to repeal dl the statutes
relating to smuggling.

The statute 6 Geo. 4. c. 106. recites this recent statute, and also
that other laws relating to the customs have been made ; (c) and
the expediency of making provisions to prevent or punish any
infraction of such laws ; and then proceeds to make various enact-
Whts relating to the forfeiture of vessels engaged in illegal traffic,
and of uncustomed goods, which do not come within the scope and

(ft) 1 Hawk. P. C. c. 46. s. 1. 4 Blac. 8 Chit. Crim. Law 187, et »equ. And

Cora. 155. 6 Bac. Abr. 858. see Brady*s case, 1 Bos. and Pul. 188*

{k) See many precedents for misde- where it was admitted that the offence

meanorsat common law, in assaulting charged in the indictment was an of-

and obstructing officers of excise and fence indictable at common law.
costoms, acting in the due execution (e) See 6 Geo. 4. c. 106, 1Q7.
of their offices } 4 Wentw. 385, el iequ.

6 Geo. 4.
c. 108. 8. 14.
Vessels liable
to seizure, not
bringing to
during chace.

118 Of resisting and evading the Revenue Laws. Qbook ii.

object of this treatise. But some of the enactments relating to the
right to proceed to extremities, when necessary, for the purpose of
seizing vessels liable to seizure, and the right to search for and
seize goods liable to forfeiture, may properly be here mentioned.
And the offence of making signals to smuggling vessels at sea, and
the several offences declared to be felonies by this statute, require
to be particularly noticed.

The 6 Geo. 4. c. 108. s. 14. enacts, ^' that in case any vessel or

" boat, liable to seizure or examination under any act or law for

'^ the prevention of smuggling, shall not bring to on being required

'* so to do, on being chased by any vessel in his Majesty's navy,

nayl^fir^'at. ^^ having die proper pendant ensign of his Majesty's ship hoisted,

** or by any vessel employed for the prevention of smuggling,
" under the authority of the lords commissioners of the Admiralty,
'' or the commissioners of his Majesty's customs, having a pendant

and ensign hoisted, of such description as his Majesty, by any

order in council, or by his royal proclamation under the great
'^ seal of the united kingdom, shall have ordered and directed, or
'' shall from time to time in that behalf order and direct, 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 assistance, or by his direction, shall
*^ be and he is hereby indemnified and discharged from any indict-
'' ment, penalty, or action for damages, for so doing ; and in case
" any person or persohs shall be wounded, maimed, or killed, by
i^ any such firing, and the said captain, master, or other person, and
^' any person acting in his or their aid or assistance, or by his or
'' their direction, shall be sued, molested, or prosecuted, or shall be
*^ brought before any of his Majesty's justices of the peace, or other
'^ justices, or persons having competent authority, for or on account
^^ of such firing, wounding, maiming, or killing as aforesaid, all and
''.every such justice or justices, person or persons, is and are
" hereby authorized and empowered, enjoined and required, to
'' admit every such captain, master, or other person or persons, so
'' brought before him or them as aforesaid to bail ; any Uw, usage,
'' or custom to the contrary notwithstanding."

The 34tb section enacts, ^^ that all vessels and boats, and all
'' goods whatsoever liable to forfeiture, under this or any other act
'' relating to the revenue of customs, shall and may be seized in

Sect. 34.
OiBcers mak-
ing collusive
seizures, or
taking bribes,
and persons
offenng the
same, to forfeit
500/.

*^ any place either upon land or water, by any officer or oflicers of
" his Majesty's army, navy, or marines, duly authorized and on
'^ full pay, or officers of customs or excise, or any person having
*^ authority to seize from the commissioners of his Majesty's cus*
f^ toms or excise ; and all vessels, boats, and goods, so seized shall,
^^ as soon as conveniently may be, be delivered into the care of the
*• proper officer appointed to receive the same."

The 36th section enacts, *' that it shall and may be lawful to and
'' for any officer or officers of the army, navy, or marines, duly
f**''*°hJ;"*^^ *' authorized and on full pay, or for any officer of customs, producing
and^custom- *' ^^^ ^^ ^^^^^ warrant or deputation (if required), to go on board
ed goods) ^* any vessel which shall be within, the limits of any of the ports of

Sect 36.
Officers may go
on board ves'

CHAP. X.] Of resisting and evading the Revenue Laws. 119

'^ thifl kingdoin, and to rummage and to search the cabiix and all

" other parts of such vessel for prohibited and uncustomed goods^

'^ and to remain on board such vessel during the whole time that the

^'same shall continue within the limits of such port; and also to andmayseartli

« search any person or persons either on board, or who shall have looTrcaMiT''*

" landed from any vessel ; provided such officer or officers shall

" have good reason to suppose that such person or persons hath

'* any uncustomed or prohibited goods secreted about his person ;

*' and if any person shall obstruct, oppose, or molest, any such

^^ officer or officers in going or remaining on board, or in entering

" or searching such vessel or person, every such person shall for-

'^ feit and lose the sum of one hundred pounds."

The 40th section enacts, ^ that it shall and may be lawful for Sect 40.
^' any officer of customs, or person acting \mder the direction of ^^^^"r^^St-
'^ the commissioners of his Majesty's customs, authorized by writ ance, may
^' of assistance imder the seal of his Majesty's Court of Exchequer, enter houses,
" to take a constable, headboroueh, or other public officer inhabitinfic *^' ^ warch

near the place^ and in the daytime to enter into any house, shop^ tomed or pro-
'^ cellar, warehouse, room, or other place, and in case of resistance hibited i^oods.
*' to break open doors, chests, trunks, and other packages, there to
" seize and from thence to bring any uncustomed or prohibited
"goods, and to put and secure the same in the custom-house
" warehouse in the port next to the place from whence such goods
" shall be so taken as aforesaid : provided always, that for the pur-
" poses of this act, any such constable, headborough, or other
^^ public officer duly sworn as such, may act as well without the
" Umits of any parish, viU, or other place for which he shall be so
" sworn, as within such limits."

The 51st section enacts, " that if any person or persons liable Sect. 51.
" to be arrested and detained .imder the provisions of this or any ^^^J^jj^^jj
*^ other act relating to the revenue of customs, shall not be de- and making
" talned at the time of so committing the offence for which he or escape, may
" they is or are so liable, or after detention shall make his or their detained by any
^^ escape, it shall and may be lawful for any officer of the army, officer, of the
" navy, or marines, being duly authorized and on full pay, or any customs, Ac
" officer of customs or excise, or any other person acting in his or
" their idd or assistance, or duly employed under such officer, to
" stop, arrest, and detain such person so liable to detention as
*' aforesaid, at any time afterwards, and to carry him before two
^ justices of the peace to be dealt with as if detained at the time
" of committing the said offence."

The 52d section enacts, ** that no person shall, after sunset and S^*^**.??'
'' before sunrise, between the twent\'-first day of September and penonsmaking
" the first day of April, or after the hour of eight in the evening signals to
" and before the hour of six in the morning at any other time in J^ls^f'^a^^**"
" the year, make, aid, or assist in making, or be present for the
'' purpose of aiding or assisting in the making of any light, fire,
" flash, or blaze, or any signal by smoke, or by any rocket, fire-
'^ works, flags, firing of any gun or other fire arms, or any other
'^ contrivance or device, or any other signal in or on board, or
" from any vessel 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 coasts or shores, for the purpose of making or

120

Of resisting and evading the Revenue Laws, [book it.

€C

Sect. 53.
Proof of a sig-
nal not being
intended to lie
on the defend-
ant.

Sect. 54.
Any person
may put out
and extinguisby
and prevent
signals.

({
it

t(

n

Sect. 55y^
Persons resist-
ing officers, or
rescuing or de-
stroying goods
to prevent seiz-
ure, to forfeit
200/.

giving any signal to any person on board any smuggling Tessel
*^ or boat, whether any person so on board of such vessel or boat
** be or be not within distance to see or hear any such lights fire,
^' flash, blaze, or signal ; and if any person, contrary to the true
*^ intent and meaning of this act make, or cause to be made, or
^^ aid or assist in ms^ng any such light, fire, flash, blaze, or sig-
'^ nal, such person so offending shall be guilty of a misdemeanor^
^^ and it shall be lawful for any person to stop, arrest, and detain
^^ the person or persons who shall so make, or aid, or assist in
the making, or who shall be present for the purpose of aiding
or assisting in making any such light, fire, flash, blaze, or sig-
nal, and to carry and convey such person or persons so offend-
ing before any two or more of his Majesty's justices of the
peace residing near the place where such offence shall be com-
mitted, who, if they see cause, shall commit the offender to
the next county gaol, there to remain until the next court of
** oyer or terminer, great session, or gaol delivery, or until such
^^ person or persons shall be delivered by due course of law ; and
^*»it shall not be necessary to prove, on any indictment or inform-
^' ation, that any vessel or boat was actually on the coast ; and
^^ the offender or offenders being duly convicted thereof shall, by
'* order of the court before whom such offender or offenders shall
*' be convicted, either forfeit and pay the penalty or forfeiture of
'' one hundred pounds, or, at the discretion of such court, be
*' sentenced or committed to the common gaol or house of correc-
*^ tion, there to be kept to hard labour for any term not exceed-
*^ ing one year."

The 63d section provides " that in case any person be charged
with, or indicted for having made or caused to be made, or
been aiding or assisting in making, or been present for the pur-
pose of making, or aiding or assisting in making, any sucii fire,
light, flash, blaze, or other signal as aforesaid, the burthen of
proof that such fire, light, flash, blaze, noise, or other thing, so
charged as having been made with intent and for the purpose of
giving such sighal as aforesaid, was not made with such intent
and for such purpose, shall be upon the defendant against whom
such charge is made, or such indictment is found. "
The 64th section enacts, *' that it shall be lawful for any per-
son whatsoever to put out and extinguish, or prevent any such
light, fire, flash, or blaze, or any smoke, signal, rocket, fire-
work, noise, or other device or contrivance so made or being
made as aforesaid, and to enter and go into and upon any lands
for that purpose, without being liable or subject to any indict*
ment, suit, or action for the same."

The 56th section enacts, '' that if any person whatsoever shall
hinder, oppose, molest, or obstruct any pfiicer of the army,
navy, or marines, being duly authorized and on full pay, or
any oflicer of customs or excise, in the execution of his duty,
or in the due seizing of any goods liable to forfeiture by this or
any other act relating to the revenue of customs, or any person
acting in his aid or assistance, or duly employed for the pre-
" vention of smugglings or shall rescue, or cause to be rescued,
** any goods which have been seized, or shall attempt or endca-

(C
€i
CC

if

if

u
a

CHAP. X.] Of resisting and evading the Revenue Laws. l%l

^ TOur to do so, or shall before, or at or after any seizure, stave,
** break, or otherwise destroy any goods, to prevent the seizure
^^ thereof or the securing the same, then and in such case the
*^ parties oflFending shall forfeit for every such o£Fence the sum of
" two hundred pounds."

The 56th section enacts ** that if any persons to the number of ^^ ^^'
" three or more, armed with fire arms or other offensive weapons ^^^^^^^
'^ ahaD, within the United Kingdom, or within the limits of any with fire-arms^
" port, harbour or creek thereof, be assembled in order to be aid- "^?^'®f|^^y
^^ ing and assisting in the illegal exportation of any goods prohi- ^^ e^rL-*
'^ bited to be exported, or in the carrying of such goods in order tion or landing
" to such exportation, or in the illegal landing, running, or carry- ^^^P™^**'*^®'
^* ing away of prohibited or uncustomed goods, or goods liable to goods, or in the
" pay any duties which have not been paid or secured, or in the reiandlng
" illegal carrj^g of any goods from any warehouse or other place p*^ 'ISd**
^^as shall have been deposited therein for the security of the orinthereseu-
^ home-consumption duties thereon, or for preventing the use or ing any each
" consumption thereof in the United Kingdom, or in the illegal dcemed*«uit
^^relanding of any goods which shall have been exported upon of felony; ^
^^ debenture or certificate, or in rescuing or taking away any such
" goods as aforesaid, after seizure, from the officer of the customs,
'^ or other officer authorized to seize the same, or any person or
^^ persons employed by them or assisting them, or from the place
^ where the same shall have been lodged by them, or in rescuing
^^ any person who shall have been apprehended for any of the
'^ offences made felony by this or any act relating to the revenue
^' of customs, or in the preventing the apprehension of any per-
^ son who shall have been guilty of such offence ; or in case any
'^ persons to the number of three or more, so armed as aforesaid,
^' shall, within this kingdom, or within the limits of any port,
^^ harbour, or creek thereof, be so aiding or assisting ; every
^^ person .so offending, and every person aiding, abetting, or
" assisting therein shall, being thereof convicted, be adjudged
'^ guilty of felony, and suffer death as a felon without benefit of

" clergy."

The &7th section enacts "that if any person shall maliciously Sect 57.
" iihoot at or upon any Vessel or boat belonirinff to his Majesty's ?f"°°' *^?***r
" navy, or m the service of the revenue m any part of the British belon^g to
" or Irish channels, .or elsewhere on the high seas, within one **>e navy or in
" hundred leagues of any part of the coast of the United King- |J* "^Hf^
^^ dom, or shall, maliciously shoot at, maim, or dangerously wound or shooting at
^ any officer of the army, navy, or marines, being diily authorized or wounding
** and on full pay, or any officer of customs or Excise, or any per- army"navy or
^^ son acting in his aid or assistance, or duly employed for the marines, deem-
" prevention of smuggling, in the due execution of his office or ^^ guilty of fc-
^ duty, every person so offending,- and every person aiding, abet- **°^'
" ting, or assisting therein, shall, being la^i^lly convicted, be
^ adjudged guilty of felony and suffer death as a felon, without
" benefit of clergy."

The 58th section enacts "that if any person being in company Sect. 58.
" with more than four other persons, be found with any goods ^o°mpwiywith
** liable to forfeiture under this or any other act relating to the four others, •
** revenue of customs or excise, or in company with one other ^^^^J^ Y^'^^}\

J!8SS

forfeiture^ or
in company
with one other
person carryinij:
arms or dis-
guised, to be
deemed guilty
of felony.

Sect. 69.

swltttigpofiocn
by force or Tio-
kooenay be
tranaportedy

Sect 78.
Indictments
lor offences
against tlds act
may be enquir-
ed mto in any
county of Eng-
land.

Sect. 102.
Om» probandi
as to payment
of duties, Sec,
to'lie upon the
person claim-
ing the goods
seized.

Sect. 104.
Averment of
certain matters
to be sufficient,
until the con-
trary is proved.

Ofremting and eoadmg the Revenue Laws, [book u.

^' person within five miles of any navigable river, carrying ofifensive
'^ arms or weapons, or disguised in any way, every such person
^' shall be adjudged guilty of felony, and shall, on conviction of
^ such offence, be transported as a felon for the space of seven
'^ years ; and if such oiSiender shall return into the United King-
^' dom before the expiration of the said seven years, he shall suffer
^^ as a felon, and have execution awarded against him as a person
'^ attainted of felony, without benefit of clergy."

The 59th section enacts '^ that if any person diall by force or
'^ violence assault, resist, oppose, molest, hinder, or obstruct any
^^ officer of the army, navy, or marines, being duly authorized
^^ and on full pay, or any officer of customs or excise, or other
'^ person acting in his or their aid or assistance, ix duly employed
^ lor the prevention of smuggling, in the due execution of his or
^^ their office or duty, such person, being thereof convicted, shall
^^ be adjudged a felon, and shall be transported for seven years
^ or sentenced to be imprisoned in any house of correcticm or
>' common gaol, and kept to hard labour for any term not exceed-
'^ ing three years, at the discretion of the court before whom the
'^ offender shall be tried and convicted as aforesaid/'

The 78th section enacts '^ that any indictment or information
^' which shall be found or prosecuted for any offence against this
^^ or any other act relating to the revenue of customs, shall and
may be enquired of, examined, tried, and determined, in any
county of England ; and any such indictment or information
^^ which shall be found, commenced, or prosecuted in Scotland,
^^ may be enquired of, examined, tried, and determined in any
^ county in Scotland; and any such indictment or information
^' which shall be found or commenced in Ireland may be enquired
^' of, examined, tried, and determined in any county in Ireland,
'^ in such manner and form as if the offence had been committed
^^ in the said county where the said indictment or infonmtion
'' shall be tried."
The lQ2d section enacts ^^ that if any goods shall be seized for
th^ non-payment of duties, or any other cause of forfeiture, and
any dispute shall arise whether the customs, excise, or inland
^^ duties have been paid for the same, or the same have been law-
^^ fiilly imported, or concerning the place from whence such goods
^^ were brought, then and in such case the proof thereof shtdl lie
^' on the owner, or claimer of such goods, and not on the officer
^' who shall seize or stop the same."

The 104th section enacts ^^ that in case of any information or
^^ proceedings had under this or any other act relating to the
'^ revenue of customs, the averment that the commissioners of
'^ his Majesty's customs or excise have directed or elected such
'^ information or proceedings to be instituted, or that any vessel
^^ is foreign or British, or that any person detained is, or is not,
'' a subject of his Majesty, or that any person detained is, or is
'^ not, a seaman or seafaring man, or fit and able to serve his
*' Majesty in his naval service, or that any person is an officer of
'^ the customs, shall be sufficient, without proof as to such fact
<< or facts, unless the defendant in such case shall prove to the
"contrary,

it

>»

CHAP. X.] Cfrensting and evading the Revfuue Laws. 19S

The 106th section enacts << that if upon any trial a question sfaaU Sect 105.
" arise whether any person is an officer of the army, navy, or ^^^^J!^
" marines, being duly authorized and on faU pay, or an officer of giren that a
^ customs or excise, evidence of his having acted as such shall be p<urty is m of-
'^ deemed sufficient, and such person shall not be required to pro- ^^^*
^' duce his commisaion or deputation tmless sufficient proof shall
^ be given to the contrary ; and every such officer, and any per- Share of poiai-
*^ son actiniF in his aid or assistance, shall be deemed a competent ^ ^?1.^^*"
" Witness upon the trial of any smt or information, on account of „ witnenes.
^ any seizure or penalty as aforesaid, notwithstan^ng such officer
'^ or other person may be entitled to the whole or any part of such
^ seizure or penalty.

Hie 106th section enacts '^ that in all cases where any power. Sect. 105.
" authority, or protection is given or granted by this act to any ^^*'^' *^'\?'
'^ officer or officers of the navy, army, or marines, the same shall extend to offi*
^^not extend or be construed to extend to any such officer or cersofarmy,
" officers, unless such officer or officers shall be on full pay and rincs'u "i™*"
'^ employed for the prevention of smuggling under the proper fuUpaj, and
^ authority to which such officer or officers is or are subjected, or duly employed
"under the authority of the commissioners of the customs or ^onofam^'
" excise ; and such officer or officers shall be deemed to be duly gUng. "^^'
^ authorized for the puiposes of this act or any other act relating
" to the revenue of customs ; any thing in this or any other act
" to the contrary notwithstanding.

We have seen that the 57th section of this act relates to the Af to maliciona
malicious shooting at any vessel, &c., or any officer, &c. y and it •^*«>*»n^** •^
may be here mentioned, that upon a clause m one of the repealed officer^ &c!
statutes, (52 Geo. 3. c. 143. s. 11.) which contained an enactment
nearly similar, it was determined that where a custom-house ves-
sel had chased a smuggler and fired into her without hoisting the
pendant and ensign then required by 56 Geo. 3. 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 officer of the customs, &c. : and it
appeared that the vessel chased a smuggler within the limits ; —
that the smuggler did not bring to upon being chased and a sig-
nal-gun fired ; and that thereupon the custom-house 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 of firing at
the smuggler, the 56 Geo. 3. c. 104. s. 8. was referred to, which,
in the case of ships employed to prevent smuggling by the Trea-
sury, Admiralty, Customs, or Excise, gave the power, if the vessel
had a pendant and ensign hoisted of such description as his Ma-
jesty by any order in council, or by royal proclamation under the
great seal, should direct ; — ^but there had been no proclamation,
nor was any order in council proved ; though, after the trial, an
order in council was discovered which required certain parti-
culars 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, this

124 Of resisting and evading the Revenue Laws, [book ii.

smuggler's firing was not in law malicious ; and a pardon was
recommended, (a)

With respect to the 56th section which relates to offences com-
mitted by persons, to the number pf three or more, armed with
fire arms, or other offensive weapons, and assembled in order to
be aiding and assisting in the illegal exportation of goods^ &c. it
may be mentioned that upon a clause in a repealed statute
19 Geo. 2. c. 34. containing similar words, it was decided that in
order to bring offenders within its penalties, it was necessary that
they should be armed with weapons which might properly be
What shall be called offensive, {k) It seems, that a person catching up a hcttchel
deemed an accidentally, during the hurry and heat of an amray, was not
offensive wea- armed with an offensive weapon within the meaning of that
^^ act ; (Q and in one case it was held, 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 dfen*
sive weapons ; and that, from the preamble of the statute, the
weapons must be^ such as the law cidls dangerous., (m) 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 gmis,
pistols, daggers, and instruments of war, should be so con-
sidered; and that bludgeons properly so called, clubs^ and any
thing that was not in common use for any other purpose but a
weapon, were clearly offensive weapons within the meaning of
the Legislature, (n) In a case upon a former statute, 9 Geo. 2.
c. 35. 8. 10. where the same words ^' armed with fire arms, or
other offensive arms or weapons," occurred, it was held that a
person armed only with a common whip was not an offender
within the meaning of the act; though he aided and assisted
other persons who were armed with fire arms and weapons which
were clearly offensive, (o) But with respect to the latter part of
this judgment a different doctrine appears to have been held by
Lord Mansfield upon the 19th Geo. 2. c. 34. who is reported to
have said, 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, (p)

Upon a statute now repealed (7 Geo. 2. c. 21.) by which any
person who should, with an offensive weapon or instrument, un-
lawfully and maliciously 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

(a) Rex V. Reynolds, Mich. T. 1821. ^ery lar?e club sticks, such as people

MS. Bay ley, J. Russ. and Ry. 463. ride wiUi, to defend themselves, are

(A:) Hutchinson's case, 17S4, 1 Leach not ofTenstve weapons; and on its

342. being lelt to the jury, the prisoner was

(/) Rose*s case, Old Bailey, May acquitted. 1 Leach 34S, 343. note (a).

1784, before Willes, J. and Perryn, B. (o) Fletcher's case, 1 Leach 23.

1 Leach 342. note (a). (p) Franklin's case, I Leach 255.

(171 ) Ince's case, Old Bailey, Feb. S. C. Cald. 244. And this appears to

1785. By Gould, J. Perry n,'B. and be the correct doctrine, see anie^ ^8,
Mr. Recorder. 1 Leach 342. note (a) 28. and Rex v. Smith, Mich. T. 1818.

(n) Cosan's case. Old Bailey, Jtay Russ. and Ry. 368. poti. Book 11.
1765. In this case rt was contended. Chap, xzxix.
upon the authority of lace's case, thaL

CHAP. X.] Of resisting and evading the Revenue Laws. 135

as a walking stick. An indictment was for assaulting with an
offensive weapon, viz, a stick, with intent to rob; ai}d it appeared
upon the evidence that the stick was like a common walking 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 msdce it bleed ; and two
of the prisoner's comrades afterwards came up and beat the pro-
secutor 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 oflTensive
weapon; and the jury having convicted the prisoner, the Judges
agreed with Hohroyd, J., and held the conviction right, (o) From
a case upon the same repealed statute, whei^ 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 holden that the conviction of the prisoner was proper, it ap-
pears to follow that both a wooden staff and a great stone were con-
sidered as offensive weapons, within the meaning of that statute, {b)

As to the ussemblingj jt may be mentioned that upon the re- As to the
pwled statute 19 Geo. 2. c. 34. it was determined, that it must be a»«mWing.
deUberaiej and for the purpose of committing the offence de-
scribed in the statute. So that where a set of drunken men came
from an ale-house, 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 Legis-
lature had in view could be extended to such a case. And the
Court said, that the words of the statute manifestly aUuded to the
circumstance of great multitudes of persons coming down upon
ibd beach of the sea for the purpose of escorting uncustomed
goods to the places designed for their reception. (9)

Upon a clause of the repealed statute 9 Geo. 2. c. 35. s. 26. by indictment In
which it was enacted, that an assault committed upon any of the ^^^^^'^
officers of the customs and excise should be tried in any county ^^
in England^ in such manner and form, as if the offence had
been Sierein committed, it was decided that the provision
extended only to revenue officers qua officers : and a defendant
baving been found guilty, on an indicUnent, of a common assault
on the prosecutor, who was an excise officer, the Court of King's
Bench arrested the judgment, though the prosecutor was described
to be an excise officer, the offence being laid in Surrey, and the
venue in Middlesex, (r)

(<) Rex V, Johnson, Mich. T. 1832. The court offered the Attomey-Gene-

Ross. and Ry. 492. ral a special verdict upon this case :

{b) Sherwin^s case, Oakham^ 1785, but he declined to {jake it, and the

1 East P. C. c. 8. s. 13. p. 481. The prisoners were acquitted. This con-

{;round upon which the Judges held struction of the statute as to the as-

m this case, that the evidence was snf* semhling being deliberate^ and for the

ficient to noaintain the charge in the purpose of committing the offence, is

indictment, was that the weapon laid stated to have been adopted by Willcs,

lA the indictment, and the weapon J. and Hotham,B. inSpice*8 case. Old

froved, produce the same sort of mis- Bailey, December 1785, and by Heath,

chief, viz. by blows and bruises > and J. in Gray*8 case, Old Bailey, Jufy in

^bat the description would have been the same year. 1 Leach 343, note (a)
sufficient in an indictment for murder. (r) Rex v. Cartwright, 4 T. R. 490.
(f) Hutchinson*»'case, 1 Leach S43.

1S6

CHAPTER THE ELEVENTH.

OF HINDBBIN6 THB BXPORTATION OF CORN, OR PRBVBNTING ITS

CIRCULATION WITHIN THB KINGDOM.

Of bindering
the exporta-
tion of com
by violence.

Penoni eom-
mittiDg these
ofbiicct ft M-

Thb 11 Geo. 2. C.22. s. 1. recites that persons had assembled in
great numbers, committed great violences, and done many in-
juries, with intent to hinder the exportation of com, whereby
many of his Majesty's subjects had been deterred firom buying
com and grain, and followmg their lawful business jbherein, to
their great loss and damage, as well as to the great damage and
prejudice of the farmers and landholders of this kingdom, and of
the nation in general. It then enacts, '' that if any person or
'^ persons shall wilfully and maliciously beat, wound, or use any
^' other violence to or upon any person or persons, with intent to
" deter or hinder him or them from buying of com or grain in
'^ any market, or other place within this kingdom ; or shall unlaw-
*' fuUy stop or seize upon any waggon, cart, or other carriage, or
^^ horse loaded with wheat, flour, meal, malt, or other grain, in or
on the way to or from any city, maiket town, or sea-port, of
this kingdom; and wilfully and maliciously break, cut, separate,
^' or destroy, the same or any part thereof, or the harness of the
^^ horses drawing the same; or shall unlawfully take oS, drive
'^ away, kill, or wound, any of such horses; or unlawfully beat or
" wound the driver or drivers of such waggon, cart, or other
^^ carriage, or horse, so loaded, in order to stop the same; or shall
'^ by cutting of the sacks, or otherwise, scatter or throw abroad
^^ such wheat, flour, meal, malt, or other grain ; or shall tak^ or
^^ carry away, spoil or damage, the same, or any patt thereof;"
such offenders, being convicted before two justices of the peace of
the county, &c. in which the offence is committed, or bdore the
justices 01 the peace in open sessions, (who are tiiereby autho-
rized and empowered summarily and finally to hear and determine
the same,) shall be sent to the common gaol, or to the house of
correction, there to be kept to hard labour for- any time not ex-
ceeding tluree months, nor less than one month ; and shall by the
same justices be also ordered to be once publicly whipped by the
master or. keeper of the gaol or house of correction in such city,
market-town, or sea-port, in or near to which stich offence shall
be committed, at the market^cross or market-place there, between
the hours of eleven and two o'clock.

By the ^cfcdnd- section of this statute, ^^ if any person or persons
'^ so convicted, shall commit any of the offences aforesaid a second

cHAi^. U.3 Of Preventing the circulation of Com, %c. iST

^ time; or if any person or peraofts shall wilfiilly and maliciously ooud ttaM, or"
" pull, throiEr down, or otherwise destroy, any storehouse or gra- ^^SS^r
" nary, or other place where com shall be then kept in order to be th« corn
^' expoorted ; or shall unlawfully enter any such storehouse, gra- therein, or
" nary, or other place, and take and carry away any com, flour, y^^^^^
^ meal, or grain therefrom ; or i^all throw abroad, or spoil tibe and s^ln^
" same, or any part thereof; or shall unlawfully enter on board ^^ intehfied
" any ship, barge, boat, or vessel, and shall wilfully and mali- tiont^MUty'rf
'^ ciously take and carry away, cast or throw out therefrom, or felony.
'^otherwise spoil or diunage, any meal, flour, wheat, or grain,
" therein intended for exportation ;" every such offender being
convicted, shall be adjudged guilty of felony, and transported for
seven years ; and if such offender shall return before the expiration
of the seven years, he or she shall suffer death as a felon without
benefit of clergy, (a)

The statute 36 Geo. 3. c. 9. s. 1. recites that persons had as- Persons uain^^
sembled themselves in great numbers, and committed great vio- ^^^^^'^^
lences, with intent to hinder the passage of corn and grain from from buying
place to place, whereby the necessary circulation of com and com within
grain within the kingdom might be prevented : and then enacts or^gt^'^^n^™'
" that if any person or persons shall wilfully and maliciously beat, com, bre&tng
" wound, or use any other violence to or upon any person or per- waggons, &c.
" sons with intent to deter or hinder him or them from buying of oJtokiL^off '
'' corn or grain in any market, or other. place within this king^ the horses, or
" dom; or shall unlawfully stop or seize any wheat, flour, malt, or beating the
" other grain, in or on the way to or from any city, market-toMrn, ^t^ng'or
^^or place in this kingdom; or shall wilfully and maliciously taking com,
"break, cut, or destroy, any waggon, cart, or other carriage,. *« be impri-
" wherein any such wheat, flour, meal, malt, or other grain, shall *°^^^
^^ be loaded, or the hamess of any horse or horses drawing or
" carrying the same; or shall unlawfully take off from any such
" carriage, or drive away, kill, or wound, any such horse or horses;
" or. unlawfully beat or wound the driver or drivers of any such
'' ws^gon^ cart, or such other carriage or horse so loaded, with
" intent to stop such wheat, flour, meal, malt, or other grain ; or
"shall, by cutting of the sacks or otherwise, scatter or throw
"abroad any such wheat, flour, meal, malt, or other grain; or
" shall take or carry away, destroy, spoil, or damage, the same or
" any part thereof;" such offenaers being convicted before two
justices of the peace of the county, &c. wherein the offence is
committed, or before the justices of the peace in open sessions,
(who are thereby authorized and empowered summarily and finally
to hear and determine the same,) shall be sent to the common
gaol, or house of correction, to be kept to hard labour for any time
not exceeding three months, nor less than one month.

The second section enacts, '^ that if any such person or persons Persons com-
" so convicted shall commit any of the offences eibresaid a second fitting these

, " offences a se-
es) Section 3, proTides that attain- for the same offence by any other law
^ shall not work corrnption of or statute. Sections 5, 6, 7, and 8.
blood, loss of dower, or disinherit- relate to actions by persons against
>ace: and by section 4 no person, who the hundred for damages done to their
^11 be pnni^ed for any offence by properties by offenders against the
virtue of this act, shall be panished act.

I^ . Of Preventing ike circuttUion of Com, %c. [book ii.

^Sb £"%*to *' *™c; or if any person or persons with intent to prevent or
Cerent <^niy ^^ hinder any com, meal, flour, malt, or grain, from oeing law-
Ac. from being ^^ fiilly carried or removed from any place whatsoever, shall wil-
remored^ de- a f^^jiy ^^^ maliciously pull, throw down, or otherwise destroy,
narieB^c^^or " ^^7 Storehouse or granary, or other place, in which com, meal,
taking there- ^' flour, malt, or grain, sludl be then kept; or shall unlawfully
wT 1Sn*'th^' " ®^^^ *"*y *^ch storehouse, granary, or other place, and take and
■ame^olTenter- ^' carry away any com, flour, meal, malt, or grain, therefrom; or
ing any ship, '^ shall ^hrow abroad or spoil the same or any part thereof; or
tald]^ Siere^^ ^^ ^^^ unlawfully enter on board any ship, barge, boat, or vessel,
from or spoil- ^^ <^d wiUully and maliciously take and carry away, cast, or throw
in^ com, &c. ^^ out therefrom, or otherwise spoil or damage, any com, flour,
fo'^^^and^to be ** ^^^^^^ malt, or grain therein; every person so offendii^, and
trtnsported. being convicted, shall be adjudged guilty of felony, and be trans-
ported for seven years; and if such oJBTender shall return into this
Kii^dom before the expiration of the seven years, he or she shall
suffer death as a felon without benefit of clergy. The section
further provides that attainder shall not work corraption of blood,
loss of dower, or disinheritance of heirs. And by the sixth section
it is provided that nothing contained in the act shall abridge or
take away any provision already made by the law of the railm,
for the suppression or punishment of any offence whatsoever,
mentioned or described in this act; and it is provided also, that ho
persop who shall be punished by virtue of this act shall be pu-
nished for the same offence by virtue of any other law or statute
whatsoever, {b)

(b) Sections S, 4, and 5. relate to damages done to the properties of
proceedings against the hundred for persons, by offenders agamst this act.

1S9

CHAPTER THE TWELFTH.

OF ADMINISTKRINQ OR TAKING UNLAWFUL OATHS.

The 37 Geo. 3. c. 123. s. 1. recites, that wicked and evil disposed
persons had attempted to seduce his Majesty's forces and subjects
from their duty and allegiance, and to incite them to acts of mutiny
and sedition ; and had endeavoured to give effect to their wicked
and traitorous proceedings, by imposing upon the persons whom
they had attempted to seduce the pretended obligation of oaths un-
lawfully administered. From this preamble it appears as if the
statute were mainly directed against combinations for purposes of
meeting and sedition : but in the enacting part, after dealing with
offences of that description, it goes on in much more extensive
terms, and embraces other more general objects. It enacts, '^ that 37 Geo. 3.
" any person or persons who shall in any manner or form whatso- ^^I'^rfn^
" ever administer, or cause to be administered, or be aiding or unlawfoi oaths
^^ assisting at, or present at, and consenting to, the administering feionv^pumali-
" or taking of any oath or engagement, purporting or intended to TOrtjafon]^**
" 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 pur-
" pose ; or to obey the orders or commands of any committee or
^' body of men not lavrfuUy constituted, or of any leader or com-
'^ mander, 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 be adjudged
guilty of felony, and be transported for any term not exceeding
seven years ; '' and every person who shall take any such oath or Taking luch
" engagement, not being compelled thereto, shall, on. conviction, oaths felonr,
" be adjudged guilty of felony, and may be transported for any Srim*^^Uod.
^^ term not exceeding seven years."

In a case in the Court of King's Bench upon this statute, a Thh statute it
question was made, whether the unlawful administering of an oath not confined
by an associated body of men to a person, purportmg to bind hin^ J^SSwd for*^'

YOt. I. K

«

130 Of administering or [book ii.

seditious or not to reveal or discover an unlawful combination or conspiracy of
mutmous pur- persons, nor any Illegal act done by them, {a) was within this sta-
tute ; 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, that the words of the sta-
tute, however large in themselves, must be confined to the objects
stated in the preamble; and could not have been intended to reach
a ease where it was plain that the fact arose entirely out of a private
dispute between persons engaged in the same trade, and was con-
fined in its object to that alone : and that the general words there-
fore must be construed with relation to the luitecedent offences,
which are confined in their objects to mutiny and sedition. But
the Court, though they did not upon the particular circmstances
feel themselves called upon to give an express decision, appear
to' have entertained no doubt but that the case was within the
statute, {b)
52 Geo. 3. A recent statute has been passed, to render the foregoing act

Ad^^'ti*' ™ore effectual in respect to oaths of a particular nature. The 52
unUwftii oaths Geo. 3. c. 104. 8. 1. enacts, "that every person who shall in any
incertaincases '^ manner or form whatsoever administer, or cause to be adminis-
felony without « tered, or be aiding or assisting at the administering of any oath
^' ^' or engagement, purporting or intending to bind the person taking

" the same to commit any treason or murder, or any felony punish-
*' able by law with death," shall, on conviction, be adjudged guilty
of felony, and suffer death as a felon without benefit of clergy:
Taking stich " and every person who shall take any such oath or engagement,
oaths felony «* ^iQ/^ being compelled thereto," shall, on conviction, be adjudged
ation for'ufc!" S^^Y ^^ felony, and be transported for life, or for such term of

years as the Court shall adjudge.

Pfrsons taking But persons taking the oaths mentioned in either of these acts

oaths by com- by compulsion must make a full disclosure of the fact, and the

diciowThe* circumstances attending it, within a limited time, in order to be

same within a Justified or excused. The second section of the 37 Geo. 3. c. 123.

limited time, 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 st^te, or his Majesty's privy council ; or in case

tlic person taking such oath or engagement shall be in actual

<c

(«) The oath wa», ** You ahall be *' ing clause are coafioed in their

true to every journeyraan shearman, ** objects to cases of luuiiny and sedi-

and nut to hurt any of them, and you *' tiont but It is nothing unusual in

shall not divulge any of the;ir se- *' acts of Parliament, for the enacting

crets; so help you Gad:** *' part to go beyond the jpreambie.t the

{b) Rexv. Marks, S East. 157. Law- *' remedy oflen extends beyond the

rence, X said, " It is true, thai the pre- *' particular act or miscbief wDich first

" amble and the first part of the enact- ** suggested the necessity of the law.^

CHAP. XII. 3 taking unlawful Oaths. .131

" service in his Majesty *6 forces by sea or land^ then by such in-
^' formalion on oath as aforesaid, or by information to his com-
" Dianding ofiEieer." The statute 52 Geo. 3. c. 104. s. 2. contains
a similar enactment as to the oaths or engagements within that
act, except that the words ^^ fourteen days** are substituted for
•' four days/'

By the fifth section of the 37 Geo. 3. any engagement or obli^a- What shall
tion whatsoever in the nature of an oath, and by the sixth section ^^ deemed
of the 52 Geo. 3. 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
punisiiable 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.

With respect to persons aiding and assisting at the adminis- Pcnjons nuiin?
tering or taking these xmlawful oaths, the third section of the 37 ^"^ assistin

o

Geo. 3. enacts, that persons fdding and assisting at, or present dccme(Ti»nn-

and consenting to, the administering or taking of any oath or cipais.

engagement before mentioned in that act; and persons causing

any such oath or engagement to be administered or taken, though

not present at the administering or taking thei^eof, 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. A

similar enactment is contained in the fourth section of the 52 Geo.

3. with respect to persons aiding and assistuig at the administering

of any oath or engagement mentioned in that act ; and persons '

causing any siich oath or engagement to be administered, though

^ot present at the administering thereof : such persons are to be

deemed principal offenders, and, on conviction, to be adjudged

guilty of felony, and to suJBTer death without benefit of clergy,

sdtbough the person or persons who actually administered the oath

or engagement, if any such there shall be, shall not have been

tried or convicted.

Both the statutes provide that it shall not be necessary to set in the indict-
forth ia the indictment the words of the oath or engagement ; and "*^°^ ** " ■"*""
that it shall be sufficient to set forth the purport of such oath or fourth the ^vr-
engagement, or some material part thereof, (c) Upon an indict- port of the
nient on the 37th Geo. 3. the fourth count charged, that the ^J^^.^^^""
defendants administered to J. H. an oath " intended to bind him 8^*^™®° '
" not to inform or give evidence against any member of a certain
'^ society formed to disturb the public peace for any act or expres-
'^ aion of his or their's, done or made collectively or individuaUy
Mn or ont of that or other similar societies, in pursuance of the
" spirit of that obligation ;" and the eighth count stated the oath to
be ^* intended to bind the said J. H. not to give evidence against any
^* associate in certain associations and societies of persons formed
^* for seditious purposes :" and the other counts stated the objects
of the oath administered, and the objects of the society, differently

(tf) 37 Geo. 9. c. Its. s. 4. 52 Geo. 3. c. 104. s. 6.

k2

iS2

Of administering or

[book II.

Evidence. —
It is not ne-
cesMry to pro-
duce a paper
from which it
isiHppoted
that the oath
was read.
And parole
evidence may
be giren to
explain the
nature of the
oath.

Place of trial.

Persons tried
not liable to
be tried for
the same fact
AS hig^h trea-
son.

fiut persons
offending
against these
acts may be
tried for high
treason, if not
tried under
the acts.
57 Geo. 3.
c. 19. s. 25.
Societies tak-
ing unlawful
oathsy &c. to
be deemed un-
lawful combi-
nations and
confederacies.

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 described in the
words of the act, was well described : but that supposing the ob-
jection 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 clause of the
act. The point was submitted to the Judges, who, without giving
any opinion against the other counts, all agreed that at any rate
the fourth and eighth counts were good. {(I)

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 m 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 parole evidence of what he in fact said was sufficient, without
giving him notice to produce such paper, (e) And where the oath
on the face of it did not purport to be for a seditious purpose,
though it was objected that no parole evidence 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 an oath were admissible to prove the real
object of it. (/)

Both the statutes, 87 Geo. 3. and 52 Geo. 3. provide, that of-
fences committed on the high seas, or out of the realm, or in Eng-
landy shall be tried before any court of oyer and terminer or gaol
delivery for any county in England in such manner and form as if
such offence had been therein committed; and that offences com-
.mitted in Scotland shall be tried either before the justiciary court
at Edinburgh, or in any of the circuit courts in that part of the
united kingdom, {g)

It is also provided by both these statutes 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 further,
that nothing in the acts contained shall be construed to extend to
prevent any person 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 misprision of high
treason, in such manner as if those acts had not been made. (A)

By a statute, very recently passed, the 57th Geo. 3. c. 19. s. 25.
it is enacted, that all societies or clubs, the members whereof shall
be required or admitted to take any oath or engagement, which
shall be an unlawful engagement within the 37th Geo. 3. c. 123. or
the 52d Geo. 3. c. 104. or to take any oath not required or autho-

(d) Rex V, Moors and Others, 6 East. 42 1 .

419. note (fr). The defendants were (/) Id. Ibid.

tried at Lancaster Summer Assizes, (g) S7 Geo. 3. c. \2S. s. 6. 68 Geo.

1801; and the opinion of the Judges 3. c. 104. s. 7.

^as given in Michaelmas Terra, 1801. (h) 37 Geo. 3. c. 193. s. 7. 52 Geo.

(r) Rex r. Moors and Others, 6 East 3. c. 104. a. 8.

CBAP. XII.] taking unlawful Oaths. 123

rized by law; and every society or club, the members whereof, or
any of them, shall take, or in any manner bind themselves by any
9uch oath or engagement 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 any test or declaration not required or authorized by law, in
whatever manner or form such taking or assenting shall be ]^er-
formed, whether by words, signs, or otherwise, either on beconung,
or in order to become, or in consequence of being a member or
members of any such society or club ; shall be deemed and taken
to be unlawful cambinatiofis and confederacies withui the meaning
of the 39th Geo. 3. c. 79< and may be prosecuted, proceeded
against, and punished, according to the provisions of the said
act. (i)

With respect to the administering or taking unlawful oaths in AdouDisieriag
Ireland, a late statute, 50 Geo. 3. c. 102., has enacted, 'Hhat any ^^f^^^^*
^^ person or persons who shall administer, or cause to be adminis* felony and
" tered, tender, or cause to be tendered, or be present aiding and J™'*??^^'*''*
^^ assisting at the administering or tendering, or who shall by ^^ ^*'
'^ threats, promises, persuasions, or other undue means, cause,
" procure, or induce to be taken by any person or persons in
'^ Irekmdy upon a book or otherwise, any oath or engagement im-
*^ porting to bind the person or persons taking the same to be of
'^ any association, brotherhood, committee, society, or confederacy
'' whatsoever, in reality formed, or to be formed, for seditious pur-
" poses, or to disturb the public peace, or to injure the persons or
^' property of any person or persons whatsoever, or to compd any
'^ person or persons whatsoever, to do, or omit, or refuse to do, any
^^ act or acts whatsoever, under whatever name, description, or
'^ pretence, such association, brotherhood, committee, society, or
^' confederacy, shall assume, or pretend to be formed or constituted,
*^ or any oath or engagement importing to bind the person taking
^^ the same to obey the orders, or rules, or commands, of any com-
^^ mittee or other body of men not lawfully constituted, or of any
^^ capt^n, leader or commander, (not appointed by or under the
'^ authority of hb Majesty, his heirs and successors,) or to assemble
'^ at the desire and command of any such captain, leader, com-
" mander, or committee, or of any person or persons not having
'^ lawful authority, or not to inform or give evidence against any
'^ brother, associate, confederate, or other person, or not to reveid
^' or discover his or her having taken any illegal oath, or not to
'^ reveal or discover any illegal act done or to be done, or not to
'^ discover any illegal oath or engagement which may be adminis-
^^ tered or tendered to him or her, or the import thereof, whether
*^ such oath shall be afterwards so administered or tendered, or
" not, or whether he or she shall take such oath, or enter into
'^ such engagement or not, being by due course of law convicted

(i) This statate is not to extend to S. 36. By s. 39. the act is not to extend

Freemasons* lodg;e8, nor to any decla- to irelasid: and s. 40. provides for its

ration approved by two justices, nor being , repealed or altered during the

to QtukerM" meetings, nor to meetings present session.
or societies for craritable purposes.

134 Of administering y 8fc. nrdawful Oaths, [book ii:

" thereof, shall be adjudged guilty of felony, and be transported
And taking " for life ; and every person who shall tafce^ in Irelatid^ any such
such oath in « oath or engagement, importing so to bind him or her as aforesaid,
portation for*' " ^^^ being by due course of law thereof convicted, shall be ad-
scven years. '^ judged guilty of felony, and be transported for seven years."
Persons com- This statute further enacts, that a person compelled by inevitable
peiied by ne- necessity to Commit any of these offences, shall be excused and
cused^i^the"" justified upon proof of such necessity, if within ten days (not being
disclose what prevented by actual force or sickness, and then within seven days
limited °r*°* after such actual force or sickness shall cease to disable him,) he
disclose to a justice of peace, by information on oath, the whole of
Aiders to be what he knows touching his compulsion. (A) Persons aiding at
cipaToffcnders. *^® administering or tendering the oath or engagement, and per-
sons causing the oath or engagement to be administered or ten-
dered, though not present, are to be deemed principal offebders,
and tried as sueh, though the person who actually administered
such oath or engagement shall not have been tried or c<Mivicted. (/)
Purport of the And the statute also provides, that it shall be sufficient to set forth
hT tiie"iu<Uct°* ^" ^^^ indictment the purport or object of such oath or engage-
ment, ment, (m)

By the 4 Geo, 4. c. 87. s. 1. every society, &c. in Irdnnd, the
members whereof shall, according to the rules, &c. be required or
admitted, or permitted to take any oath or engagement, which shall
be an unlawful oath or engagement, within the statute 50 Geo» 3.
c. 102. or to take any oath not required or authorized by law, are
declared to be unlawful combinations and confederacies.

(ft) S. 8. And the section provides -of it, or of seven days from the time
also* that no person shall be excluded when the force or sickness shall cease,
from the defence of inevitable neces- (/) S. 3.
sit J, who shall be tried for an offence (m) S. 4.
within ten days from the commission

135

CHAPTER THE THIRTEENTH.

OF MISPRISION Olf FBtONV, AND OF COMPOCNBING 0FFENCS8.

Bt misprision of felony, is generally understood the concealment Of misprUioa
of felony y or a procuring such concealment, whether it be felony «>jconccalment
by the <x>mmon law or by statute, {a) Thus, silently to observe ° * **°^'
the commission of a felony without using any endeavour to appre-
hend the ofiender, is a misprision ; {b) for a man is bound to dis-*
eover the crime of another to a magistrate with all possible expe-
dition, (e) But there must be knowledge merely without any
assent ; for if a man assent to a felony, he will be either principal
or accessory, {d) The punishment of this oflfeuce in an officer is
imposed by the statute of fTestminsterj 3 £dw. 1. c. 9. which
enacts, that ''if the sheriff, coroner, or any other bailiff within a
" franchise, or without, for reward, or for prayer, or for fear, or
'^ for any manner of affinity, conceal, consent, or procure to con-
" ceal, the felonies done in their liberties ; or otherwise wilhnot
" 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 hr^e impri-
^^ sonment of three years.'' The punishment, in the case of a com-
mon person, is imprisonment for a less discretionary time ) and in
both cases fine and ransom at the king's pleasure, (e) By the 3
Hen. 7. c. 1. the justices of every shire may take an inquest to
inquire of the concealments of other inquests, of such matters and
ofiences as are to be inquired and presented before justices of the
peace, whereof complaint shall be made by bill ; and if such con-
cealment be found of any inquest within a year after the conceal-
ment, every person of the inquest is to be amerced for the con-
cealment by discretion of the justices.

Of a similar nature to tiiis oflbnce of misprision of felony, is the Of compound-
offence of compounding offeUmy^ mentioned in the books by the *"^j2eft-*£S.

»

(c) 1 Hawk. P. C. c« 59. s. 9. 3 Inst, ^aid, " which pleasure of the king roust

139. «' |>e observed, once for all, not to sig*

^») 1 Hale S74, 375. 1 Hawk. P.O. '' nif j any extrajudicial will of the

c. 59. 8. 2. pote (1). ** soTcrei^n, but such as is declared bj

{t^ 3 lost. 140. ^* his reprewntatives, the Judges in his

(^ 4 filac. Cora. 121. *' courts of justice; valuntai RegU i»

(e) 4 Blac. Com. 121 v where it is ^* curUt nan in camera.'"

136 Of Compounding Offences. [book ii«

more ancient appellation of theft-bote which is where the party
robbed not only knows the felon, but also takes his goods again, or
other amends, upon agreement not to prosecute. (/) It is said to
have been anciently punishable as felony ; but is now punished
only with fine and imprisonment, unless it be accompanied with
some degree of maintenance given to the felon, whidi makes the
party an accessory after the fact, (g) But the barely taking again
one's own goods which have been stolen, is no oSence at all unless
some favour be shewn to the thief, {h)

It may be observed, that to take any reward for helpfng a person

to stolen eoods is made felony by 4 Geo. U c. 11.; and to advertise

a reward for the return of things stolen, incurs a forfeiture of fifty

pounds by 25 Geo. 2. c. 36. (a)

Compounding An agreement to put an end to a misdemeanor has been con-

miademeanort. gidered to be illegal, as impeding the course of public justice ; (i)

but it is sometimes done after conviction, with the sanction of the
Court, in cases where the offence principally and more immediately
affects an individual ; the defendsint being permitted to speak with
the prosecutor before any judgment is pronounced, and a trivial
punishment being inflicted if the prosecutor declares himself satis-
fied. (Ar) And where, in a case of an indictment for ill treating a
parish apprentice, a security for the fair expenses of the prosecu-
tion had been given by the defendant after conviction, upon an
understanding that the Court would abate the period of his impri-
sonment, the security was held to be good, upon the ground that it
was given with the sanction of the Court, and to be considered as
part of the punishment suffered by the defendant in expiation of
his offence, in addition to the imprisonment inflicted on him. (/)
Of compoand- fhe compounding of informations on penal statutes is a misde-
tkfnlTon^Mnia XD^anor against public justice, by contributing to make the laws
•tatutet. odious to the people, (m) Therefore, in order to discourage mali-

cious informers, and to provide that offences, when once discovered,
shall be duly prosecuted, it was enacted by the statute 18 £liz. c.
5. s. 4. that if any informer, by colour or pretence of process, or
without process upon colour or pretence of any manner of offence
against any penal law, make any composition, or take any money,
reward, or promise of reward, without the order or consent of the
Courts he shall stand two hours in the pillory, {n) be for ever dis-
abled to sue on any popular or penal statute, and shall forfeit ten
pounds. This severe statute extends even to penal actions, where

(/) 1 Hawk. P. C. c. 59. s. 5. 4 tract or security made in considera-

filac. Com. ]S3. tion of dropping a criminal proseca-

(g) 1 Hawk. P. C. c. 59. s. 6. 8 Hale tion, suppressing evidence, solicitinr a

400. pardon, or compounding any public

ih) I Hawk. P. C. c. 59. s. 7. offence, without leave of the Court, is

(a) See these statutes more at large, invalid. 1 Chit. Crim. Law, 4.

pott^ Book lY. Chap. xxi. (m) 4 Blac. Com. 136.

(/) Collins V. Blantern, 8 Wils. 341-9. (fi) This part of the punishment can-

Edgecombe v. Rodd and others, 5 East not now, by 56 Geo. 3. c. 138. be iu-

898, 308. flicted. But sect. 8. of that statute

(k) 4 Blac. Com. 363, 364. empowers the Court to pass such sen-

(/) Beeley v. Wingfleld, 1 1 East. 46. tence of fine or imprisonment, or of

and see also Baker v. Townshend, 7 both, in lieu of the sentence of pillory.

Taunt. 428. But in general any con- as to the Court shall seem proper.

CHAP. XIII.] Of Compounding Offences. 137

the whole penalty is eiven to the prosecutor, (o) But it does not
apply to -penalties which are only recoverable by information beCore
justices ; and an indictment for making a composition in such a
case was holden bad, in arrest of judgment, (a)

In a case where it was held that threatening, by letter or other-
wise^ to put in motion a prosecution by a public officer to recover
penalties for selling Fryer^s Balsam without a stamp, {p) for the
purpose of obtaining money to stay the prosecution, (not being
such a threat as a firm and prudent man might not be expected to
resist,) was not in itself an indictable ofience at common low,
though it was alleged that money was obtained, it seems ta have
been considered that such an offence would be indictable under
the foregoing section of this statute of Elizabeth, {q) But no in*
dietment for any attempt to commit such a statutable misde-
meanor can be sustained as a misdemeanor at common law,
without at least bringing the offence intended within, and laying it
to be against, the statute. Though if the party so threatened had
been alfeged to be guilty of the offence imputed, within the statute
imposing the duty and creating the penalty, such an attempt to
compound and stifle a public 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 ftur*
therance of public justice for the sake of example,) might also,
upon generu principles, have been deemed a sufficient ground on
which to have sustained the indictment at common law. (r)

It has been holden that a party is liable to the punishment
prescribed by this statute of 18 £liz. c. 5. for taking the penalty
imposed by a penal statute, though there is no action or pro-
ceeding for the penalty. The prisoner applied to one Round, and
demanded five pounds, as a penalty, which Round had incurred
under the general turnpike act, by suffering his waggon to be
drawn on a turnpike road by more than four horses. Round had
incurred such a penalty, and the prisoner obtained the money by
way of composition to prevent any legal proceedings : and it fur-
ther appeared that no process had been sued out, and that no
information had been laid before a magistrate. The prisoner
having been convicted, judgment was respited by Le Blanc, J.
upon a doubt whether the offence was within the statute, so as to
subject the prisoner to the specific pimishment therein prescribed,
inasmuch as no action or proceeding was depending in which the
order or consent of any Court in Westminster-hall for a composi-
tion 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 pienalty incurred, or pretended to be incurred,
irithout leave of a Court at Westminster, or without judgment or
conviction, {z)

(•) 4 Blac. Com. 136. note (3). (q) Rex v, Southerton, 6 East 186.

{«) Rex r. Crisp and others, 1 Bar* But fv. and see Hex v. Crisp and others,

ne. and Alders. 88«. 1 Barne. and Alders. 286, 287.

(p) By the 4 Geo. 3. c. 56. it was (r) Id, Ibid.

prohibited to be Vended without a (z) Rex v. Gollej, East. T. 1805.

stamped label. ' Russ. and Ry. 84.

138

CHAPTER THE FOURTEENTH

OF OFFBNCBS BV fBRSONS IN OFFICE.

Officera in- Whbrb an officcr neglects a duty incumbent on Hhi, either by
mSwoiiduct. common law or by statute, he is indictable for his ofifence; and this,
whether he be an officer of the common law^ or appointed by act
of Parliament : (a) and a person holding a public office under the
king's letters patent, or derivatively from such authority, has been
considered as amenable to the law for every part of his conduct,
and obnoxious to pimishment for not faithfiilly discharging it. {b)
And it is laid down generally, that any public officer is indictable
for misbehaviour in his office, (c) There is also the further punish^
ment of the forfeiture of the office for the misdemeanor of doing
any thing directly contrary to its design, (d) And in the case of a
coroner, the statute 25 Geo. 2. c. 29. s. 6. makes particular provi-
sion; and enacts^ that when convicted of extortion^ or wilful neg-
lect of duty, or misdemeanor in office, he may be removed from
office by the judgment of the Court in which he is couTicted,
unless such office be annual, or annexed to some other office.
Where a duty is thrown upon a body of several persons, and they
neglect it, each is individually liable to prosecution for the
neglect, (e)

It is proposed to treat shortly, in the present Chapter, of oppres-
sion, negligence, fhiud, and extortion, by persons in office ) and of
the refusal of persons to execute the duties of their offices when
properly appointed; leaving the subjects of buying and selling
offices, and of bribery, for subsequent Chapters.
Opprcuion by The oppression and tyrannical partiality of judges, justices, and
public officers, other magistrates in the administration, and under colour of their
. offices, may be punished by impeachment in Parliament, or by in-
formation or indictment, according to the rank of the offenders,
and the circumstances of the offence. (/) Thus if a justiQe of peace
abuses the authority reposed in him by law, in order to gratify his

(a) Reein. r. Wyat, I Salk. 380. (/) 4 Blac. Com. 141. A Judge is

Anon. 6 Mod. 96. not indictable for an error in judg-

{b) Rex t). Bembridge, M.S4thGeo. nicnt*: but this rule extends onlj to

3. 1 Salk. SSO. note (a). Judges in courts of record, and not

(c) Anon. 6 Mod. 96. to ministerial officers. Rex v. Loggen

(</) 1 Hawk. P. C. c. 66. s. I. and another, 1 Str. 74.

(r) Rex r. Holland, 5 T. R. 607.

CHAP. XIV.] Of Offences by Persons in Office, Sgc. 139

malice, or promote hia private interests or ambition, he may be
punished by indictment or information. But the Court of King's
Bench have expressly declared, that though a justice of peace
should act illegally, yet if he has acted honestly and candidly,
without oppression, malice, revenge, or any bad view or ill inten-
tion whatsoever, the Court will never punish him by the extraor-
dinary course of an information, but will leave the party com-
plaining to the ordinary method of prosecution by action or
indictment. (/) And where a justice has committed an involun*
tary error without any corrupt motive or iutentipn, it has heexk
questioned whether it is an indictable offence ; on the ground that
the act in that case is either null and void, or the justice is answer-
able in damages for all its consequences, (g) But in a case where,
two sets of magistrates having a concurrent jurisdiction, one set
of them appointed a meeting to grant ale licences, and, after such
appointment, the other set of magistrates appointed a meeting for
the same purpose on a subsequent day, and, having met, granted a
, licence which had been refused by the first set, it was held that the
proceedings of the ma^strates appointing the second meeting were
illegal, and the subject of an indictment. Lord Kenyon, 0. J.,
said that it was proper the question should be settled whether ii
were legal for two diiferent sets of magistrates, having a concur-
leut jurisdiction, to run a race in the. exercise of any part of their
jurisdiction ; and that it was of infinite impoftance 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 mutter of an indictment, without the
addition of any corrupt motives. And that though the want of
corruption might be an answer to an application for an informa-
tion which is made to the extraordinary jurisdiction of the Court,
yet it is no answer to an indictment where the Judges are bound
by the strict rule of law. (A)

The conduct of justices of the peace in granting or refusing Of jastlcc*
licences to sell ale has been frequently the subject of investiga- granting or
tion; and it seems to be clear that though upon this matter the u/en^im-
justices have a discretionary jurisdiction given them by the law, properly,
and though discretion means the exercising the best of their judg-
ment upon the occasion that calls for it, yet if this discretion be
wilfully abused, it is criminal, and under tne controul of the Court
of King's Bench, (t) That Court will therefore i^rant an informa-
tion against justices who refuse from corrupt and improper motives
to grant such licences ; {k) and an information will be granted

if) Rex V. Palmer and otheni, 9 justice, and unless the party injured

Burr. 1 1st. 1 Blac. Com. 354. note nfill undert^lie to bring no action.

(17), where it is said that in no case (g) 1 Blac. Cora. 354. note (17).

«iU Uie Court grant an information (k) B/ex :v. Sainsbury and another,

ufilenaa application for it be made 4 T. R. 451.

withia the second Terra after the of- (0 Rex v. Young and Pitts, 1 Burr.

fence committed, and notice of the 556, 560, el se^u,

application be previously given to the (k) Rex v. Williams and Davis, S

140 Of Offences by Persons [book ii.

against them as well for granting a licence improperly as for refus-
ing one in the same manner. (/)
Of gaolers To prevent abuses by the extensive power which the law is

forcing per- obligea to repose in gaolers^ it is enacted by the statute 14 £dw.
•^ to give 3^ ^^ jQ^ ^a^lj jf j^uy gaoler, by too great duress of imprisonment,
makes any prisoner that he hath in ward become an approver
or an appellor against his will ; that is, to accuse apd turn evidence
against some other person ; it shaH be felony in the gaoler. For
it is not lawful to induce or excite any man even to a just accusa-
tion 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, (m) And a gaoler may be discharged and fined for
voluntarily suffering his prisoners to escape, or for barbarously
misuHing them, (n)
Oreneers of An overseer of the poor is also indictable for misfeasance in the
^^•^bw execution of his office: as if he relieve the poor where there is no
misfeasance in necessity for it; (o) or if he misuse the poor, as by keeping and
their offices, lodging several poor persons in a filthy unwholesome room, with
the windows not in a sufficient state of repair to protect them
against the severity of the weather ; (p) or by exacting labour from
ihem when they are unable to work, {q) And if overseers con-
spire to prevail upon a man to marry a poor woman big with child,
for the purpose of throwing the expense of maintdning her and the
issue from themselves upon another parish or township, they may
be indicted, (r) And for most breaches of their duty overseers
may be punished by indictment or information : {s) but with res-
pect to the proceeding by information, ais it is an extraordinary
remedy, the Court of King's Bench will not sufier it to be applied
to the punishment of ordinary offences, and has long come to a
resolution not to grant informations against overseers for procuring
a pauper's marriage with a view to burthen another parish. (/)
Negligence by It has been already stated, that an officer neglecting the duties
public officers, ^f j^jg office is guilty of an indictable offence, (m) In some cases
also the offence will amount to a forfeiture of his office, if it be a

Burr. 1S17. The licences in this case («) Rex v. Commings, 1 Bott. 998.

had been refused, because the persons PI. 378. R«x v. Robinson, 2 Burr,

applying for them would not give their 799. Rex v. Jones, I Bott 337. PI. 379.

votes for members of pari lament as the 8 Nol. 474. From these autborities it

justices would have nad them. And appears that such proceeding may be

see Rex v. Hann and Price, id, 1716, had in some cases where a particular

178U. punishment is created by statute, and a

(0 Rex v. Holland and Forster, 1 specific method of recovering the pe-

T. R. 698. And see 1 Burn*s Just. tit. nalty is pointed out But as to tnis

Jlehouset^ Sect. II. see anU^ Book I. Chap. iii. p. 47,

(iTi) 4 Biac. Com. 188. 3 Inst 91. 49.

(fs) 1 Hawk. P. C. c. 66. s. 8. (I) Rex o. Slaughter, Cald. 846.

(0) Tawney^scase, leVin.Abr. 415. note (a). And perhaps this offence

1 Bott. 333. PI. 408. would not be punishable at all if the

(p) Rex V, Wetheril and another, woman settled in the defendant's pa-

Cald. 438. rish previous to the marriage is with

i^) Rex r. Winship and another, child by the roan to whom the de-

Cald. 76. fendants procure her to be married.

<r) Rex v.Compton, Cald. 846. Rex 8 Nolan 477.

V. Tarrant, and Rex t*. Herbert, 1 East (») Ante^ p. 138*
P. Co. U.S. II. p. 461.

CHAP. xiY.] m Office. — Negligence.

Ul

beneficial one; {w) for, by the implied condition that the grantee
of an office shall execute it diligently and faithfully, it appears to
be clear that he will be liable to a forfeiture of it, not only for
doing a thing directly contrary to its design, but also for neglecting
to attend his duty at all usual, proper, and convenient times and
places, whereby any damage shadl accrue to those by or for whom
he was made an officer, {x) A coroner neglecting the duties of
his office is indictable: {y) and by statute 3 Edw. 1. c. 9* the she-
riff, coroner, or any other bailiff concealing felonies, or not arrest-
ing felons, or otherwise not doing their duty, are to be impri-
soned for a year, and fined at the king's pleasure, {z) Ana an
indictment lies at common law against all subordinate officers for
neglect, as well as misconduct, in the discharge of their official
duties. A constable is therefore indictable for neglecting the
duties required of him by common law or by statute;, (a) and when
a statute requires him to do what without requiring had been his
duty, it is not imposing a new duty, and he is indictable at com-
mon law for the neglect. (6) And an overseer of the poor is
indictable for the wilful neglect of his duty. Thus overseers have
been held to be indictable for not providmg for the poor ; (c) for
refusing to account within four days after the appointment of new
overseers, under 43 Eliz. c. 2. ; {d) for not making a rate to reim-
bnrse constables under 14 Car. 2. c. 14. ; (e) and for not receiving
a pauper sent to them by order of two justices; (/) or disobeying
any other order of justices, where the justices luive competent
jurisdiction, (g)

It was the opinion of a majority of the learned Judges present Ov&ncen of
at the discussion, that an indictment would not lie accamst an ^H^''?"'
overseer for not reUeving a pauper, unless theie were an^rder for H^L'^^tp
his relief, except in a case of immediate emergency, where there reilere pau-
T^as not time to get an order, (or) But there may be cases in l^"«

(«) % Blac. Com. 140.

(x) I Hawk. P. C. c. 66. s. 1. And
see further as to forfeiture of ofiices.
Com. Dig. Officevy (K. S.) (K. 3.) and
the Earl of Shrewsbury's case, 9 Co.
50.

(jr) See precedents of indictments
against coroners for refusing to take
iD(|uisitions, or for not returning in-
quisitions according to eridence, 2
Chit. Crim. Law, %5b, Cro. Circ. Comp.
(aih ed.) 170. (7th ed.) SOS, 304.

(z) JnUy p. 135, 136. And hj 3
Heo. 7. c. 1. if any coroner be remiss,
spd make not inquisition upon the
view of the bod? dead, and certify
Dot, as ordained in the statute, he
skail, for every default, forfeit to the
king a hnndred shillings.

(«)Regm. V, Wyat, 1 Salk. 380.
Crowthefs case, Cro. Eliz. 654; in-
dicbceat against a constable for re-
fiising to make hue and cry after no-
tice of a burglary.

{h) Eegin. v. Wyat, 1 Salk. SSI.

{c)t Nolaa 476. Tawney's c«se,

1 Bott 333. Rex v. Winship and
Another, Cald. 78.

(d) Rex V. Comraings, 5 Mod. 179.
8 Nol. 453, 476. where it is observed
in the note (3) that this case occurred
prior to 17 Geo. 2, c. 38.

(e) Rex V. Barlow, 2 Salk. 600.
1 Bott. 338. The objection was, that
the word used in the act is ** may,'*
which does not require it as a duty.
But the Court held the word '« may'*
to be imperative, and the same as
'' shall." By 18 Geo. 3. c. 19. con-
stables are now to be paid for parbh
business out of the poor's rate.

(/) Rex v. Davis and Another, 1
Bott. 338. PI. 409. Say. 163. S. C.

(g) 8 Nol. 476. Rex «. Boys, Say.
143. But otherwise where the jus-
tices have no Jurisdiction, Rex o.
Smith, 1 Bott. 403. PI. 586.

(jr)Rex v. Meredith and Turner,
Russ. and Ry. 46. This case occa-
sioned much doubt and discussion.
It came under consideration in Mich*
Term, I80t, and was adjourned until

142 Of Offences by Persona [book ii.

which the neglect to provide a pauper with necesdaries will render
an overseer liable to be indicted. 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
pcovide for her necessary meat, &c. whereby she vras reduced to a
state of extreme weakness, and afterwards through want of such
reasonable and necessary meat, &c. died, the defendant was con-
victed, and sentenced to a year's imprisonment, (y) And in a
case where an overseer was indicted for neglecting to supply
medical assistance, when required, to a pauper bbouring under
dangerous illness, the learned Judge before whom the indictment
was tried held that an offence wad 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, (z)
Indictment for Upon an indictment against an officer for neglect of duty, it is
neglect of sufficient to state that he was such officer, and it is not necessary
to state his appointment. (/) And in the case of a delinquent in
India prosecuted under 24 Geo. 3. c. 25. for neglect of duty, it
was held not to be necessary to state that the neglect was corrupt;
the statute making it a misdemeanor if it was wilful, (m) And
the indictment for neglect of duty need not aver that the de-
fendant had notice of all the facts it states, if it was his duty to
have known them, (ii) Where some of the charges against tlie
defendant were for disobeying orders, and it was stated that those
orders were made and communicated to him, but their con-
tinuance in force was not averred, such an averment was insisted
upon as essential: but the court said that the orders must be taken
to continue in force until they were revoked ; and the objecticm
was overruled* (o) Other charges in the same case against the
defendant were for not acting upon particidar events, within the
settlement, as those events made it his duty to act : but it was not
averred that he had notice of those events. The Court, however,
held that an allegation of notice was not necessary; for as the
events happened within a foreign settlement, whilst the defendant
was one of the council in such settlement^ he was bound to take
notice of them, (p)

the following Hilary Term, when it recognizance to appear,^ and receife

was further adjourned, as there was a jud«n3Aent when called upon.

a difference of opinion among 'the (y) Rex v. Booth, Russ. and Ry. 47.

Judffcs. Lord BUenborough, C. J. note (a).

Lord AWaiiiey, C. JL Heath, J. Rooke, {%) Rex v. Warren, cor, Holroyd, J.

J. and Gfaham, B. seemed to be of fForcaUr Lent Assizes, 1820. In a

opinion that the indictment was good, case where the parents of a bastard

and the conviction proper, the over- child had neglected to provide neces-

seer having taken the pauper under saries for its subsistence, it was de-

his care : but M'Donald, C. B. Grose, cided that the officers of the parish

J. Thomson, B. Lawrence, J^ Le in which the child was born were

Blanc, J. and Gharobre, J. thought obliged to provide such necessaries

.otherwise, and were of opinion, that, without an order of justices. Hays v.

except in a case of immediate and Bryant, 1 H. Biac. 953.

Jifflent necessity, the overseer was (0 Rex v. Holland, 5 T. R. 607.

-onl^i bound to act under an order of (m) Id, Ibid,

JusiioeSf in a case where snch an order (n) Id, IHd.

Mvldtehad. U was agreed that the {o)Id.lbUi.

defendant should en^ter iato hjs own ip) Id. IM.

CHAP. XIV.] in Office, — Frennds. 148

By the 33 Geo. 3. c. 55. two justices at a petty or special ses- Justices at
sious of the peace, upon complaint on oath of any nefflect of duty pc"y w»»»ons
or disobedience of any warrant or order of any justice of the stables, &c.
peace, by any constable, overseer of the poor, or other peace or for neglect of
parish officer, such constable, overseer, or other officer, having ^^^^'
been duly summoned, may impose, upon conviction, any reason-
able fine or fines not exceeding the sum of forty shillings^ as a
punishment for such neglect of duty or disobedience.

The absence or misconduct of the chief officers of corporations Chief officer*
at the time of elections, whereby the completion of the election 2!Lns'ab'^*"t- '
of other chief officers may be prevented, is punishable by the ing themselves
provisions of 11 Geo. 1. c. 4. The sixth section of the statute from, orhin-
enacts, '' that if any mayor, bailiff or bailiffs, or other chief officer efjjj^ns of
" or officers of any city, borough, or town corporate, shall volun- other officers,
*^ tariiy absent himself or themselves from, or knowingly and de- n>»y be impri-
" signedly prevent or hinder the election of any other mayor, ^^^^'
** bailiff, or other chief officer in the same city, borough, or town
** corporate, upon the day, or within the time appointed by charter
** or ancient usage for such election;" such offender bemg con-
victed shall, for every offence, be imprisoned for six months, and
be for ever disabled from exercising any office belonging to the
same city, borough, or corporation. This voluntary absence from
the election of a chief officer must be such an absence whereby
the mischief complained of in the preamble of the statute, namely,
the preventing the completion of the election of a chief officer,
may possibly be occasioned. It has been decided, therefore, that
a chief officer voluntarily absenting himself upon the charter day
of election of his successor is not indictable, unless his presence
as such chief officer be necessary by the constitution of the cor-
poration to constitute a legal corporate assembly for such pur*
pose, (h)

Public officers may also be indicted for fitiuds committed in FraudBby
their official capacities^ Thus in a case where two persons wctc P^^ officers,
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 ac-
count and not indictable, the Court held otherwise, as it related
to the public revenue^, (f) And if an overseer of the poor receive
from the putative father of a bastard child bom within the parish
a sum of money as a composition with the parish for the main-
tenance of the child, he is liable to an indictment for fraudulentiy
omitting to give credit for this sum in his accounts with the pa-
rish, {k) It was objected in this case, that the defendant was not
bound to bring this sum to account, the contract being illegal; (/)
that the whole might have been recovered back, and that the de-*
fendant himself would have been personally answerable for it to
the putative father ; that the money, therefore, was not the money
of t!he parish, and that the parish was neither defrauded nor dam-
nified by its being omitted in the overseer's accounts. But Lord
EUenborough was of opinion, that though the defendant would

(k) Hex 9. CofTT, 5 East 372. {k) Rex v. Martin, S Campb. 868.

/<) Hex V. Bembridge and Another, (0 S«e Townson v. Wikon, 1 Campb.

ated 6 East. 1S6. 396.

1

144 Of Offences by Persons [book ii.

faave 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 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 offence by attempting to
put it into his own pocket.
By officers. By the 56th Geo. 3. c. 63. which was passed to regulate the

mn^^peniten- f^^^^^^ penitentiary for convicts at Millbankj provision is made
tiairtTlliU* ^OT the punishment of the governor and the other officers and
bank, servants of that establishment, in case of any fraudulent or im-

proper charges in their accounts. The twelfth section enacts,
(after stating the mode of examination to be adopted,) that in
case there shall appear in any such accounts any false entry
knowingly or wilfully made, or any fraudulent omission, or any
other fraud whatsoever, or any collusion between the officers and
servants, or between the officers and servants and any other per-
sons in any matter relative thereto, the committee may dismiss
such officers or servants^ and, if they see fit, cause indictments to
be preferred against the officers, servants, or other persons so
offending at the next quarter or other general session of the peace
for the county wherein the penitentiary is situated, or for any
adjoining county; and in case the persons indicted are found
guilty, they are to be punished by fine and imprisonment, or
either of them, at the discretion of the court. ^Fhe later statute
59 Geo. 3. c. 136., which was passed for the better regulation of
this penitentiary, contains further provisions for the punishment
of officers and servants guilty of misconduct.

It may be observed, that where a duty is thrown on a body
consisting of several persons, each is individually liable for a
breach of duty, as well for acts of commission as for omission;
and where a public officer is charged with a breach of duty, which
duty arises from certain acts within the limits of his office, it is
not necessary to state that he had notice of those acts ; for he is
presumed from his situation to know them, (m)
Extortion by Extortion in a large sense signifies any oppression under colour
public officers, 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. (n) By the statute of fFestm. 1. (3 Edw. 1.) c. 36. which is
only in affirmance of the common law, it is declared and enacted
to be extortion for any sheriff or other minister of the king, whose
office any way concerns the administration or execution of justice,
or the common good of the subject^ to take any reward what-
soever, except what he received from the king. This statute
extends to escheators, coroners, bailiffs, gaolers, and other infe-
rior officers of the king, whose offices were instituted before the
making of the act. (o) Justices of the peace, whose office was
instituted after the act, are bound bv their oath of office to take
nothing for their office of justice of uie peace to be done, but of
the king, and fees accustomed, and costs limited by statute. And

(m) Rex v. Holland, 6 T. R. 607. (o) ^ Inst. S09. S Bora. Jiist. tiU

(fi) 4 Blac. Com. 141. 1 Hawk. P, C. Extortion, p. 399,
c« 08. s. 1.

CHAP. XIV.] in Office. — Exiortion. 145

generally no public officer may take any other fees or rewards for
doing any thing relating to his office than some statute in force
gives him, or such as have been anciently and accustomably taken ;
and if he do otherwise, he is guilty of extortion, {p) And it
should be observed, that all prescriptions which have been con-
trary to the statute and to the common law, in affirmance of
which it was made, have been always holden to be void; as where
the clerk of the market claimed certain fees as due time out of
mind, for the examination of weights and measures ; and this was
adjudged to be void, {q)

But the stated and known fees allowed-by the courts of justice ^®q^^J*°^*
to their respective officers, for their labour and trouble, are not justice may be
restrained by the common law, or by the statute of fFestm. 1. insisted upon,
c. 26. and therefore such fees may be legally demanded and in-
sisted upon without any danger of extortion, (r) And it seems
that aiT officer who takes a reward, which is voluntarily given to
him, and which has been usual in certain cases, for the more dili-
gent or expeditious performance of his duty, cannot be said to be
guilty of extortion; for without such a premium it would be im-
possible in many cases to have the laws executed with vigour and
success, (s) But it has been always holden, that a promise to pay
an officer money for the doing of a thing which the law will not
suffer him to take any thing for, is merely void, however freely
and voluntarily it may appear to have been made. (/)

It has been held to be extortion to oblige the executor of a will Cases of ez<
to prove it in the bishop's court, and to take fees thereon, when Portion,
the defendants knew that it had been proved before in the prero-
gative court, (u) And it is extortion in a churchwarden to obtain
a silver cup or other valuable thing, by colour of his office, (w)
And a coroner is guilty of this offence, who refuses to take the
view of a dead body until his fees are paid, {x) So if an under"
tAm^ obtain his fees by refusing to execute process till they are
paid, (y) or take a bond for his fee before execution is sued out, (2)*
it will be extortion. And it will be the same offence in a sheriff's
(kfficer to bargain for money to be paid him by A. to accept A. and
B. as bail for C, whom he has arrested; (a) or to arrest a man in
order to obtain a release from him; (A) and also in a gaoler to ob-
tain money from his prisoner by colour of his office, (c) In the
case of a miller, where the custom has ascertained the toll, if the
miller takes more than the custom warrants, it is extortion : (d)

(?)DftIt. c. 41. 2 Burn's Just. HI, court said that the plaintiff might

Sitortion, p. S41. bring an actioii against him for not

(9) I Hawk. P. C. c. 68. s. 2. S Bac. doing his duty, or mi^ht pay him bis

Abr. lOS. fif. Extortion. fees, and then indict him for extortion.

(r) 1 Hawk. P.C. c. 68. d. 3. 8 Inst. (z) Empson o. Bathurst, Hutt 58,

910. Co. Lit. S6S. 3 Bac. Abr. 108. where it is said that an obligation

^. Extortion. made by extortion is against common

(t) 3 Bac. Abr. 108. tU. Extortion, law, for it is as robbery; and that the

9 lust 210. 8 Inst 149. Co. Lit. 368. sheriff's fee is not due until execution.

(0 3 Bac. Abr. 108. 1//. Extortion. (a) Stolesbory v. Smith, 2 Burr. 924.

(»)lUx IT* I^[|^n and another, (6) Williams v. Lyons, 8 Mod. 1 80.

1 Str. IS. (c) Rex v. Broughton, Treni. P. C.

(») Boy V. Eyres, 1 Sid. 807. 11 1. Stark. 588.

<jr) 3 Inst 149. (if) Rex r. Burdett, 1 Lord Raym.

(f) Hestcotrs case, 1 Sa)k.3S0. The 140.

VOL. I. L

146

Of Offences by Persons

[book II.

33 0. 3. c. 52.
Etui IndUt,

Two persons
may be in-
dicted jointly
for extortion,
and there are
no accessories.

Trial.

Not material
to prove the
exact snm laid.

and the same if a f^ny-man take more than is due by custom for
the use of his ferry, {e) And it was held that if the farmer of a
market erects so many stalls, as not to leave sufficient room for
the market people to stand and sell their wares, so that for want
of room thev are forced to hire the stalls of the farmer, the taking
money for the use of the stalls in such case is extortion. (/)

In a recent case it was decided, that the question of exemption
from toll could not be tried on an indictment against a turnpike-
keeper for extortion in taking the toll; the generdi right to demand
toll not having been denied, nor the ground of exemption notified,
at the time wSen the toll was taken, {g)

The 33 Geo. 3. c, 53. s. 62^ enacts that the demanding or re-
ceiving any sum of money, or other val able 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
EfMt India Company, or of any other person whatsoever, by any
British subject holding or exercising any office or employment
under his Majesty, or the company, in the East Indies^ shall be
deemed to be extortion and a misdemeanor at law, and punished
as such. The offender is also to forfeit to the king the present so
received, or its foil value : but tlie court may order such present
to be restored to 4he 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.

Two persons may be indicted jointly for extortion where no fee
was due ; and there are no accessories in this offence. In a case
where the indictment was against the chancellor and also against
the registrar of a bishop, it wns objected that the offices of the de-
fendants 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 by Parker, C. J. this would be an exception
if they were indicted for taking more than they ought ; but it in
only aeainst them for contriving to get money where none is due :
and this is an entire charge. For there are no accessories in ex-
tortion : bttt he that is aaaisting is sm guilty as the extortioner, as
he tba^ is party to a rk>t is answerable for the act of others, (h)

It is said, that an indictment for extortion may be laid in any
county by the SI £Uz. c. 5. s. 4. : (i) but this position has been
questioned. (A) It may be tried and determined by justices of the
peace at their sessions by virtue of the term ^^ extortions'' in
iheir commission. (/) The indictment must state a sum which
the defendant received: but it is not material to prove the exact
sum as laid in the indictment ; so that if a man be indicted for
taking extorsively twenty shillings, and there be proof but of one
shilling, it will be sufficient, (m) ilnd the extorsive agreement is

(e) Hex V. Roberts, 4 M6d. LO I .
(/) Ret V. Burdkstt, 1 Lortl Raym.
140.

(g) Rex v. Hamlyn, 4 tiaknpb. S70.
(h) Rez V. Loma and aootber, ]
Str. 75. Qu. Wbe&er thb was not an

indictment for a conspiracy to de-
fraud, and Dot for extortion. Bat las
to the rule that several persons may
be jointly indicted for extorlioo, tee

Rex V, Atkinson and anotRftr, Itord
Raym. 1S48. 1 Saik. 389.

(i) 1 Hawk. P. C. c. 68. s. 6. llOte<S){
e Bum*8 Just. 344, ExiorU^i^i 3tack.
Crim. Plead. 58ft, iiote(k).

(k) 2 Hawk. P. C. c. 26. s. 50. 8 Chit.
Criro. Law, 294, in the note.

(/) Rex V. Loggen and another, 1
Stra. 73.

(m) Rex V. Bardett» 1 LonI Raym.

CHAP. XIV.] in Office. — Extortion. 147

not the offence, but the taking ; for a pardon after the agreement,
and before the taking, does not pardon the extortion. (71)

The offence of extortion is punishable at common law by fine Punishment.
and imprisonment ; and also by a removal from the office in the
execution of which it was committed ; (o) and there is a further
additional punishment by the statute of ff^estm, 1. c. 26. by which
it b enacted '^ that no sheriff nor other king's officer shall take
*' any reward to do his office, but shall be paid of that which they
" take of the king; and that he who so doth shall yield twice as
^' much, and shall be punished at the king's pleasure." {p) And
an action lies to recover this double value, (q)

The refusal of persons to execute ministerial offices to which Refusal to exe-
they are duly appointed, and from the execution of which they ^^^^ offices,
have no proper ground of exemption, seems in general to be an
indictable offence. Thus it has been held to be indictable for a
constable^ after he has been duly chosen, to refuse to execute the
office, (r) or to refuse to take the oath for that purpose, {s) And
the statute 1 Geo. 4. c. 37. which authorizes justices in cases of
tumult, riot^ &c. to appoint special constables, enacts by s. 2. that
any person appointed and neglecting to take the office, and act^
shall be liable to the same punishment as persons refusing the
office of constable. So a person is indictable for refusing to take
upon himself the office of overseer of the poor, (t) For though
the statute 43 £liz. c. 2. says only that certain persons therein
described shall be overseers, and gives no express indictment for a
refusal of office; yet upon the principles of common law, whiqh
are that every man shall be indicted for disobeying a statute, the
refusal to serve when duly appointed is indictable, (u) But there
should be previous notice of the appointment ; and the indictment
should shew that the defendant was bound to undertake the office
by setting forth how he was elected, {w) And if an indictment
for refusing to serve the office of constable on being thereto
chosen by a corporation do not set forth the prescription of the
corporation so to choose, it is bad ; for a corporation haa no power
of common right to choose a. constable, {x)

149; and see Rex v. Gillham, 6 T. R. 7 Mod. 410. 1 Bott. S38.

217. («) Rex t?. Jones, I Bott. SS8.

(ii) By Holt, C. J. in Rex v. Burdett, (w) Rex v. Marpur, 6 Mod. 06. In

ILordRaym. 149. Rex v. Burder, 4 T. R. 778. it was

(0) I Hawk. P. C. c. 68. s. 5. S Bac. held that an appointment of an over-
Abr. 109. Extortion. seer of the poor/or the year next en*

(p) By the ** kin?*s pleasore*^ is $uing most be understood to be for

meant by the king^s Justices before the overseer'e year: and an indict-

^bom the cause depends, and at their ment tliat the defendant was appointed

discretion, 8 Inst. 810. *' overseer of the poor of the parish

iq) S Com. Dig. S23. " of A./' and that he afterwards re-

(r) Rex V. Lowe, 2 Stra. 99. Rex r. fused ** to take the said office of over-

Cbapple, 3 Campb. 91. Rex v. Genge, ** seer of the parish to which he was

Cowp. 13. Rex V. Gierke, 1 Keb. 393. '* so appointed,** was held good on

(t) Rex o. Harpur, 5 Mod. 96. Flet- demurrer,

cber V, Ingram, 5 Mod. 127. (x) Rex v, Bernard, 2 Salk. 52. 1

(1) Rex V. Jones, 8 Stra. 1 146. S. C. Lord Raym. 94.

l2

148

CHAPTER THE FIFTEENTH.

OF BUYING AND SBUING OFFICES.

Offence tt
common law.

Attempt to
bribe a minis-
ter to give an
oflce.

CoNCERNiKa the €ale of offices of a public nature, it has been well
observed, that nothing can be more palpably prejudicial to the
good of the public, than to have places of the highest concern*
ment, on the due execution whereof the happiness of both king
and people depends, disposed of, not to those who are most able to
execute them, but to ^ose who are most able to pay for them ;
nor can any thing be a greater discouragement to industry and
virtue than to see those places of trust and honour, which ought
to be the rewards of persons who by their mdustry and diligeiice
have qualified themselves far them, conferred on those who have
no other recommendation but tiiat of being the highest bidders;
neither can any thing be a greater temptation to officers to abuse
their 'power b^ bribery and extortion, and other acts of injustice,
than tne consideration of having been at a great expense in gaining
their jdaces, and the necessity of sometimes straming a point to
make their bargain answer their expectations, (a)
^ 'The buying and selling of such offices has therefore been con-
sidered as an offence malum in se, and indictable at commcm
law. (b) In a late case of an indictment for a conspiracy to
obtain money, by procuring from the lords of the treasury the
appointment of a person to an office in the customs, it was pro-
posed to argue on behalf of one of the defendants, that the in-
ibctment 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 Lord EUenborough, C. J. sud that if that were to be
made a question, it must be debated on a motion in arrest of judg-
ment, or on a writ of error: but that, after reading the case of
Rex V. Vaughan, (c) 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..(c^)

The case of Rex v. Vaughan, cited by Lord EUenborough, was
an attempt only to bribe a cabinet minister and a member of the

{a) 1 Hawk. P. C. c. 67. s. 9. 5 Bac. (e) 4 Burr. 2494.

Abr. 191, Qficet andOjficers. (i) Rex v. PoUmao and others, 9

(b) Stockwell v. North, ffoj. 102. Canipb. 229.
Moor 781. S.C.

CHAP. XV.] Of Buying and Selling Offices. 149

priry council to give tbe defendant an office in the colonies, (e)
And in a case where the defendant, who was clerk to the agent
for the French prisoners of war at Parchester Cmtle, took bribeff
IB order to procure the exchange of some of them out of their
tunij it appears to hare been made the subject of an indictment. (/)

But it has been endeavoured to prevent the mischiefs of buying Statates.
and selling offices, by the enactments of several statutes.

The 12 Rich. 2. c. 2. enacted "that the chancellor, treasurer, 12 Rich. 2. c. 2.
" keeper of the privy seal, steward of the king's house, the king's 4c?°io bc*^*
'' chamberlain, clerk of the rolls, the justices of the one bench swornthatthey
" and of the other, barons of the exchequer, and all other that ^ not make
" shall be called to ordain, name or make, justices of the peace, rilt^*&c.°'*°^
" sheriffs, escheators, customers, comptrollers, or any other officer
'^ or minister of the king, shall be firmly sworn tnat they shalt
^ not ordain, name, or make, any of the above-mentioned officers
" for any gift or brokage, favour or affection ; nor that none
" which pursueth by himself, or by other, privily or openly, to be
'^ in any manner of office, shall be put into the same office, or in
** any other, but that they make all such officers and ministers of
'^ the best and most lawful men, and sufficient to their estimation
" and knowledge." (g')

The 4 Hen. 4. c. 5. ordained "that no sheriff shall let his 4 Hen. 4. c. 5.
*^ bailiwick to farm to any man for the time that he occupieth
" such office."

But a principal statute relating to this subject is the 5 & 6 Ed. 6*. 5 & ^ Ed; 6. c.
c. 16., which, for the avoiding corruption which might thereafter Jfiung ^cm
happen in the officers, in places wherein there is requisite to be relating to the
had the true administration of justice or services of trust, and to adminwtratwn
the intent that persons worthy and meet to be advanced shoiild ^baU forfcUthc
thereafter be preferred, enacts, that if any person bargidn or sell office, and be
any office, or deputation of office, or take any money or profit ^"^^^i^ f
directly or indirectly, or any promise, &c. bond, or any assur- ^^ »uc o -
ance to receive any money, &c. for any office or deputation ot
office, or to the intent that any person should have, exercise, or
enjoy, any office, or the deputation of anv office, which office, or
any part or parcel thereof^ shall in anywise concern the adminis-*
tration or execution of justice, or the receipt, controlment^ or
pajrment of the king's treasure, rent, revenue, &c. or any the
king's customs, or the keeping the king's towns, castles, &c. used
for defence, or which shall concern any clerkship in any court of
record where justice is mimstered ; the offender shall not only
forfeit all his right to such office or deputation of office, but also
shall be adjudged a person disabled to have, occupy, or enjoy,
such office or deputation. The statute further enacts that such

bargains, sales, tKmd», agreements, &c. shall be void;(A)'and pro-

f

(e) 4 Burr. 2494. A criminal in- (/) Rex tr. Beale, cited, in Rex v,

formation was panted against the Gibbs, 1 East. H. 183.

defendant for offering the Duke of (g) For the exposition of this sta-

Graflon, then first lord of the trea- tuteseethe Earl of Macclesfield\H trial ».

sory, the sam of 5000/. as a bribe to 6 Sta. Tri. 477. 16 Howell's Sta. TrL

procure the reversion of the office of 767.

clerk of the supreme court of the {h) Sect. 3.
i>laod of Jamaica.

150 Of Buying and Selling Offices. [book ii.

vides that the act shall not extend to any office whereof any per-
son shall be seised of any estate of inheritance, nor to any office
of the keeping of any park, house, manor, garden, chase, or
forest, (t) It provides also 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. And further, that the act shall not
extend to be prejudicial or hurtful to any of the chief justices of
the King's Bench or Common Pleas, or to any of the justices of
assize ; but that they may do concerning any offices to be granted
by them as they might have done before the making of this act.(/r)
Cases decided It has been held that the offices of chancellor, registrar, and
tute? "**' commissary in ecclesiastical courts, are within the meaning of this
statute ;(/) also the place of cofferer, (m) and that of surveyor of
the customs \{n) and the place of customer of a port ; (o) and the
offices of collector and supervisor of the excise ; (p) and in a writ
of error on a judgment in Ireland it was held clearly that the
offices of clerk of the crown, and clerk of the peace, were within
the statute. (^) But offices in fee have been held to be out of the
statute ;(r) and the sale of a bailiwick of a hundred is not within
it, for such an office does not concern the administration of justice,
nor is it an office of trust. (5) It has also been adjudged that a
seat in the six clerks' office is not within the statute, being a mi-
nisterial office only ;(^) and it was held that it did not extend to
military officers,(?^) nor to the purser of a ship,(tc^) but this last
decision was doubted ;(.r) and in a later case it was said by Lord
Mansfield, that if the Lords of the Admiralty were to take money
for their warrant to appoint a person to be a purser, it would be
criminal in the corrupter and corrupted, (j/) It was decided also,
that this statute did not extend to the plantations. (2) But with

(1) Sect 4. 2. B. R. 5 Bac. Abr. 195. Ofieet mni

{k) Sect 5. The statute 6 Geo. 4. QffieerB (F). It was also held in this

c. 89. authorized the .purchase of the case, that the statute did oot extend to

office of receiver and comptroller of Ireland, But see poc/, 49 Geo. 3. c.

the seal of the Court of King's Bench 186.

and Common Pleas, aod of the eu$iot (r) Ellis v. Ruddle, 2 Ler. 151.

brevium of the Court of Common (#> Godbolt's case, 4 Leon. 83. 4

Pleas by the commissioners of the Mod. S93. S. C, cited.

Treasury, for certain annuities ; and (I) Sparrow v. Reynold, Pasch. 86

after the confirmation of the agree- Car. 8. C. B. 5 Bac. Abr. 195. OJice»

ment by parliament the rights and in- and Qfieen (F).

terests ot all persons claimmg or enti- (ti) 1 Tern. 98.

tied to claim under the letters patent (w) 8 Vern. 308. Ca. temp. Tdb.

mentioned in the act, are to cease and 40.

determine. (x) See 1 H. Blac 386., where it is

(0 18 Co. 78. 3 Inst 148. Cro.Jac. said by Lord Loughborough, C. J.t

869. 1 Hawk. P. C. c. 67. s. 4. that tlie case in 8 Vern. is contrary to

(fn) Sir Arthur Ingram's case, 3 an evident principle of law.

Bulst 91. S. C. Co. Lit 834, where (y) Purdy t;. Stacy, 5 Burr. 8698.

it is said that the king could not dis- (c) Blaukard v. jGaldy, 4 Mod. 888.

pense with this statute by any non ob-' 8 Salk. 411. 8 Lord Raym..l845. S.C.

$tante\ and Cro. Jac. 385, S. C. is cited, cited 8 Mod. 45. S. P. undetermined;

(n) 8 And. 55, 107. and see 5 Bac. Abr. 195. Office* and

(o) 1 H. Blac. 327. Officert (F). But if the office, though

ip) Law V. Law, Cas. temp. Talb. in the plantations, had been granted

140. 3 P. Wms. 391. S. C. under the great seal of England the

(q) Macarty v, Wickford, Trin. 9 G. sale of it would bate been held cri-

CHAP. XT.] O/Btgfing and SeUing Officeu. 151

respect to mOitary and naval commissions, and the different places
in the public departments of government, the colonies or planta*-
tioDs, or in the appointment of the East India Company, altera*-
tious have been inade by a recent statute which v. ill be presently
mentioned.

One who makes a contract for an office contrary to the purport An offender a-
of this statute, is so far disabled to hold the same, that he cannot f *j^'ca!l" ^c^;
at any time during his life be restored to a capacity of holding it afterwards
by any grant or dispensation whatever. («) J">W the office.

With regard to the depuieUum of an office, it is held that where What deputat
an office is within the statute, and the sidary is certain, if the fi^e is^wUMn
principal make a deputation reserving a less sum out of the salary, the sutute.
It is good : so, if the profits be uncertain, arising from fees, if
the principal make a deputation, reserving a certain sum out of
the fees and profits of the office, it is good : for in these cases the
deputy IB 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
principal's ; so that, as to him, it is only reserving a part of his
own, and giving away the rest to another. But where the reserv*-
ation or agreement is not to pay out of the profits, but to pay ge-
nerally a certain sum, it must be paid at all events ; and a bond
for performance of such agreement is void by the statute. (£)

But this statute has been much extended by the 49 Geo. 3. 49 6.3. e. 126.
c. 126., which, after reciting it, enacts, ^^ that all the provisions ^^^aV. 6. c.
^^ therein contained shall extend to Scotland and Ireland, and to 16. to Scotland
" all offices in the gift of the crown, or of any office appointed *°?i?''^^' ^
" by the crown ; and all commissions, civil, naval, or military ; [^th\g comSy
'^ and to all places and employments, and to all deputations to and in the co-
'* any such offices, commissions, places, or emplojrments, in the l^»c»» *nd to
*' respective departments or offices, or under the appointment or the EtutintBa
^ superintendance and control of the lord high treasurer, or com- Company.
^' missioners of the treasury, the secretary of state, the lords comr
'^ missioners for executing the office oi lord high admiral, the
" master general and principal officers of his Majesty's ordnance,
" the commander in chief, the secretary at war, the pavmaster/-
" general of his Majesty's forces, the commissioners for the affsiiB
" of IndiUj the commissioners of the excise, the treasurer of the
^' navy, the commissioners of the navy, the conunissiqners for vic-
'^ tualling, the commissioners of transports, the commissary general,
** the storekeeper general, and also the principal officers of any other
" public department or office of his Majesty's government m 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 ; and also to all offices, commissions, places, and
" employments belonging to or under the appointment or control of
'^ the li»al India company,(c) in as full and ample a manner as if

nintl at conoTnon law. See the judg^« {b) 5 Bac. Abr- 195. Offices and Of"

ment of Lord Mansfield in Rex o. fie$r$ (F). 1 Kawk. P. C. c. 67. s. 5.

Vaaghan, 4 Burr. S500. Sal k. 468. 6Mod. 2.SL Godotphin r.

(«) Hob. 75. Co. Lit. S34. Cro. Car. Tudor, Comb. 356. S. P.

361. Cro. Jac, 386. Ca.tenip. Talb. (c) By the 33 Geo. 3. c. 58. s. 66.

107, it was enacled thai the making or en*

152 Of Buying and Selling Offices. [book ii.

'^ the provisions of the said act were repeated, 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 andTe-enacted."

^^9' p ^' ^^^' The third section of this statute enacts, ** that if any person or

buying ©rBcU- ** persons shall sell, or bargain for the sale of, or .receive, have, or

ing, or receiv- '' take any money, fee, gratuity, loan of money, reward, or profit,

ing or paying cf directly Or Aidircctly, or any promise, agreement, covenant,

^'ard/forof- *' Contract, bond, or assiurance; or shall by any way, device, or

fices, guilty of *' means, contract or agree to receive or have any money, fee,

miBdemeanor. u 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 ^r

*^ pay any money, fee, gratuity, loan of money, reward, or profit;

'^ or shall by any ways, means, or device, contract or agree to

^' pve or pay any money, fee, gratuity, loan of money, reward or

** profit, directly or indirectly, for any ofiice, commission, place^

*^ or employment, specified or described in the said recited act

^* (5 & 6 Edw. 6. c, 16.) 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 resig-

*^ nation thereof, or for the consent or consents, or voice or voices

'^ of any person or persons, to any such appointment, nomination,

*^ or resignation ; then and in every such case, every such person,

^^ and also every person who shall wilfully and knowingly aid,

*^ abet, or assist such person therein, shall be deemed and adjudged

** guilty of a misdemeanor."

49 G.3. c. 126. The fourth section enacts, "that if any person or persons shall

8. 4. .^«"°°" «^ receive, have, or take, any money, fee, reward, or profit, di-

paying money ** rectly or indirectly, or take any promise, agreement, covenant,

for soliciting <« contract, boud, or assurance, or by any way, means, or device,

office8*andany " contract Or agree to receive or have any money, fee, gratuity,

segocUtions " loan of money, reward or profit, directly or indirectly, for any

or pretended «^ interest, solicitation, petition, request, recommendation, or

reiat?M there- " ncgociation whatever, made or to be made,^ or pretended to be

to, gaiity of a *' m^e, or under any pretence of making, or causing or procur-

misdemeanor. <f ing to be made, any interest J solicitation^ petition^ request, re-

*^ commendation, or negociation, in or about or in anywise touch-

** ing, concerning, or relating to, any nomination, appointment^

*' or deputation to, or resignation of, any such office, commission^

*^ place, or employment, as aforesaid, or under any pretence for

^^ using or having used any interest, solicitation, petition, request^

*^ recommendation, or negociation, in or about any such nomina-

" tion, appointment, deputation, or resignation, or for the ob-

*' taining or having obtained the consent or consents, or voice or

" voices, of any person or persons as aforesaid to such nomina-

tering tnto, or being a party to any ploymentunder the crown, or the East

ciorrupt bargain or contract, for the India Company, byanyBritUh subject

giving up or obtaining, or in any other there resinent, should be deemed a

manner touching or concerning the niibdemeanor.
trust and duty of any office or em-

CHAP. XV.] Of Buying and Selling Offices. 163

^' tion, appointment, deputation, or resignation ; and also if anjr
^^ 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 pro*
^' mise, agreement, 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, gra-
^' tuity, loan of money, reward, or profit, for any solicitation.

IK

€€
U

*^ relate to any nomination, appointment, or deputation to, or
*' resignation of, any such ofiice, commission, place, or employ-
^ ment as aforesaid, or for the obtaining or having obtained, ai-
rectly or indirectly, the consent or consents, or voice or voices,
of any person or persons as aforesaid, to any such nomination,
appointment, deputation, or resignation ; and also if any per-
son or persons shall, for or in expectation of gain, fee, gratuity, .
loan of money, reward, or profit, solicit, recommend, or nego-
ciate, 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 con-
" sentH, or voice or voices, of any person or persons to any such
nomination, appointment, or deputation, or resignation afore-
said, then and in every such case every such person, and also
every person who shall wilfully and knowingly aid, abet, or
** assist, such person therein, shall be deemed and adjudged
« guilty of a misdemeanor.''

By the fifth section of the act, if any person shall open or keep ^^ (»' 3- c. 126.
any house or place for the soliciting or negociating anv business ^' j^«*P''°«
relating to vacancies in offices, &c. in or under any public depart- business reiat-
ment, or to the sale or purchase of such offices, or appointment to ^d? ^ .^uch
them, or resignation, transfer, or exchange of them, such offender, fic«i^a'mi»d -
and every person aiding or assisting therein, is guUty of a misde- meanor.
meanor. And by the sixth section any person advertising any b^i. pewdty on
office, place, &c. or the name of any person as broker, &c. or advertising,
printing any advertisement or proposal for such purposes, is liable ^^*
to a penalty of 50/.

There are, however, several exceptions from the provisions of Exceptions
this statute. It does not extend to commissions or appointments J"^"* *i*** "*." *
in the hsaid of gentlemen petisioners, or in his Majesty's yeoman offices, and ai-
guard, or in the M arshalsea, or the Court of the King's Palace at so of commis-
Westminster; or to purchases and exchanges of commissions in Jl??*'*",^"
his Majesty's forces, at the regulated prices; or to any thing foTCesat'the
done in relation thereto by authorised regimental agentsr not ad- prices regulat-
vertising and not receiving money, &c. in that behalf, (d) But ^en^J***" j,
officers receiving or paying, or agreeing to pay, more than the "*** *^*"
regulated prices, or paying agents for negociating, on conviction
by a court martial, are to forfeit their commissions, and be
cashiered, (e)

(d) 49 Geo. 3. c. 1S6. s. 7. ; luid the in the battle-axe guards in Ireland,
5S Geo. 3. c. 54. excepts purchaser, &€. {e) 49 Geo. 8. c. 126. s. 8. And the
of any commissions or appointments commission is to be sold ; and halt the

154

But persons
selling com-
missions for
more than the
regulated
prices, are
guilty of mis-
demeanor.

Further ex-
ceptions as to
offices except-
ed from 5 and
6 Edw. 6. c.
16. and as to
offices legally
saleable.

Deputations.
49 Geo. 3.
c. 126.

Annnal pay-
ments out of
the fees to any
person former-
ly holding the
office*

Right of ap-
pointment
when forfeited
vests in the
king.

Trial of
offences
committed
abroad.

Punishment of
misdemeanors
in ScQthfuL

Of Buying and Selling Offices [book it.

And it is provided also, that every per^n who shall sell his
commission in his Majesty's forces, and not continue to hold any
commission, and shall upon or in relation to such sale receive^
directly or indirectly, any money, &c. beyond the regulated price
of the commission sold, and every person who shall aid or assist
such person therein, shall be guilty of a misdemeanor.

This act contains further exceptions ; and provides, that it shall
not extend to aiiy office excepted from the 5 and 6 £dw. 6, c. 16.
or 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 ; or to render invalid, or in any manner to
affect, any promise, covenant, trust, &c. entered into or declared
before the passing of this act, and which then was valid in law or
equity. (/)

With respect to deputations to offices, it is enacted, 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 pay-
ment to such principal or deputy respectively, out of the fees or
profits of such office, (g)

Annual reservations, charges, or payments, out of fees or pro^
fits 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
reservatioas, &c. and the circumstances i^d reasons under which
they shall have been permitted, shall be stated in the commission
or instrument of appointment of the successor. (A)

The statute contains an enactment, that when the right, estate, ,
or interest, of any person shall be forfeited under any of its provi-
sions, or the provisions of the 5 and 6 £dw. 6. c« 16. the right of
^uth appointment shall vest in and belong to the king, (t)

Offences against this act, or the 5 and 6 £dw. 6. c. 16. by any
governor, lieutenant-governor, or person having the chief command,
civil or xnilitary, in bis Majesty's dominions, colonies, or plantar
tions, or his secretary, may be prosecuted and determined in the
Court of King's Bench at nTestminstery in the same manner as any
crime, &c. committed by any person holding a public employment
abroad may be prosecuted under the provisions of th^ ^ Geo. 3.
c.85.(A)

It is enacted also, that any person who shall commit in Scotland
any misdemeanor against this act shall be liable to be punished by
fine and imprisonment, or by themie or the other of such punish-
ments, as the judge or judges, before whom the offender shall be
committed, may direct. (Q

produce, not exceeding 500/.,to be paid coataiDsan exception as to the maft-
to the informer, and the remaiDder to tera, bix clerks, and examioers, of the

go to the king.

(/) Id. S. 9.

^) 49 Geo. S. c. 186. •. 10. And see
tfiilf, 151.

(A) Id. S. II. The twelfth sectioa

chancery in Ireland, ti II after the dealt.
&c* of the present possessors.

(0 Id. S. 8.

(k) Id. S. 14.

(/) 49 Geo^ 9. c. 186. $. IS,

CHAP. XV.] Of Buying and Selling Offices. 155

By the 49 Geo. 3. c. 1 1 8. s. 3. if any person give or promise any 49 Geo. 3.
office, place, or employment, upon any express cofitrai^t or agree- Giving any
ment to procure, or endeavour to procure, the return of any person office, &c.
to serve in Parliament, the person returned shall vacate his seat, ^^ election
and be incapacitated to serve during that Parliament for the same P^'P®"*'*
place ; and the person receiving the office, &c. shall forfeit' it, be
incapacitated for holding it, and shall forfeit 500/. : and any person
holding any office under his Majesty, who shall give such office,
appointment, or place, upon any such express contract or agree-
mentf shall forfeit the sum of 1000/. (m)

(fli) See this act more at length in the subsequeot Chapter on Bribery^ p.
159, 160.

156

CHAPTER THE SIXTEENTH.

OF BBIBERT.

Cases of
bribeiy.

Attempts to
bribe*

Bribsby is the receiving or otkring any undue reward by or Uy
any person whatsoever^ whose ordinary profession or business-
relates to the adnunistration of public justice, in order to influence
his behaviour in office, and incline him to act contrary to the known
rules of honesty and integrity, (a) And it seems that this ofience
will be committed by any. person in an official situation, who shall
corruptly use the power or interest of his place for rewards or pro-
mises : as in the case of one who was clerk to the agent for French
prisoners of war, and indicted for taking bribes in order to procure
the exchange of some of them out of their turn, {b) And bribery
sometimes signifies the taking or giving of a reward for offices of a
public nature, (c) Corrupt and illegal practices in giving rewards
or making promises, in order to procure votes in the elections of
members to serve in Parliament, are also denominated bribery, and
punishable by common law, and by statute, {d) And the attempt
to influence persons serving as jurymen corruptly to one side, by
gifts or promises, (which, with other practices tending to influence
a jury, will be considered in treating of the crime called ent-
bracery, (e) may be mentioned as a species of bribery.

The law abhors the least tendency to corruption ; and upon the
principle which has been already mentioned, of an attempt to com-
mit even a misdemeanor, being itself a misdemeanor, (/) cU tempts
to hinbe, thou^ unsuccessful, have in several cases been held to
be criminal. Thus it is laid down generally, that if a party ofiers a
bribe to a judge meaning to corrupt him in a case depending before
him, and the Judge takes it not ; yet this is an offence puuishable
by law in the party that offers it. (g) And it has been held to be
a misdemeanor to attempt to bribe a cabinet minister, and a mem-
ber of the privy council, to give the defendant an office in tlie
colonies. (A) And an information was granted against a man for

(a) S Inst. 140. 1 Hawk. P. C. Ci 67,
8. 2. 4 Blac. Com. 139.

(b) Rex V. Beale, E. T. 38 Geo. 9^
cited in Rex v. Gibbs, I East. R. 183.
and see Rex o. Vaughan, 4 Burr. 8494,
aiil^, 148,149.

(c) 1 Hawk. P. C. c. 67. s. 3. As to
tbis species of bribery, see the pre-
ceding Chapter.

(d) Rex r. Pitt and auolhcr, 3 Burr.

1 338. 8 Geo. 8. c, 84. 49^ Gea 3. c.
118.

{e) Pasif Chap. xxi.

(/) Jnte^ Book I. Chap. iii. p. 45.

ig) 3 Inst. 147. Rex v. VaughaDr-
4 Burr. 8500. Anie, 148.

{h) VaDghan*s case, 4 Burr. 8494.'
ante, 148, and see Rex v. PoHman and
others, 8 Caropb. 829.

CHAP. XVI.] Of Bribery . 1 37

promising money to a member of a corporation, to induce him to
vote for die election of a mayor, (t) An information also appears
to have been exhibited against a person for attempting by bribery
to influence a juryman in giving his verdict, (k)

The statutes relating to the customs and excise impose penalties, ^ ^J^- ^'^
as well upon officers taking bribes as upon those who offer them officers tak-
Tbe 6 Geo. 4. c. 106. s. 35. enacts, that if any officer of the cus- ing bribes not
toms, army, navy, or marines, duly authorized, and on full pay, J^i®5***ygJ^.
or any other person employed by the commissioners of customs, tion to the*"
shall make any collusive seizure, or shall deliver up, or agree to customs aad
deliver up, or not to seize any vessel or boat, or any goods liable ^^g^,.
to forfeiture, or shall take any bribe, gratuity, recompence, or ing bribes to*
reward, for the neglect or non-performance of his duty, such officers to
officer, &€. BhaU forfeit 500/. and be incapable of serving his ^f^^^l^
Majesty in any office whatever, civil or military : and every person to penalties.
who shall give, or offsr, or promise to give, any bribe, recompence,
or reward to, or make any collusive agreement with, any such
officer as aforesaid, to induce him in any way to n^lect his duty,
or to do, conceal, or connive at any act, whereby any of the pro-
visions of any act of Parliament may be evaded, shall (whether
the offer be accepted or performed or not,) forfeit five hundred
pounds. (/)

Bribery at elections for members of parliament was alwajrs a Bribery at
crime at common law, and consequently punishable by indictment ^^^^j
or information :{m) but in order to enforce the common law, and parliament.
because it had not been found sufficient to prevent the evil, con^*
siderable penalties have been imposed upon this offence by differ^
ent statutes.

The 7 & 8 W. 3. c. 7. fl. 4. enacts, that all contracts, promises, 7 & 8 W. 3. c.
bonds, and securities to procure any return of any member to l^^ &c?to
serve in parliament, or any thing relating thereunto, shall be void ; procure eiec-
and that whoever makes or gives such contract, security, promise, ^^on yoid, and
or bond, or any gtft or reward, to procure a false or double return, j^I^henito "
shall forfeit three hundred pounds, (n) forfeit 300^

The statute 2 Geo. 2. c. 24. s. 7- enacts, ^'that if any person 2 Geo. 2. c.24.
" who shall have, or claim to have, any right to vote in any elec- ••7. Persons
" lion of any member to serve in parliament, shall ask, receive, ^c!for yoUng
*' or take any money or other reward, by way of gift, loan, or or forbearing
*^ other device, or agree or contract for any money, gift, office, ^ ^^^» "^
" employment, or other reward whatsoever, to give his vote, or during oSicw
** to refuse or forbear to give his vote in any such election ; or if toTote,orfor-
*' any person by himself or any person employed by him, shall by ^^ ^ JjJ'Jj
'^ aay^ft or reward, or by any promise, agreement, or security, fo^tloo/. ^
** for any gift or reward, corrupt or procure any person or per- and are dis-
" sons to give his or their vote or votes, or to forbear to give his '^^^ ^ ^^^

(0 Piympton's case, % Ld. Rajm. in) One-third to the king, one-third

1377. to the poor of the place concerned,

(At) Yoaii|?*8 case, cited in Rex v. and one-third to the informer, with

Higgins, 2 ^st. R. 14. and 16. his costs, to be recovered by action or

{i) And see also 6 Geo. 4. c. 106. s. information. But if it appears to be

89. a void election, an action for this pe*

(«) Rex v.Pittand another, 3 Burr, naltr is not maintainable. 1 Hawk*

IS35. bj X.or4 Mansfield, C. J. P. C. c. 6T. s. a. in the margin.

158 Of Bribery. [spoKn.

in any dec-* f^ qt their vote OT Yotes in any such election3(a) such person so
hold' any office -'offending iu any of the cases aforesaid, shall, for every such
or franchise. ^^ offence forfeit five hundred pounds." And further, that such
offender, after judgment against him in any action, or informa-
tion, or summary action or prosecution, or being othervtdse law-
fully convicted thereof, shall for ever be disabled to vote in any
election of any member to parliament, and to hold any office or
franchise, as( it such person was natumlly dead.
2 G. 2. c. 24. The eighth section enacts, '* that if any person offending against
8. 8. Offender! <^ the act shall, within the space of twelve months next after such
others^inTa " election, discover any other person or persons offending against
months after ^' this act, 80 that such person or persons so discovered be tbere-
thc eiecUon «•' upon convicted, such person so discovering, and not having
indenmified. « ^^^^ before that time convicted of any offence agwnst this actj
'^ shall be indemnified and discharged from all penalties and dis-
^^ abilities which he shall then have incurred by any offence a^nst
Prosecutions « this act." The eleventh section provides that no person shall
Wo*"y;:i'" be li»We to any incapacity, diaabUity, forfeiture, or penalty, unlesB
a prosecuioon be commenced withm two years after the mcapactty,
&;c. shall be incurred, or, in case of a prosecution, the same be
carried on without wilful delay.
This statute It has been holden that, notwithstanding this statute, bribery
does not t*ke in elections of members to serve in parliament still remains a
motTum ^^' crime at common law ; that the Legislature never meant to take
crime. But avay the common l&w crime, but to add a penal action i and that
the Court of thiA appears by tb$ words in the statute, — " or being otherwise
wm weiy lavsrfiilly convicted, thereof," (o) And a conviction upon an in-
proceed by formation granted by the Court of King's Bench is just the same
iofomttion; ^^ if the party bad been convicted upon an indictment. (/>) But
a» the o&nder will be equally liable to the penalties of the sta-
tute, (9) thai! coujEt vnll not interpose by information until the two
veaca a» expired, in ordinary cases ; though there may pKossibly
pe particular caaes,. founded oql particular reasons, where it may
be right to grant informations before the expiration of the time
limited for commeoeing the pros^pivtion on ^e statute, (r) And
in one casfi, wbecej tte defendant had been convicted of bribery,
and the time ks bxsjBiging the penal action waa not es^pired, the
eourtpermilbted him. to enter into a recognizance to appear at the
expiration of that tim/ei. {s)

(«) An actioa yfiSX lie though the being under prosecution for peijarj,

party bcibed does not voto according was no ground for postponing the

to toe bribe. Tulston v. Norton, 1 judgment. Rex v. Haydon, SJlwr.

Mac. IL 317. and Ofmey 896, aote. ia87. S. 0. 1 Blac4 &. 404. Aad the

(9) ff «]( 9. Pitt and anolhw>. 3 Bun:. Court refa8e4. to st^iy judgmeot upon

1SS5. S. C. 1 Blac. E. S30. the poitea where tbej were moved to

(p) Rex V, Pitt and another, 8 Burr, do so on the ground that the defendant

1389. had laade a mscovery of another per-

(f ) Coombe v, Pitt, 1 BUc R. 584; son offending a^inst the statute, who

(f^ Rex V.Pitt &anoiher,8Burr. 1 340. bad been convict^ on his (tbe de-

(c) Rex r. Heydon, 3 Burr. 13&9« fondant's) evidence. Pugb v, Cargea-

Bat where that tinae bad.expiredtthe ven, 3 Wils. 36. And see tbe cases

Court held thai the cipcumstaaee of collected in 1 Hawk. P. C. c. 67. s. JO.

the witness, by whose Qvidenco the note (4).wJieres^dsoasto tbeCoort

defendant was ciauricted. ȣ biibtry^ of KingliQeqcb gnmUag a aew. trial.

CHAP. XVI.] Of Bribery. 1 59

Where a friend of the candidate gave an ekctor five guineas to Coustmction
vote, and took from him a note for Uiat snm, but at the same time ^ ^^ s^tute.
gave a counter note to deliver up the first note when the elector
had voted, it was held to be an absolute gift and bribery within
the act, although the elector voted for the opposite party. (^) And
laying a wager with the voter that he does not vote for a particu<-
lar candidate is also bribery within the act. {u) In an action upon
this statute it has been held, that, before the time of election, any
one is a candidate for whom a vote is asked ; and that it is not
competent to the defendant to dispute a man's right of voting
when he has asked him for his vote ; it being immaterial whether the
voter bribed had a right to vote or not, if he claimed to have such
right, (ti^) It seems that a declaration up(m this statute must
state what the bribe was, and specify that the defendant took
money or some other particular species of reward ; and where it
statea generally ^' that the defendant did receive a gift or reward^*
in the disjunctive, it was held bad, and that the defect might be
taken advantage of in arrest of judgment, the charge being of a
criminal nature, (x)

As to the person who shall be considered as a discoverer within Who shall be
the eighth section of the statute, so as to be indemnified from ^^^^^
its penalties, it has been decided that the circumstance of a party the eighth
having been, within the limited time, a plaintiff in an action on section of the
the statute, and having prosecuted it to judgment, does not prove go^*to bc^'
him to have been the first discoverer. Lord Mansfield, C. J. ob- indemnified.
served, that the Court had not said, nor would say, that a plaintiff
cannot be the discoverer ; but that the act does not make him so,
or connder him as the discoverer; and that as the plaintiff could
not be Ae witness himself in the action, some other person must
han^ be«i Ae witness; kb wa« not therefore to be presumed,
widiont any evidence of it, thai the plaintiff in the action was the
first dtseoverer. (y) Ami where one person procured another to
make an afidavit of facts axnounting te^ bribery, and then prase*
coted a tUrd person oyon thoae facts to eooviction and juf^ment,
it wna held that the penMHi msdcing the afl&davit was the dboo*'
verer..(«} With reaped to what shall be deemed a convic-
tkm wiAin tiiss seetioft, tt has been held that a verdict will
not be suffident) and that there must be a judament; hut
thai when the judgment is obtaioed it will rdate, fiir tiie pur-
pose of Uie indemnity, to the time when the discovery was first
made. («)

A recent statute, 49 Geo. 3. c. U8. reciting that the giving 49 0eo.3.
money, &c. in order to procure the return of- a member to Parlia^ f™™ir*,i'
ment, if not given to or for the use of some person havmg a right, nalties on per-

(f) Salmon V, Norton, 3 Burr. 1895. ille^l.

1 Bka«. R«p. St 7. (w) Conibo v. Pitt, 1 Blac. R. 593.

(») 1 Hawk. P. G. c. 67. s. 10. sole (*) Da?y v. Baker, 6 Burr. S47I.

(4), citing L]oft55S. aad referring also {jf) Curgenyen v. Cuming, 4 Burr,

to Allen V, Heame, 1 T. R. 56. where 2504.

a wager betweea two Toterss with re- {%) SiUy v. Cuming, 4 Burr. S464.

ipect to the erent of an election, laid (a) Sutton o. Bishop; 1 Blac. H.

before the poll began, was held to he 665.

1 60 Of Bribery: [book ii*

sons giving or of claiming to have a right, to act as returning officer, or to vote

ney^,*^f to°' *^ ^^® election, is not bribery within the former statute, (2 Geo. 2.

procure the c. 24.) enacts, that if any person shall give, or cause to be given,

^^^'^'^'^to* directly or indirectly, or promise, or agree to give, any money.

Parliament, g^^9 ^^ reward, upon any engagement or agreement that the per-

thoagh such SOU to whom, to whose use, or on whose behalf, such gift or pro-

money, Ac. ^jgg gjjjjj jjg made, shall by himself, or by any other at his request

be not s^ven , ' ^j \.^^at_4_ r

to voters. Or command, procure, or endeavour to procure, the return of any
person to Parliament for any place, he shall, if not returned him-
self to Parliament for such place, for every such gift or promise
forfeit one thousand pounds ^ and if returned, and having given, or
promised to give, or knowing of and consenting to such gifts or

I promises, shall be disabled and incapacitated to serve in that Par-
iament for such place, and shall be as if he had never been re-
turned or elected a member of Parliament. And it enacts also,
that any person who shall receive or accept of by himself, or by
any other, to his use or on his behalf, any such money, gift,
or reward, or any promise upon any such engagement, con-
tract, or agreement, shall forfeit the value and amount of such
money, gift^ or reward^ over and above the sum of five hundred
pounas. (b)
49 Geo. 3. The third section of this statute enacts, that if any person

?' ^^^^gl^'n^. shall by himself^ or by any other, give or procure to be given,
ties upon per- Or promise to give or procure to be given, any office, place,
sons giving or employment, upon any express contract or agreement that
officeT&c^V the person to whom, or to whose use, or on whose behalf, such
way of bribes gift or promise shall be made, shall by himself, or by any other at
to procure the hig request Or command, procure, or endeavour to procure, the
members to return of any person to Parliament for any place, such person so
Parliament. returned, and so having given or procured to be given, or so pro-
mised to give or procure to be given, or knowing of and consent-
ing to such gift or promise upon finy such express contract or
agreement, shall be disabled and incapacitated to serve in that
Parliament for such place, and be deemed no member of Parlia-
ment, and as if he had never been returned ; and any person who
shall receive or accept of by himself or by any other, to his use or
on his behalf, any such office, place, or employment, upon such
express contract or agreement, shall forfeit such office, &c. and be
incapacitated for holding the same, and shall forfeit five hundred
pounds. And it further enacts, that any person holding any office
under his Majesty, who shall give such office, appointment, or
place, upon any such express contract or agreement that
the person to whom, or for whose use, such office, &c. shall
have been given, shall so procure, or endeavour to procure, the
return of any person to Parliament, shall forfeit one thousand
pounds.
49 Geo. 3. c. . The fourdi section of the statute enacts, that no person shall
1 18. s. 4. limits be liable to any forfeiture or penalty imposed by the act, unless
&c*to'two°*' some prosecution, action, or suit for the offence committed, shall

3W» *^' (*) S. 1 . The secofid section pro- to or by any person, for any legal ex-*

the offence. fiita that the act shall not extend to pense bona fie incurred at or con*
any money paid, or agreed to be paid, cerning any election.

CHAP. XTi.] Of Bribery. 161

be actuaUy and legally commeneed against sueh person within two
years next after the offence committed, and unless such person
shall be arrested, summoned, or otherwise served with the writ or
process within the same space of time, so as such arrest, summons,
or service, shall not be prevented by such person absconding or
withdrawing out of the jurisdiction of the court ; and in case of
any prosecution, suit, or process, the same shall be proceeded in
and carried on without any wilful delay.

VOL. Ir M

162

CHAPTER THE SEVENTEENTH.

OF NEGLECTING OR DELAYING TO DELIVER ELECTION WRITS*

*3 Geo. 3. The statute 53 Geo. 3. c. 89. was passed for the purpose of effect-
directs the ^^S ^^^ more expeditious and regular conveyance of writs for the
course m election of members to serve in Parliament. It enacts, that the
^^'^ hldi b^"* messenger, or pursuivant of the great seal, or his deputy, shall,
forwarded by after the receipt of such writs, forthwith carry such of them as shall
the messenger be directed to the sheriffs of London or Middlesex ^ to the respective
of the great officers of such sheriffs, and the other writs to the ireneral post

seal and o *

through the office in London, and there deliver them to the postmaster general
post office. 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), who on receipt thereof shall give an
acknowledgment in writing, expressing therein the time of deli-
very, 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 dispatch 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, re-
quiring 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 set-
ting forth the day and the hour the same vms delivered by such
postmaster or deputy, which memorandum shall also be signed by
such postmaster or deputy, who are required to transmit the same
by the first or second post afterwards to the postmaster general or
his deputy at the general post office in London, 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, {a)
53 Geo. 3. c. The statute, after directing that all persons to whom the writs
89. 8.2ftiid3. for the election of members to parliament ought to be and are

(a) 53 Geo. 3. c. 80. s. I.

CHAP. XVII.] Of neglecting to deliver Election Writs. 163

usually directed, ghall, within a month, send to the postmasters Penona to
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 ; usuaUy du
and of the post town nearest to such offices ; or in case any such rected must
office shall be in London, IFestminster, or Southwarky or within count oHhc
fi^e miles thereof, shall send such account to the messenger of the places of their
great seal ; (i) proceeds to enact, that after the death of the then offices,
messenger of the great seal the allowances of mileage shall cease, S. 4 and 5.
except an allowance of two guineas on each writ for the election of JJherfees abo-
a member on any vacancy, and of fifty pounds on the calling of a Ushed, except
new Parliament, (c) And it further enacts, that whereas the mes- ^^o guineas
senger of the great seal and his deputy have from time to time and%oT wi^a*
received certain other fees for the conveyance and upon the deli- new Parlia-
very of these writs, such fees shall cease from the passing of the "«'**•
act ; and that neither the messenger nor his deputy, nor any other
person, shall 'receive or take any fee, reward, or gratuity whatso-
ever, for the conveyance or delivery of any such writ, {d)

The sixth section of the statute then enacts, "that every person 53Geo.3.c.8i».
" concerned in the transmitting or delivery of any such writ as Acting in"?o-^
'^ aforesaid who shall wilfully neglect or delay to deliver or trans- lation of the
" mit any such writ, or accept any fee, or do any other matter or •c' guilty of a
" thing in violation of this act, shall be guilty of a misdemeanor, ™" cmcanor.
" and may upon any conviction upon any indictment or informa-
" tion in Iiis Majesty's Court of King's Bench be fined and impri-
" soned at the discretion of the Court for such misdemeanor."

Offences committed in Scotland may be punished by a fine or
imprisonment, as the Judge before whom the offender shall be
tried and convicted may direct, {e)

(b) 53 Geo. 3. c. 89. s. 2 and 3. ' sender an annual allowance for his life

(r) Id. s. 4. of 590/. in compensation for these fees,

(if) Id. 8. 5. And the section fur- {e) Id. s. 7.
tber proceeds to give to the then mes-

u'i

164

CHAPTER THE EIGHTEENTH.

OF DEALING IN SLAVES.

5Geo.4.c.ll3.

Sect. 9.
Dealing in
slaveB on the
high seas, &c.
to be deemed
piracy, felony,
and robbery,
and punished
with death.

The statute 5 Geo. 4. c. 113. repeals all the acts and enactments
relating to the slave trade, and the abolition thereof, and the export-
ation or importation of slaves, except so far as they have repealed
any prior acts or enactments, or may have been acted upon, or
may be expressly confirmed by the present act. It then enacts,
that it shall not be lavrful (except m such special cases as are
thereinafter mentioned) to deal in slaves, or to remove, import,
ship, tranship, &c. any persons as slaves, or to fit out, employ, &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 indi-
rectly, 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 embanking on board, any vessel, &c.
in any capacity, knowing that such vessel, &c. is employed, or in-
tended to be employed, in such unlawful 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, (a) Pecuniary penalties and forfeitures are then imposed
upon persons offending, by engaging in such unlawful objects, (b)
And the statute then proceeds to subject certain offenders to punish-
ments of a more serious nature.

The ninth section enacts, ^' that if any subject or subjects of his
" Majesty, or any person or persons residing, or being within any
^* of the dominions, forts, settlements, factories, or territories, now
'^ or hereafter belonging to his Majesty, or being in his Majesty's
^' occupation or possession, or under the government of the United
" Company of merchants of England trading to the East Indies,
'' shall, except in such cases as are in and by this act permitted,
'' after the first day of January, one thousand eight hundred and
'' twenty-five, upon the high seas, or in any haven, river, creek, or
^^ place, where the admiral has jurisdiction, knowingly and wilfully
*' carry away, convey, or remove, or aid or assist in carrying 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

(c) S. f .

(p) S. S, 4, 5, 0, 7, 8.

CHAP. XTiii.] Of Dealing in Slaves. 165

" Inrought as a slave or slaves, into any island, colony, country,
*^ territory, or place whatsoever, or for the purpose of his, her, or
" dieir being sold, transferred, used, or dealt with, as a slave or
'' slaves; or shall sdter the said first day of January, 1825, except in
^ such cases as are in and by this act permitted, upon the high
" seas, or within the jurisdiction aforesua, 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 per-
^ sons so offending shall be deemed and adjudged guilty of piracy,
** felony, apd robbery, and being convicted thereof shall suffer
*^ death, without benefit of clergv, and loss of lands, goods, and
^ diattels, as pirates, felons, and robbers upon the seas, ought to
« suffer."

The 10th section enacts, '' that (except in such special cases Sect. lo.
^ as are in and by this act permitted, or otherwise provided for) if 2a^8°^J"cx-
^^ any persons shall deal or trade in, purchase, sell, barter, or porting or im-
'* transfer, or contract for the dealing, or trading in, purchase, porting them,
" sale, barter, or transfer, of slaves, or persons intended to be dealt them*for"roch
*^ with aa slaves, or shall, otherwise than as aforesaid, carry away purposes, or
** or remove, or contract for the carrying away or removing of embarking
*' slaves, or other persons, as or in order to their being dealt with JJ^^^^t^iSe^or
^^ as slaves, or shall import or bring, or contract for the importing guaranteeing
" or bringing, into any place whatsoever, slaves or other persons, slave adren-
"as or in order to their bemg dealt with as slaves ; or shall, other- Ji^'L^/^'
" wise than as aforesaid, ship, tranship, embark, receive, detain, or &c. to be so
" confine on board, or contract for the shipping, transhipping, employed, or
" embarking, receiving, detaining, or confining on board of any J|^d slave
^' ship, vessel, or boat, slaves or other persons, for the purpose of ships, or in-
" their being carried away or removed, as or in order to their being »«"n» "la^c
''dealt with as slaves, or shall ship, tranship, embark, receive, forglng'instru-
'' detain, or confine on board, or contract for the shipphig, tran- ments relating
" shipping, embarking, receiving, detaining, or confining on board J® ^^^ "^^y®
" of any ship, vessel, or boat, slaves, or other persons, for the pur- fei^nypunbh-
'' pose of their being imported, or brought into' any place what- able b^ trans-
" soever, as or in order to their being dealt with as slaves ; or shall portation, &c.
" fit oat, man, navigate, equip, dispatch, use, employ, let, or take*
" to freight, or on hire, or contract for the fitting out, manning,
'' narigating, eqidpping, dispatching, 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 relation to
'' the objects, which objects and contracts have hereinbefore been
'' declared unlawful ; or shall knowingly and wilfully lend or ad-
" VKnte, or become security for the loan or advance, or contract
" for the lending or advancmg, or becoming security for the loan
'' or advance of money, goods, or effects, employed, or to be em-
^ ployed, in accomplishing any of the objects, or the contracts in

166 Of Dealing in l^ofOes. [book. n.

" relation to the objects^ which objects and contracts have herein-
^^ before been declared unlawful ; or shall knowingly and wilfully
'^ become guarantee or security^ or contract for the becoming gua-
*^ rantee or security for agents 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 in any other manner to engage, or to con-
'^ tract to engage, directly or indirectly therein, as a partner, agent,
^' or otherwise, or shall knowingly and wilfully ship, tranship, lade,
'^ receive, or put on board, or contract for the shipping, tranship-
^' ping, lading, receiving, or putting on board of any ship, vessel,
'^ or boat, money, goods^ or effects, to be employed in accomplish-
*^ ing 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 the 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, sur-
^^ geon, or supercargo, 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 in-
" suring 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
" valuation, 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
" be forged or counterfeited, with intent to defraud his Majesty,
*^ his heirs or successors, or any other person or persons what-
" soever, 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 de-
'^ clared to be, felons, and shall he transported beyond seas, for a
*' term not exceeding fourteen years, or shall be confined and kept
" to hard labour for a term not exceeding five years, nor less than
" three years, at the discretion of the Court, before whom such
" offender or offenders shall be tried and convicted."
Sect. 11. The 11th section enacts, ^^ that (except in such special cases.

Seamen, &c. «' or for such special purposes as are in and by this act expressly
boMd such *' permitted,) if any persons shall enter and embark on board, or
ships guilty '' contract for the eijtering and embarking on board of any ship,
ofamisde- « vesscl, or boat, as petty officer, seaman, marine, or servant^ or

CHAP. XVIII.] Of Dealing in Slaves. 167

" 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 shaU so enter and embark on board, or contract
*^ so to do as ajoresaid 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; 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."

The 12th section enacts, " that nothing in this act contained, S. 12. proyides
" making piracies, felonies, robberies, and misdemeanors, of the ^^^^ for'^.
" several offences aforesaid, shall be construed to repeal', annul, or naities in the
" alter the provisions and enactments in this act also contained, vice-admiralty
" 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 enact-
" ments, imposing forfeitures and penalties, shall in all respects
" be deemed and taken to be in full force ; it being the true intent
" and meaning of this act, that the right and privilege heretofore
" exercised of suing in vice-admiralty courts for the forfeitures or
" penalties, shall remain in full force and effect as before the pass-
" ing of this act; and the jurisdiction of the said vice -admiralty
" courts in all cases of forfeitures and penalties imposed by this
" act is hereby established, given, ratified, and confirmed."

It is then provided, that nothing contained in the act shall Proviso for
prevent any persons from dealing or trading in, &c. any slaves or P"rc*>»«»ng
slave, lawfully being within any island, colony, &c. belonging to, belong^ to**
or in the possession of his Majesty, in case such dealing or trading, bis majesty, if
&c. shall be made and entered into with the true intent and pur- f^ployed
pose of employing or working such slaves or slave within the
same island, colony, &c. in which they, he, or she, may lawfully
be at the time of the making or entering into any such dealing,
trading, &c. (a) And it is also provided, that nothing contained
in the act shall prevent any person from carrying away, or
removing by land or coastwise, or from contracting for the so
carrying away or removing any slaves, lawfully being in any part
of any island, colony, &c. belonging to or in the possession of his
Majesty, to any other part of the same island, colony, &c.
Provision is also made for the removal of slaves from one island
to another, for the purpose of cultivating the proprietor's estates,
where two or more islands are comprised in the same colonial
government. (6) And the act also authorizes the removal of
slaves under particular circumstances ; (r) and enacts as to the
manner in which captured slaves shall be disposed of. {d)

By a subsequent section it is enacted, that if any person offend- S. 40. Petty
ing as a petty officer, seaman, marine, or servant, against any of ofAcevB, sca-
the provisions of the act, shall, within two years after the offence ^^Mrvanu/ '
conunitted, give information on oath before any competent magis- havinff of-

(a) S. 13. (c) S. 16, 10, 17, 18, 19, 20, 21.

W S. 14. W S. 22, S2.

168

feoded, and
withia two
years infonn-
mg against
any owner^
captain, mas-
ter's mate,
surgeon, or
supercargo,
not to be liable
to tbe pains
and penaltiea
of the act.

Of Dealing in Slaves.

[book II.

S. 48. Trial
of offences
against this
act.

S. 49. Trial of
offences com-
mitted out of
the admiral's
jurisdiction.

S. 50. Offences
may be tried,
as u com-
mitted in Mid-
dlesex.

trate, against any owner or part-owner, or any captain, master,
mate, surgeon, or supercargo, of any ship or vessel, who shall
have committed any offence against this act, and shall give evi*
dence on oath against such owner, &c. before any magistrate or
court before whom such offender may be tried ; or if such person
so offending shall give information to any of his Majesty's ambas-
sadors, ministers, &c. or other agents, so that any person owning
such ship or vessel, or navigating or taking charge of the same,
as captain, master, mate, surgeon, or supercargo, may be appre-
hendedy such person so giving information and evidence, shall
not be liable to any of the pains or penalties under the act, in-
curred in respect of his offence ; and his Majesty's ambassadors,
ministers, &c. are required to receive any such information, and to
transmit t)ie particulars thereof without delay, to one of his Ma-
jesty's principal secretaries of state, and to transmit copies of the
same to the commanders of his Majesty's ships or vessels, then
being in such port or place.

The 48th section enacts, that all offences against this act which
shall be committed in any country, territory, or place, other than
the united kingdom, or on the high seas, or in any port, sea,
creek, or place, where the admiral has jurisdiction, and which shall
be prosecuted as piracies, felonies, robberies, or misdemeanors, shall
and may be enquired of, either according to the ordinary course of
law, and the provisions of the 28 H. 8. c. 15. or according to the
provisions of the 33 H. 8. c. 23. or according to the provisions of
the 11 and 12 W. 3. c. 7- or according to the provisions of the 46
Geo. 3. c. 54. ; (e) and that all persons convicted of any of the
said offences, to be enquired of, tried, and determined, under and
by virtue of any conmiission to be made or issued, according to
the directions of the said act of the 46 Geo. 3. shall be subject
and Uable to, and shall suffer all such and the same pains, penal-
ties, and forfeitures, as by this act, or any law or laws now in
force, persons convicted of the same respectively would be subject
and liable to, in case the same were respectively enquired of,
tried, and determined, and adjudged, within this realm, by virtue
of any commission made according to the directions of the statute
28 H. 8. c. 15.

A subsequent section enacts, that all offences against this act,

which shall be committed in any place where the admiralty has

un the local jurisdiction of anv
ordinary court of a British colony, &c. competent to try such oi-

not jurisdiction, and not being withm the local jurisdiction of ani

fence, may be enquired of, tried, &c. under and by virtue of any
commission to be issued, according to the directions of the 46 G.
3. c. 54.

It is then further enacted, that all offences committed against
this act may be enquired of, tried, determined, and dealt with, as
if the same had been respectively committed within the body of
the county of Middlesex.

ifi) Ante, no.

169

CHAPTER THE NINETEENTH.

OF FORESTALLING^ REGRATING^ AND ENGROSSING/ AND OF

MONOPOLIES.

Evert practice or device by act^ conspiracy, words, or new0, to Nature of

enhance the price of victuals or other merchandize, has been held' th«8e.i)iaeii^i..

to be unlawfol; as being prejudicial to trade and commerce, and

injurious to the public in general, (a) Practices of this kind come

under the notion of forestalling 5 which anciently comprehended,

in its signification, regrating and ingrossing, and all other offences

of the like nature, (b) Spreading false rumours, buying things in

the market before the accustomed hour, or buying and selling

agam the same thing in the same market, are offences of this

land, (c) Also if a person within the realm buy any merchandize

in gross, and sell the same again in gross, it has been considered '

to be an offence of this nature, on the ground that the price must

be thereby enhanced, as each person through whose hands it

passed would endeavour to make his profit of it. (d) So the bare

ingrossing of a whole commodity, \nth an intent to sell it at an

unreasonable price, is an offence indictable at the common law ;

for if such practices were allowed, a rich man might ingross into

his hands a whole commodity, and then sell it at what price he

should think fit. (e) And so jealous is the common law of all

practices of this kind that it has been held contrary to law to sell

com in the sheaf; upon the supposition that by such means the

market might be in effect forestalled. (/)

Tlie offences of forestalling, regrating, and ingrossing were for xi^q statutes
a considerable period prohibited by statutes; and chiefly by the on this sub-
3 & 4 Edw. 6. c. 21. and 5 & 6 Edw. 6. c. 14. : (g) but the bene- ^^''^^ '*■
ficial tendency of such statutes was doubted ; and at length by the ^ ^ '
12 Geo. 3. c. 71« they were repealed, (A) as being detrimental

(a) 3 Inst. 106. S Bac. Abr. 861.
Fare$iallimg{A).

{b)3 Inst. 195. 8 Bac. Abr. 261.
F9rmaaing{A).

(e) 1 Hawk. P. C. c. 80. s. 1.

(W)S Inst. 196. 3 Bac. Abr. 861.
ForeHaUmg{A). 1 Hawk. P. C. c. 80.
s. S. Bat it was held that any roer-
cluuil» whether subject or foreignert
bringing victuals or any other mer-
chandise into the realm, may sell it

in gross. 8 Inst. 196.

(e) 1 Hawk. P. C. c. 80. s. 8. 3 Inst
196.

(/) 8 Inst. 197. 8 Bac. Abr. 861.
Forestalling (A).

(f) Altered by 5 Eliz. c. 5. s. 18.
5 Eliz. c. 12. and 18 £liz. c.86. 8. 18.

(A) The acts repealed arc 3 & 4
Edw. 6. c. 81. 6 & 6 Edw. 6. c. 14.
3 Phil. & Mar. c. 3. 5 Eliz. c. 6. 15
Car. 8. c. 8. and so muck of 5 Ann.

170 Of ForesUMmg, Regrating, [book ii.

to the supply of the labouring and manufacturing poor of the
kingdom.
The offences It has been sometimes contended that forestalliog, regrating^
"V^P"" and ingrossing^ were punishable only by the provisions of these
common law. Statutes : (t) but that doctrine has not been admitted, and they
still continue offences at common law; (k) though their precise
extent and definition at the present day may perhaps aomit of
some doubt. There is not much to be found in the books con-
cerning the common law upon this subject ; and from the time of
the 5 & 6 Edw. 6. c. 14. prosecutions for offences of this nature
were probably found to be framed with more facility and certainty
upon the statute than upon the common law. That statute, it
has been observed, is now repealed: but as it particularly describes
the offences of forestalling, regrating, and ingrossing, it may be of
use to refer to it as containing a parliamentary esq>08ition of the
respective terms denoting the several particular offences. (/)
Fu>lUmentary The first section enacted that whosoever should buy or cause
SS?a^^^* to be bought any merchandize, victual, or any other thing what-
soever, coming by land or by water toward any market or fair, to
be sold in the same, or coming toward any city, port, haven,
creek, or road, from any parts beyond the sea, to be sold ; or
make any bargain, contract, or promise, for the having or buying
the same or any part thereof, so coming as aforesaid, before the
said merchandize, victuals, or other things, should be in the
market, fair, city, port, haven, creek, or road, ready to be sold ;
or should make any motion by word, letter, message, or other-
wise, to any person, for the enhancing of the price, or dearer
selling of any thing above mentioned ; or else dissuade, move, or
stir, any person coming to the market or fair, to abstain or for-
bear to bring or convey any of the things above rehearsed to any
market, fair, city, port, haven, creek, or road, to be sold as afore-
said— ^should be taken to be vl forestaller. (m)
Of a Tfgraior. The second section enacted that whosoever should by any means
regrate, obtain, or get into his hands or possession, in a fair or
market, any corn, wine, fish, butter, cheese, candles, tallow, sheep,
lambs, calves, swine, pigs, geese, capons, hens, chickens, pigeons,
conies, or other dead victual whatsoever, that should be brought
to any fair or market to be sold, and should sell the same again in
any fair or market holden or kept in the same place, or in any
other fair or market within four miles thereof — should be taken to
be a regrator. («)

c. 34. as relates to butchers sellioi^ or to prevent the public market; and
cattle alive or dead, in London or . metaphorically, to intercept in gene-
Westminster, or within ten miles ral ; and seemeth deriYcd from fore,
thereof; and all the acts made for which is the same as before^ and stalle,
the better enforcement of the same. a standing place or department, from

(t) Rex V. Maynard, Cro. Car. 231. whence sprang the ancient word ttal-

Rex V. Waddington, .1 East R. 153. lage, ^hich signifieth money paid for

(k) I Hawk. P. C. c. 80. s. 15. erecting a staU or stand for tn« sell-

(0 1 Uawk. c. 80. s. 15. 2 Burn's ing of goods in a fair or market.

Just. ForeBtalting^ &c. p. 482, 483. 8 Burn's Just 481. f*ore«/al/iii^, &c.
4Blac. Com. 158. (n) Regrator is said to be derived

(m) Forestalling (/oretf<e//afi or/or«- from the French word regratemeniy

MtMiian) in the English Saxon signifieth for huckstery. 3 Inst. 195.
properly to market bjefore the public^

CHAP. XIX.] and IngroBsing. 171

The third Bection enacted, that whosoever should ingrostf or Otaningraiier,
get into his hands by buying, contracting, or promise taking,
other than by demise, grant, or lease of limd or tithe, any com
growing in the fields, or any other corn or grain, butter, cheese,
fish, or other, dead victuals whatsoever, to the intent to sell the
same again, should be taken to be an ingrosser. (o)

It has been suggested, that at the present day it would pro- Common law
bably be holden that no offence is committed, unless the conduct offence,
of the party manifests an intent to raise the price of provisions;
as the mere transfer of a purchase in the market where it is made,
the buying articles before they arrive at a public market, or the
purchasing of a large quantity of a particular article, can scarcely
be regarded as in themselves necessarily injurious to the com-
munity, {p) And that many cases may occur in which a most
laudable motive may exist for buying up large quantities of the
same conmiodity. {q) It is stated also, that in one case the court
were equally divided on the question, whether regrating is an
indictable offence at common law : (r) and that it seems there-
fore, at all times, to be safer to charge in the indictment, that the
acts complained of were done with an evil design to raise the
price of the article in question, {s)

In a case which occurred in the year 1800, and in which the WadtUngtm'M
defendant was charged by an information, filed against him by case—En-
leave of the court, with divers acts committed with the intent of ^^^^f ^%
enhancing the price of hops, the law relating to forestalling, re-
grating, and ingrossing, was much considered. The defendant
being a. merchant of credit and affluence in Kent, and having a
stock of hops in hand, went to the city of Worcester for the pur-
pose of speculating how he could enhance the price of that com-
modity. And for that purpose he declared to the sellers, that
hops were too cheap, and to the hop planters, that they had not a
fair price for their hops: and in order that his speculation of
raising the price of a falling market might not be defeated, he con-
tracted for one-fifth of the produce of Worcestershire and Here-^
fordshire when he had a stock in hand, and admitted that he did
not want to purchase. For this conduct the information was
filed against him, containing many counts, {t) upon which he was

(0) The vendee cannot sell again in rumours, with intent to enhance the
gross, for then he is an ingrosser, ac- price of hops, in the hearing of hop-
cording to the nature of the word, planters, dealers, and others, that the
for that he buy in gross and sell in stock, of hops was nearly exhausted,
gross. 3 Inst. 195. and that there would be a scarcity of

(p) 2 Chit. Crim. Law, 528, in the hops, &c., with intent to induce them

notes; referring to Smith's Wealth of not to bring their hops to market for

Nations, 2 Vol. S09. and the Index, sale for a long time, and thereby

tit. " Labour." greatly to enhance the price; 2d, With

(9) 2 Chit. Crim. Law, I'&yW. referring spreading such rumours generally,

to the arguments, &c. in 14 East. 406. with intent to enhance the price of

15 East 511. hops; 3d, With endeavouring to en-

(r) Rex V. Rnshby, Hil. T. 40 Geo. hance the price, by persuading divers

3. 2 Chit. Crim. Law, 536, note (r) and dealers, &c. not lo take their hops to

588, in the iiote^. market, and to abstain from selling

(«) 2 Chit Crim. Law, 528, in the for a long time; 4th, With ingrossing

notei. large quantities of hops, by buying

(I) There were nine counts; the 1st, from many particular persons, by

charging the defendant with spreading name, certain quantities, with intent

vt%

Arguments
urged for the
deisndant.

LordKenyon't
opinion.

Of Fore9tidUng, Regrating, [boor n.

convicted geneiaUy; and upon his being brought up to receive
judgment, the questions as to his having committed any offence at
all, and as to the nature of that offence, if any had been committed,
were discussed by permission of the court, though not urged re-
gularly in the form of a motion in arrest of judgment.

On behalf of the defendant it was contended, that the facts
charged against him never constituted any offence, even previous
to the statute 12 Greo. 3. c. 71* ; but that u they did, the offences
stated in each count, and all others ejusdem generis, were done
away by that statute, which went to repeal, not merely the par-
ticular acts of parliament therein enumerated, but the whole system
of laws respecting forestalling, regrating, and ingrossing. And
the resolutions of the committee of the House of Ck)mmon8, to
whom it was referred to make a report upon these laws, were
relied upon, as shewing that it was the intention of the Legis-
lature to do them away altogether. The defendant's counsel also
urged, that an ingrossmg must be of some commodity which con-
stitutes vichials, and that hops were no victuals : and they also
took objections to the particular form of the counts of the in-
formation; and amongst others, that there was no quantity speci-
fied on the face of the information out of which the defendant
purchased the hops, whereas this should have appeared ; ingross-
mg being a relative term, and meaning the getting either the
whole of any commodity, or at least so much of it as to prevent
others from supplying their wants in the common course of trade ;
and that the quantity ingrossed ought to have been so much as
would have affected the consumption of the whole kingdom.

Lord Kenyon, in delivering his opinion, said, that it could not
be denied, but that our law books declare practices of the sort
with which the defendant was charged to be offiences at common
law; that he was perfectly satisfied that the common law re-
mained in force with respect to offences of this nature; and that
in considering whether that was intended to be done away by the
act of the 12 Geo. 3. he could not regard the resolutions entered
on the journals of the Commons house of Parliament, but must
look to the statute-book; and that there he found nothing which
trenched upon what he had said, but only a repeal of certain
statutes, upon none of which that prosecution was founded, but
upon the common law. With respect to the objection that hops
were no victuals, he observed, that if they were become a neces-
sary ingredient, though only for preserving the common drink of
the people, they must be deemed a necessary of life and a victual,
the ingrossing of which, or committing any undue practices to
enhance the price to the public, is an offence at common law. (u)

to resell the same for an unreasonable
profit) and thereby to enhance the
price ; 5ih^ J4 idem^ stating the par-
ticular contraclfi; 6th, With getting
into his hands Iwr^e quantities, by con-
tracting with various persons for the
purchase, with intent to prevent the
same being brought to market, and to
resell at an unreasonable profit, and
thereby greatly to enhance the price s

7th, With buying like quantities with
like intent; 8th, With buying like
quantities with intent to resell at exor-
bitant profit, and thereby greatly to
enhance the price ; 9th, With unlaw-
fully ingrossing, by buying large quan-
tities with like intent. The defendant
was convicted generally upon this in-
formation.
(h) It appears that hopi and muii

CHAP. XIX.] and IngroB$ing. 173

Aod as to th« objection thftt the quantity purchased could not
constitute the offence of ingrossing unlestt it bore guch a propor-
tion to the consumption of the whole kingdom as would affect
the general price, his Lordship said^ that the objection was new to
him: but that if the opinions of Lord MansfiMy Mr. Justice
Detmison, and Mr. Justice Foster, were deserving of attention,
there was as little in that objection as in the rest. That he well
remembered an information moved for before them against certain
persons, for conspiring to monopolize or raise the price of all the
salt at Uroiimch : and that they bad no doubt of its constituting
an ofifence, although it was not pretended that these persons had
endeavoured to ingross all or any considerable part of the salt in
the kingdom.

After referring to the conflict of political opinion upon the sub-
ject of these laws. Lord Kenyon proceeded thus : — ''But without
'' attending to disputed points, let us state fairly what this case
" really is, and then see if it be possible to doubt whether tiie
'' defendant has been guilty of any offence. Here is a person
'^ going into the market^ who deals in a certain commodity. If
'' he went there for the purpose of making his purchases in the
'' fair course of dealing, witii a view of afterwards dispersing the
" commodity which he collected, in proportion to the wants and
'' convenience of the public, whatever profit accrues to him from
'' the transaction, no blame is imputable to him. On the contrary^
" if the whole of his conduct shews plainly that he did not make
" his purchases in the market with this view, but that his traffic
'' there was carried on with a view to enhance the price of the
'' commodity, to deprive the people of their ordinary subsistence^
'^ or else to compel them to purchase it at an exorbitant price^
** who can deny that tills is an offence of the greatest magni-
« tude.'^ (ti;)

The same defendant had been also tried upon an indictment Second case
wiiich, in stibstance, charged him chiefly with ingrassing a large ^*^^^^
quantity of hops in Kent, by buying them from various persons g^^^tin^ hope,
by forehand bargains and otherwise, at a certain price, with intent
to resell them at an unreasonable profit, or an exorbitant price, (or)

were held not to be within the mean- (w) Rex o. Waddington, Hil. T. 41

iDj^ of the statute 5 aod 6 Edw. 6. Geo. S. 1 East. R. 143.

€. 14. any more than apples, cherries, ' («) The indictment consisted often

&c. (I Hawk. P. C. c. 80. s. 80.) but counts: 1st. For ingrossing hops of

the Btatote 9 Ann. c. 12. s. 84. must divers persons by name, with intent

have altered the law with respect to to resell at an unreasonable profit,

Jktfpt, as it prohibited common brewers, and thereby enhance the price $ Sd,

under a penalty, from using any other For ingrossmg hops then growing^, by

biUer than hops in brewing beer : and forehand bargains, with nke intent;

the ground on which salt was held to Sd, For buymg large quantities of

be a victual within the meaning of hops of divers persons mentioned,

that statute was not onlv because it with intent to prevent their being

is necessary of itself for tne food and brought to market, and to resell them

health of man, but also because it at an unreasonable profit, and thereby

seasons and makes vrholesome beef, enhance the price; 4th, For buying

pork, &c. 3 Inst 195. The monopo- all the growth of hops in several pa-

lizing of salt is clearly an offence at fishes by forehand bargains, with the

common law. F'ide Lord Kenyon*s like intent ; 5th-, For buying bops of

jadgmeat in Rex l^. Waddiogton, 1 diyers persons named, with the same

East R. 157. intent as in the first count } etfa| For

174

Of Monopolies.

[book II.

Indictment.

Ponishment.

Of Monopo-
lies.

It appeared from the report, that the principal part of the evi-
dence related to the forehand bargains made by the defendant
with different planters for their growing crop of hops ; a practice,
however, which appeared to have prevailed for a considerable
period, of time in Kent, ^d Mdthout which some of the witnesses
stated, that, in their judgment, the cultivation of this plant, the
expense of which was exceedingly heavy, could not be generally
carried on. There was also evidence of the defendant's having
bought up very large quantities of the commodity to an unusual
amount, and by making unusual advances of money ; and that he
had held out language of inducement to other persons dealing in
the same article, to withhold their stock £rom the market, with a
view to a rise in the price, {v)

On the part of the defendant, the long existence of the practice
of making forehand bargains for hops was insisted upon as afford-
ing some argument for their legality ; and that at any rate it
could not be considered as ingrossing to have made forehand bar-
gains for 258 acres out of 30,000 acres in cultivation of the same
article in the county of Kent alone. But Grose, J., in passing
sentence upon the defendant, adverted to what had been said in
the former prosecution, and stated that the particular offence of
ingrossing still remained an offence at common law, and was cal-
ciuated to create an artificial scarcity where none existed in reality,
and to aggravate that calamity where it did exist, (z)

An indictment for ingrossing a great quantity of fish, geese,
and ducks, without specifying Uie quantity of each, has been held
to be bad. (a) And an indictment for ingrossing magnam guanti"
tatem straminis et faeni was quashed for not mentioning how
many loads of each, (b)

It is said, that by an ancient statute the offender was to be
ffrievously amerced for the first offence ; for the second to be con-
demned to the pUlory; for the third to be imprisoned ; and, for
the fourth, to be compelled to abjure the vill. And there seems
to be no doubt but that, at this day, all offenders of this kind are
liable to a fine and imprisonment, answerable to the heinouanesa
of their offence, upon an indictment at common law. (c)

Monopolies are much the same offence in other branches of
trade that ingrossing is in provisions : being a licence or privilege
allowed by the king for the sole buying and selling, making, work-

buying all the li^rowtb of hops on cer*
taio lands in certain parishes, by fore-
hand bargains, with intent to resell at
an unreasonable price, and thereby to
enhance the price; 7th, For endea-
vouring to enhance the price of hons
by persuading hop owners not to sell,
&c* 8th, For ingrossing, by buying
large quantities of persons unknown,
witn intent to resell at an exorbitant
profits 9th, Buying large quantities
with the like intent i 10th, For buying
hops then growing, with intent to re-
sell at an exorbitant price and lucre.
The defendant was tried before Lord
KenyoDy who diought the evidence

sufiicientto go to the jury upon all
the counts s and the jury fi>und a ge-
neral verdict against the defendant.

(jf) This last-raentioned evidence
applied to the 7th count ; the only one
the proof of which was afterwards con-
tested, but without effect^ at the bar.

(z) Oex V. WaddingtoB, Hil. T. 4t
Geo. 3. 1 East. Rep. 167.

(a) Rex tf. Gilbert, I Bast. Rep. 583.

(^) Anon. Cro. Car. 381. And see
« Hawk. P. C. c. S5. s. 74. Rex v.
Gibbs, 1 Str. 497. Rex o..Fo6ter» I
Lord Raym. 476.

(c) 1 Hawk. P. C. c 69. s. 5.

CHAP. XIX.3 Of ManopoUes. 175

iDg, or using of any thing whataoeyer ; whereby the subject in
general is restrained from that liberty of manufacturing or trading
which he had before, {d) They are said to differ only in this, —
that monopoly is by patent from the king, ingrossing by the act
of the subject, between party and party ; and have been consi-
dered as both equally injurious to trades and the freedom of the
subject, and therefore equally restrained by the common law. (e)
By the common law, therefore, those who are guilty of this offence
are subject to fine and imprisonment, the offence being malum in
se^ and contrary to the ancient and fundamental laws of the king-
dom ; and it is said that there are precedents of prosecutions of
this kind in former days. (/) And all grants of this kind, relat-
ing to any known trade, are void by the common law. (g)

But, notwithstanding their illegality, monopolies had been car-
ried to an enormous height during the reign of Queen Elizabeth ;
the evil was, however, in a great measure remedied by the statute
21 Jac. 1. c. 3., which declares them to be contrary to law, and
void ; (except as to patents not exceeding the grant of fourteen
years, to the authors of new inventions ; and except also patents
concerning printing, saltpetre, gunpowder, great ordnance, and
shot,) and monopolists are punished with the forfeiture of treble
damages and double costs to those whom they attempt to dis-
turb, (h)

It is worthy of observation, that, as our laws on the one hand J^® ^"^^ •"
carefully protect the people from the arts of those who would im- tbepriceofoor
duly raise the price of the comforts and necessaries of life ; so, on luitiTe com-
the other, they protect the fair trader from impositions which may IJU^^ **''*"
have the effect of imduly lowering the price of^the article in which
he deals. Thus, the abatement by undue means of the price of
our native commodities is punishable by fine and ransom : (t) and
a case is mentioned where certain persons came to Coteswoldy and
said, in deceit of the people^ that there were such wars beyond the
seas that wool could not pass or be carried beyond sea, whereby
the price of wools was abated ; and presentment thereof being
made, the defendants, having appeared, were, upon their confes*
sion, put to fine and ransom, {k)

{4) 4 Bla. Com. 158. 3 Init. 181. the subject of monopolies, 1 Hawk.

(e) Skin. 169. P. C. c. 79. 4 Bac Abr. Monopoly,

(f) 3 Inst. 181. 2 Inst. 47, 61. 4 (0 3 Inst. 196., referring to «S£d.3.
Bac. Ab. 764. Monopoly (A) note (ft), c. 6. 13 Rich. 9. c. 8. Inier leget

(g) 1 Hawk. P. C. c. 79. s. 1. Ethelstani, c. 18.
(h) Sect 4. And see further upon (k) 3 Inst 196.

JI76

CHAPTER THE TWENTIETH.

OF MAINTBNANCB AND CHAMPSRTY^ A>D OW BUYING AND SELLING

PRBTSNDBD TITLES.

MaiatenBnce. I. MAINTENANCE' seems to signify an unlawful taking in hand or
upholding of quarrels or sides, to the disturbance or hindrance of
common right. This may be where a person assists another in
his pretensions to lands, by taking or holding the possession of
them for him by force or subtilty, or where a person stirs up
quarrels and suits in relation to matters wherein he is in no way
concerned ; (a) or it may be where a person officiously inter-
meddles in a suit dependm^ in a court of justice, and in no way
belon^g to him, by assistmg either party with money, or other-
wise, m 5ie prosecution or defence of^siich suit. (A) Where there
is no contract to have part of the thing in siiit, the party so inter-
meddling is said to he guilty of maintenance generally ; but if the
party stipulate to have part of the thing in suit, his offence is
called champerty, (c)

As to maintenance^ it is laid down, that whoever assists another
with money to carry on his cause, as by retaining one to be of
counsel for him, or otherwise bearing him out in the whole or
part of the expense of the suit, may properly be said to be guilty
of an act of maintenance, {d) 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 apy suit is
actually commenced ; but it should seem that this, if not strictly

Instances of
maintenance.

. (a) Co. Lit. 368 b. 8 Inst SOS, 212,
SIS. 1 Hawk. P. C. c- 83. s. 1, 2. 4
Bac.Ab.488. Maintenance. This kind
of maintenance is called in the books
ruraiU^ in distinction to another sort
carried on in courts of jasUce, and
therefore called eurialis. It is punish-
able at the king*s suit by fine and im-
prisonment, whether the matter in dis-
Eote any way depended in plea or not {
ut is said not to be actionable.

(b) 1 Hawk. P. C. c 83. s. 3. 4Bac.
Abr. 488. Maintenance, 4 Bla. Com.
134. This kind of maintenance is
called euriaUM, See ante^ note (a).

(c) Co. Lit 368. 1 Hawk. P. C. c.
M. f . 3. The abuse of legal proceed-

ings by. oppressive combinalions to
carry them into effect is observed by
Mr. Hume to have speedily appeared
upon the establishment of the laws in
the time of Edward I. He sa^s,— *' tn-
'* stead of their former associations for
** robbery and violence, men entered
** into formal combinations to support
'^each other in lawsuits; aud it was
** found reauisite to check this iniquity
'* by act or parliament.** 2 Hume 320,
referring to the statute of Conspira^
tors. — £dw. I.

(if) I Hawk. P. C. c. 83. s. 4., and
the numerous authorities cited in the
mai|;in.

CHAP. XX.] Of Maintenance. 177

maintenaDce, must be equally criminal at common law. (e) 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 bring-
ing a writ of error or attaint. (/)

It has also been said, that he who by his friendship or interest
saves a person that expense in his cause which he might otherwise
be put to, or gives, or but endeavours to give, any other kind of
assistance to a party in the management of his suit, is guilty of
maintenance, {g) And it has been said also, that he who gives ,

any public countenance to another in relation to such suit will
come under the like notion ; as if a person of great power and
interest says 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 be spend any thing or not; or where such a
person comes to the bar with one of the parties, and stands by
him while his cause is tried, whether he says any thing or not ;
for such practices not only tend to discourage the other party from
going on with his cause, but also to intimidate juries from doing
their duty. (A) But it seems that a bare promise to maintain ano-
ther 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) And it seems clear, that a man is in no
danger of being guilty of an act of maintenance, by giving another
friendly advice as to his proper remedy at law, or as to the coun-
sellor or attorney likely to do his business most effectually, {k)

But there are many acts, in the nature of maintenance, which whenjustifi-
become justifiable from the circumstances under which tiiey are »Wc.
done. They may be justifiable, I . in respect of an interest in tlie
thing in variance; 2. in respect of kindred or affinity; 3. in respect
of other relations, as that of lord and tenant, master and servant;
4. in respect of charity ; 5. in respect of the profession of the law.

It seems clear that not only those who have an actual interest la respect of
in the thing in variance, as those who have a reversion expectant the^J^^^'*

variance.

(e) 4 Bac. Ab. 490. Maintenance^ *' curious, and not altogether useless,
(A). I Hawk. P. C. c.SS. s. 18. where ** to see how the doctrioe of main-
it is said, that if it plainly appear that '* tenanee has from time to time been
the money was ffiTen merely with a *' received in fVentmhuter Halt, At
design to assist m the prosecution or " one time, not only he who laid out
defence of an intended suit, which af- *' money to assist another in his cause,
terwards is actually brought, surely it *' but he that by his friendship or in-
cannot but be as great a misdemefinor ** terest saved him an expense that he
ID the nature of the thing and equally ** would otherwise be put to,. was held
criminal at common law as if the mo- ** guilty of maintenance. Nay, if he
ney were siven after the commence- '* officiously gave evidence, it was
ment of tnesoit$ though perhaps it *' maintenance; so that he must have
nay not in strictness come under the *^ had a subptena^ or suppressed the
notion of maintenance. *' truth. That such doctrine, repug-

(/) I Hawk. P. C. c. 83. s. 1 8. 4 " nant to every honest feeling of the

Bac. Ab. 490. Maintenance (A)- *' human hearl, should be laid aside,

(g) Bro. tit Maintenance^ 7, 14, 17, ** must be expected.**

&c. 1 Hawk. P. C. c. 83. s. 6, 6. But (A) 1 Hawk. P. C. c. 83. s. 7. 4fiac.

qu, how far this would be acted upon Ab. 489. JUaintenanee (A).

at the present day $ and see the judg« (t*) I Hawk. P. C. c. 83. s. 8.

ment of Buller, J. in Master i;. Miller, (Ar) Ibid, s. 9. 4 Bac. Ab. 489. Jlfain-

4 T. R. 340. where be says : ** It is tenanee (A).

VOL. I, N

178

Of Maintenance.

[book II.

In respect of
kindred or
affinity.

In respect of
tho relation
of lord and
tenant, master
and servant.

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 ques-
tion, which possibly may never come in esscy and even those who
by the act of God have the immediate possibility of such an
interest; as heirs apparent, 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 plaintiff in
an action of trespass alien the lands, the alienee may produce evi-
dence to prove that the inheritance at the time of the action, was
in the plaintiff, because the title is now become his own. (/) Also
he who is bound to warrant lands may lawfully msdntain the
tenant in the defence of his title, because he is bound to render
other lands to the value of those that shall be evicted. And he
who has an equitable interest in lands or goods, or even in a chose
in action, as a cestui que trusty 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, (m)
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.
And a man's bail may take care to have his appearance recorded :
but, as some say, they cannot safely intermeddle further, (n)

Whoever is of kin, or godfather to either of the parties, or
related by any kind of af&nity 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 nis money in the cause, unless
he be either father, or son, or heir apparent, to the party, or hus-
band of such an heiress, (o)

Much of the law relating to the maintenance which a lord may

f;ive to his tenant would hardly be applicable at the present time,
t seems to have been the better opinion that the lord might jus •
tify laying out his own money in defence of his tenant's title,
where the lands were originally derived from the lord, but that he
could not maintain the tenant in respect of lands not holden of
himself. (/?)

. With respect to the maintenance which a master may give to
his servant, it has been held that he may go along with him, or
his domestic chaplain, to retain counsel; also he may pray one to
be of counsel for him, and may go with him, and stand with him,
and aid him at the trial, but ought not to speak in court in favour
of his cause : also it is said, that if the servant be arrested, the
master may assist him with money to keep him from prison, that
he niay have the benefit of his. service ; but he cannot safely lay
out money for the servant in a real action, unless he have some of
his wages in his hands ; but those, with the servant's consent, he
may s^ely disburt^e. {q) And a servant cannot lawfully lay out
any of his own money to assist the master in his suit, (r)

(0 4 Bac. Abr. 490, Maintenance
(B). I Hawk. P. C. c. 83. s. U, 15, &c.
. (m) Id, Ibid, and see the judgment
of Buller, J. in Master v. Miller, 4
T. R. S40. et sequ,

(n) 1 Hawk. P. C. c. 83. s. 24, 25.
4 Bac. Abr. 490. Maintenance (B).

(o) 4 Bac. Abr. 491 . I Hawk. P. C.
c. 83. s. 26.

(p) 1 Hawk. P. C. c. 83. s. 29.

(9)Bro. Maint. 44, 52, I Hawk.
P. C. c. 83. S.31, 32,33.

(r) 1 Hawk. id. s. 34.

CHAP. XX.] Of Champerty. 179

Any one may lawfully give money to a poor man to enable him In rospect of
to carry on his suit: and any one may safely go with a foreigner, c*>*rity.
who cannot speak English^ to a counsellor and inform him of his
case. {»)

A counsellor y having received his fee, may lawfully set forth his In respect of
client's cause to the best advantage; but can no more justify ^*\£J*^^'^"
giving him money to maintain his suit, or threatening a juror, than
any other person. An attorney also, when specially retained, may
lawfully prosecute or defend an action, and lay out his own money
in the suit: but an attorney who maintains another is not jus-
tified by a general retainer to prosecute for him in all causes.
Nor can an attorney lawfully carry on a cause for another at his
own expense, with a promise never to expect repayment ; and it
is Baid to be questionable whether solicitors, who are no attor-
nies, can, in any case, lawfully lay out their own money in ano-
ther's cause. (/)

But no counsellor or attorney can justify using any deceitful
practice in maintenance of a client's cause ; and they, will be
liable to be punished for misdemeanors in this respect by the
common law, and also by the statute Westm. 1. c. 29. (t<) In the
construction of this statute it hath been holden that all fraud and
iialschood, tending to impose upon or abuse the justice of the
king's courts, are within the purview of it ; as if an attorney sue
out an habere facias selsinam, falsely reciting a recovery wiiere
there was none, and by colour thereof put the supposed te-
nant in the action out of his freehold. Also it is an offence
within the statute to bring a praecipe against a poor man having
nothing in the land, on purpose to oust the true tenant, or to *
procure an attorney to appear for a man, and confess a judgment
without any warrant ; or to plead a false plea, known to be utterly
groundless, and invented merely to delay justice and to abuse the
court, [s) In most of these cases the court would probably gnmt
an attachment against the offender on motion, {y)

II. Champerty is a species of maintenance, being a bargain Champerty,
with a phdntiff or defendant campum partirej to divide the land or
other matter sued for between them, if they prevail at law;
whereupon the champertor is to carry on the party's suit at his
own expense. (2) Little is to be met with in modem books upon
this subject: but the statutes, and resolutions upon their con-
struction, may be shortly noticed.

The statute TFestminster 1. (3 £dw. I.) c 25. enacts, that '^ no We8tRi.i.c.2S.
" oncers of the king, by themselves, nor by others, shall main- No officer, &c.
" tain pleas, suits, or matters, hanging in the king's courts, for pieasTor"***'^
^' lands, tenements, or other things, for to have part or profit lands, &c. to
" thereof, by covenant made between them ; and he that doth shall 'V*^® P^'
" be punished at the king's pleasure." By the courts mentioned * ^"^ '

(«)Bro. Jfaffil. 14. 4 Bac. Abr. 491. offender shnll be imprisoned for a

M»Htenance{fi)i. 1 Hawk. P. C. c. 83. year and a day, and shall not plead

s. 36, 87. again if he be a pleader.

(I) 2 lost. 564. 4 Bac. Abr. 491, (x) )i Inst 815. Dy. 369. 1 Hawk.

492. Maintenance (B) 5. 1 Hawk. P. C. P. C. c. 88. s. 83, el tequ.

c. 88. S.28, 29, 30. (y) 4 Bac. Abr. 498, Maintenance in

(») 8 Inst. 815. Bac. Abr. and Hawk, the marein.

id. ikii. The statute enacts that the (s) 4 Blac. Com. 135.

n2

180

Of Champerty .

[book II.

Wcstm.2. C.49.
Certain offi-
cers not to re*
ceive any
church, land,
&c. so long^ as
the thing is in
plea.

Extended by
28 Edw. 1.
c. II.

in this statute it has been held that courts of record only are
intended; and it has also been held that under the word covenant
■all kinds of promises and contracts of this kiud are included ; that
maintenance in personal actions, to have part of the debt or
damages, is as much within the statute as maintenance in real
actions for a part of the land ; and that though a grant of rent out
of other lands is not within the statute, yet the statute applies to
a grant of rent out of the lands in question; but that a grant of
part of a thing in suit, made in consideration of a precedent debt,
IS not within its meaning, (a) llie maintenance of a tenant or
defendant is as much Within the meaning of the statute as the
maintenance of a demandant or plaintiff. And it has been holden
not to be material whether he who brings a writ of champerty
did in truth suffer any damage by it, or whether the pica wherein
it is allied be determined or not. {b)

The statute ffestmimter 2. (13 £dw. 1.) c.49. enacts^ that
'' thie 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 officer, 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 contrary to this act, either himself
'^ or by another, or make any bargain, shall be punished at the
'^ king's pleasure, as well he that purchaseth as he that doth sell."
This statute extends only to the officers therein named, and not to
any other persons, (c) But it so strictly restrains all such officers
from pmrchasing 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 miJang such a
purchase, whether they maintain the party in his suit or not;
whereas such a purcluuse for good consideration made by any
other person, of any terre-tenant, is no offence, unless it appear
that he did it to maintain the party, (d)

The statute 28 £dw. 1. c. 11. reciting that the king had there-
tofore ordained by statute that none of his ministers should take
no plea for maintenance, by which statute other officers were not
bounden, enacts, that ^' the king will that no officer, nor any other
^^ (for to have part of the thing in plea) shall not take upon him
^' the business that is in suit ; nor none upon any such covenant
'^ shall give up his right to another ; and if any do, and he be
'^ attainted thereof, the taker shall forfeit unto the king so much of
'^ his lands and goods as doth amount to the value of the part that
" he hath purchased for such maintenance. And for this atieindre,
^^ whosoever will shall be received to sue for the king before the
^^ justices before whom' the plea 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 or next

(«) See the authorities collected ia
1 Hawk. P. C. c. 84. s. 3. ei iequ.
I Bac. Ab. Chavupert^t p. 574.

{h) id. ibid.

(e) 8 Inst 484, 485.

(d) 1 Hawk. P. C. c. 84. s. 18^

CHAP. XX.] Of Maintenance — Punishment. ISf

^^ friends." Upon this statute it seems to be agreed that cham-
perty in any action at law is within it; and a purchase of land,
pending a suit in equity concerning it, has also been holden to be
wiUiin the statute ; also a lease for life or years, or a vohintary
gift of land, pending a plea, is as much within the statute as a
purehase for money. But neither a conveyance executed, pending
a plea, in pursuance of a precedent bargain, nor any surrender by
a lessee to his lessor, nor any conveyance or promise thereof made
by a father to his son, or by any ancestor to his heir apparent, nor
a gift of land in suit, after the end of it, to a counsellor,, for hia fee
or wages, without any kind of precedent bargain relating to such
gift, are within the meaning of the statute. (0)

III. Another species of maintenance appears to be the offence Of buying or
o{ buying or selling a jfreiended title; of which it is said in the f^^'l^JiSr"
books that it seems to be an 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. (/)
Offences of this kind are also restrained by several statutes. The
1 Rich. 2. c. 9. enacts, that no gift or feoffment of lands or goods
m debate under legal proceedings, as mentioned in the statute,
shall be made ; and that, if made, they shall be holden for none and
of no value, (g) And by the 13 £dw. L c. 49. no person of the
king's house shall buy any title whilst the thing is m dispute, on
pain of both the buyer and seller being punished at the king's
pleasure. There is also a provision of the statute 32 Hen. 8. c. 9.
that no one shall buy or sell or obtain any pretended right or title
to land unless the seller, his ancestors, or they by whom he claims,
have been in possession of the same, or of the reversion or re-
mainder thereof, or taken the rents or profits for one whole year
before ; on pain that both seller and buyer sliall each forfeit the
value of such land, the one half to the king, and the other to him
who will sue. (h)

The offences of champerty and buying of titles, laid or alleged in Place of trial
any declaration or information, may be laid in any county, at the for champcrti^
pleasmre of the informer, (t) tuies."^*"^ ^

By the conunon law all unlawful maintainers are not only liable panisiiment

to render damages in an action at the suit of the party grieved, but of mainte-
nance by com-
mon law,

(§) 1 Bac. Abr. Champerty^ p. 576. (h) But the statute provides that any
1 Hawk. P. C.c. 84. s. 14. et sequ. But person, bein^ in lawful possession by !

with respect to the counsellor it issaid taking^ the rents and profits, may buy \

that it seems dangerous for him to or get the pretended right or title of
meddle with any such gift, since it any other person to the same. Audit

cannot but carry with it a strong pre- also provides, that no person shall be 1

samption of champerty. 2 Inst. 564. charged with these penalties unless

(/) 4 Bac. Abr. Maintenance^ (E) p. sued within a year after the ofience.
494. 1 Hawk. P.C. c.8d. s. 1. Moore For the construction of this statute,
751. Hob. 115. Plowd. 80. ' see 1 Hawk. P. C. c. 86. s. 7. el sequ^

ig) But as between the feoffor and (I) 31 Eliz. c. 5. s. 4. 1 Hawk. P. C,
feoffee, feoffments of this kind are ef- c. 84. s. 80. and Cr 86. s. 18*
fectaal. Co. Lit. 369.

182 Of Maintenance — Punishment, [book ii.

may also be indicted and fined, and imprisoned^ &c.; and it seems
that a court of record may commit a man for an act of maintenance
in the face of the Court, (k)
By statute. Some pains and penalties are also attached to this offence by

statute. The I Rich. 2. c. 4. enacts^ that no person whatsoever
shall take or sustain any quarrel by maintenance, in the country or
elsewhere, on grievous pain ; that is to say, the king's counsellors
and great officers, on a pain that shall be ordained by the king
himself, by the advice of the lords of this realm ; and other officers
of the king, on pain to lose their offices and to be imprisoned and
ransomed &c.; and all other persons, on pain of imprisonment and
ransom. And by the 32 Hen. 8. c. 9. maintenance is subjected to
a forfeiture of ten pounds : one moiety to the king, and the other
moiety to the informer. (/)

(k) 8 Roll. Abr. 114. 8 Inst. 808. (I) Foriheconstruction of these sta-
Hetl. 79. I Hawk. P. C. c. 83. 8. S8. tutes, see 1 Hawk. P. C. c. 83. s. 40. ei
4 Bac. Abr. Maintenance, (C) p. 498. tequ.

183

CHAPTER THE TWENTY FIRST

OF BMBBACERT^ AND DISSUADING A WITNESS FROM GIVING

EVIDENCE.

Embbacbry is another species of maintenance, and consists in Embracery—

such practices as tend to affect the administration of justice by CcwTupting or

improperly working upon the minds of jurors. It seems clear that juronu*^*'**'

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 persuasions, except only by the strength of the

evidence and the arguments of the counsel in open Court, at the

trial of the cause, is a proper act of embracery, whether the jurors

on whom such attempt is made give any verdict or not, or whether

the verdict given be true or false, (a) And it has been adjudged

that the bare giving of money to another, to be distributed among

jurors, is an offence of the nature of embracery, whether any of it

be afterwards actually so distributed or not. It is also clear that it

is as criminal in a juror as in any other person to endeavour to

prevail with his companions to give a verdict for one side by any

practices whatsoever; except only by arguments from the evidence

which may have been produced, and exhortations from the general

obligations of conscience to give a true verdict. And there can be

no doubt but that ^11 fraudulent contrivances whatsoever to secure

a verdict are high offences of this nature ; as where persons by

indirect means procure themselves or others to be sworn on a tales

in order to serve one side, {b)

It is ssdd that generally the giving of money to a juror after the
verdict, without any .precedent contract in relation to it, is an
offence savouring of the nature of embracery : but this does not
apply to the reasonable recompence usually allowed to jurors for
their expenses in travelling, (c)

The law will not suffer a mere sti'anger so much as to labour a How far jus-
juror to appear, and act according to his conscience : but it seems tifiable.
clear that a person who may justify any other act of maintenance, (c/)
may safely labour a juror to appear and give a verdict according to
his conscience ; but that no other person can justify intermeddling

{a) 1 Hawk. P. C. c. 85. s. 1, 5. 4 Kin^ v. Opic and others, 1 Saitnd. 301.
Blac. Cora. 140. (r) 1 Hawk. P. C. c. S5. s. 3.

(^) 1 Hawk. P. C. c. 85. s. 4. The («/) Ante, 177, tf/ acqu.

184

Punishment of
embracery.

Dissuading a
witness from
giving evi-
dence.

cc

Of dissuading a fVilness, Sgc. [book lu

so far. And no one whatsoever can justify the labouring a juror
not to appear, (e)

Offences of this kind subject the offender to be indicted and
punished by fine and imprisonment in the same manner as all other
kinds of unlawful maintenance do by the common law. (/) They
are also restrained by statutes: the 5 Edw. 3. c. 10. enacting that
any juror taking of the one party or the other, and being duly
attainted, shall not be put in any assizes, juries, or inquests, and
shall be commanded to prison, and further ransomed at the king's
will ; and the 34 Edw. 3. c* 8. enacting that a juror attainted of
such offence shaU be imprisoned for a year. A subsequent statute
38 Edw. 3. c. 12. enacts that if any jurors, sworn in assizes and
other inquests, take any thing, and'be thereof attainted, every such
juror shall pay ten times as much as he hath taken. '^ And that
all the embraceors to bring or procure such inquest in the coun-
try, to take gain or profit, shall be punished in the same manner
and form as the jurors ; and if the juror or embraceor so attainted
*^ have not whereof to make gree in the manner aforesaid, he shall
** have the imprisonment of one year." {g) The statute 32 Hen. 8.
c. 9. also enacts that no person shall embrace any freeholders or
jurors upon pain of forfeiting ten pounds, half to the king, and
half to him that shall sue within a year.

All who endeavour to stifle the truth, and prevent the due
execution of justice, are highly punishable ; and therefore the dis-
suading or endeavouring to dissuade a witness from giving evidence
against a person indicted is an offence at common law, though the
persuasion should not succeed. (A)

(h) 1 Hawk. P. C. c. 21. s. 15. Rex
V. Lawley, % Str. 904. See as to mere
attempts to commit crimes, aitfe, p.
44, 45. And see an indictment for dis-
suflMlinga witoeft* from givin? evidence
against a person indicted, 8 Chit. Crim.
L. 2S5: and an indictment for a con-
spiracy to prevent a witness from giv-
ing evidence, Rex v. Steventon and
others, 2 East. R. 369. And see Rex
V. £d wards, poBt^ Book Y. Chap. i.

(e) 1 Hawk. P. C. c. 85. s. 6.

(f) Id. s. 7. 4 Bl. Com. 140.
{g) Upon the construction of these

statutes, and respecting the action of
decie$ iantumy see 1 Hawk. P. C. c. 85.
B.l\. et sequ. And see also 82 Hen. 8.
c. 9. which enacts that all statutes
theretofore made concerning mainte-
nance, champerty, and embracery, or
any of them, then standingand being in
their full strength and force, shaU be
put in due execution.

185

CHAPTER THE TWENTY-SECOND.

OF BARBATRY^ AND OF SUING IN THE NAMB OF A FICTITIOUS

PI-AINTIFF.

A BABRATOR 18 defined to be a common mover, exciter, or main- DefinitioD of

tainer, of suits or quarrels, in courts of record, or other courts, aH ^""^'rr*

the county court, aod the like j or in the country, by taking and

keeping possession of lands in controversy, by all kinds of disturb-*

ance of the peace, or by spreading false rumours and calumnies

whereby discord and disquiet may grow among neighbours, (a)

But one act of this description will not make any one a barrator. What persons

as it is necessary in an indictment for this offence to charge the ™*y ^mmit

defendant with being a common barrator ^ which is a term of art * ^ ^ *°**'

appropriated by law to this crime. (&) It has been holden, that a

man shall not be adjudged a barrator in respect of any number of

false actions brought by him in his own right : (c) but this is

doubted, in case such actiond be merely groundless and vexatious,

without any manner of colour, and brought only with a design to

oppress the defendants, {d)

An attorney cannot be deemed a barrator in respect of his main*
taining another in a groundless action, to the commencing whereof
he was in no way privy, (e) And it seems to have been holden that
a/eme covert cannot be indicted as a common barrator : (/) but this
opinion is considered as questionable, (g)

In an indictment for this offence it seems to be unnecessary to indictmeDt
allege it to have been committed at any certain place ; because, f °^ procced-
from the nature of the crime, consisting in the repetition of several ^^^'
acts, it must be intended to have happened in several places;
wherefore it is said that the trial ought to be by a jury from the
body of the county, {h) As the incUctment may be in a general
form, stating the defendant to be a common barrator, without

(a) Rexv.Urlyn, 8Saund.308,note 1 Sid. 282. Reg. v, Hannon, 6 Mod.

(I). I Hawk. P.C. C.81.S. 1,2. Co. SI I.

Lit S68. 8 Rep. 36. Barrator is said (c) Roll. Abr. S55.

to be a foreasic term taken from the (d) 1 Hawk. P. C. c. 81. s. 3.

NorroaDS. The Islaadic and Scandtna- (e) 1 Hawk. P. C. c. 81. s. 4.

▼ian ^aralla, the Anglo-Norman barei^ (f) 1 Bac. Abr. Baron and Feme IG)

aad the Italian baratta^ are all words in the notes, citing Roll. Rep. 39.

sigoifying a quarrel or contention. See (g) 1 Hawk. P. C. c. 81. s. 6.

the notes to I Bac. Abr. 508, Barratry (Jk) Parcel's case, Cro. Eiiz. 195. 1

(A). Hawk. P. C. c. 81 . s. 1 1. 1 Bac. Abr.

{b) 8 Co. 36. Rex V. Hardwicke, 509, Barratry (B).

18G

Trial maybe
before justices
of the peace.

Punisliment

Of Bidngln
the name of
-a fictitious
plaintiff.

Of suing in the Name of a fictitious Plaintiff*, [liooRii.

shewing any particular facts, it is clearly settled that the prose-
cutor must^ before the trial, give the defendant a note of the par-
ticular 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 pro-
ceed in the trial of the indictment, (t) 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, (k)

It has been adjudged that justices of peace, as suchy have, by-
virtue of the commission of the peace, authority to inquire and
hear this offence, without any special commission of oyer and ter-
miner. (/)

The punishment for this offence in common persons is by fine
and imprisonment, and binding them to their good behaviour;
and in persons of any profession relating to the law, a further
punishment by being disabled to practise tor the future, (m) And
It may be observed that by 12 Geo. 1. c. 29. s. 4. if any person
convicted of conunon barratry shall practise as an attorney, solicitor,
or agent, in any suit or action in England, the Judge or Judges of
the Court where such suit or action shall be brought shall, upon
complaint or information, examine the matter in a summary way
in open Court ; and, if it shall appear that the person complained
of has offended, shsdl cause such offender to be transported for
seven years, (n)

In this place may be mentioned another offence of equal malig-
nity and audaciousness ; that of suing itoother in the name of a
fictitious plaintiff; either one not in being at all, or one who is
ignorant of the suit. This offence, if committed in any of the
king's superior Courts, is left, as a high contempt, to be punished
at tiieir discretion : but in Courts of a lower degree, where the
crime is equally pernicious, but the authority of the Judges not
equally extensive, it is directed by the statute 8 Eliz. c. 2. s. 4. to
be punished by six months' imprisonment, and treble damages to
the party injured, (o)

(i) Rex V. Grove, 5 Mod. 18. J* Anson
V. Stuart, I T. R. per Buller, J. And
per Heath, J. in Rex v, Wylie and an-
other, 1 New R. 05.

(k) Goddard v. Smith, 6 Mod. S6S.

(/) Barnes v. Constantinc, Yelv. 46.
Cro. Jac. S2. S. C. recognized in Busby
V, Watson, 9 Blac. R. 1050. See Rex
V. UHjrn, 2 Saund. 308. note (I). In

Hawk. P. C. c. 8 1 . s. 8. there is a quote
to this point, as having been ruled dif-
ferently in Rollers Reports.

(m) 34 £dw. 3. c. 1. 1 Hawk. P. C.
c. 8 1 . s. 1 4. 1 Bac. Abr. &09, Barratry
(C). 4Blac. Com. 131.

(9i) This act was revived and made
perpetual by SI Geo. 2. c. 3.

(0) 4 Blac. Com. 134.

187

CHAPTER THE TWENTY-THIRD

OF BIGAMY.

Thb offence of having a plurality of wives at the same time is more
correctly denominated polygamy : but, the name bigamy having
been more frequently given to it in legal proceedings, it may per-
haps be a means of more ready reference to treat of the offence
under the latter title, (a) Originally this offence was considered
as of ecclesiastical cognizance only ; and though the statute 4 Ed.
1. Stat. 3. c. 5. treated it as a capital crime, (6) it appears still to
have been left of doubtful temporal cognizance, until the statute
1 Jac. I. c. 11. declared that such offence should be felony.

The first section of this statute, after reciting the mischiefs of 2 (vulgo 1)
the offence, enacts, **that if any person or persons within his B*i«amy'miide
*^ Majesty's dominions of England and fFaleSj being married, or felony.
" which hereafter shall marry, do marry any person or persons, the
" former husband or wife being alive : that then every such offence
'^ shall be felony, and the person and persons so offending shall
" suffer death, as in cases of felony ; and the party and parties so
'^ offending shall receive such and the like proceeding, trial, and
" execution, in such county where such person or persons shall be
*' apprehended, as if the offence had been committed in such county
^^ where such person or persons shall be taken and apprehended."

By the second section it is provided, " that this act, nor any Sect. 2. makes
" thing therein contained, shall extend to any person or persons where tLhua-

(tt) Bigamy, in its proper significa- like that of bastardy. And by 1 Edw.
tioQ, is said to mean only being twice 6. c. 18. s. Ifi. bigamy was declared to
married, and not havinr a plurality of be no impediraent to the claim of cler-
wives at oocc. According to the ca- gy, as it nad been taken to be in con-
nonists, bigamy consisted m marrying sequence of the statute 4 Edw. 1. st. S.
two virgins successively, one after the c. 6. See note b. to p. 163, of 4 Blac.
death of the other ; or in once marry- Com. (\3thEd,) But see 5 Evans* Col.
ingawidow. 4 Blac. Com. 153. note Stat. 347. where it is said that the
h. And see 1 Bac. Abr. 585. Bigamy , enactment in 4 Ed. I. c. 5. did not re-
in the notes. late to marriage during the life of a

(^) This statute adopted and ex- former husband or wife as being a sub-
plained a can on of the council of Z;yonf stantive felony, but to the excluding
in 1274, in the time of Pope Gregory ^frora the privilege of clergy persons
X. by which persons guilty of bigamy convicted uf any other felony who had
were omni privilegio cUricali nudaii el been twice married, or who had mar-
coereioni fori secularii addlcii. But ricd a widow or widower* which by
the cognizance of the plea of bigamy the later statute 1 Edw. 6. r. 12. s. 16.
was declared by statute IS Edw. 3. sL was abrogated.
3.C.2. to belong to the Court Christian,

188

band or wife
shall be absent
for seven
years.

u

Sect. 3. ex-
cepts from the
statute per-
sons divorced,
those whose
former mar-
riage has been
declared void,
and those mar-
ried within age
of consent.

Construction
of the stattfte.

Constmction
of the excep-
tions in the
statute.

First excep*
tion-^Whcre
husband or

Of Bigamy — Construction of the Statute, [book ii.

whose husband or wife shall be continually remaining beyond
the seas by the space of seven years together ; or whose husband
or wife shall absent him or herself, the one from the other, by the
^' space of seven years together, in any parts within his Majesty's
^^ dominions, the one of them not knowing the other to be living
'^ within that time.**

And the third section provides, '^ that this act, nor any thing
^^ herein contained, shall extend to any person or persons that are
^^ or shall be at the time of such marriage divorced by any sentence
'^ in the ecclesiastical court; or to any person or persons where
^^ the former marriage shall be by sentence in the ecclesiastical
'' court declared to be void and of no effect ; nor to any person or
^^ persons for or by reason of any former marriage had or made
^^ within age of consent." (c)

In the construction of this statute, it has been holden, that if a
woman marries a husband in Ireland^ and afterwards, such husband
still living, marries another husband in England^ it is within the
act. But that if she marries a husband in England, and after-
wards, such husband still living, marries another husband in
Ireland, it is not within the act : on the ground that the second
marriage, which alone constitutes the offence, is a feet done within
another jurisdiction ; and, though inquirable here 'for some pur-
poses, like all transitory acts, is not cognizable as a crime by the
rule of the conunon law. (c/) In another case it was ruled, that if
A. takes B. to husband in Holland, and then, in Holland, takes C*
to husband living B., and then B. dies, and then A. living C. mar-
res D., this is not marrying a second husband, the former being
alive ; the marriage to C. living B. being simply void. But if B.
had been living, it would have been felony to have married D. in
England, (e)

The provisoes in the second and third sections of the statute
contain exceptions in respect of five cases in which a second mar-
riage is no felony vnthin the statute. The Jirsl exception is that
the statute shall not extend *^ to any person or persons whose hus-
^' band or wife shall be continually remaining beyond the seas by
'^ the space of seven years together;'' upon which the construction

(e) There is a fourth section, pro-
viding that attainder shall not make
corrnption of blood, loss of dower, or
disinherison of heirs.

(d) 1 Hale 099, 693. 1 Bast P. C.
c. 12. s. 9. p. 465. Hawkins (B. I. c.
44. s. 7.) doubts as to the last point,
and refers to the words in the latter
part of section 1 . of the statute '* that
^' the parties so offending shall receive
'* such or the like proceeding, &c. in
**such county where such person or
** persons shall be apprehended, at ff
'* the offence had been committed in iuch
*^ county where such person or persons
*' shall betaken or apprehended." But
upon this Mr. East says, ''I cannot
*' think that this provision, which is to
" be found in other statutes, (vide the

*' Black Act, and 10 and 11 W. S. c. 25,
''for trial in any county here of mur-
**der, &c. committed in Newfound-
*' land) is sufficient to take this case
'* out of the general rule. The anes-
'* tion must still be, whether, witnout
*' a positive enactment for that pur-
''pose, any act be cognizable as an
^' offence against the law of England,
"which was committed out of the ju-
" risdictton of that law. Besides that
" the very words of the enacting clause
" in grammatical construction confine
" the operation of it to persons who
" being married, shall, within England
•* and ffalei, marry any other." The
same doubt, however, appears in Kel.
80.
(tf) Lady Madison*s case, 1 Hale 693.

CHIP, xxiii.] Of Bigamy — Exceptions in the Statute. 189

has been that it will apply though the party in England have ^^'esiiftlibe
notice that the other is Uving. (/) The second exception is that it g^^forUven
shall not extend to any person ^' whose husband or wife shall ab- yean.
^' sent him or herself^ the one from the other, by the space of seven Second ezcep-
*^ years together^ in any parts within his Majesty's dominions, the tion--Wherc
** one of them not knowing the other to be living within that time." ^^^ shaifbe
Here, by the express words of the clause, the party marrying again absent for
must live no knowledge of the former husband or wife being ■<^^«° y«»"»
aliee. But the obligation of a party to use reasonable diligence to to b^Unn^'^
inform himself of the fiact, and the question whether if he neglect
or refuse to avail himself of palpable means of acquiring such in-
formation, he will stand excused, are points which do not appear
to be settled, {g) With respect to the words in this second clause
^^ within his Majesty's dominions,'^ Lord Hale says that they must^
infaiuofem viicsj be intended to mean within England^ fFales, or
Scotlandy in order to make both clauses consistent. (A) The third r^i^!^ ezeep-
esception provides that the act shall not extend ^^ to any person or tlon— Dirorce.
^^ persons that are, or shall be at the time of such marriage, di^
^^ voiced by any sentence in the ecclesiastical court;'' upon which
it has been held, in respect of the generality of the words, that the
clause applies as well to a divorce a meftsa et thoro, as to a divorce
a vinculo matrimonii: and, though in one case much doubted, (t)
the point appears to be so settled. (Jc) And if there be a divorce
a vinculo matrimonii, and an appeal by one of the parties, though
this suspends the sentence, and may possibly repeal it, yet a mar-
riage pending that appeal will be aided by this exception. {I) In a
late case the question arose, whether a divorce by the commissary
or consistorial court of Scotland would operate so as to excuse a
person, who, having been married in England, had been divorced
by that court, and had then married again in England, from the
penalties of bigamy. And, from the decision of the Judges, it
appears, that, if the first marriage has taken place in England, it
will not be a defence to prove a divorce a vinculo matrimonii before .
the second marriage, if such divorce were out of England; imlesB
the divorce were upon a ground, which, by the law of England,
would warrant such a divorce : the divorces and sentences referred to
in the third section being divorces and sentences of the ecclesiastical
courts within the limits to which the statute! Jac. 1. c. 11. applies.

(/) 1 Hale 693. 3 Inst 88. 4 Blac. (k) 1 Hale 604. 3 Inst. 89. 1 Hawk«

Com. 164. This is remarked upon as P. C. c. 49. s. 5. 4 Blac. Com. 164.

an extraordinary provision in 1 East MiddleUm's case, Old Bailej, 14 Car.

P. C. c. \2. 9. 3. p. 466. 2. Kel. 87. And see 1 East. P. C. c.

(g) See 1 East P. 0. c. IS. s. 4. p. 18. s. 5. p. 467. where it is said that

467. where Mr. East says that they are this construction prevails though it

questions which he does not find any must be admitted to be entirely beside

where touched upon; but which seem the reason and Justice of the except

worthy of mature consideration. tion % letting in the very mischief in-

(A> 1 Hale 693. wliere he says also, tended to be provided against by the

'* however the isle of Wight is not be* statute.

'* Tond the sea within the first clause, (/) 3 Inst 89. I Hale 094, citing

oecAnte mff*eorpu$e0mUatmMSouih- Co. P. C. cap. 87. p. 89. and stating

mmpion t so for SeiU^^ Lumdjf, Qtuere further that if the sentence of diiwrce

of Guernsey and Jersey." be repealed, a marriage afterwards is

to Porter*s case, Cro. Car. 461. where not aided by the exception, though

the divorce was eatua aevUi^B, there was oace a div«ree«

•c

190

Fourth exc«p-
tion — Sen-
tence in the
ecclesiastical
court.

Fifth excep-
tion— Where
former mar-
riage was had
within the age
of consent.

Of Bigamy — Exceptions in the Statute, [book ii.

The prisoner Lolley was indicted for bigamy: both his marriages
were in England; but before his second marriage his wife had ob-
tained a divorce a vinculo from him, in the commissary court of
Scotland, 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 irri-
tating his wife, and furnishing ground for the divorce, A case
being reserved and argued, the Judges were unanimous, that no
sentence or act of any foreign country or state could dissolve an
English marriage a vinculo for grounas 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 this statute extends. The Judges gave no opinion
upon the husband's conduct, in drawing on his wirc to sue for the
divorce, because the jury had not found fraud, (m) The fourth ex-
ception is that the act shall not extend *^ to any person or persons
" where the former marriage shall be, by sentence in the eccle-
" siastical court, declared to be void and of no eflfect." But it was
resolved by all the Judges that a sentence of the spiritual court
against a marriage, in a suit of jactitation of marriage, is not con-
clusive evidence, so as to stop the counsel for the crown from
f>roving the marriage; the sentence having decided on the inva-
idity of the marriage only collaterally, and not directly. And fur-
ther, admitting such sentence to be conclusive, yet that the counsel
for the crown may avoid the effect of such sentence, by proving it
to have been obtained by fraud or collusion, (w) The fifth excep-
tion provides that the act shall not extend '^ to any person or per-
^' sons for or by reason of any former marriage had or made within
" the age of consent." This age of consent is fourteen years in a
man, and twelve years in a woman; (o) and the construction upon
the clause has been, that if either of the parties were within such
age at the time of the first marriage, not only the one within the
age, but the other also who was above it, is entitled to the benefit
oi the exception, {p) But, in a case of this kind, it seems that if
the parties afterwards, when at the age of consent, agree to the

' (m) R€X t;. Loller* December, 1812.
MS. Bayley, J. and Kuss. and Ry. S37.
This case is referred to by the Lord
Chancellor, and also by Mr/Broughain,
in Tovey v. Lindsay, I Oow's Re|>.
117. And sec 5 Ed. Coll SUt. S48.
note (4). The prisoner, was sentenced
B,t the Lancaster Spring Ass. 18 IS, to
be transported for seven years; and he
was sent on board the Portland hulk at
Langtone harbour, where he continued
some time; but it is understood he
received a pardon before any consi-
derable portion of his sentence was ex-
pired. Upon the important subject of
the dissolution of marriages, cele-
brated under the English law, by the
consistorial court of Scotland, see a
publication of Reports of some recent

2

Decisions of Uiat Court, by James Fer-
gusson, Esq. Advocate, one of the
Judges.

(n) Duchess of Kingston's cas%
Dom. Proc. 16 Geo. 3. 1 i St. Tri.S68.
1 Leach 146. 1 Hawk. P. C. c.43.s.fll.

io) I Blac. Coin. 436. Rex v. Jor-
dan, Mich. T. 1802. Iluss. and Ry.
AS. Potl, 192.

(p)SInst.89. lTTale694. I Hawk.
P. C. c. 4'^. s 6. The reason given is
that the power of disagreeing to snch
marriage is equal on both sides. But
in a civil light a promise of marriage
by au adult to one under age will suh-
ject the adult to an action for a breach
of such promise. Holt v. Ward, Tr.
5 Geo. 2. cited 1 East. P. C. c. 12. s. 6.
p. 468.

m

CHAP. XXIII.] Of Bigamy — Proceedings. 1 91

marriage, as such agreement would complete the contract, and
would indeed be the real marriage, a second marriage would be
within the reason and penalties of the act. (q)

It may be observed that if a person marrying again come
within any of the three first of these exceptions, though the
second marriage is not felony, yet, as before the statute, it is null
and void, and the parties will be subject to the censures and
punishment of the ecclesiastical courts, (r)

It is directed by the statute that parties offending agwist it Pfo«c«ding8
^ shall receive such and the like proceeding, trial, and execution, ^^^ TVjj^ii
^^ in such county where such person or persons shall be appre- the county
" hended, as if the offence had been committed in such county ^^c^.^Jie
'^ where such person or persons shall be taken or apprehended. JJJSndif.'
This clause has been held to mean the place where the party is
imprisoned ; (s) and, as it appears from the record itself that he is
brought to the bar in the custody of the sheriff, it is doubted
whether it is necessary to aver in the indictment that the party
was apprehended in the county where the venue is laid, (t) But
the provision of the statute is only cumulative, and the party may
be indicted where the second marriage was, though he be never
apprehended ; and so may be outlawed ; for in general where a
statute creating a new felony directs that the offender maybe .
tried in the county in which he is apprehended, but contains no
negative words, he may be tried in that county in which the
offence was committed, {u)

Where the prisoner, having been apprehended for .another of-
fence, is detained in the same county for bigamy, the detainer is
such an apprehension as will warrant the indicting him in that
county. Il^e indictment was for marrjdng Elizabeth Lane, whilst
Mary the prisoner's former wife was living; and it charged that the
prisoner was apprehended for the felony aforesaid at the parish of
Astley, in the county of Worcester. It appeared that the prisoner
was taken up for a larceny; and, whilst in the house of correction
for that offence, a bill for bigamy was found against him at the
quarter-sessions, upon which that court made an order for his

(9) 4 Blac. Com. 164. 1 East. P.C 2 Leach 826. It seems, however, to

c. 12. s. 6. p. 468. be well established that where the ju-

(r) 4 Blac. Com. 164. note (3). risdiction of the court depends upon

(f) Lord Digby's case, Hutt. 131. particular circumstances, exclusiYC of

Rex P. Jordan, pifgL 192. the offence itself, it is in general un-

(l)Starkte Crim. PI. 412. note (6). necessary to aver them upon the face
SChit. Crim. L. 719. notes. But in of the indictmeut. Thus though the
I East. P. C. c. 12. s. 8. p. 469. it is common commission of gaol delivery
said that where the trial is in the extends only to prisoners in actual
county where the party was appre- custody, it need not be arerred in the
hended there is an averment in the indictment that the defendant was thea
iodiclment of Uiat fact. And in.acase in prison. And where the crown is-
at the Old Bailey, in 1798, the court sues a commission to try certain per-
is stated to have held, (upon an objec- sons in custody before a particular
tion taken by the prisoner's counsel,) day, the indictment need not allege
that as the warrant for the prisoner's that the defendant was in custody bo-
apprehension had not been produced, fore that day. See Starkie, 27, 28.
and as it had not been proved that citing Berwick's case. Fost. 10. 12
the prisoner was apprehended in the Mod. 449.

cuunty of Middlesex, they had no ju- (u) 1 Hale 694. 3 Inst. 87. Starkie

risdiction to try him. Forsyth's case, 11.

193

Of the first
marriage.

Former mar-
riage acts.

Of Bigamy-^'^irst Marriage. [book ii.

detainer* At hia first marriage he was of the age of twenty onl}'^^
and .he was a bastard; the second marriage was not in Worcester-
shire. Two points were saved : first, whether the prisoner could
be considered as apprehended for this offence in Worcestershire ;
and, secondly, whether as the statute 1 Jac. 1. c, 11. s. 3. exempts
persons where the first marriage was under the age of consent,
the age of consent since the marriage act was not to be con-
sidered twenty-one. The Judges were against the prisoner upon
both points, (t;)

A first marriage de facto j subsisting in fact at the time of the
second marriage, is sufficient to bring a case within the act,
though such firat marriage be voidable by reason of consanguinity,
affinity, or the like; for it is. a marriage in judgment of law until
it is avoided, (tc^) But it has been ruled that though a lawful
canonical marriage need not be proved, yet a marriage in fact,
(whether regular or not) must be shewn; (x) which it seems must
be understood where there is a prima facte evidence of a lawful
marriage. ( v) In a case where the first marriage, which was with
a Roman Catholic wonum, was by a Romish priest in England,
not according to the ritual of the church of England, and the
ceremony was performed in Latin, which the witnesses -did not
understand^ and could not therefore swear that the ceremony
of marriage according to the church of Rome was read ; it was
directed that the defendant should be acquitted, {z) Willes^ C. J.
who tried him seemed to be of opinion that a marriage by a priest
of the church of Rome was a good marriage, (a) if the ceremony
according to that church cotdd be proved; namely, the words of
the contracting part of it.

The former marriage act, 26 Geo. 2. c. 33. required all mar-
riages to be by banns or licence : and declared that all marriages
solemnized in any other place than a church or public chapel
(unless by special licence) or solemnized without publication of
banns or licence^ should be null and void to all intents and pur-
poses. It contained also special provisions as to the publication
o{ banns; and, as to marriages by licence, it provided timt all such
marriages, where either of the parties^ not being a widower or
widow^ was under the age of twenty-one years, had without the
consent of the father of such of the parties so under age (if then
living) first had and obtained; or if dead, of the guardian or
guardians of the person of the party so under age^ lawfully ap-
pointed, or one of them; and in case there was no such guiurdian
or guardians, then of the mother (if living and immarried) ; or if
there was no mother Uving and unmarried, then of a guardian or
guardians of the person appointed by the Court of Chancery;
should be absolutely null and void to all intents and purposes
whatsoever, (i) But these provisions as to marriages by licence

(«) Rex V. Jordan, Mich. T. 1803»
Rufls. & Ry. 48.

(ir) S Inst. 88.
^ (ar> By Denison, J. on the Norfolk
circuity referred to by the court in
Morris V, Miller, 1 Blac. R. 632.

(^)Rex V. Brampton, lO&sl.SST.
note (b).

(B)Lyon*s case. Old Bailey, I7S&
1 Bast P. C. c. IS. s. 10. p. 469. citioff
Serjeant For8ter*s MS.

(«) To this Mr. East (id.Oid.) sub-
joins a qumre \ and says that it roost
at least be understood of the marriage
of perons of that communion.

(ft) S. 1 1. By s. 18. proTision was

CHAP. XXIII.] Marriage Jets. 198

were repealed by 3 Geo. 4. c. 76« »• 1- as to any marriages there-
after to be solemnized; and it was further enacted that in all
cases of marriage solemnized by licence before the passing of this
act of 3 G. 4. Mdthout any such consent, and where the parties
had continued to live together as husband and wife till the death
of one of them, or till the passing of the act, or had only discon-
tinued their cohabitation for the purpose, or during the pending
of any proceedings touching the validity of such marriage, such
marriage, if not otherwise invalid, should be deemed good and
valid to all intents and purposes, (a) This act of 3 G. 4. con-
tained also enactments as to the granting of licences, the consent
of parents and guardians, and the publication of banns, which have
been subsequently repealed by the 4 G. 4. c. 17* which enacted
that licences should and might be granted by the same persons,
and in the same manner and lorm, and, in the case of minors, with
the same consent, and banns be published in the same manner
and form, as licences and banns were respectively regulated by the
28 G. 2. c. 33.; and enacted also (by s. 2.) that all marriages which
had been or should be solemnized under licences granted, or banns
published, conformablv to the provisions of the 3 G. 4. c. 75.
should be good and valid ; and that no marriage solemnized imder
any licence granted in the form or manner prescribed, by either
the 26 G. 2. c. 33. or the 3 G. 4. c. 7^* should be deemed invalid
on account of want of consent of any parent or guardian. The old

made for a petition to the lord chan- leged to be the descendant of the

cellor, &c. where the guardians or parties to such marriage. Nor (by

mother were not in a situation to s. 6.) any marriage the validity of

consent, or to refuse to consent. By which, or the legitimacy of an? per-

s. 4. licences were to be granted to son alleged to ne the lawful de-

solemnize matrimony in tne church scendant of the parties married, had

or chapel of such parish only, where been duly brougnt into question in

one of the parties had resided for proceedings in any causes, &c in

four weeks before. But by s. 10. proof which juogments or decrees, or or-

of the actual dwelling in the parishes, ders of court, had been pronounced,

&c. where a marriage was by banns, or made before the passing of the

or of the usual place of abode of act, in consequence of or from the

one of the parties, where a marriage effects of proof in such causes, &c.

was by licence, was made unueces- of the invalidity of such marriage,

sary after the solemnization of the or the illegitirancy of such descend-

marriage; and evidence was not to ant. The sixth section provided that

be received in either of these cases if, before the act, any property had

to prove the contrary, in any suit been possessed, or any title of honour

touching the validity of the marriage, enjoyed on the ground of the invali-

(a) S 6. 4. c. 75. s. S. The third dity of any marriage, by reason that

section provided, that the actshoiild it was solemnized without consent,

not reuder valid any marriage de- then, although no sentence had been

clared invalid by any court of com- pronounced against the validity of

petent jurisdiction before the passing such marriage, the right and interest

of the act ; nor any marriage when in such property, or title of honour, ^

either party should at any time after- should in no manner be affected or

wards, during the life of the other prejudiced. And by s. 7. nothing in

party, have lawfully intermarried with the act was to affect or call in ques*

any other person. Nor (by s. 4.) any tion any act done before the passing '

marriage the invalidity of which had of the act, under the authority of any

been established, before the passing court, or in the administration of auy

of the act, upon the trial of any personal estate or effects, or the cxe-

isue touching its validity, or touch- cution of any will or testament, or tho

ing the legitimacy of any person al- performance of any trust
VOL. I, o

194

Of Bigamy.

[book II.

4 G. 4. c. 7S,

S. 1 . repeals 26
G. 2. c. 33. and
4 G. 4. c. 17.

S. 2. Banns
where, when,
and how putn
lished, and
marriage to be
solemnuBed
where banna
published.

S. 3. Bishop,
with consent
of the patron
aadincumbcnt^

marriage act was then in a great measure revived, though only for
a short period, as will be presently seen. The statute 4 G. 4. c» 5.
was passed to render valid certain marriages which had been so*
lemnized by licences granted through error, after the passing of the

3 G. 4. c. To. by or in the name of bodies corporate or persons their
officers or surrogates, other than the archbishops of Canterbury and
York, and the bishops within their respective dioceses, who were
alone authorized to grant such licences by the 3 G. 4. c. 7b,i but
this provision of the 4 G. 4. c. 5. applies only to marriages solem-
nized by such erroneous licences granted after the 3 G. 4. and
before the passing of the 4 G. 4. c. 5.

The principal marriage act of the present day appears to be
the 4 G. 4. c. 76., many of the provisions of which require to be
here noticed.

It recites that it is expedient to amend the laws respecting the
solenmization of marriages in England ; and then enacts, that, from
and after the first day of November next ensuing the passing of
the act (November, 1823,) so much of the 26 G. 2. c. 33. as was in
force immediately before the passing of this act, and also the

4 G. 4. c. 17- shall be repealed, save and except as to any acts,
matters, or things, done under the provisions of the said acts, or
either of them, before the said first day of November , as to which
the said acts are respectively to be of the same force and effect,
as if this act had not been made, save also and except so far as
the said acts, or either of them, repeal any former act, or any clause,
&c. therein contained.

The second section enacts, ^' that from and after the first day of
November, (1823,) all banns of matrimony shall be published
in an audible manner in the parish church, or in some public
'^ chapel, in which chapel banns of matrimony may now or may
'' hereafter be lawfully published, of or belonging to such parish
*' or chapelry, wherein the persons to be married shall dwell,
'* according to the form of words prescribed by the rubric pre-
" fixed to the office of matrimony in the book of Common Prayer,
^^ upon three Sundays preceding the solemnization of marriage,
" during the time of morning service, or of evening service, (if
'^ there shall be no morning service in such church or chapel upon
'^ the Sunday upon which such banns shall be so published,)
'^ immediately after the second lesson ; and whensoever it shall
'^ happen that the persons to be married shall dwell in divers
*' parishes or chapelries, the banns shall in like manner be pub-
^^ Ushed in the church, or in any such chapel as aforesaid,
belonging to such parish or chapelry wherein each of the said
persons shall dwell ; and that aU other the rules prescribed by
the said rubric concerning the publication of banns, and the
'^ solemnization of matrimony, and not hereby altered, shall be
duly observed; and that in all cases where banns shdl have'
been published, the marriage shall be solemnized in one of
the parish churches or chapels where such banns shall have
been published, and in no other place whatsoever.'^
The third section enacts, '^ that the bishop of the diocese, with
^' the consent of the patron and the incumbent of the church of
^^ the parish in which any public chapel, having a chapelry thiere-

tt

it

t(

CHAP, xxtii.] Marriage Act, 4 G. 4. c, 76. 195

'^ ttnto ttunexed, may be Bituated, or of any chapel situated ia an may autborize
« extra-parochial place, signified to him under their hands and of*b«nM S^"*
^ sealsrespectively, may authorize, by writing under his hand and any public
'^sealy the publication of banns and the solemnization of mar« chapeU
'* riages in such chapel for persons residing within such chapelry
^ or extra-parodiial jdace respectively ; and such consent, toge-
*' tber with such written authority, sludl be re^tered in the re-
*^ gistry of the diocese/'

The fourth section enacts, " that in every chapel in respect of S.4. Notice to
" which such authority shall be given as aforesaid, there shall be g*^.^*'^^ ^?
*^ placed in some conspicuous part of the interior of such chapel "^ ^ P^ *
'' a notice in the words following: ' banns may be published, and
'^ marriages solemnized in this chapel/ *'

The fifth section enacts, ''that all provisions now in force, or S.5.ProTi8!oiit
"which may hereafter be established by law, relative to pro- T^^^^etomar-

tc 'jf J 1 • • ' J. • • u "L iL "■?« registers

" viding and keepmg mamage registers m any parish churches, extended to
" shall extend and be construed to extend to any chapel in which chapels so au-
" the publication of banns and solemnization of marriages shall be ^^^^^^**

^f*-i.i » .1.1 «j»^ aforesaid.

*' SO authorized as aforesaid, m the same manner as if the same
" were a parish church; and every thing required by law to be
" done relative thereto by the churchwardens of any parish church,
^ shall be done by the chapelwarden or other officer exercising
" analogous duties in such chapel/'

The sixth section enacts, '' that on or before the sidd first day s.6. Book ta
" of November, and from time to time afterwards as there shall fo^. ^wTreti-
^' be occasion, the churchwardens and chapelwardens of churches tration of *
<< and chapels, wherein marriages Hre solemnized, shall provide a banns^ &c.
^' proper book of substantial paper, marked and ruled respectively
'^ in manner directed for the register book of marriages ; and the
'^ banns shall be published from the said register-book of banns
'^ by the officiating minister, and not from loose papers, and after
*^ publication shall be signed by the officiating minister, or by
^< some person under his direction/'

The seventh section enacts, ^^ that no parson, vicar, minister, s. 7. Notice of
" or curate, shall be obliged to publish the banns of matrimony names, and
" between any persons whatsoever, unless the persons to be mar- of*abode of™*
^* ried shall, seven days at the least before the time required for parties to be
" the first publication of such banns respectively, deliver or cause e^y^!^ ^ ^*»®
'* to be delivered to such parson, vicar, minister, or curate, a ™*°"^^"
" notice in writing, dated on the day on which the same shall be
'^ so delivered, of their true Christian names and surnames, and of
^^ the house or houses of their respective abodes within such
'^ parish or chapelry as aforesaid, and of the time during which
** they have dwelt, inhabited, or lodged, in such house or houses
" respectively/'

The eighth section enacts, ^^ that no parson, minister, vicar, or s. 8. How fat
*' curate, solemnizing marriages after the first day of November "*'"i*?®?. °?'
'^ next, between persons, both or one of whom shall be under the mar^og mi^-^

-one years, after banns published, shall be punish- non witL

" age of twenty-one years, after banns published, shall be punish- non without

" able by ecclesiastical censures for solenmizing such marriages *^°j°"*"** '". ^

'' witiioat consent of parents or guardians, unless such parson, iTciltion^f^^ *

<< nunister, vicar, or curate, shall have notice of the dissent of banns void.
** such parents or guardians^ and in case such parents or guar-

o 2

196

Of Bigamy.

[book II.

S. 9. In what
case republica-
tion of banns
necessary.

S. 10. Licences
to marry in
church, &c. of
parish wherein
one party re-
sided for 15
days before.

S. 11. Where
caveat entered,
no licence to
issue till mat-
ter examined
"by Judge.

S. 12. Parishes,
where no
church or
chapel, and
•xtra-parochial
places, deemed
to belongs to
any adjoining
parish, &c.

S. 13. Where
churches arc
demolished, or
under repair,
banns to be
proclaimed in
a church or

'^ dians, or one of them, shall openly and publicly declare or cause
" to be declared, in the church or chapel where the banns shall be
*^ so published, at the time of such publication, his, her, or their
'^ dissent to such marriage, such publication of banns shall be
*^ absolutely void."

The ninth section enacts, '^ that whenever a marriage shall
^^ not be had within three months after the complete publication
^' of banns, no minister shall proceed to the solemnization of the
'^ same, until the banns shall have been republished on three
'^ several Sundays, in the form and manner prescribed in this
'^ act, unless by licence duly obtained according to the provisions
"of this act." .

The tenth section further enacts, " that no licence of mar-
^^ riage shall, from and after the said first day of November, be
" granted by any archbishop, bishop, or other ordinary, or person
'^ having authority to grant such licences, to solemnize any mar-
" riage in any other church or chapel than in the parish church,
^' or in some public chapel of or belonging to the parish or cha-
*^ pelry within which the usual place or abode of one of the per-
" sons to be married shall have been for the space of fifteen days
" immediately before the granting of such licence."

The eleventh section enacts, *nhat if any caveat be entered
'^ against the grant of any licence for a marriage, such caveat
" being duly signed by or on the behalf of the person who enters
'^ the same, together with his place of residence, and the ground
" of objection on which his caveat is founded, no licence shall
" issue till the said caveat, or a true copy thereof, be transmitted
" to the Judge out of whose office the licence is to issue, and
" until the Judge has certified to the register that he has exa-
" mined into the matter of the caveat, and is satifc'fied that it
" ought not to obstruct the grant of the licence for the said
" marriage, or until the caveat be. withdrawn by the party who
" entered the same."

The twelfth section enacts, " that all parishes where tliere shall
'^ be no parish church or chapel belonging thereto, or none wherein
^^ divine service shall be usually solemnized every Sunday^ and
" all extra-parochial places whatever, having no public chapel
" wherein banns may be lawfully published, shall be deemed and
'* taken to belong to any parish or chapelry next adjoining, for
'' the purposes of this act only ; and where banns shall be pub-
" lished in any church or chapel of any parish or chapelry ad-
'' joining to any such parish or chapelry where there shall be no
" church or chapel, or none wherein divine service shall be so-
'' lemnized as aforesaid, or to any extra- parochial place as afore-
" said, the parson, vicar, minister, or curate, publishing such banns,
** shall, in writing under his hand, certify the publication thereof
" in the same manner as if either of the persons to be married
'* had dwelt in such adjoining parish or chapelry."

The thirteenth section enacts, ^^ that if uie church of any
** parish, or chapel of any chapelry, wherein marriages have been
'^ usually solemnized, be demolished in order to be rebmlt, or be
^' under repair, suid on such account be disused for public service,
''it shall be lawful for the banns to be proclaimed iu a chjarcb' or

CHAP, xxiii.] Marriage Act, 4 Geo. 4. c. 76. 1-9T

^* chapel of any adjoining parish or chapelry in which banns are cbapel of nn •
" usually proclaimed, or in any place within the limits of the J^^^*'^^ *^*"
^' parish or chapelry which shall be licensed by the bishop of the
^^ diocese for the performance of divine service, during the repair
'^ or rebuilding of the church as aforesaid ; and where no such
<< place shall be so licensed, then, during such period as aforesaid,
'^ the marriage may be solemnized in the adjoining church or
^* chi^l wherein the banns have been proclaimed, and all mar- Provision for
" riages heretofore solemnized in other places within the said ^^^^^^^.
''parishes or chapelries than the said churches or chapels, on lemnized.
'' account of their being under repair, or taken down in order to
'' be rebuilt, shall not be liable to have their validity questioned
'' on that account, nor shall the ministers who have so solemnized
'' the same be liable to any ecclesiastical censure, or to any other
'' proceeding or penalty whatsoever." This enactment being de-
fective in not providing that marriages might be solemnized in the
places licensed for the proclamation of banns ; nor that marriages
might be solemnized by licence in an adjoining church or chapel ;
nor that the validity of marriages thereafter solemnized in other
places than the churches and chapels out of repair, should not be
questioned on that account; nor that the ministers who should
thereafter solemnize such marriages should not be liable to eccle-
siastical censure, &c. a subsequent statute 5 G. 4. c. 32. enacts,
that '' all marriages which have been heretofore solemnized, . or
'^ which shall be hereafter solemnized in any place within the
'' limits of such parish or chapelry so licensed for the performance
" of divine service, during the repair or rebuilding of the church
" of any parish, or chapel of any chapelry, wherein marriages
'' have been usually solemnized, or if no such place shall be so
'' licensed, then in a church or chapel of any adjoining parish or
'' chapelry in which banns are usually proclaimed, whether by
'' banns lawfully published in such church or chapel, or by licence
'' lawfully granted, shall not have their validity questioned on
'' account of their having been so solemnized, nor shall the
''ministers who have so solemnized the same be liable to any
" ecclesiastical censure, or to any other proceeding." And it
further enacts, that all licences granted by any person having
authority to grant them for the solemnization of marriages in a
church or chapel, wherein marriages have been usually solemnized,
shall be deemed to be licences for the solemnization of marriages
b any place within the limits of such parish or chapelry, which >
shall be licensed by the bishop for the performance of divine
service, during the repair or rebuilding of any such church or
chapel, or if no place snail be so licensed, then in the church or
chapel of any adjoining parish or chapelry, wherein marriages
have been usually solemnized, (a) And also that all banns pro-
claimed, and all marriages solemnized, according to the provisions
of this act in any place so licensed, within the limits of any
parish or chapelry, during the repair or rebuilding of the church,
&c. shall be considered as proclaimed and solemnized in the
church, &c. and shall be so registered accordingly, [b)

{a) S. 8. (h) S. 3.

198

8. 14. Oath to
be taken before
the surrogate
as to certain
particulars be-
fore licence is
granted.

Of Bigamy.

[book It.

S. 15. Bond not
to be required
before grant-
ing licence.

S. 16. Who are
to gire consent,
if parties are
underage.

8.17. If the
father of minor
be non compot
tneniU, or if
guardians or
mother of
minor be Hon
compot memiU,
or beyond sea,
&c. parties
may apply to
the lord chan-
cellor.

The fourteenth section o^ the 4rG. 4. c. 76. enacts, " for avoiding
'* all fraud and collusion in obtaining of licences for marriage^
** that before any such licence be granted, one of the parties
** shall personally swear before the surrogate, or other person
^* having authority to grant the same, that he or she believeth
^' that tiiere is no impediment of kindred or alliance, or of any
^^ other lawful cause, nor any suit commenced in any eccle-
^' siastical court, to bar or hinder the proceeding of the said
^^ matrimony according to the tenor of the said licence; and that
^ one of the said parties hath, for the space of fifteen days imme-
'^ diately preceding such licence, had his or her usual place of
*^ abode within the parish or chapelry within which such mar-
^^ riage is to be solemnized; and, where either of the parties, not
** being a widower or widow, shall be under the age of twenty-
** one years, that the consent of the person or persons whose
*' consent to such marriage is required under the provisions of
** this act ha? been obtained thereto : provided always, that if
*^ there ^hall be no such person or persons having authority to
** give STlch consent, then upon oath made to that efiFect by the
*' party requiring such licence, it shall be lawful to grant suph
^^ licence, notwithstanding the want of any such consent.'*

The fifteenth section enacts, ^' that it shall not be required of
^' finy person applying for any such licence to give any caution or
*' security, by bond or otherwise, before such licence is granted,
** any thing m any act or canon to the contrary thereof notwith-
•* standing." ' ^

The sixteenth section enacts, ^' that the father, if living, of any
** party under twenty-one years of age, -such parties not being a
^ widower or widow ; or, if the father shall be dead, the guardian
''^ or guardians of the person of the party so under age, lawfully
^^ appointed, or one of them; and, in case there shall be no such
"guardian or guardians, then the mother of such party, if un-
*' married; and, if there shall be no mother unmarried, then the
'^ guardian or guardians of the person appointed by the court of
** Chancery, if any, or one of them, shall have authority to give
^'consent to the marriage of such party; and such consent is
^' hereby required for the marriage of such party so under ?ge,
"^ tinless there shall be no person authorized to give such con-
'' sent."

The seventeenth section enacts, '' that in case the father or
^ fathers of the parties to be married, or of one of them, so under
^^ age as aforesaid, shall be non compos mentisy or the guardian or
*^ guardians, mother or mothers, or any of them, whose consent is
'^made necessary' as aforesaid to. the marriage of such party or

parties^ dhall be non compos mentis, or in parts beyond the seas,

or'shaQ unreasonably, or from undue motives, refuse, or wiih-
^^'hold his, hef, or their consent, to a proper marriage, then it
*' shall and may be lawful for any person desirous of marrying, in
** any bf the before mentioned cases, to apply by petition to the
** lord chancellor, lord keeper, or the lords commissioners of the
** great seal of Gfeat Britain for the time being, master of the
^' rolls, or vice-chancellor of England, who is and are respectively
'^ hereby empowered to proceed upon such petition in a summary

CHAP XXIII.] Marriage Act, 4 G. 4. c. 76. 199

^^ way; and in case the marriage proposed shall upon examihatioh
*^ appear to be proper^ the said lord chancellor, lord keeper, or .
*' lotda commissioners of the great seal for the time being, master
*' of tlie roUs^ or vice-chancellor, shall judicially declare the same
^^ to be so; and such judicial declaration shall be deiemed and
'^ taken to be as good and effectual, to all intents and purposes, as
^^ if the father, guardian or guardians, or mother of the person so
'^ petitioning, had consented to such marriage/'

The eighteenth section enacts, '^ that, from and after the said S. 18. Snrro-
** first day of November, no surrogate, hereafter to be deputed by JJlJ^ of Office
^ any ecclesiastical Judge who hath power to grant licences, shall
^' grant any such licence imtil he hath taken an oath before the
^* said Judge, or before a commissioner appointed by commission
^^ under the seal of the said Judge, which commission the said
'' Judge is hereby authorized to issue, faithfully to execute his
*' office according to law, to the best of his knowledge, and hath
'^ given security by his bond in the sum of one hundred pounds to
^ the bishop of the diocese for the due and faithful execution of
" his said office/'

The nineteenth section enacts, ^^ that whenever a marriage s. 19. In what
** shall not be had within three months after the grant of a licence <^"« "*^|!!.'
" by any archbishop, bishop, or any ordinary or person having obtSied.
^' authority to grant such Ucence, no minister shall proceed to
^' the solemnization of such marriage until a new licence shall
^' have been obtained, unless by banns duly published according
" to the provisions of this act/'

Tlie twentieth section enacts, *^ that nothing hereinbefore con- S. 20. Right of

tained shall be construed to extend to deprive the archbishop of J'^'jJ?^^*^^ ®^

Canterbury and his successors, and his and their proper officers, g^t special
^ of the right which hath hitherto been used, in virtue of a certain licences, as
*^ statute made in the 25th year of the reign of the late King ^^^^^ 25 H. 8.
^* Henry the Eighth, intituled ' An Act concerning Peter pence
^ and dispensations,' of granting special licences to marry at any
'' convenient time or place/'

The twenty-second section enacts, ^^ that if any persons shall S. 22. Marriage
" knowingly and wilfully intermarry in any other place than a ^°*** ^here
*' church, or such public chapel wherein banns may be lawfully Saiy'marTyin
'^ published, unless by special licence as aforesaid, or shall know- any other
** ingly and wilfully intermarry without due publication of banns, P{*^® ***^ ■
'^ 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 solemniasation of such marriage by
^' any person not being in holy orders, the marriages of sucn
^^ persons shall be null and void to all intents^ and purposes what-
" soever/'

The twenty-sixth section enacts, '^ that, after the solemnization s. 26. Pnx>f of
** of any marriage under a jmblication of banns, it shaU not be *«*«■! ^c**-
" necessary in support of such marriage to give any proof of the ties*nc>t'B«cCT-
^ actual dwelling of the parties in the respective parishes or sarytoraUdity
^ chapelries wherein the banns of matrimony were published 5 or, ^^^J^''***??*
^ where the marriage is by licence, it shall not be necessary to ^nsor^p^
^ give any proof that the usual place of abode of one of the licence.
^* parties^ for the space of fifteen days as aforesaid, was in the

SOO Of Bigamy. [book n.

^^parishior chapelry where the marriage was solemnized; nor
^' shall any eviuence in either of the scud cases be received to
^^ prove the contrary, in any suit touching the validity of such
" marriage." (c)
S. 30. Proiriso The thirtieth section enacts ^^ that this act, or any thing therein
for tbe Royal «< contained, shall not extend to the marriaees of any of the Royal

Family. c. F^^nUv.''

S. 31. And For The t^irty-first section enacts, " that nothing in this act con-
Q^mai^ *^ tained shall extend to any marriages amongst the people called
Jevf. '' Quakers, or amongst the persons professing the Jewish reli-

^' gion, where both the parties to any such marriage shall be of
'^ die people called Quakers, or .persons professing the Jewish
*' religion respectively."
8.33. Act The thirty- third section enacts, "that this act shall extend

to £igu^d.° *' ^^y ^ *^*^ P^^ ^f ^® united kingdom called England."
A marriage ia '^® marriage act does not specify what shall be necessary to be
good by banna observed in the publication of banns, or that the banns shall be
^id'^^^'h * published in the true names of the parties ; but it must be under-
U miuTiediii ^ Btood as the clear intention of the Legislature that the banns shall
ma aaaomed be published in the true names, because it requires that notice in
kn"** ^In^Y^ writing shall be delivered to the minister of the true Christian
place where ^he ^^^^^^ ^^^ surnames of the parties seven days before the publica-
ia married by tion; and, unless such notice be given, he is not obliged to publish
mc^aaaamed the banns. But a publication in the name which the party has

assumed, and by which he is known in the parish, appears to be
sufficient ; and would, indeed, be the proper publication where the
party is not known by his real name. Thus, where a person whose
baptismal and surname was Abraham Langley, was married by
banns by the name of George Smith, having been known in the

Sarish where he resided and was married by that name only from
is first coming into the parish till his marriage, which was about
three years, the court of King's Bench held that the marriage was
valid, (d) And in the same court it was subsequently held, that a
marriage by licence, not in the party's real name, but in the name
which he had assumed, because he had deserted, he being known
by that name only in the place where he lodged and was married,
and where he had resided sixteen weeks, was valid. Lord Ellen-
borough, C. J. said, '^ If this name had been assumed for the pur-
'' pose 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 e£fect
'^ to any such corrupt purpose. But where a name has been pre-

{c) Upon an enactment nearly si mi- verted to when the point was reserved

Jar it was determined, in a prosecu- for the opinion of the Judges. Rexo.

tion for higamy, where the first mar- Hind, Mich. T. 1813. Russ. and Ry.

riage was proved to have been by 853.

banns, that it was no objection that (d) Rex o. Billinghurst, 1815, 3M.

the parties did not reside in the parish and S. S50. This was a settlement

where the banns were published and case: hut the point was fully argued,

the marriaee was celebrated. The pro- and many cases from tbe Consistory

vision or the statute was considered as court were ciieA^ notes of which are

an express answer to the objection; given in the Report, 859 to 867.
and it appears not to have been ad-

CHAP, xxiif.3 Construction of the Marriage Act. 20f'

▼iously 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." (d)

It seems that the assuming a fictitious name, upon the second
marriage, will not prevent the offence from being complete, (e)
And it was decided to be no ground of defence, that upon the se-
cond marriage (which was by banns) the parties passed by fsdse
Christian names when the banns were published, and when the
marriage took place : and it was further holden diat 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 rightiy described
by that name in the indictment. The indictment was against the
prisoner for marrying Anna Timson whilst he had a wife living :
the se'cond marriage was by banns ; and, it appeared, that the pri«
80Der 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
ofience ; and the other question was, whether the charge of the
prisoner's marrying Anna was proved. But the Judges held, un-
animously, 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. (/)

It has been seen that the sixteenth section of the marriage act The prosecutor
makes the consent of the father, guardians, or mother, necessary to ™"*' •^^^ ^^
the validity of a marriage by licence, where the party is a minor. oTpmnu'eLc.
And it appears to have been held, upon the former marriage act, if necessary,
that the party prosecuting must shew such consent. when the

Upon an indictment for bigamy, the first marriage imported by ^i^l^e!'
the register to have been by licence, and the prisoner proved that
at that time he was under age. A question was raised, whether
this threw it upon the prosecutor to prove consent; and, it appear-
ing that by the marriage act the register ought to state consent, if
either party was under twenty-one, Wilson, J. held it did ; and he
directed an acquittal, {g) So, after a conviction, the Judges, upon
much discussion, were of opinion that the form of the register of
the first marriage, then in question, which expressed the marriage
to have been by licence generally, without saying by consent of
parents or guardians, together with the fact of the parents never
having been known to have been in England, were prima facie
evidence that the first marriage was had without the consent of
parents or guardians, upon which the jury might have found the
prisoner not guilty. (/)

(d) Rex V, Burton upon Trent, 3 {g) Rex r. Morton, cor. Wilson, J.
ll.«ndS. 5S7. A>trca«//<r, 1789. MS. Bay ley, J. and

(e) Rex V. Allison, ppstriOl. Russ. and Ry. 19. note (a).

(/) Rex V. Edwards, Mich. T. 1814. (f) James's case, Mich. T. 1808. Hil.
MS.Bayley, J. and Russ.andRy.S83. T. 1803. Russ. and Ry. 17. And the

fOSi Of Bigamy. [bookh.

In a Bubaequent case it iras also detennined that if tiie pri-
soner prove (as it is competent for him to do) that Ids first mar-
riage took place while he M^as a minor,' it must be shewn, on the
part of the prosecution, that such marriage, if by licence, was with
the proper consent. The prisoner was indicted at the Old Bailey
July Sessions, 1803, for bigamy, in marrying Elizabeth Fields his
first wife Ly^ being still living : and it was proved that on the
12th Feb. 1791, he was married to LydiaBlackwell by licence, and
that she was living on the 8th of June last; and that on the 14th
December, 1800, he married Elizabeth Field. On behalf of the
prisoner it was proved that he was bom on the 2d of January, 177^9
and that iiis fattier was then alive : and it was then contenaed that
the first marriage was void as it was not proved to have been by
the consent of his father. Lawrence, J. told the jury that he
thought the marriage was to be presumed valid, unless the pri-
soner proved that he had not that consent, and under his direction
the prisoner was found guilty. But the point being saved for the
tX)nsideration of the Judges, they held the conviction wrong; as
it was clearly proved that the prisoner was under age at the time
of the first marriage, and as there were no circumstances from
which consent could be presumed, (a)
CoBsent to the Though illegitimate children are regarded by the law as not
SSToiPaierid- ^*^? *"^y father, yet they were held to be within the marriage
Bute children, act of 26 Geo. 2^} and a marriage by licence between two illegiti-
mate childr^i, who were minors, without consent of parents or
guardians, was therefore held to be void, {g)

And formerly it was the opinion of the court of King's Bench,
that the power of consent given bv the act to the father and mother
was intended to include reputed parents, as being interested in
their children's welfare, and bound to provide for them by the laws
of nature : (A) but in a case which came before the consistoriai
court in London, in 1799) & different doctrine was held by the very
learned Judge of that court, who was of opinion that the routed
parents were not enabled to consent, and that the consent could be
lawfully given only by a guardian appointed by the court of Chan-
cery, (i) And in a more recent case three of the Judges of the
court of King's Bench adopted the latter opinion ; and, after much
argument and consideration, certified to the Master of Uie rolls that
all marriages, whether of legitimate or illegitimate persons, were
within the general provision of the marriage act 26 Geo. 2. c. 33.
which required all marriages to be by banns or licence ; and that
the consent of the natural mother to the marriage, by licence, of an
Illegitimate minor, was not a sufficient consent withm the eleventh

Judges directed the prisoner to be dis- (a) Rex v, Batler, Mich. T.ISOS.

charged on his own recognizance. MS. Bajley, J. and Russell and Ryles,

Lord Kenyon at the first meeting 61. It seems that subsequent coun-

seemed to be of opinion, that it was tenance from parents or guardians, or

sufficient for the prisoner to prove other circumstances of a similar kind,

himself under age at the time of the might affbrdground for presomtngtb^

first marriage ; and that it then rested necessary consent,

with the prosecutor to shew that the (g) Rex v. Hadnett, 1 T. B.96.-

marriage was with the consent of pa- (h) Rex v. Edmonton, CftldL 435. . .

rents or guardians, but that the pri- (i) Horner v. Liddiard, Rep. by Dr.

soner ou^t not to be called upon to Croke.

prove a negative. 2

CHAP. XXIII.] Construction of the Marriage Act. SOS

eectioii of that act; and that consequently the marriage in question
was void by the 8idd statute. (Ar)

One point upon the construction of the former marriage act 26 {^^JJ^^q**"
Geo. 3. c. 3S. was determined by the court of King^s Bench, with churches and
much relui^tane^ ; the able Judge who then presided in that Court chapeU erected
fleeming to discourage an attempt to try a question of such serious ^"^ |^* *^
c^ottsequence in a collateral way/ on a settfethent casfe: but^ after Geo. 2. c! 33.
consideration, it was decided that a marriage celebrated by banns,
in a chapel erected after that statute was passed, and not upon the
Bifie of any tmcient church or chapel, was void, although marriages
had been Ae facto frequently celebmted there; the words of the
statute ^^vA which chapel banns have been usually published'' being
held clearly to mean chapels existing at the time it was passed* (/)
But as soon as the determination of the Court in this case was
known, a bUl was introduced into Parliament, which passed into a
law, making vidid all marriages which had been celebrated in any
parish diurch or "public chapel, erected since the passing of the 26
Geo. 2. c. 33.' and consecrated, and providing that thie registers of
such marriages shall be received as evidence, (m) The fourth sec-
tion enacted, that the registers of marriages thereby made valid
should within twenty days after the first oT August, IJBl , be removed
to the church of the parish in which such chapel should be situated ;
or, if it should be situated in an extra-parochial place, to the parinh
church next adjoining ; to be kept with the registers of such parish.
And these provisions were extended by the 44 Geo. 3. c. 77* i^d the
4B Geo. 3i c. 127* to marriages celebrated in such chapels before the
23d August, 1806; and the registers of such marriaged are in like
manner to be removed to parish churches, and transmitted to the
bishop. A more recent statute 6 Geo. 4. c. 92. recites that since
the act 26 Geo. 2. c. 33. and the act 44 Geo. 3. c. 77- divers
churches and chapels had been erected and built in JEftgland,
WxUeSj and the town oi Berwick upon 7\aeedj which had been duly
consecrated, abd divers marriages had been solemnized therein
since the passing of the 44 Geo. 3. c. 77* ' but by reason that in
such churches and chapels banns of matrimony had not usually
been published,, before or at the time of passing the 26 Geo. 2. c.
83., nor any authority obtained for solemnizing marriages therein,
under the provisions of the 4 Geo. 4. c. 76., such marriagei^ had been
or might be deemed to be void ; and then enacts, that all marriages
already solemnized in any church or public chapel in England,
fTaleSf and the town of Berwick upon TSoeed^ erected since the
act of the 26 Geo. 2. c. 33. and consecrated, shall be as good and
valid in law as if such marriages had been solemnized in parish
churches or public chapels, having chapelries annexed, and wherein .
banns had usually been published before or at the time of passing
the said act of 26 Geo. 2. The second section enacts, that it shall
be lawful for marriages to be in future solemnized in all churches
and chapels erected since the 26 Geo. 2. c.33. and consecrated, '^in
^ which churches and chapels it has been customary and usual,

(Jk) Priestley v. Hnehes, 1 1 -East. 1 . Lords iq an appeal from the decree in

Groie, J. differed, and sent a separate this case.

certificate. The otiestion was after- (0 Rex v. Northfield, DougL 659.
wards brought beiore the House of (m) 21 Geo* 3. c. 68^

SKH Of Bigamy .—Marriages mother Countries, [book if*

^' before the passing of this act, to solemni^ marriages j" and' that
all marriages hereinafter solemnized therein shall be as good and
▼alid as if they had been solemnized in parish churches, &c.
wherein banns had usually been published before or at the time of
passing the said act of 26 Geo. 2. And the registers of marriages
solemnized in the churches or chapels, by this act of 6 Geo. 4.
enacted to be valid in law, or copies thereof, are to be received as
evidence, in the same manner as the registers of marriages in
parish churches, &c. in which banns were usually published before
or at the time of the 26 Geo. 2. c. 33., or copies thereof are re-
ceived ; but liable to the same objections as would be available to
exclude the latter from being received, (a) But such registers of
marriages, solemnized in any public chapel, and made valid by this
act of 6 Geo. 4. c. 92. are, within three months from the passing
of the act, to be removed to the parish church of the parish in
which such chapel is situated ; and if it be situated in an extra-

Earochial place, then to the parish church next adjoining, to be
ept with the marriage registers of such parish, and in like manner
as parish registers are directed to be kept by the said act of the 26
Geo, 2. (A)
s'' u*"^and ^ '^® marriage act is restrained by sect. 33. (r) to that part of the
piMes beyond united kingdom called England. With respect to marriages in
the aeas good, Scotland, diough the point was formerly much doubted, (o) it ap-
If performed pears to have been afterwards settled that where minors domiciled
the rites and iQ England withdrew themselves into Scotland, or places beyond
customs of the the seas, for the purpose of evading the marriage act, their mar-
whichtbev "age under such circumstances was nevertheless valid, (p) And
were cele- in the case of a marriage in such distant place, it appears to be
brated. sufficient to shew that it was performed according to the rites and

Marriage in custom of the country in which it was celebrated. In a case respect-
St. Domingo. ^^ ^^ settlement of a pauper, the facts were that a soldier on
• service with the British army in St. Domingo, in 17^^ being de-
sirous of marrying the widow of another soldier who had died there
in the service, the parties went to a chapel ui 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 pauper 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 pauper (who was the woman) stated that she did not know
that the person officiating was a priest. Lord Ellenborougfa, C. J.
in delivering his opinion, considered the case, first, as a marriage
celebrated in a place where the law of England prevailed, (sup-
posing, in the absence of any evidence to the contrary, that the law

(a) 6 Geo. 4. c. 92. s. S. in reasoDing upon the case of Philips

(b) Id. s. 4. V. Hunter, « H. Blac. 418. And in
ic) Ante^ p. 200. Uderton v. Ilderton, 8 H. Blac. 145. it
(o) See Burn's Just Marriage^ and was taken to be clear that a marriage,

the observations of Lord Mansfield in celebrated in Scotland, is such a niar-

Bobinson v. Bland, I Burr 1070. riage as would entitle the womaata

<l>)Croniptonv.Bearcrcin,Buil. N. P. her dower in England.
I IS.; and sec the opinion of Eyre, C. J.

cttAF. XXIII.] Of Bigamy. — Marriages in other Countries. ^OB

of England, ecclesiastical and civil, was recognized by subjects of
England in a place occupied by the king's troops, who would imr
pliedly carry that law with tliem,) 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 e3ctend. 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 accord*-
ing to the law 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, (q) In a subsequent case at the Old Marriage hy
Bailey, a question was made whether a marriage of a dissenter in teache°in^
Ireland, when performed by a dissenting minister in a private room, private room
was valid. It was contended on behalf of the prisoner, who was "* ^l«nd»
indicted for bigamy, that the marriage was illegal from the clan-
destine manner in which it was celebrated ; and several Irish sta-
tutes were cited, from which it was argued that the marriage of
dissenters in Ireland ought at least to be in the face of the congre-
gation, and not in a private room. But the Recorder is said to
have been clearly of opinion that this marfiage was valid, on the
ground that as, before the marriage act, a marriage might have
been celebrated in England in a house, and it was only made ne-
cessary, by the enactment of positive law, to celebrate it in a
church, some law should be shewn requiring dissenters to be mar-
ried 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 and 22 Geo. 3. c. 25. (r) enacted, that
all marriages between Protestant dissenters, celebrated by a Pro-
testant dissenting teacher, should be good, without saying at what
place they should be celebrated, {s)

With respect to the marriage of minors in Ireland^ the statute
9 Geo. 2. c. 11. (Irish) contains some provisions. And the statute
58 Geo. 3. c. 84. was passed to remove doubts which had arisen as
to the validity of marriages solemnized within the British territo-
ries in India, by ordained mhiisters of the church of Scotland.

The statute 4 Geo. 4. c. 91. recites the expediency of relieving 4 Gco.4. c. 91.
the minds of all his Majesty's subjects from any doubt concerning J^J^^^jJ.

{q) Rex V. Brampton, 10 East. 288. Geo. 3« c. 81. s. 12. only authorizes

(r> And see 11 Geo. 2. c. 10. By 32 Popish priests to celebrate marriage

Geo. 3. c. 21. s. 12. Protestants maybe betwecu a Protestant and a Papist,

married to Roman Catholics by cler- where such Protestant and Papist nave

j^ynien of the established church : but been first married by a Protestant cler-

s. 13. contains a proviso that the act gyman.

shall not authorize Protestant dissent- («) Rex v. , Old Bailey, Jan.

in^ ministers or Popish priests to eel e- Sess. 181a, cor. Sir J. Silvester, Re-

brate marriage between Protestants of corder. MS. The prisoner was an offi-

the etlablished church and Roman Ca- cer in the armv ; and his first marriage,

tholics. The clause however does not upon which this question was raised,

enact that such a marriage celebrated took place in 1787, at Londonderry.

by a Protestant dissenting teacher shall The second marriage was celebrated in

be void. Such a roarriaee, celebrated London, according to the ceremonies

by a PojMh priest, would be void by of the church of ^gland.
19 Geo. 2. c. 13. ^Irish); and the 33

see*

risget solem-
nized in the
chapel, &c. of
a British mi-
nister, or of a
British factory,
or in the army
abroad.

Marriages in
Newfoundland,

The marriage
of lunatics
▼old.

Marriage by
reputation not
•ufficieot.

Of Bigamy. — Marriage by a Lunatic, [book ii.

the validity of marriages^ solemnized by a minister of the church of
England^ in the chapel or house of any British ambassador or mi-
nister residing withyi the country to the court of which he is
accredited^ or in the chapel belonging to any British factory abroad,
or in the house of any British subject residing at such factory^ as
well as from any possibility of doubt concerning the validity of
marriages solemnized within the British lines by any chi^lain or
officer, or other person, officiating under the orders of the com-
manding officer of a British army serving abroad : and then enacts,
that ^^ dll such marriages shall be deemed and held to be as valid
'^ in law as if the same had been solemnized within his Majesty'n
^' dominions, with a due observance of all forms required by law.'^
But there is a proviso that this act shall not confirm, or impair, or
afifect the validity of any marriages solemnized beycmd the seas,
save and except such as are solemnized as herein specified and
recited, (a)

Marriages in the colony and dependencies of Newfoundland are
especially regulated by the statute 5 Geo. 4. c. 68. which repeals a.
former statute, 57 Geo. 3. c. 51. upon the same subject.

Though the first marriage may be abroad, the offence is not cog-
nizable here if the second marriage, which makes the o£knce,were
abroad. The question was moved to Kelyng, C. J. at the Old
Bailey, whether, if a man marry one wife in France, and a second
in England, he might be indicted for this in England; and he took
the difiference that if the second marriage, which makes the felony,
were in England, the offender might be indicted and tried here ;
but otherwise if the second marriage were abroad ; because felonies
in another kingdom are not by the conunon law triable here in
England, {b)

It was formerly hel4 that if an idiot contracted nmtrimony, it
was good and should bind him : but modem resolutions appear to
have proceeded upon the more reasonable doctrine of the civil law,
by determining that the marriage of a lunatic, not being in a lucid
interval, is absolutely void. And as it might be difficult to prove*
the exact state of the mirid of the party at the actual celebration
of the nuptials, the statute 15 Geo. 2. c. 30. has provided that if
persons found lunatics under a commission, or committed to the
care of trustees by any act of Parliament, marry before they are
declared of sound mind by the lord chancellor, or the nugority of
such trustees, the marriage shall be totally void, {s)

Upon indictments for bigamy it has been held not to be suffi-
cient to prove a marriage by reputation ; but that either some per-
son present at the marriage must be called, or the original register,
or an examined copy of it, be produced. (/) The marriage act,
4 Geo. 4» e; 76. s. 2d. requires that marriages shall be solemnized
in the presence of two or more credible witnesses, besides the
minister who shall celebrate the same, and that it shall be entered
in the register; in which entry it shall be expressed, that the mar-
riage was celebrated by banns or licence, and with consent, as the
case may be, and be signed by the minister and parties married.

(a) S. 8.

ip) Kel. 79.

(0 1 Blic. Com. 43S, 439.

(I) Morrjs v. Miller, 4 Burr. 2057.
Birt V. Barlow, Dougl. 162.

CHAP. XXIII.] Of Bigamy. — Evidence. S07

aDdaitested by two witnesses. But^ upon a provision nearly similar
in the former marriage act, it was held not to be necessary to call
one of the subscribing witnesses to the register in order to prove
the identity of the persons married ; but that the register^ or the
copy of.it, being pxoduced, any evidence which satisfied the jury
as to the . identity of the parties was sufficient ; as if their hand^
writing to the register were proved ; or that bell-ringers were paid
by them for ringing, for the wedding, or the like, {w) And it was
held that if the marriages were proved by a person present at thejn^
it was. not necessary to prove the registration, or licence, or banns.
The prisoner was indicted for marrying Ann Epton, whilst Jane,
his former wife, was living ; each marriage was proved by a wit->
nesa who was present at the ceremony ; and it appeared that at the
first marriage the prisoner went by the name of Allison, and at the
second by the name of Wilkinson. Chambre, J. doubted whether
the evidence was sufficient without proof of the registration of
either marriage, or of any licence, or publication of banns : but the
Judges held &at it was. (a)

How far the acknowledgment of the defendant upon the subject Hor far the
of his marriage is sufficient evidence of the fact may admit of some acknowiedg-
doubt. In one case it was held, that proof of the prisoner's co- ""entofthc
habiting with and acknowledging himself married to a former wife eriaeQce.^"
then living, such assertion being backed by his producing to the
witness a copy of a proceeding in a Scot<;h court against him and
his wife for having contracted the marriage improperly, (the mar-
riage^ however, being still good according to that law), was suffi-
cient evidence of the first marriage; and upon such evidence,
together with due proof of the secpnd marris^, the prisoner was
convicted. The pomt being reserved for the opinion of the Judges,
all of them (with the exception of Perryn, B. and Buller, J. who
were absent,) 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 a confirmation of such ac-
knowledgment, (x)

After proof of the first marriage the second ^^e may be a wit- The tme wife
ness : but it is clear that the first and true wife cannot be admitted cannot be a
to give evidence against her husband, (y) witness.

(w) 1 East. P. C. c. 12. s. 11* p. 472. circumstances be entitled to little or

Ball. N. P. 27. no weight; for such acknowledgments

(a) Rex V, Allison, East. T. 1806. made without consideration of the

MS. Bayley, J. and Russ. and Ry. 109. consequences, and palpably for other

(J") Trnroan^s case, Nottingham Spr. purposes at the time, are scarcely de-

Assix. 1795, decided upon by the serving of that name in the sense in

Judges in East. T. 1795, MS. Jud. 1 which acknowledgments are received

East P. C. c 12. 8. 10. p. 470, 471. as evidence; more especially if made

where see some remarks as to the ad- before the second marriage, or upon

mission of a bare acknowledgment in occasions when in truth they cannot

evidence in a case of this nature. That be said to be to the party *s own pre-

it may be difficult to say that it is not judice, nor so conceived by him at the

evidence to go to a jury : but that it time,

most be admitted that it may under (y) 1 Hale d93. 1 East. P. C. c. 12.

208 Of Bigamy. — Punishment. [book ii*

PuaiBhroent. Though the statute 1 Jac. L c. 11. enacts^ that persons offending

against it shall suffer death as in cases of felony, clergy is not
thereby taken away ; and the punishment for bigamy by the 18th
Eliz. c. 7* 8* 2> 3. was burning in the hand and imprisonment not
exceeding a year. {%) But the statute 35 Geo. 3. c. 67* s. 1.^ re-
citing that the punishment of persons convicted under the act of
1 Jac. 1. c. 11. had not provea effectual, enacts, 'Hhat if any per-
'^ son or persons within nis Majesty's dominions of England and
^' fFales, being married, or which hereafter shall marry, do, at any
^^ time from and after the passing of this act, marry any person or
^^ persons, the former husband or wife being alive, and shall be in
^^ due manner convicted thereof under the said act, shall be sub-
'^ ject and liable to the same penalties, pains, and punishments, as,
'^ by the laws now in force, persons are subject and liable to who
" are convicted of grand or petit larceny." By the second section
of this statute any person ordered to be transported by virtue of
felony^wfthont the act, and being afterwards at large within Great Britain, without
clergy. lawful causc, before the expiration of the term, is declared to be

guilty of felony, and made liable to suffer death without benefit of
clergy. And (by s. 3.) the trial for such offence may be in the
county where such person was convicted and ordered to be trans*
ported, or in the county, within England and Wales, where such
person shall be apprehended : and, in the latter case, provision is
made for certifying a transcript of the former proceedings as
evidence upon the trial.

9. 9. p. 469. and I Hawk. c. A2. s. 8. Feb. Feas. 1786, is cited,
where it is said that this rule has been («) And by 19 Geo. S. c. 74. s- 3. a
so strictly taken that even an affidavit moderate fine or whipping in the man-
to postpone the trial made by the first ner therein specified may be sabsli-
wife has been rejected, and Old Bailey, tuted for the burning.

Persons trans-
ported and

W9

CHAPTER THE TWENTY-FOURTH.

OF LIBSL AND INDICTABLE SLANDER.

It appears to be well settled that publications blaspheming God, or y^^^ pnWica-
turning the doctrines of the Christian religion to contempt and tions in gene-
ridicule, may be made the subject of indictment ; and it is now rai arc Ubcl-
fully established, though some doubt seems formerly to have been ^®"*'
entertained upon the subject, that such immodest and immoral
publications as tend to corrupt the mind, and to destroy the love of
decency, morality, and good order, are also offences at common
law. (a) It is also a misdemeanor wantonly to defame or indeco-
rously to calumniate that ceconomy, order, and constitution of '
things which make up the general system of the law and govern-
ment of the country, {b) And it is especially criminal to degrade
or calumniate the person and character of the sovereign, and the
administration of his government by his officers and ministers of
state, (e) or the administration of justice by his Judges, {d) And
the same policy which prohibits seditious comments on the king's
conduct and government extends, on the same grounds, to similar
reflections on the proceedings of the two houses of Parliament, (e)
Such publications also as tend to cause animosities between this
country and any foreign state, by the personal abuse of the sove-
reign of such state, his ambassadors, or other public ministers, may
be treated as libels. (/) With respect to libels upon individuals,
they have been defined to be malicious defamations, expressed
either in printing or writing, or by signs or pictures, tending either
to blacken the memory of one who is dead, or the reputation of onC'
who is alive, and thereby exposing him to public hatred, coatempt,
and ridicule, {g)

Upon some of these subjects a publication by slander, or words of slanderous
spoken only, though not properly a libel, (h) may be the subject of words.
criminal proceeding, as will be shewn in the course of the Chapter,

(a) See the cases collected ia Star- 4 Bac. Abr, Libel, p. 449.; and see as to

kie on Lib. 486 to 504. libel by a picture, a late case, Du Bost

(&) Holt on Lib. 82. v. Beresford, 2 Campb. 511.

{€) Kex r. Lambert aad Ferry, 2 (A) A libel is termed LibcllusfamO'

Campb. 398. ms aeu infamatoria tcriptura^ and has

(tf) Starkie on Lib. 532. been usually treated of as scandal

(e) Starkie on Lib. 535. wriit^norexprcssed by symbols. Lamb.

ij) Hex V. Peltier, Bolt, on Lib. 78. Sax. Laiir, 64. Bract, lib. 3. c. 36. 3

Rex V. D'Eon, 1 Blac. K. 517. last. 174. 5 Co. 125. 1 Lord Kaym.

is) 1 Hawk. P. C. c. 73. s. 1, 2, 3, 7. 416. 2 Salk. 417, 418. Libel may be

VOL. I. P

210 OflAbd, %c. — Mode of Expression, [book ii.

Of tliA mode A libel may be as well by descriptions and circumlocutions as in
of expression, express terms; therefore scandal conveyed by way of allegory or
irony amounts to a libel. As where a writing, in a taunting man-
ner, reckoning up several acts of public charity done by a person^
said^ '^ You will not play the Jew^ nor the hypocrite^ * and then
proceeded, in a strain of ridicule^ to insinuate that what the person
did was owing to his vain glofy. Or where a publication, pre-
tending 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 learn-
ing who was known to be a great general but no scholar) such a
publication being as well understood to mean only to upbraid the
parties with the want of the&;e qualities as if it had done so directly
and expressly, (t) And, upon the same ground^ not only an alle-
gory but a publication . in hieroglyphics^ or a rebus or anagram,
which are still more difficult to be understood, may be a libel ; and
a Court, notwithstanding its obscurity and perplexity, shall be al-
lowed to judge of its meaning, as well as other persons. (A) And
it is now well established that slanderous words must be under-
stood by the Court in the same sense as the rest of mankind would
ordinarUy understand them. (/) Formerly it was the practice to
say that words were to be taken in the more lenient sense ; but
that doctrine is now exploded : they are not to be taken in the
more lenient or more severe sense ; but in the sense which fairly
belongs to them, and which they were intended to convey, (m)
Name of Ae Upon the same principles it has been resolved that a defamatory
in bUnksT 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 non-
sense if strained to any other meaning, is as properly a libel as if
it had expressed the whole name at large ; for it brings the utmost
contempt upon the law to suffer its justice to be eluded by such
trifling evasions ; and it is a ridiculous absurdity to say that a

said to be a technical word, deriving ^^Ueacjf forbad him from bringing a

Jts meaning ratber from its use than its *' direct charge—bot it was a malr

etTmology. '* There is no other name ** child who complained to him i'* and

*' but that of libel applicable to the these words were understood to meaa

*' offence of libelling; and we know a charge of unnalural practices.

** the offence specifically by that name, (m) By Lord Ellenborough, C. J. io

*' as we know the offences of horse- Rex v. Lambert and Perry, 8 Campb.

** stealing, forgery, &c. by the names 403. And in a case of libel. Rex v.

*' which the law has annexed to them." Watson and others, ^T. R. 206, Bui-

By Lord Camden, in Rex v. WilkeS) S Itr, J. said, ** Upon occasions of this

Wils. 181. *' sort I have never adopted any odier

(i) 1 Hawk. P. C. c. 73. s. 4. 4 Bae. '* rule than that which has been fire-

Abr. Libels (A) S. p. 45S. ** quently repealed by Lord Mansfield

{k) Holt on Libel, 895,936. ** to juries, aesiring them to read the

(/) Woolnoth V. Meadows, 5 East '* paper stated to be a libel as men of

469. In this case the defendant had ''common understanding, aad »y

said of the plaintiff*, '' that his charac- *' whether in their minds it cooTeys the

*^ ter wis infamous— that he would be *' idea imputed.'*

*' disgraceful to any society — that 49"

ciAP. XXIV.] Of Libel, 9sc* — Truth no Justification^ 211

writing which is understood by every one of the meanest capacity
cannot possibly be understood by a Judge or jury. (n)

An indictment lies for general imputations on a body of men, ^".J'^f™^**'
though no individuals be pomted out, because such writings have a nbeion a body
tendency to inflame and disorder society, and are therefore within of men.
the cognizance of the law. (o) And scandal published of three or
four persons is punishable at the complaint of one or more, or all
of them, (p)

It appears to have been considered that the remedies by action Actions and
and indictment for libels are co-extensive, and may be regarded indictments

. t J? ^- / \ ^ ^ ^or libels co-

as upon the same footnig. {q) extensive.

It is quite clear that upon an indictment or criminal prosecution The party can-

for a libel the party cannot justify that its contents are true, or not justify that

that the person upon whom it is uuide had a bad reputation. The the<?ontcnt8of

, *> ., • • 1 !• • 4.1: rf • £• >• !-• i_ ahbclarctnie;

ground of the cnmmal proceeding is the puhbc mischief which
libels are calculated to create in alienating the minds of the people
from religion and good morals, rendering them hostile to the
government and magistracy of the country; and, where particular
individuals are attacked, in causing such irritation in their minds
as may induce them to commit a breach of the public peace. The
law, therefore, does not permit the defendant to give the truth of
the libellous matter in justification ; any attempt at which in the
instances of libels against religion, morality, or the constitution,
would be attended with consequences of the greatest absurdity ;
and, in the case of libels upon individuals, migUt be extremely
unjust, and could never afford a substantial defence to the charge.
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 misconduct founded in fact, the publication will not be the less
likely to produce a violation of the public tranquillity. It has been
observed that the greater appearance of truth there may be in any
malicious invective, it is so much the more provoking ; and that,
in a settled state of government, the party grieved ought to com-

in) 1 Hawk. P.C. c. 7S. s. 5. 4Bac.' B., which first abused A. and then B.

Abr. Libel (A) 3. p. 453., where it is And it was said that if the defendants

said in the marginal note that if an ap- had sung separate stanzas, the one re-

piicatioa ia made for an information fleeting on A. and the other on B., tho

m a case of this kind, some friend to offence would still have been entire,

the party complaining should, by afii- A libel upon one of a b( dy of persons,

davit, state the having read the libel, without naming him, is a libel upon

and understanding and believing it to the whole, and may bo so described ;

mean the party. In a late case Lord and where a paper Is published equallv

Ellenborongh, C. J., held, upon argu- reflecting upon a number of people, \l

raent, that the declarations of specta- reflects upon all : and readers, accord*

tors, while they looked at a libellous ing to their different opinions, may

picture in an exhibition room, were apply it so. Rex v. Jcnour, 7 Mod.

evidence to shew that the figures pour- 400.

trayed were meant to represent the par* (a) Starkie on Lib. 150, 165, 550*

ties stated to be libelled. Du Bost v. Holt on Lib. 215, 216. Bradley v. Me*

Beresford, S Campb. 512. thuen, 2 Ford's MS. 78. Thin must be

{o) Holt on Libel, 237. understood, however, of cases where

(p) Id, ibid. In Rex v. Bcnfield the libel, from its nature and subject,

and Sanders, 2 Burr. 980, it was held inflicts a private injury, and not of

that an information lay against two those cases in which the public only

for singing a libellous soug on A. and ran be said to be affected by the libel.

f2

213 Of Libel, ^c. [bookii.

plain, for every injury done to him^ in the ordinary course of law,
and not by any means to revenge himself by the odious proceed-
ing of a libel, (r)
Nor tbat it j^ should seem that a party will not be excused by shewing that

froniMme ^® ^^^^^ ^^^ which he is charged was copied from some other
other work. work, even though he may have stated it to be merely a copy, and
disclosed the name of the original author at the time of its publica-
tion. Thus, where to a declaration for a libel published in a news-
paper it was pleaded that the libel was originally published in the
Hampshire newspaper by G. M., and that at the time of publica-
tion by the defendant it was stated in such publication that it was
copied from that newspaper, and that pursuant to the statute
36 Geo. 3. c. 78. the said G. M. had made an affidavit that he was
the publisher of the Hampshire newspaper, and still remained so
at the time of publication of the libel ; the Court held that the
plea was bad, inasmuch as the publication by the defendant did
not specify by name G. M. as the original publisher of the libel,
but only named the journal : and it was intimated by some of the
learned Judges (though not decided, as such a decision was not
required by the case) that even if G. M. had been named by the
defendant when the latter published the libel, such publication,
i)eing of written slander, could not have been justified. (s)

But there are some circumstances which will protect a publica-
PetitioB to the tion from being deemed libellous* A petition to the King to be
^^^' relieved from doing what the King has directed the party to do, if

bonajide and in rejpectful terms, is no libel, though it call in ques-
tion the 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 25 & 30
Car. II., and directed that it should be read two days in every
church and chapel in the realm, and that the bishops should dis-
tribute it in then: dioceses that it might be so read. The Arch-
bishop 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 dispens-
ing 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 for it; and, not
choosing to give bail, were sent to the Tower, and tried. The
publication was proved ; and Wright, C. J., and AUibone, J.,
thought it a libel : but HoUoway and Powell, Js., thought other-

(r) 1 Hawk. P. C c. 73. s. 6. 4 Bac. davit asserting directly and pointedly

Abr. Libel (A) 5. p. 455. 4 Bla. Com. that he is innocent of the charo:e ini-

150,151* Starkie on Libel, 556. fftfe^. puted to him. This rule, however.

Holt on Libel, 21b,etaeq. But though may be dispensed with if the person

the truth is no justification in a cri- libelled resides abroad, or if the im-

minal prosecution, yet in many in- pntations of the libel are general and

stances it is considered as an extenua- indefinite, or if it is a choi^ against

tion of the offence ; and the Court of the prosecutor for language which he

King^s Bench has laid down this gene- has held in parliament. 4 Bla Com.

ral rule, that it will not grant an in- 151, note (6). Dougl. €71, 378.
formation for a libel unless the prose- (t) Lewis v. Walter, 4 B. & A. 605., &

cdtor who applies for it makes an affi- see McGregor v. Thwaites, 3 B. & C. te4.

CHAP, xxnr.] Privileged Communications. 313

wifle, there not being any ill intention of Beditiou in the bishops,
and the object of their petition being to free themselves from
blame in not complying with the King's command. The jury
found them not guilty, (r)

It has becfn resolved that no false or scandalous matter con- PetitloM to
tained in a petition to a committee of parliament, or in articles of J^^oSer wi-
the peace exhibited to justices of peace, or in any other proceed- thorized pit>-
mg in a regular course of justice, will make the complaint amount ceediogs.
to a libel ; for it would be a great discouragement to suitors to
subject them to public prosecution in respect of their applications
to a court of justice. («) Thus where a charge was, that the de-
fendant, in a certain affidavit before the court, had said that the
plaintiff in a former affidavit against the defendant had sworn
fidsely, the court held that this was not libellous ; for in every dis-
pute in a court of justice, where one by affidavit charges a thing
and the other denies it, the charges must be contradictory, and
there must be affirmation of falsehood. (/) It is also held tiiat no
presentment of a grand jury can be a libel, not only because per-
sons who are supposed to be returned without their own seeking,
and are sworn to act impartially, shall be presumed to have proper
evidence for what they do, but also because it would be of the
utmost ill consequence in any way to discourage them from mak-
ing their enquiries with that freedom and readiness which the
public good requires, (u) Where an action was brought against
the president oC a military court of enquiry for a libel contained in
the minutes of such court, which had been delivered by the de-
fendant to the commander in chief and deposited in his office, it
was held that these minutes were a privileged communicadon, and

Eroperly rejected when tendered at Uie trial in proof of the alleged
bel ; and also that a copy of them had been properly rejected, (t;)
And where a court-martial, after stating in their sentence the
acquittal of an officer against whom a charpe had been preferred,
subjoined thereto a dedaraftion of their opinion, that the charge
was malicious and groundless, and that the conduct of the prose-
cutor in falsely calumniating the accused was highly injurious to

(r) Case of the Seven Bishops, 18 St. any reason why such a mockery of

Tri. 183; and see poai, as to commu- puhlic Justice should not rather ag-

ttications made bond fide^ and in the c^vate the offence than make it cease

proper course of proceeding. to be one. Upon this point Mr. Starkie,

(f) 1 Hawk. P. C. c. 73. s. 8. 4 Bac. after referring to the several authori-

Abr. lAbcl (A) 4. p. 454. And see the ties, says, that it may be collected ^

judgment of Holroyd, J., in Hodsson nerally that po action can be mam-

r. Scarlett, 1 B. & A. 844. It is holden tained for any thing said or otherwise

by some that no want of jurisdiction published in the course of a judicial

intheconrt to which the complaint proceeding, whether criminal or civil;

ahaJl be exhibited will make it a libel ; though for a malicious and groundless

because the mistake of the court is not prosecution, an action, and perkapt

impntable to the party, but to his an indictment, may be Supported,

counsel : but Hawkms says, (1 Hawk, founded on the whole proceeding.

P. C. c. 73. s. 8.) that if it manifestly Starkie on Libel, 823.
appears that a prosecution is entirely (1) Astley v. Younge, 2 Burr. 817.
tolse, malicious, and groundless, and («) 1 Hawk. P. C. c. 73. s. 8. 4 Bac.

comnoenced, not with a design to go Abr. Libel (A) 4. p. 455.
throneh with it, but only to expose the (v) Home v. Lord F. C. Bentinck, 4

deienoanfs character under the shew Moore, 563.
of a legal proceeding, he cannot see

^14 Of Libel, ^c. [Bdoit ii.

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 Mansfield, C. J., in
delivering his opinion, said, ^^ If it appear that the charges are
*^ absolutely without foundation, — ^is the president of the court-mar-
^' tial to remain perfectly silent on the conduct of the prosecutor ;
^^ or can it be any offence for him to state that the charge is
*' groundless and malicious V'{w)
Aad speeches The members of the two houses of parliament, by reason of
of members of their privilege, are not answerable at law for any personal reflec-
privifcgcd. *'^ tions on individuals contained in speeches in their respective
houses ; for policy requires that those who are by the constitution
appointed to provide for the safety and welfare of the public should,
in the execution of their hig6 functions, be wholly uninfluenced by
private considerations, (x)

Thus the actual proceedings in courts of justice and in parlia-
ment are exempted from being deemed libellous : it becomes im-
portant to enquire in the next plAce how far the same privilege
will be extended to communications of those proceedings to the
public, made with impartiality and correctness.
^luT/ation^of '^ ^^^ always been held that a publication of the proceedings in
proccedinif8°in * court of justice wiU not be protected unless it be a true and
courts of jus- honest statement of those proceedings, (y) But provided it were
Ibic " *^^^" ^^ *^^^ character, the doctrine seems at one time to have been
that it might be made to the full extent of stating what had actu-
ally taken place. («) More recently, however, it has been said
that it must not be taken for granted that the publication of every
matter which passes in a court of justice, however truly repre-
sented, is, under aU circumstances and vrith whatever motive
published, justifiable ; and that such doctrine must be taken with
grains of allowance, (a) And Lord Ellenborough, C. J., said, —
It often happens that circumstances necessary for the sake of
public justice to be disclosed by a witness in a judicial enquiry
are very distressing to the feelings of individuals on whom they
'^ reflect : and if such circumstances were afterwards waxitonly
" published, I should hesitate to say that such unnecessary publi-
*^ cation was not libellous merely because the matter had been given
** in evidence in a court of justice." (A) In a subsequent case^ not
relating directly to this point but to the publication of proceed-
ings in parliament, Baylev, J., said, '^It has been argued that the
proceedings of courts of justice are open to publication. Against
that, as an unqualified proposition, I enter my protest. Sup-

(w) Jekyll V. Sir Joha Moore, S Stiles v, Nokes, 7 East 493.

N. R. 341. (z) Currj v. Walter, 1 Bos. & Full.

(jr) Holt on Libel, 190. Starkie on 523., referred to bj Lawrence, J., in

Libel, SI 1. Rex v. Lord Abingdon, Rex is Wright, 8 T. R. 898.

1 Esp. Rep. S26. By 4 Hen. 8. c. 8. {a) By Lord EHenboroogh, C. J. and

members of parliament ore protected Grose, J., in Stiles v, Nokes, 7 Bast,

from all charges against them for an^ 503.

thing said in either house; and this is (b) id. ibid. And see Rex t>. Salis-

further declared in the Bill of RighU, bury, 1 Ld. Ravm. 341 , that it is in-

I W. & M. St. 8. c. 2. dictable to pubVisb a scandalous peti-

(y) Waterficid v. the Bishop of Chi- tton to the House of Lords, or a scan-

Chester, 8 Mod. 118. Rex v. Wright, dalous affidavit made in a court of

8 T. Rep. 897, 898. per Lawrence, J. justice.

2

u

ii

ii

CHAP. xziT. J PrwUeged Communications. 315

^ pose aa 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 therefore that in all in-
'^ stances the proceedings of a court of justice may be published.
^' Again, it may be said that counsel have a right, in pursuance
'* of their instructions, and whilst the cause is going on, to endea-
*^ vour to produce an effect by making such observations on the
'^ credit and character of parties and their witnesses as sometimes,
'^ when the cause is over, perhaps they are sorry for. But have
'^ they, therefore, or any person who hears them, a right after-
^' waras to publish those observations ? I have no hesitation in
'^ saying that when the occasion ceased, the right also would cease ;
*' and that it would be no justification to plead that such a publica-
^ tion was a transcript of the counsel's speech." (c) This doctrine
was recognized and acted upon in a recent case. The defendant's
husband had been convicted of publishing a blasphemous libel,
after having in his defence at the trial used arguments and state-
ments of a blasphemous and indecent description. His wife
published the trial ; and, upon shewing cause against a rule for a
criminal information, it was urged that she had a right to publish
what actually took place in a court of justice : but the Court were
clear she had not, if that statement contained any thing defama«
tory, seditious, blasphemous, or indecent : and the rule was made •
absolute. (e() And where it is allowable to publish what passes
in a court of justice, the party must publish tne whole case, and
not merely state the conclusion which he himself draws from the
evidence. Thus, where the libel stated in the declaration pur-
ported to be a speech of counsel at a trial of the plaintiff on a
criminal charge, and, after setting out the speech, said that a wit-
ness was calld who proved all that had been stated by counsel, and
that the defendant was immediately afterwards acquitted upon a
defect in proving some matter of form ; and the plea stated that
in fact such a speech was made, and that the witness called proved
all that had been so stated, but it did not set out the evidence or
justify the truth of the charges made in the counsel's speech 3 it
was holden that such plea was bad, inasmuch as a party could not
be justified in publbhing the result of evidence given in a court of
justice, but must state the evidence itself, (e) And the party
making the publication will not be justified, unless he confines
himseu to what actually passed in court. In a case where an
action ^vas brought for a libel concerning the plaintiff in his pro-
fession as an attorney, and the libel, as stated in the declaration,
began, '' shameful conduct of an attorney," and then proceeded
to give an account of proceedings in a court of law wnich con-
tained matter injurious to the plaintiff's professional character,

(e) Rex V, Creevj, 1 M. & S. 881. In " mast be understood with verj rreat
the same case Lord Ellenborough, G.J. ** limitations ; and shall never fully as-
said, *' As to Curry v. Walter, (ante, ** sent to the unqualified terms attri-
" note («), ) it is not necessary for the '* buted in the report of that case to
** prcKot purpose to discuss that case : ** Eyre, C. J.**
** whenever it becomes necessary, I shall (d) Rex v. Carlisle, 9 B. & A. 167.
*' say tiMii the doctrine there laid down (e) Lewis v, Walter, 4 B. & A. 605.

216

Of Libels, %c. against [fidoit IL

and the defendant had pleaded that the Biipposed libel contained
LlZ f^^ ^- ^! P^?<^eeding8 in the court of law ; it was

holden (after verdict for the defendant) that the plea was bad,
inasmuch as the words « shameful conduct of an attSmey" formed
^ff ^J fif , proceedings in the court of law, and that the plain-
1, ur .' r *^^^,« therefore entitled to judgment, (b)

1:^pT:L'' JM^^.^^ be observed also, that the publication of preliminary
minations be- ^Ifv'^fu'''''^ *>«/<^^ » magistrate, taken ex parte, wiU not come

t^te m"X" IS"" ^Y' P?.^''^P^^ K ^^'""^ ^^^ f^^^' ^^P«rt8 Of proceedings in
l{?eUoT ^ f.^"^l ^^ J^^s*^^^ have been held to be privileged. Such publica-
tions have a tendency to cause great mischief by perverting the
pubhcmmd, and disturbingthecourseof justice; and, if they con-
A^'i ll n ""^ J^}^"".' "^^ ^^ considered as highly criminal, (c)
And the Court of King's Bench has gone to the extent of grant-
mg a cnmmal information for pubUshing in a newspaper a state-
ment of the evidence given before a coroner's jury, accompanied
with comments ; although the statement was correct, and the party
hadno malicious motive in the publication, (d) -

Scauin of „.^T^!! *^^ PV5"c^tion of a proceeding in parliament will, in
proceedings in f^^^raj, be considered as privileged and protected from beinir
r«riiament is deemed hbellous ;{e) and the printing and cfelivering a petition to
alloHrable. members of a committee of the House of Commons, being accord-
ing to the order of proceedings of parliament and their commit-
^ tees, has been held to be justifiable : (/) yet it may be doubted
How far the circulation of a copy of a writing containing matter
ot an injurious tendency to the character of an individual, though
published for the use of the members, is legitimate and exempted
from prosecution, (g) And it is clear that the publication of the
speech of a member of parliament, if it contain matter of libel, is
not protected, even though such publication be made by the
member himself. In a case upon this subject, Lord Kenyon, C.J.
observed that if the words in question had been spoken in the
House of Lords, and confined to its walls, the Court of King's
Bench would have had no jurisdiction to call a member of that
house before them, to answer for such words as an oflFence ; but
that the offence was the publication of them in the public papers,
under the authority of the member, with his sanction, and at his
expense : that a member of parliament had certainly a right to
publish his speech, but that his speech should not be made the
vehicle of slander against any individual ; if it were, it would be
a libel. (//) And in a more recent case it was held by the Court

(^) Lewis «. Clement, 3 B. & A, 702. ter, or in the regular discharge of his

in this case the question was raised magUterial functions. M^Gre^or v.

whether it be lawful to publish pro- Thwaitesand another, S B. & Cr«4.

ceedings of a court of law containing (d) Rex v. Fleet, 1 Barn. & Aid. 379. •

maltor defamatory of a person neither (c) Rex r. Wright, 8 T. R. 893. In

a party to the suit nor present at the this case a former case of R«x t». Wil-

time of the enouiry ; but it became liams, 2 Show. 471. Comb. 18., was

unnecessary to decide this point. animadverted upon by Lord Kenyon,

,oir o * ^:.J^ **"** another, 5 Esp. C. J. and Grose, J. ashavine happened

123. Rex v. Fisher and others. 2 Campb. in the worst of times.

t^u J8 ^""^^" ^' Thwaites and others^ (f) Lake ». King, 1 Saund. 131.

A c 1 ^;^^®'.. ^"^ ®**'* ^^^ can **>e ig) See the judgment of Lord Ellcn-

defendanl justify the publication of a borough, C. J., in Rex v. CreeveT, 1

raatter which was not brought before M. & S. 278.

flie magistrate in his judicial charac- (*) Rex r. Ld. Abingdon, 1 Esp. 226.

cBAP xxiy.3 tkt Christian Religitm. 917

of King^s Bench that a member of the House of Commons may
be convicted upon an indictment for a libel, in publishing in a
newspaper the report of a speech delivered by him in that house,
if it contain libellous matter, although the publication be a cor-
rect report of such speech, and be made m consequence of an
incorrect publication having appeared in that and other news-
papers, (i)

Having treated generally of the publications which may be con-
sidered as libellous, it may be useful to refer to some of the par-
ticular points which have been holden, respecting publications : —
I. Against the Christian religion. II. Against morality. III.
Against the constitution. IV. Against the King. V. Against
the two .Houses of Parliament. VI. Against the Government.
VII. Against the magistrates and the administration of justice.
VIU. Against private individuals. And, IX. Against foreigners
of distinction.

I. It has been before observed, (A) that blaspheming God, or or publica-
toming the doctrines of the Christian religion to contempt and ^JJ^'^JR^?"*
ridicule, is an indictable o£fence. At common law, all blasphemies rcHgion!*''*"
against God, as denying His being or providence ; and all con-
tumelious reproaches of Jesus Christ ; all profane scoffing at the
Holy Scripture, or exposing any part thereof to contempt or ridi-
cule ; and also seditious words in derogation of the established
religion ; are considered as ofiences tending to subvert all religion
and morality, and punishable by the temporal courts with fine and
imprisonment, and also infamous corporal punishment in the
discretion of the court. {I)

Some provisions have also been made upon this subject by sututw upoo
statutes. The 1 Ed. 6. c, l.(»i) enacts that persons reviling the ^**""*°J*°*'
sacrament of the Lord's Supper, by contemptuous words or other-
wise, shall suffer imprisonment. The statute 1 £liz. c. 2. enacts
that if any minister shall speak any thing in derogation of the
book of common prayer, he shall, if not beneficed, be imprisoned
one year for the first o£fence, and for life, the second ; 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 any thing in derogation, depraving, or despis-
ing 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 ofience 100 marks ; for the second 400 ; and for the
third, shall forfeit all his goods and chattels, and suffer imprison-
ment for life. By the 3 Jac. 1. c. 21. a person using the name of
the Holy Trinity profanely, or jestingly, in any stage-play, inter-
lude, or show, shall be liable to a qui tarn penalty of ten pounds.
The 1 W. 3. c. 18., s. 17- enacted that whoever should deny in his
preaching or writing the doctrine of the blessed Trinity, should
lose all benefit of the act for granting toleration. This section is

({) Rex V. Creevcy, I M. & S. 273. P. C c. 6.

(k) Ante^ p. S09. (m) Repealed by 1 Mary, c. 2.> and

if) See the cases collected ia 1 Hawk, revived by I £liz. c. 1.

318

CfLihds, J^c. agamsl

{[bookb.

To reproach
the Christian
religion if to
■peak in sob-

now repealed by 53 Geo. 8. c. Ifl0»: but while it was in existence
it was considered as operating to deprive the offender of the benefit
therein mentioned^ keying the punishment of the offence as for a
misdemeanor at common law. (n) The 9 & 10 W. 3. c. 32. enacted
tiiat if any person, educated in or having made profession of the
Christian religion^ should, by writing, printing, teaching, or ad-
vised speaking, deny the Christian religion to be true, or the
Holy Scriptures to be of Divine authority, he should upcMi the
first offence be rendered incapable to hold any office or place of
trust I and for the second be roidered incapable of bringing any
action, bdng guardian, executor, legatee, or purchaser of lands,
and should siSer three- years' imprisonment without bail, (o) A
person offending under this statute was held to be also indictable
at common law. (p) Hus doctrine was considered in a recent
case where a motion was made in arrest of judgment, after con-
viction on an information for a blasphemous libel, on the ground
that this statute had put an end to the common law offence : and
the Court were clear that it had not, considering that the provi-
sions of the statute were cumulative, (a)

Upon the trial of an information agamst the defendant for utt^-
ing expressions grossly blasphemous. Hale, C. J., observed, that
Budi land of wicked blasphemous words were not only an offence
rersionofthe to God.and religion, but a crime against the laws, state, and
law. government, and therefore punishable in the Court of King's

Bench. That to say religion is a cheat is to dissolve all those
obligations whereby dvil society is preserved ; that Christianity
is part of the laws of England, and therefore to reproach the
' Christian religion is to ^peak in subversion of the law. (r) In a

late case where a libel 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 a libel ; and Abbott,
C J., answered, that a work speaking of Jesus Christ in the lan-
guage here used was a libel ; and the defendant was found guilty.
Upon a motion for a new trial, on the ground that this was a wrong
answer, liie Court without difGiculty held that the answer was
right, imd refused the rule, (a)
The Chri tiui ^^ ^ ^^'^^ where the defendant had been convicted for publishing
reii«ontii»rt Mveral blasphemous libels, in which the miracles of our Saviour
of tbo law of were turned into ridicule and contempt, and His life and conver-
tlM land. sation calumniated, it was moved in arrest of judgment that this

was not an offence within the cognizance of the temporal courts
at common law : but the Court would not suffer the point to be
argued, saying that the Christian religion, as established in this
kingdom, is part of the law ; and, therefore, that whatever derided
Christianity derided the law, and consequently must be an offence

v. CatoD, 1812. This statute also rp-
laird to persons denying, as therein
mentiouea« respecting the HolfTritdiy;
but such provisioDf are repealed bjf 53
Geo. 3. c. 160.

(q) Rex V. Carlisle, 3 B. & A. 161.

(r) Rex V. Tajlor, Veat. 293. 3Keb.
607.

(a) Rex0. Waddington, 1 B. & C. 26.

(fi) By Lord Kenyon in Rex v. Wil-
liams, 1797. Holt oa Libel, 66.

(o) But the deliDquent publicly re-
noDDCiDg his error in open court, with-
in four months after toe first convic-
tion, is to be discharged for that once
from all disabilities.

(p) Barnapd. 162. 2 Str. 834. Fitz-
gib. 64. Rex v, WUliamSy 1797. Hex

^]iitthe]ft«r.(r) It was also moved in airett(tftadgmait,tfaat

as the ateot of the book was only to shew that the miracles of

JegttB Christ were not to be taken in their literal sense, it could

not be considered as attacking Cfaristiaaxty in general, but only

as striking against one received proof of His being the Messiah ;

to which Uie Court said, that the attacking Chriiitianity in the

waj b which it was attacked in this publication was destroying But though to

the very foundation of it ; and that, though there were professions J^^ agaiiut

m the book that its design was to establish Christianity upon a ^^^^IT

true bottom by considering these narrations in Scripture as em- offence atcom-

blematical and propheticid, yet tiiat such professions were not to "^^ ^T» **"

be credited, and that the rule is ullegatio contra fmetum mm est m«idie vith*^

admtienda. But the Court also said, that though to write agiunst differences of

Christianity in general is cleariy an oflfence at common law, they ^\^^^^^ »P«J

laid a stress upon the word general^ and did not intend to include points!^

disputes between learned men upon particular controverted points ;

and, in delivering the judgment of the Court, Raymond, Lord C. J.,

said, ^ I would have it taken notice of that we do not meddle

^with any differences of opinion, and that we interpose only

** where the very root of Christianity itself is struck at."(^)

The doctrine of the Christian religion constituting part of the The dread of
law rf the land was recognised in a later case, where the ft»ture puni»h-
jttdgment of the Court of King's Bench was pronounced upon S#V*»cipal'
a person convicted of having published a very impious and bias- aanctionsof
phemmis libel called 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
mir abhorrence of such wicked doctrines as were not only an ofience
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 con-
stituted part of the law of the land. That if the name of our
Redeemer was suiFered 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 law be stripped of one of its principal sanctions, tiie dread of
future punishments, {u)

Contumely and contempt are what no establishment can tolerate: Rational and
but, on the other hand, it would not be proper to lay any restraint dispassionate
upon rational and dispassionate discussions of the rectitude and ^Uo^uT*"*
propriety of the established mode of worship, {w) A sensible
writer upon the subject of libel says, as to this point, — '^ that it
** may not be going too far to infer, from the principles and deci*
^* sions, that no author or preacher who fairly and conscientiously
*' promulgates the opinions with whose truth he is impressed, for

(r) Rex V. Wqolston, Barnard. 162. oblizattoas on the conduct of man-

9 Sir. 834. Filzgib. 64. kind. In other respects also it ridi-

(t) Rex tf. Woolston, Fitzgib.66. culed and vilified the prophets, our

(I) This libel was of the worst kind. Saviour, His disciples, aud the Sacred

attecking the truth of the Old and New Scriptures.

7ieslaiiient9; argo ingi hat there was no (k) Rex v. Williams, 1797. Holt on

genuine revelation of the will of ^od Libel, 69, note {e),

existing in the world x aud that reason - {w) 4 Bla. Com. 51.

was the only true faith whidi laid any

S80 OfLdbeU, ^c. agaimt the Comtitutiou. [book ii.

*< the benefit of others^ Is^ for so doing, amenable as a criminal;
^' that a malicious and mischievous intention is in such case the
^f broad boundary between right and wrong ; and that if it can be
^^ collected, from the offensive levity with which so serious a sub-
'^ ject is treated, or from other circumstances, that the act of the
^' party was malicious, then, since the law has no means of dis-
, " tingishing between different degrees of evil tendency, if the

^^ matter published contain any such tendency, the publisher be-
^' comes amenable to justice/'(4;)

At to the extent of this offence and the nature and certainty of
the words, it appears to be immaterial whether the publication is
oral or written ^ though the committing mischievous matter to
print or writing, and thereby affording it a wider circuhition,
would undoubtedly be considered as an aggravation, and affect the
measure of punishmeat.(j^)
Ofpublicatlons H/ When the Star-Chamber had been abolished, it appears that
«^st moral- ^.j^^ Court of King's Bench came to be considered as the ctistM
marumy having cognizance of all offences against the public mo-
rals ; {z) under which head may be comprehended representations
whether by writing, picture, sign, or substitute, tending to vitiate
and corrupt the minds and morals of the people, {a) Formerly,
indeed, it appears to have been holden that publications of this
kind were not punishable in the temporal courts :{b) but a different
doctrine has since been established, (c) And in late times indict-
ments for obscene writings and prints have frequently been pre-
ferred ; without any objection havmg been made to the jurisdiction
of the temporal courts.
Oral commu- The principle of the cases upon this subject seems to compre-
nications. j^^j ^^^ communications, when made before a large assembly,
and when there is a clear tendency to produce immorality ; as in
the case of the performance of an obscene play, {d)
OfyahiiMiouB iii^ Libels against the constitution, abstracted from all personal
conatitution. allusions, do not appear, either in ancient or modem times, to
have been often made the subject of legal enquiry. In general,
publications upon the constitution, avoiding all discussions of per-
sonal rights and privileges, are speculative in their nature, and
not calculated to generate popular heat. But if they should be of
a different description, tending to degrade and vilify the constitu-
tion, to promote insurrection, and circulate discontent through its
members, they would, without doubt, be considered as seditious
and criminal, (e)

Thus it appears to have been adjudged, that though no indict-
ment 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

(x) Starkie on Libel, 496, 497. (d) Starkie on Libel 504. In Rex v.

(it) Starkie on Libel, 493. Curl, 9 Sir. 790. it was stated that

(z) Sir Ch.Sedley*s case, 1663. Keb. there had been many prosecutions

720. 8Str. 790. Sid. 168. against the players for obscene plays,

(a) Holt on Libel, 73. but that they had interest enough

(b) Rex V. Read, 11 Mod. 14S. 1 to get the proceedings stayed before
Bawk. p. C. c. 73. s. 9. judgment.

(e) Rex t^. Curl, 2 Str. 788. Rex v. {e) Holt on Lib* 86.
Wilks, 4 Purr. 2527.

CHAP. xxiT.] Of Libels, ^c. against the King'. ^\

contrary to the laws of God. (/) And a defendant was convicted
on an mfonnation charging him with having published, concern-
ing the government of England and the traitors who adjudged
king Charles the First to death, that the government of the king-
dom 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, {g) 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 the limitation
established by the act of settlement was represented as illegal, and
that the revolution and settlement of the crown as by law es-
tablished had been attended with fatal aud pernicious consequences
to the subjects of this kingdom. (A)

IV, Though a different construction may have prevailed in Of pubUca-
more arbitrary times, it is now settled that bare words, not rela- SmTkIiS!"
live to any act or design, however wicked, indecent, or reprehen-
sible they may be, are not in themselves overt acts of high treason ;
but only a misprision, punishable at common law by fine and im-
prisonment, or other corporal punishment, (t) Though words
may expound an overt act, and shew with what intent it was
done, ijk) And, generally speaking, any words, acts, or writing
tending 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, amount at common law
to a misprision punishable by fine and corporal punishment. (/)

There are also some legislative provisions upon this subject, Stetutet.
The 3 £dw. I. c. 34. enacts that none be so hardy to tell or pub«
lish any fiedse news or tales, whereby discord or occasion of dis-
cord or slander, may grow between the king and his people, and
the great men of the realm, (m) And with a view to the security
of the succession of the house of Hanover, according to the act of
settlement, a law was passed declaring it to be treason to write or
print against it. (n)

The nature of the oifence of libel against the monarch personally
has been ably explained and illustrated, according to the more
mild and liberal doctrines of the present time, in a case of recent
occurrence.

The defendant was charged with having published a libel to the ^^^^ v*
following tenor and effect : ^^ What a crowd of blessings rush pjL,
^^ upon one's mind, that might be bestowed upon the country in it b not Ubcl-
" the event of a ukxl change of system ! Of all monarchs indeed loua ^'' •5""
** since the revolution, the successor of George the Third will {^c wrereign*

(/) 2 Roll. Abr. 78. (/) 4 Blac. Com. 123.

ig) Rex V. BarrisoD, 1677. 3 Keb. \m) It is said to have been resolved

841. Vent. 324. And a treatise upon by all the Judges that all writers of

hereditary right was holden to be a false news are indictable and punish-

libel, though it contained no reflec- able; (4 Read. St. L. Dig. L. L. 23.)

tion upon any part of the then govern- and probably at this day the fahrica-

ment, Reg. v« Bedford 1711. 2 Str. tion of news likely to produce anv

789. Gilb. 297. public detriment would be considered

(A) Rex v. Nntt, 1754. Dig. L. L. as criminal. Starkie on Lib. 546.

126. and see Dr. Shebbeare^s case, and (n) 6 Anne, c. 7. ; and see other sta-

Rex p. Patne, Holt on Lib. 88, 89. and tutes which were passed for the pur-

Starkie oa Lib. 508. pose of guarding the King^s character

(0 1 Bast P. C. c. 2. a. 55. p. 1 17., and title, cited in Starkie on Lib. 620,

{k) Crobagan*8 case, Cro. Car. 332. 521.

Ofi^els.^c:

[boo^ u>

to be BoUdt-
one for the
welfare of his
subjects, and
who baa no
intention of
calumniating
him, or of
bringing his
personal go-
vernment into
public odium,
to express re-
mit that he
has taken an
erroneous
Tiew of any
question of
foreign or do*
mestic policy.

it

it
it

^ hare the ftnesVopportUBity of becoming noUy popular." Lord
EUenbofough, C. J. in aiidres$iDg the jury^ stated, that the first
sentence of this passage would easily admit of an innocent inter-
pretation ) 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 denioliiioti,
the descent of the crown to the successor of his Majesty being
mentioned immediately after. His lordship then 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 deter-
mioe what was the fair import of the words employed, oot in the
more lenient or severe sense, but in the sense faarly belonging to
them, and' which they were intended to convey, Lord Ellenbo-
rough proceieded, ^' 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 tbe passage only means that his Majesty, during his
reign, or any length of tiu^, may have taken an imperfect view
of the interests of the country, either respectii^ our foreign rc^
lations, or the system of our internal policy; if it imputes
'' nothing but honest error, without moral blame, I am not pre-
^^ pared to say that it is a libel." And agam towards the conclu-
sion of his address his lordship said, " The question of intention
'' is for your consideration. You will not dist<Mrt the words, but
'^ give them their application and meaning as they inj^ress your
'' minds. What appears to me most material is the substantive
'' paragraph itself; (o) and if you consider it as meant to repre-
^ sent 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 sue-
^' cessor, 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. If on the contrary you do not see that it
^^ means distinctly, according to your reasoning, to impute any
'^ purposed mal- administration to his Majesty, or those acting

(o) The libel was publislied in a a^e charged as libellous, although
newspaoer; aud it had been allowed disjointed from it by extraneous mat-
te the defendant to have read in evi- ter, and printed in a different cha-
dence an extract from the same paper rac^r*
connected with the subject of the pass-

es
tf

it
it
it

it

it

CHAP;zxiT.]' cgoinst the PoT^ment. 299

ff under him, but may be fidrly eouBtrued m an ex|»e8fiion of re-r
^^ gret, that aa erroneous view has been taken oiF public affsurs, I
'^ am not prepared to say that it is a libel. There have been errors
'^ in the administration of the most enlightened men/^ {p)

Falsely publishing that the King is labouring under mental de*
rangement is a libel : it tends to unsettle and agitate the public
mind, and to lower the respect due to the King, (a)

V. The two houses of rarliament are an essential part of the Of publica-
constitution, and entitled ta reverence and respect, oa account of |^°' a^mt
the important public duties which they have to discharge. But of parliament,
as they have the povrer of treating libels against them as breaches
of their privileges, and vindicating ihem in the nature of con*
tempts, more cases of such libels are to be met with in their
joumafai, than in the proceedings of the courts of law* The
common law, however, is fully capable of taking cognizance of
any publications reflecting in a libellous manner upon the mem*
bers or proceedings of the houses of Parliament ; (q) and it seems
rather to have been the inclination of Parliament in modem times
to direct prosecutions for such offences in the courts of commiMi law,
and to waive the exercise of their own extensive privileges. In the
ease of the King v. Stockdale, (r) the Attorney-General in his
speech to the jury, after stating the address of the House of Com^
mons to the King, praying that his Majesty would direct the in-
formation 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 dcme,
" had they resorted to their own powers, which are great and ex-
'' tei^ve, for the purpose of vindicating themselves against insult
'^ and contempt, but which in the present instance they have
" vrisely forln^e to exercise, thinidng it better to leave the
*^ ofiender to be dealt with by a fair and impartial jury." (5)

VL The extent to which the measures of the King, or the pro^ of pubHca-
ceedings of his government, may be fairly and legally canvassed, ^|<>n* •gainst
has been the sulqect of much discussion, as it is undoubtedly one ^ent?^^™'
of the first importance : but it is not within the scope and design

{p) Rex V, Lambert aad Perry, S ia consequence of a resolution of the

Camp. 398. House of Commons, declaring a para-

(a) Rex V. Harvey, 9 B. & C. 857. and phlet, pnblished by the defendant, to

malice will be implied from sach wil- ne a libel. In the pamphlet which was

ful defimnnfr widioot excuse. See the called " Thoughts on the English Oo-

ca9e,pMi. ** yernment,'* there was this passage

iq) As in Rex v. Rayner, 8 Barnard, amongst others which the House deem-

S93> where the defendant was con- ed libellous — " That the King's go-'

victed of printing a scandalous libel *' vernment might go on if the Lords

on the Lords and Commons; and in ** and Coaamoas were lopped off.*'

Rex V. Owen, 85 Greo. 8. MS. Dig. L. The }ui-y considered the expressions

L. 67. In Rex v. Stockdale, 88 Geo. 3. as merely metaphorical, and acquitted

an information was filed by the Attor- the defendant
ney-6eoeral for » libel upon the house (r) Anie^ note (q),
of Commoofl» A prosecution was also («) See 8 Ridgway*5 Speeches of the

iostitttted in Rex o. Reeves, 36 Geo. 3. Hon. T. Ecskine, p. 808.

334 Of Libels, $c. against the Government, [book n.

of thiB TreadBe to enter further upon the question, theoa by statii^
a few of the established principles and decided cases.

It may be observed, that the liberty of discussion, which in many
instances has been admitted on the part of the officers of the
crown, would seem to be sufficient to answer all the purposes of
the honest patriot; — ^the man who would condemn only with
a view to genuine and constitutional * reformation. Upon a late
prosecution for a libel the attorney-general, in his opening to
the jury, thus expressed himself: ^' The right of every man to
^' represent what he may conceive to be an abuse or grievance in
^^ the government of the country, if his intention in so doing be
'^ honest, and the statement made upon fair and open grounds, can
'' never for a moment be questioned. I shall never think it my
^' duty to prosecute any person for writing, printing, and publish-
^ ingj fair and candid opinions on the system of the government
^' and constitution of this country, nor for pointing out what he
^^ may honestly conceive to be grievances, nor for proposing legal
" means of redress." (/)

In many cases which may occur, the due exercise of this liberty
and right of discussion will involve considerations of much diffi-
cidty, and require great nicety of discrimination ; as it may be-
come necessary to ascertain the particular points at which the
bounds of rational discussion have been exceeded. The answer to
the following question has however been proposed as a test, by
which the intrinsic iUegality of such publications may be de-
cided :(fi) ''Has the communication a plain tendency to produce
'' public mischief by perverting the mind of the subject, and
'' creating a general dissatisfaction towards government ?'*

However innocent and allowable it may be to canvass political
measures within these limits, it is quite clear that their discussion
must not be made a cloak for an attack upon private character.
Libels on persons employed in a public capacity receive an aggra-
vation as they tend to scandalize the government by reflecting on
those who are entrusted with the administration of public affiors ;
for they not only endanger the public peace, as all other libels do,
by stirring up the parties immediately concerned to acts of re-
vei^, but also have a direct tendency to breed in the people
a dislike of their governors, and incline them to faction and sedi-
tion, {w)
Caae*. A person delivered a ticket up to the minister after sermon,

wherein he desired him to take notice that offences passed now
without controul from the civil magistrate, and to quicken the
civil magistrate to do his duty, &c. ; and this was held to be a
libel, though no magistrate in particular was mentioned, and
though it was not averred that the magistrates suffered those vices
knowingly, {x)
Reg.v.TochiD. In a case where the defendant was prosecuted upon an informa-
tion for a libel upon the government, his counsel contended that
the publication was innocent, and could not be considered as libel-

(/) Rex V. Perry and another, 1793. Abr. Libel (A) 9. p. 450. Rex v.

See 2 Rid&^ay*s Speeches, 371. Franklin, 9 St. Tri. «55.

(tt) SUrkie on Lib. 6«5. (*) 4 Bac. Abr. Libei(A) «. p. 451 .
(w) 1 Hawk. P. C. c. 78. s. 7. 4 Bac.

CHAP. xxiY.] Of Libels, Sgc. against Magistrates. 225

lous, because it did not reflect upon particular persons. But
Holt, C. J. ssuld, ^^They say nothing is a libel but what reflects on
*' some particular person. But this is a very strange doctrine to
*^ say that it is not alibel, reflecting on the government ; endea-
** vouring to possess the people that the government is mal-admi-
^ nistered by corrupt persons that are employed in such stations,
'^ either in toe navy or army. To say that corrupt officers are
** appointed to administer ^idrs is certainly a reflection on the
^* government. If men should not be called to account for pos-
*^ sessing the people with an Ul opinion of the government, no
" government can subsist ; nothing can be worse to any govern-
'^ ment than to endeavour to procure animosities as to the manage-
^^ ment of it ; this has always been looked upon as a crime, and
^' no government can be safe unless it be punished." (p)

This doctrine was recognized in a more modem case, where the Rexo.Cobbett.
defendant was charged with publishing a libel upon the adminis-
tration of the Irish government, and upon the public conduct and
character of the lord lieutenant and lord chancellor of Ireland.
Lord EUenborough, C. J. in his address to the jury observed, " 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 Reg. v,
" Tuchin, decided in the time of Lord Chief Justice Holt, has re-
^^ moved all ambiguity from this question; and, although at the
^ period when that case was decided great political contentions
" existed, the matter was not again brought before the Judges of
" the Court by any application for a new trial." And afterwards
his Lordship said, " It has been observed, that it is the right of
** the British subject to exhibit the folly or imbecillity of the mem-
" bers 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." (z)

VII. As nothing tends more to the disturbance of the public ^J publica-
weal than aspersions upon the administration of justice ; con- ^affiatfatea*
tempts against the King's Judges, and scandalous reflections upon and the ad-
their proceedings, have always been considered as highly criminal min»»triition
offences ; and one of the earliest cases of libel appears to have ° J"*^*^*^*
been an indictment for an offence of this kind, (a)

Generally, any contemptuous or contumacious words spoken to
the Judges of any Courts in the execution of their offices are in-
dictable; and when reflecting words are spoken of the Judges of
the superior courts at Westminster, the speaker is indictable both
at common law and under the statutes of Scandalum Magnatum,
whether the words relate to their office or not. {h)

(9) R^- ^' Tuchin, 1704. Holt's R. referred to.

494. 6 St. Tri. 532. {a) Holt on Lib. 153.

(z) Rex r. Cobbett, 1804. Holt on {b) Starkie on Lib. 533. where see

Lib. 114, 115. Starkie on Lib. 529, the cases collected. And see 1 Hawk.

530. where see in the note other cases r. 21. s. 7. et sequ. The proceeding

VOL, I, O

926 Of Libels J Sgc. against Magistrates, [book u.

Cases. Any publications reflecting upon, and calumniating^ the admi-

nistration of justice, are without doubt of a libellous nature; and
where a libel was published in a newspaper, in the form of an
advertisement, reflecting on the proceedings of a court of justice,
it was characterized as a reproach to the justice of th^ nation, a
Rex ». Watson thing insufferable^ and a contempt of court, (c) So an order made
and others. |,y ^ corporation and entered in their books stating that A. (against
whom a jury had found a verdict with large damages in an action
for a malicious prosecution, and which verdict had been confirmed
in the Court of Cdmmon Pleas,) was actuated by motives of public
justice in preferring th^ indictment, was held to be a libel reflect-
ing on the admini^ation 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 mo-
tives 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. BuUer, J. said, "Nothing can be of
" greater importance * to the welfare of the public than to put a
" stop to the animadv^i^sions 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 conse-
" quences. 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." {d)
Rex o. White In a late case the same doctrine was acted upon : but it was at
and another, the same time clearly admitted that it would be lawful to discuss
the merits of the verdict of a jury, or the decisions of a Judge,
provided it be done with candour and decency. An information
was filed against the defendants, the proprietors and printers of a
Sunday newspaper, for a libel upon Le Blanc, J. and a jury, by
whom a prisoner had been tried for murder and acquitted ; and it
was contended on the part of the defendants that they had only
made a fair use of their right to canvass the proceedings of a court
of justice. Grose, J. said, that ^^ it certainly was lawful, with
'* decency and candour, to discuss the propriety of the 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

by writ of seandalum magnalum upon \i\eges in any actitm of slander, and to
the statutes 3 Edw. 1. c. 34. S R. 2. stand upon the same footing, with re-
st. 1. c. 5. 12 R 2. c. 1 1 . is of a civil, spect to civil remedies, as their fellow
as well as of a criminal nature; and subjects.

was formerly had recourse to in case {c) Vin. Abr. Comiempt (A) 44. Pool

of defamation of any of the g^reat offi- v. Sacheverel, 1720.

cers and nobles. But the civil pro- {d) Rex v. Watson and others, 2 T,

eeedinf; is now almo«»t obsolete, the R. 199.
nobility preferring to wave their pri-

AP. xxjv.]j Of Libels against Private Individuals. 227

^ from the newspaper, set out in the information, contained no
*^ reasoning or discussion, but only declamation and invective, and
*• were written not with a view to elucidate the truth, but to
injure the characters of individuals, and to bring into hatred and
contempt the administration of justice in the country." (e)
It seems that no indictment will lie for contemptuous words Of 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 magistrates,
words affect them directly in their office ; though it may be good
cause for binding the offender to his good behaviour. (/) This
doctrine was recognized in a modern case, where the defendant
vras 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, {g)
LiOvA EUenborough, C. J. said, " the words not being spoken to
*^ the justice, I think they are not indictable. This doctrine is
*^ laid down by Lord Holt in a case in Salkeld ; (A) and in Rex v.
" Pocock in Strange, (i) the Court of King's Bench refused to
*' grant an information for saying of a justice, in his absence, that
** he was a forsworn rogne. However, I will not direct an ac-
^* quittal upon this point, as it is upon the record, and may be
** taken adi-Tintage of in arrest of judgment. It will be for the
^^ jury now to say whether these words were spoken of the prose-
** cutor 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 possibility be a misdemeanor to
** utter them, although the prosecutor's name may be in the com-
^^ mission of the peace for the county of Middlesex." (A) But it
has been holden to be an indictable offence to say of a justice
of the peace, when in the execution of his office^ "you are a rogue
*^ and a liar." (/)

VIII. As every person desires to appear agreeable in life, and Ofpnbiica-
must be highly provoked by such ridiculous representations of ^rivate'^rSi-
him as tend to lessen him in the esteem of the world, and take viduals.
away his reputation, which to some men is more dear than life
itself; it has been held that not only charges of a flagrant nature,
and which reflect a moral turpitude on the party, are libellous,
but also such as set him in a scurrilous ignominious light, whether
expressed in printing or writing, or by signs or pictures ; for these
equally create ill blood, and prdvoke the parties to acts of revenge
and breaches of the peace, (m)

(f) Rex r. White and another, 1808. (m) ^iite, p. 809. 4 Bac. Abr. Zi^tfl,

1 Campb. 359. The defendants were (A) 2. p. 450. So in the late case of

found guilty. And see a note of an- Thorley v. Lord Kerry, 4 Taunt. 364,

other proceeding by information a- Mansfield, C. J., delivering the opi*

gainst the same defendants for a libel nion of the Court, said, ** there is no

on Lord EUenborough, C. J. Holt on '' doubt this is a libel fur which the

Lib. 170, 171. *' plaintiff in error might have been

(/) Starkie on Lib. 533. 1 Hawk. '* mdicted and punished, • because,

P. C. c. 21. R. 1 3. *' though the words impute no punish-

(c:) Rex V. Wellje, 2 Carapb. 142. **able crimes, they contain that sort

(ik) Rex V, Wrightson, 2 Salk. 69S. *' of imputation which is calculated to

(0 2 Str. 11.57. And see Rex v. ** vilify a man, and bring him, as the

Penny, 1 Lord Raym. 153. *' books say, into hatred, contempt,

(ft) Rex V, Weltje, 2 Campb. 143. *' and 'ridicule; for all words of that

(0 Rec V. Revel, 1 Str. 420. <* description an indictment lies." And

o2

288 Of Libels against Private Individuals. £book ii.

Words spoken But it should be obserred, that there is an important distinc-*
aW«?°' "* ^^' ^^^^ under this' head between words spoken only, and words pub-
lished by writing or printing. Words spoken, however scurrilous,
even though spoken personally^to an individual, are not the sub-
ject of indictment, unless they directly tend to a breach of the
peace, as if they convey a challenge to fight, (n) But words,
though not scandalous in themselves, if published in writing, and
tending in any degree to the discredit of a man, have been held to
be libellous, (o)
Cases. Upon these principles it has been held to be libellous to write

of a man that he had the itch, and stunk of brimstone, {p) And
an information was granted against the mayor of a town for send-
ing to a nobleman a licence to keep a public house, {q) An in-
formation also was granted for a publication reflecting upon a
person who had been unsuccessful in a lawsuit ; (r) 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 vrith her in the boxes with jewels, &c. (5)
A defendant was convicted for publishing a libel in a review,
tending to traduce, vilify, and ridicule, an officer of high rank
in the navy ; and to insinuate that he wanted courage and vera-
city ; and to cause it to be believed that he was of a conceited,
obstinate, and incendiary disposition. (/) And an information
was lately granted against a printer of a newspaper, for publishing
a paragraph containing a libel on the bishop of Derry, by repre-
senting him as a bankrupt, {u) But in an action on the case for

in Rex v. Cobbett, Holt on Lib. 114, (o) 4 Bac. Abr. Libel, (A) 2, pi. 450.

115. Lord £llenborou^h, C.J. said, (p) Villars v. Monslej, SWils. 403.

**' No man bas a right to render the The libel, the naatcrial part of which

*> person or abilities of another ridicu- is stated in the text, was in rhyme,

** Ions, not only in publications; but and very abusive.

*' if the peace and welfare of indivi- (9) The Mayor of Northampton's

** duals, or of society, be interrupted, case, 1 Str. 482.

" oreven exposed by types and figures, (r) 2 Barnard. 84.

*' the act, by the law of England, is a ($j Rex v. Kinnerslej, I Blac. R.

** libel.'* S94. It was sworn, that the nobJe-

(fi) Reg. V, Laneley, 6 Mod. 125. man was a married man: and the

Rex V. Bear, 2 Salk. 417. By Holt court said, that under such circum-

€. J. Villars r. MoAsley, 8 Wils. 403. stances the publication would have

and see Starkie on Lib. 548. In Thor* been a high offence even against a

ley.v. Lord Kerry, 4 Taunt 355. (in commoner, and that it was high time

the Exchequer chamber) it was held, to stop such intermeddling in private

that an action may be maintained for families.

words written for which an action (f) Rex 9. Dr. Smollet, 1759. Holt

could not be maintained if they were on Lib. 224.

merely spoken. Mansfield, C. J. stated (ti) Rex v. r-, Hil. T. 1812.

the arguments which would have pre- Though it is not the object of this
vailed in his mind to repudiate the work to treat of the practice and
distinction between written and spoken modes of proceeding in criminal pro-
scandal, but that the distinction had secutions, it may be proper shortly to
been established by some of the great- observe, that the court of King*s
est names known to the law, Lord Bench always exercises a discretion-
Hardwicke, Hale, Holt, and others; ary power m granting an information
and that Lord Hardwicke, C. J. had for a libel, and will, in many cases,
•especially laid it down, that an action leave the party to his ordinary re-
for a libel may be brought on words medy ; as where th« application is
written when the words, if spoken, made after a great length of time, or
would not sustain it. where the matter complained of as a

tf

u

cHAP. xxiT.] Of Libels against Private Individuals. 229

publishing a libel by posting it on a paper in the Casino room at
Soathwold, containing tliese words, ** The Rev. John Robinson
and Mr. James Robinson, inhabitants of 4;his town, not being
persons that the proprietors and annual subscribers think it
proper to associate with, are excluded this room ;" the court of
Exchequer held, that the publication was not a libel, as it did not
affect the moral character of the plaintiffs, nor state that they were
not proper persons for general society; that the paper might
import no more than that the plaintiff was not a social and agree-
able character in the intercourse of common life, (w)

A publication reflecting upon a man in respect of his trade may Pablicatioa
also be libellous; as where A., a gunsmith, published in an adver- reflecting upon
tisement that he had invented a short kind of gun, that shot as * "^Jf ^'
far as others of a longer size, and that he was gunsmith to the trade.
prince of Wales; and B., another gunsmith, coimter-advertised.
That whereas, &c. (reciting the former advertisement) he desired
all gentlemen to be cautious, for that the said A. durst not
'* engage with any artist in town, nor ever did make such an ex-
'' periment, except out of a leather gun, as any gentleman might
'^ be satisfied at the Cross Guns in Long Acre, the said B.'s
" house." The court held, that though B., or any other of the
trade, might counter-advertise what was published by A., yet it
should have been done without any general reflections on him in
the way of his business : that the advice to ^' all gentlemen to be
*^ cautious,'' was a reflection upon his honesty ; and the allega-
tion that he would not engage with an artist \^as setting him
below the rest of his trade, and calling him a bungler in general
terms; and that the expression "except out of a leather gun'*
was charging him with a lie, the word gun being vulgarly used for
a lie, and gunner for a liary and that therefore these words were
libellous, {x)

General imputations upon a body of men are indictable, though General tm-
no individuals may be pointed out. (y) An information was po^'ioM
prayed against the defendant for publishing a paper containing an ofoaen are^
account of a murder committed upon a Jewish woman and her Indictable.
child, by certain Jeios lately arrived from Portugal, and living
near Broad Street, because the child was begotten by a Christ-
ian, (z) It was objected that no information should be granted
in this case,, because it did not appear who in particular the per-
sons reflected on were, (a) But the court said, that admitting
that an information for a libel might be improper, yet the publica-
tion of this paper was deservedly punishable in an information for a
misdemeanor, and that of the highest kind ; such sort of adver-
tisements necessarily tending to raise tumults and disorders

libel happens to be true. See 4 Bac. veral persons therein mentioned, who

Abr. Libel, 2. p. 451. and Starkie on were recently arrived from Portugal,

Lib. 590. et tequ, and lived in Broad-street, were at-

(ip) Robinson v. Jennyn and others, tacked b^ multitudes in several parts

I Price R. 11. of the citr, barbarously treated, and

(jr) Harroan v, Delany, Barnard, threatenea with death, in case they

K.B. 889. Fitzgib. 181. 2 Str. 898. were found abroad any more.

S. C. (a) Rex v, Orme, 3 Salk. S24. pi. 5.

(Sf) Jmte, p*8l I. I Lord Raym. 486. was cited.

{z^ The affidavit set forth that se-

330

Libel upon a
|)crsoQ de-
ceased.

Exceptions to
the general
rules.

Comments
upon literary
productions.

Of LU}d8 against Private Individuals, [book lU

amongst the people^ and inflame them with an universal gpirit of
barbarity against a whole body of men^ as if guilty of crimes
scarcely practicable, and wholly incredible, {b) And if some of
the individuals affected by the libel are specified, it will be suffi-
cient ) as where it was objected that the names of certain trustees,
who were part of the body prosecuting, were not mentioned.
Lord Hardwicke observed, that though there were authorities
where, in cases of libe;l upon persons in their private capacities,
it had been holden necessary that some particular person should
be named, this was never carried so Car as to make it necessary
that every person injured by such libel should be specified, (c)

A malicious defamation of one who is dead, if published with a
malevolent purpose, to vilify the memory of the deceased, and
with a view to injure his posterity, will be libellous : but it has
been Iiolden that an indictment for a hbel, .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 hi» rela-
tions, and to induce them to break the peace in vindicating the
honour of the family, (d)

fiut there are some exceptions to the general rules and doctrine
concerning libels, in the case of comments upon literary pro-
ductions, and also in the case of communications considered as
confidential, or made bondjide with a view of investigating a fact,
or in the regular and proper course of a proceeding.

A publication commenting upon a literary work, exposing its
follies and errors, and holding up the author to ridicule, will not
be deemed a libel, provided such comment does not exceed the
limits of fair and candid criticism, by attacking the character of
the writei", unconnected with his publication; and every one has a
right to publish a comment of this description, (e) But if a
person, undeir the pretence of CTiticising a literary work, defames
the private character of the author, and, instead of writing in the
spirit and for the purpose of fair and candid discussion, travels
into collateral matter, and introduces facts not stated in the work,
accompanied with injurious comments upon them, such person
is a libeller. (/) A fair and candid comment on a place of public
entertainment, in a newspaper, is not a libel, {g)

{b) Rex V. Osborne, Sess. Cas. 260. N. P. 1044. And it ^as held (hat

S Barnard. 138, 160. Kel.230. pi. 183. though it ih lawful to animadvert

(c) Hex V. Griffin and others, Holt upon the conduct of a bookseller in

on Lib. 239. publishing books of an improper tend-

(if) Rex v. Topham, 4 T.R. 126. ency, it is actionable /n/yf/y to iin-

(e) Carr r. Hood, I Canapb. 355. pute to biin the publication of anj »
And in an action for a libel upon the immoral or absurd literary prodnc-
plaintiff in his business of a book- tion. Ta bar t f;. Tipper, 1 Campb.354.
seller, accusing him of being in the And see in Herriolt v. Stuart, 1 Esp.
habit of publisning immoral and fool- 437 and Stuart v. Lovcll, 8 Stark*
ish books, the defendant, undcA- the R. 93. that the editor of one public
pica of not guilty, may adduce evi- newspaper is not justified in attacks
deuce to shew that the supposed libel lipon tne private character of tbo
iS a fair stricture upon the general writer of another public newspaper,
run of the plaintiS'^s publications. (g-) Dibdin v. Swan, 1 Esp.M.P. C.
Tabart v. Tipper, 1 Campb. 350. 28.; and sec also Ashley v. Harrison, I

(f) Nighlinealc r. Stockdale, 49 Esp. N. P. C. 48. Feake, N. P, C. 104.
Geo. :i. cor, Euenborough, C. J. Selw.

CBAP. ixiv.J Cf Libels against Private Individuals. 231

Confidential communicationB are in some cases privileged. As Confidential
vhere it was holden that a letter written confidentially to persons t^™g*^"'**^*'
who employed A. as their solicitor, conveying charges injurious
to his professional character in the management of certain con-
cerns which they had entrusted to him, and in which B. the
writer of the letter was likewise interested, was not a libel. (A)
And if a person, in a private letter to the party, should expostu-
late 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 considered as libellous,
but as acts of friendship, not designed for defamation but reforma-
tion, (t) But this doctrine must be applied with some caution ;
since the sending an abusive letter filled with provoking language
to another, is an offence of a public nature, and punishable as
Buch, inasmuch as it tends to create ill blood, and cause a disturb-
ance of the public peace ; (k) and the reason assigned by Lord
Bacon, why such private letter should be punishable, seems to be
a very sufficient one, namely, that it enforces the party to whom
the letter is directed to publish it to his friends, and thus induces
a compulsory publication. (/) And though a letter written by a
master, in giving a character of a servant, will not be libellous^
unless its contents be not only false but malicious ; {m) yet in
such a case malice may be inferred from the circumstances, (n)

Although that which is written may be injurious to the charac- Communica-
ter of another ; yet if done Z^ona yfe/e, or with a view of investigating JJ,^'2J^op
a fact, in which the party making it is iiiterested, it is not libellous, wiih a view of
Thus where an advertisement was published by the defendant at investigating a
the instigation of A., the plaintiff's wife, for the purpose of ascer- ^*^^'
taining whether the plaintiff had another wife living when he
married A. ; it was holden that although the advertisement might
impute bigamy to the plaintiff, yet having been published under
such authority, and with such a view, it was not libellous, (o)
And if the communication be made in the regular and proper Or made in
course of a proceeding, it will not be libellous. As where a writing, ^^® proper
containing the defendant's case, and stating that some money, due proceeding,
to him from the government for furnishing the guard at Whitehall
with fire and candle, had been improperly obtained by a captain
C. was directed to a general officer, and the four principal officers
of the guards, to be presented to his Majesty for redress ; an in-
formation was refused, on the ground that the writing was no libel,
but a representation of an injury drawn up in a proper way for
redress, without any intention to asperse the prosecutor ; and that
though there was a suggestion of fraud, yet that is no more than
is contained in every bill in chancery, which is never held

{h) lI'Doagall v, Claridge, 1 Campb. opened and read by the bearer.
S67. ^/) poph. 189, cited io Holt on Lib.

(t) Peacock v. Sir Qeor^ Reynell, S22.
SBrownl. 151, 152. 4 Bac. Abr. Libd (m) Weatherstone v. Hawkins, 1 T.

(A) 2. in the notes, p. 45& R. 110. Edmonson v. Stephenson,

(k) 4 Bac. Abr. Libel (B) 2. p. 459. Bull. N. P. 8.
Rcxv. Cator, 2 Cast. R.861. Tborley (n) Rogers v. Sir 6. Clifton, S Boa»

V. Lord Kecry, 4 Taunl. 355. In the & Pul. 587.
usteue the letter was unsealed, and (o) Delanoy v. Jones, 4 £sp. 19!^

233 Of Libels against Foreigners J Sgc. [boq&ii.

libellous If relative to the subject matter, (p) So a petition ad-
dressed by a creditor of an officer in the army to the Secretary at
War, bona fide J and with the view of obtaining, through his inter-
ference, the payment of a debt due, and containing a statement ci
facts which, though derogatory to the officer's character, the credi-
tor believed to be true, is not a malicious libel, for which an action
is maintainable, (a) 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 the charac-
ters of many of the officers of the hospital, (who were public offi-
cers), and Lord Sandwich in particular, who was first lord of the
Admiralty, with much asperity ; and printed several copies of it,'
which he distributed to the governors of the hospital only, and not
to any other person ; the rule for an information was discharged.
Lord Mansfield said, that this distribution of the copies to the
persons only who were from their situations called on to redress
these grievances, and had, from their situations, competent power
to do it, was not a publication sufficient to make the writing a
libel, {q) And where the publication is an admonition, or in the
course of the discipline of a religious sect, as the sentence of ex-
pulsion from a society of Quakers, it is not libellous, (r) And it
has been decided that an action will not lie for words innocently
read as a story out of a book, however false and defamatory they
may be. Thus where a clergyman in a sermon recited a story
out of Fox's Martyrologyy that one G., being a perjured person,
and a great persecutor, had great plagues inflicted upon him, and
was killed by the hand of God ; whereas in truth he never was so
plagued, and was himself actually present at the discourse ; the
words being delivered only as matter of history, and not with any
intention to slander, it was adjiidged for the defendant, {s)
Of publica- IX. Upon the ground that malicious and scurrilous reflections

fore^i^ra^of upon those who are possessed of rank and influence in foreign
distinction. States may tend to involve this country in disputes and warfare, it
has been held that publications tending to degrade and defame
persons in considerable situations of power and dignity in foreign
countries may be treated as libels. Thus an'information was filed,
by the command of the crown, for a libel on a French ambassador,
then residing at the British court, consisting principally of some
angry reflections on his public conduct, and charging him with
ignorance in his official capacity, and with having used stratagem to
supplant and depreciate the defendant atthe court of Versailles, {t)
And Lord George Gordon was found guilty upon an informa-
tion for having published some severe reflections upon the Queen

(p) Rex V. Bayley, Andr. $29. 4 on Lib. 173. 1 Ridfpray*s Collection

Bac. Abr. Z^tf/ (A) 8. p. 452. As to the of £rskiiie*s Speeches, p. 1. Lord

privilege of proceedings in courts of Mansfield seemed to think that whe-

justice, see anle^ p. 2 14. ther the paper were in manuscript or

(a) Fairman v, Jves, 5B. & A. 642. ; printed, under these circumstances^

and if an action be brought for such made no difference,
publication, the writer may, even upon (r) Rex v. Hart, 2 Bum^s Kcc L.

the general issue, eive evidence. to 779.

shew that^he believed the fact stated {$) 4 Bac. Abr. Libel A. 8. p. 452.
in the petition to be true. . (I) Rex v. D'Eon, 1 Blac. Rep. 510.

(q) Rex V. Baiilie, 30 Geo. 3. Holt The defendant was convicted.

2

CHAP. XXIV.] OflAhelSj %c. — Indictment. 2Sl|

of France, in which she was represented as the leader of a fection :
upon which occasion Ashhurst, J. observed, in passing sentence, 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 ofience 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 subjected to punishment, (u)
"So a defendant was found guilty upon an information charging
him with having published the following libel : '^ The Emperor d[
'' Russia is rendering himself obnoxious to his subjects by various
'^ acts of tyranny, and ridicidous in the eyes of Europe by this in-
'* consistency. He has lately passed an edict to prohibit the ex-
^' portation 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." (w)

And in a case which occurred shortly afterwards, where the de-
fendant was charged by an information with a Ubel upon Napoleon
Buonaparte, Lord Ellenborough, C. J. in his address to the jury,
said, '* I lay it down as law that any publication which tends to
^ degrade, revile, and defame, persons in considerable sitiiations
^' of power and dignity in foreign countries, may be taken to be,
^' ancl treated aff a libel ; and particularly when it has a tendency
*^ to interrupt the pacific relations between the two countries." {x)

Having stated the diiFerent sorts of publications for which a Oftheindict-
party may be found guilty of libel, we may mention some of the ™®°' *"^ *^**
points relating to the indictment and evidence on a prosecution prosecntion
for this offence. for a libel.

An indictment for a libel must import to whom the libellous indictment,
matter referred : and stating that the Ubel was published to defame
and vilify J. S., and to bring him into disgrace, and concluding
that it was against the peace, and to the great scandal and dis-
grace of J. S., is not sufficient to shew that the libellous matter re-
ferred to J. S. An indictment stated that the defendant intended to
vilify W. S., Mayor of Colchester, and a Justice ; and in order to
cause it to be believed that W. S., as such mayor, had been guilty
of great abuse in granting an ale-licence to J. L., and in order to
bring him into great disgrace, published a certain scandalous libel,
in which said libel was contained, &c., and the libel stated a speech
supposed to have been made before the borough magistrates by a fic-
titious character called Excise, who was supposed to lay before them
a case of gross corruption, sanctioned by the mayor, {innuend, the
said W. S.) to the great scandal, injury, and disgrace, of the said
W. S. The usual allegation, that the libellous matter was of and
concerning W. S. was omitted ; and, on account of this omission,
a rule was obtained for arresting the judgment : and, upon cause
shewn, the court held the objection fatal, (i)

(if) Res r. Lord George Gordon, victed, but neyer was called upon to

nS7. to receive the Judj^ent of the court.

(») Rex r. Vint, ISOI. Shortly after the trial, war broke out

(x) Rex V. Peltier, 43 Geo. 3. Holt between Great Britain and France.

on Lib. 78. et iequ. Starkie on Lib. (i) Rex v. Marsden, 4 M. & S. 164.

541, 512. The defendant was con- Lord Ellenborough said, that if by

834 Of Libels ---Evidence of [uooKit.

Where a libel is charged to be of and concerning the goyem-
ment of the kingdom, though it do not in express terms impute
to the government any of the facts which it mentions, the Court
is to judge from its whole tenor and import (understanding it as
other men would understand it) whether it does not mean to cast
that imputation. And as an imputation upon some part of a body
of men may be a libel, though it does not define what part it
means, an allegation that the defendant published of and con-
cerning the said persons, und an innuendo that he meant the said
persons, will be understood to apply to that undefined part. An
information stated, that the defendant, intending to excite hatred
against the government of the realm, and to cause it to be be^^
lieved that divers subjects had been inhumanly killed by certain
troops of the King, published a libel of and concerning the govern-
ment of this realm, and of "and concerning the said troops, which
libel stated, that the defendant saw with abhorrence, in the news-
papers, the accounts t)f 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
government. 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, {k)
Of the making • If one man repeats a libel, another writes it, and a third ap-
■md PuWica- proves what is written, they will all be makers of the libel ; and
* " ' it may be laid down generally that all who are concerned in com-
posing, writing, and publishing a libel, are guilty of the misde-
meanor, unless the part they had in the transaction was a lawful
or an innocent act; {y) and ignorance has been held not to excuse.
Thus upon an information against the defendant, for printing and
publishing a libel, the evidence was, that he acted as servant to
the printer, and clapped down the press ; and few or no circum-
stances were offered of his knowing the import of the paper, or
being conscious that he was doing any thing illegal : and Ray-
mond, C. J. held, that this made the defendant guilty, and so the
jury found him. (a) But there must be a publication ; and the
mere writing or composing a defamatory paper by any one, which
is confined to his closet, and neither circulated nor read to others^
will not render him responsible ; nor will he be held to have
published the paper, if he deliver it, by mistake, out of hi»

inevitable construction no other per- (k) Rex v, Burdeit, 4 B. & A. 314.

sou could have been intended but (y) 4 Bac. Abr. Libel (B). 1. p. Abl.

W. S., he should have been inclined (a) Rex v. Clerk, 1 Barnard* sai.

to support the indictment : bat that Sci> qu,
did not appear.

CHAP, nciv.] Making and Publishings

Btudy. (x) And it will not be a publication of a libel if a party
takes a copy of it, provided he never publiabes it : {a)' but a per*
sun who appears once to have written a libel, which is afterwards
published, will be considered as the maker of it, unless he rebut
the presumption of law by shewing another to be the author, or
prove the act to be innocent in himself, (b) For by Holt, C. J«
if a libel appears under a man's hand*wriling, and no other author
h known, he is taken in the manner, and it turns the proof upon
him 3 and if he cannot produce the composer, it is hard to find
that he is not the very man. {c)

The reading of a libel in the presence of another, without pre-
vious 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. And it has also been held, that he .Who repeats part
of a libel in merriment, without any malice or purpose of defama-
tion, is not punishable; though this has been doubted, (d) But
it seems to have been agreed that if he who hath either read a libel
himself, or hath heard it read by another, do afterwards maliciously
read or repeat any part of it in the presence of others, or lend or
shew it to another, he is guilty of an unlawful publication of
it. (e) In a late case, however, of 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 £llenborougb> C' J. ruled, that this was
not sufficient evidence of publication to support the action. (/)

Proof that the libel was contained in a letter directed to the
party, and delivered into the party's hands, is sufficient proof of a
publication upon an indictment or information, (g) And deliver-

S39

(z) Rex V. Paine, 6 Mod. 1.66, 167.

(a) Cora. Dig. Libely (B. 2.) Lamb's
case, 9 Co. 596. But see Rex v. Beare,
9 Salk. 417. 1 Lord Raym. 414.

{b) 4 Bac. Abr. Libel (B) 1. p. 457.
Lamb's case, 9 Cu. 69. The writing a
libel may be an innocent act in the
clerk who drawa the indictment, or in
the sUideat who takes notes of il.
But in a late case (Matoney v. Bartley,
S Campb. 810.) Wood, B. held, on the
trial of an action for a libel, in the
shape of an extra-Judicial affidavit
sworn before a magistrate, that a per-
son who meted as tlie magistrate's
clerk was not bound to answer whe-
ther by the defendant's orders he
wrote the affidavit, and delivered it to
the magistrate, as he might thereby
crimiDate himself.

(e) Rex «. Beare, I Lord Raym.
417. « Salk. 417.

(tf) 4 Bac. Abr. Libel (B) 2. p. 468.
This is doubted in 1 Hawkins, P. C.
t. 73. a. 14. on the ground that jests
•f such a kind are nol to bo endured,

and that the injury to the reputation
of the party grieved is no way lessened
by the merriment of him who makes
so light of il.

(e) 4 Bac. Abr. Libel, (B) 2, p. 45S.

(/) Smith V. Wood, 3 Campb. S«S.
And see Rex v. Paine, 5 Mod. 165.
where a qu. is m^de ih the margin
whether a person who has a libellous
writing^ in his possession, and reads it
to a private fHend in his own house, is
thereby guilty of publishing it

{g) I Uawk. P. C. c. 73. s. 11. 4
Bac. Abr. Libel, (B) 2. p. 439. Jnle,
p. S3 1 note (k). Selw. N. P. 1050. n. (9).
And sec ante, S31. A further publica-
tion is necessary to support aii action*
Thus it has been held that where the
action was brought for a libel con-
tained in a letter transmitted by the
defendant to the plaintiff, b^ means of
a third person, it is a question for the
jury whether there has been any pub-
lication except to the plaintiff him-
self, and that if there has not, the de-
fendant is enUttcd to thi:ir verdictl

936

Of Libels. — Evidence of

[book II.

Acknowledge
ment of the
defendant.

Procuring
another to
publiih la a
publication.

Publication by
bookacUen
and proprie-
tors of newi*
papers.

ing a libel sealed^ in order that it may be opened and published
by a third person in a distant county, is a publication, (a)

In an information for a libel against the doctrine of the Trinity,
the witness for the croWn, who produced the libel, swore that it
was shewn to the defendant, who owned liimself the author of
that book, errors of the press and some small variations excepted.
The counsel for the defendant objected that this evidence would
not entitle the attorney-general to read the book, because the con-
fession was not absolute, and therefore amounted to a denial that
he was the author of that identical book. But Pratt, C. J. allowed
it to be read, saying he would put it upon the defendant to shew
that there were material variances. (A)

It seems to be agreed, that not only he who publishes a libel
himself, but also he who procures another to do it, is guilty of the
publication ; and it is held not to be material whether he who
disperses a libel knew any thing of the contents or effects of it or
not, for that nothing would be more easy than to publish the most
virulent papers with the greatest security, if the concealing the
purport of them from an illiterate publisher would make him safe
in dispersing them, (t)

Upon this foundation it has for a long time been held that the
buying of a book or paper containing libellous matter, in a book-
seller's shop, is sufficient evidence to charge the master with the
publication, although it does 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 ; and it will not be presumed that it was bought
and sold there by a stranger ; but the master must, if he suggests
any thing of this kind in his excuse, prove it. (k) So the pro-
prietor of a newspaper is answerable criminally as well as civilly
for the acts of his servants in the publication of a libel, although
it can be shewn that such publication was without the privity of
the proprietor. (/) These are acts done in the course of the trade

Cluttcrbuck v. Chafters, 1 Stark. R.
47 1 . But in another case of an action
for a libel contained in a letter written
by the defendant to the plaintiff, it
was bolden that proof that the de-
fendant knew that the letters sent to
the plaintiff were usually opened by
his clerk, was evidence to go to the
jury, of the defendant's intention that
the letter should be read by a third
person. Delacroix r. Thevenot, S
Siark. R. 63.

(a) Rex V. Burdett, 4 B. & A. 95.
poii. 840.

(A) Rex v. Hall, I Str. 416.

(I) 4 Bac. Abr. Libel, (B) 8. p. 458.
1 Hawk. P.C. C.7S. s. 10.

(At) 4 Bac. Abr. Libet, (B) 2. p. 458.
Rex V. Nutt, Fitzgib. 47. 1 Barnard.
K. B. S06. 8 Sess. Cas. 33. pi. SS. And
see also Rex v. Alraon, 5 Burr. 8686.
And by Lord Hardwickc, in 8 Atk. 478.
** Though priating papers and para-

*'phlets is a trade by which persons
^' get their liTelihood, yet they must
*Make care to use it with prudence
** and caution ; for if they print any
" thing that is libellous, it is no excuse
" to say that the printer had no know-
"led?e of the contents, and was en-
'' tirely ignorant of its being libellous.**
(0 Rex V, Walter, 8 Esp. N. P. C.81.
And in Rex v. Dod, 8 Sess. Cas. 33. pi.
38. Lord Raynaond, C. J., said, it had
been ruled that where a master lited
out of town, and his trade was carried
on by his servant, the roaster would be
chargeable if his servant should pub-
lish a libel in his absence. In 1 Hawk.
P. C. c. 73. s. 10. (edit. 7.) is the fol-
lowing marginal note : — ^*^ But if a
** printer is confined in a prison to
** which his servants have no access,
'* and they publish a libel without his
*' privity, the publication of it shall
** uot be imputed to him. Wood&lPs

CHAP. uciY.] Making and Publishing. 937

or buBiness carried on by the master. But in a case of aii ^Ustion
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 bUl written by the
daughter had been sent by the davghter, sent it back on the
ground of the charge being too high, and that the bill was after-
wards returned to the customer inclosed in a letter also written by
the defendant's daughter, -and being a libel upon the plaintiff who
had inspected and reduced the bill for the customer: it washolden
that this was not sufficient evidence to go to a jury, either of
command, authority, adoption, or recognition by the defendant, (m)

The proceedings against the printers, publishers, and proprie- 38 0. 3. c. 7S.
tors of newspapers for any libel contained in such papers are much ^^|^***f "^
facilitated by the statute 38 Geo. 3. c. 7B., which enacts that no ^ntt^nten,
person shall print or publish any newspaper iintil an affidavit, or Acofnewvpt^r
affirmation in case of a Quaker, shall have been delivered at the ^'^"*
stamp office, setting forth the names, additions, &c. of the printer,
publisher, and of two of the proprietors ;(n) that such affidavit
or affirmation shall be filed, and the same, or certified copies
thereof, shall, in all proceedings, civil and criminal, touching any
newspaper therein mentioned, be received as conclusive evidence
of the truth of the matters contained in such affidavit or affirma-
tion against the persons swearing, who shall have signed and
sworn or affirmed them, and against proprietors named therein as
proprietors, &c. but who shall not have signed, &c. unless such
persons shall have delivered to the commissioners, previously to
the date of the newspaper in question, an affidavit or affirmation
of their having ceased to be printers, &c. of such paper.

The eleventh section enacts, that after any such affidavit or Sect. 11.
affirmation, or a certified copy thereof, shall have been produced ^***' PI!?^"Sr

• ]•..! i_ • J o * ^1. • tion of the am-

in evidence against the persons who signed, &c., or are therem ^avit or copy,
named, and after a newspaper shall be produced in evidence inti- and a paper
tuled in the same manner as the newspaper mentioned in such J?^^*** **,
affidavit or copy« and wherein the name of the printer, &c., and tioned, &c. it

'* case. Essay on Libels, p. 1 S. Sed vide tended to be printed, and the title of

"Salmon^s case. B. R. Hil. 1777. and such paper. If the proprietors exceed

" Rex V. AlmoD, 5 Biirr. 2687.** two, .then two, wnose proportional

(m) Harding t^. Greening, 8 Taant. shares in the property shall not be less
42. And it was also held in this case than the proportional share of any
that the daughter could not be com- other proprietor, exclusively of printer
pelled to prove by whose direction the and publisher, shall be named and de-
letter was written. The answer would scribed in the affidavit or affirmation,
tend to fix herself with the crime of This affidavit or affirmation must be
writing it. renewed as often as the printer, &c.

(n) The substance of sect. 2. ei »eq, shall change their abode or printing
is, that the affidairit or affirmation shall office, or as often as commissioners
set forth the real and true names, ad- for stamp-duties shall require. It must
ditions, descriptions, and places of be signed by the parties making it, and
abode of the printer, publisher, and of taken by a commissioner or person
all the proprietors, it they do not ex- specially appointed by commissioners,
ceed two, exclusively of printer and And it must be sworn by all the par-
publisher ; if they do, then of two such ties, if they do not exceed four; if
proprietors, exclusively of printer and they do, then by four, who shall give
publisher; specifying the amount of notice to the other parties not swear-
shares, the true dtscription of the house ing, under a penalty of 50/.
or building wherein such paper is in-

989 Of Libels. —Evidence of [book if.

ebaii aoi be the pfeice of printing shall be the same, it shall not be necessary
provrtbc pur- ^^^ ^^ prosecutor to prove that the newspaper to which such trial
chase of the rehtes was purchased at any house, &c. belonging to or occupied
paper. by the defendants or their servants, &c. or where they, by them-

selves or their servants; &c; usually carry on the business of print-
ing or publishing such paper^ or where the same is usually sold.
Sect. 13. The thirteenth section enacts, that a certified copy of any such

pyTo bc*dcf^" *ffi^^vit or affirmation shall be delivered to the person appljnng
vered on pay- for the same, by the commissioners or officers by whom they shall
ing 1*. be kept, on payment of one shilling. The fourteenth section en-

Scct. 14. acts, *^ that in all cases a copy of such affidavit or affirmation, cer-

da^tTcerttfted ^^ tificd to be a true copy, under the hand or hands of one or more
by the cotp- '^ of the commissioners or officers ih whose possession the same
mUgiottcra or <« ghall be, shall, upon proof made' that such certificates have been

wh^rdTBtody " ^^^^ wi^^ *e handwriting of the person or persons making
tbey shall be, ^' the same, and whom it shall not be necessary to prove to be a
to be sufficient «« commissioner or commissioners, or officer or officers, be received
«n cnce. „ j^^ evidence as sufficient proof of such affidavit' or affirmation,
" and that the same was duly sworn or affii^ed, and of the con-
'* tents thereof;" and that such copies shall be evidence that the
affidavit or affirmation has been sworn or affirmed according to
the act, and shall have the same effect for the purposes of evidence,
to all intents whatsoever, ad if the original affidavits or affirma-
tions had been produced in evidence.
Sect. 17. The seventeenth section provides, that every printer or pub-

One of the Usher shall, within six days after the publication, deliver to the
bc^Xvcred*^ commissioners of stamps, at their head office, or to some officer
within six days appointed by them, one of the papers so published, signed by the
tothecdrnmiB- printer or publisher in his handwriting, with his name arid place
a^U^bio two ®f abode j and in case any person shall apply to the commissioners,
years aftex^ &c.^ in order that such newspaper may be produced in evidence,
wards it may ^j^^ g^id commissioners, &c. shall, at the expense of the party
tob^prcxioeed' applying, at any time within two years from the publication^ either
ia evidence, caose the same to be produced in court, or deliver the same to the

party applving, taking reasonable security for its being returned.
Certainprinted By the oO Geo. 3. and 1 Geo. 4. c. 9. s. 1. all pamphlets and
to"bc d'ecmed P^P^^^ containing any public news, intelligence, or occurrences,
and uken to or any remarks or observations thereon, or upon any matter in
foenewspapers, church or State, printed in any part of the united kingdom for
provisioM of * ^*^^' ^^^ published periodically, or in parts or numbers, at inter-
the acts relat- vals not exceeding twenty-six days between the publication of any
ing to newspa- two such pamphlets or papers, parts, or numbers, where any of
^'^' the said pamphlets or papers, parts or numbers, respectively, shall

not exceed two sheets, or shall be published for sale for a less sum
thari sixpence^ exclusive of the duty by this act imposed, shall be
deemed and taken to be newspapers within the true intent and
meaning oi the 38 Geo. 3. c. 78. (and several other stamp-acts
which are specified) and all other acts of parliament in force relat-
ing to newspapers : and all such acts, and all clauses, &c. therein
respectively contained, (except where the same may be altered by
this act) are to be applied and put in force in relation to all such
pamphlets and printed papers as fully and e£Fectually as if all such
clauses, &c. were respectively, severally, and separately re-enacted.

CHAP. xxiT.] Making and Puhlishing. CS9

and made part of this act. No quantity of paper less than a'^qniii*
tity equal to twenty-one inches in length and seventeen inches, in
breadth is to be deemed a sheet of paper within the meaning of
the act ; and no cover or blank leaf or any other leaf upon which
any advertisement or other notice shall be printed is, for the
purposes of the act^ to be deemed a part of any such pamphlef^
&c. (m)

Before the statute 38 Geo. 3. c. 78* it was holden, upon an in- Constmction
dictment for a libel in a newspaper, that evidence that the paper ®^ ^^^ BUtttte.
had been sold at the office of the defendant, that the defendant, as
proprietor of the paper, had given a bond to the stamp-office pur-
suant to the 29 Geo. 3. c. 50. s. 10. for securing the duties on the
advertisements, and that he had from time to time applied to the
stamp-office respecting the duties on the paper, was evidence to be
left to the jury, to shew that the defendant was the publisher, (n)
And since the statute it has been held to be sufficient evidence of
a publication at common law to put in the original affidavit of the
proprietor stating where the paper was to be published, and to
prove Ihat a paper with a corresponding title, containing the libel^
was purchased there, (o) This was held in a case where it had
been previously ruled that in order to render the certified copy of
the affidavit made by the proprietor of a newspaper evidence un-
der the statute 38 Geo. 3. c. 78. it must either appear upon the
jurat that the person before whom it was made had authority to
take it, or this fact must appear aliunde, {p) It has been ruled
that an affidavit according to the statute, together with the pro-
duction of a newspaper, corresponding in every respect with the
description of it in the affidavit, is not only evidence of the publi-
cation of such paper by the parties named, but is also evidence of
its publication in the county where the printing of it is described
to be. {q) And a newspaper may be given in evidenee, though it
is not one of the copies published, and though it be unstamped at
the time of trial, (r)

Upon the trial the libel must in general be produced on the part The libel must
of the prosecution, and, after sufficient proof of a publication by ^/TOMMfor-
the defendant, may be read ; and if the libel has merely been respond with
exhibited by the defendant, and he refuses on the trial to produce ^^^ indict-
it, after notice for that purpose, parol evidence may be given of "*"* '
its contents, (s) The libellous matter must be set out in the indict-
ment; (/) and the libel proved must appear to correspond with the
statement of it in the indictment, and any variation in the sense
between the matter charged and that proved will be fatal, (tt) But

(w) Sccl. «, 3. Bt sect. S. no per- (r) Rcr ». Pearce, Peake's N. P. C.

SOD is to print or publish any newspa- 75.

per, or any soch pamphlet, &c. with- {$) By Buller, J., in Rex v. Watson

onthaviog entered into a recognizance and others, 2 T. R. 201.

or given a bond for securing payment (<) Rex v. Sacheverell, 15 Sta. Tri.

of any fine imposed upon conYiction, 466.

for printing or publishing any bias- (u) Tabart v. Tipper, 1 Campb. 359.

pheinoiis or seditious libel. And if it appears upon the proof that

{n) Rexr. Topham, 4 T. R. 126. parts of the libel which are separated

{o) Rex V. White, 3 Campb. 100. bv intervening matter are set forth as

( p) /d« ikUL 99 . if they were con t i nuous, i t wi 1 1 be bad,

(q) Rex V. Hart, 10 East 94. if the sense is altered by the passage

1

240 O/Libda. — Evidence of [book ii.

the mere alteration of a single letter^ so long as it does not change
one word into another, will not vitiate ; though the smallest vari-
ance, if it renders the meaning difiPerent, wiU be fatal, (a)
^'*^5"**h'* The libel must also be proved to have been published, by the
CMnpnblished V^^7 ACCUsed, in the county laid in the, indictment. (i) But if a
in the county, man write a libel in one county and consent to its publication in
another, the consent is sufficient to charge him in the. latter
county, (c) So if a man write a libel in London, and send it by
post addressed to a person in Exeter, he is. guilty of a publication
in Exeter, (c/) And where the defendant wrote a libel in Leicester-
shire, with intent to publish it in Middlesex, and published it in
Middlesex accordingly, and the information against him was in
Leicestershire ; three of the Judges held the information right :
but Bayley, J. doubted, (e) 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 fur-
ther, that if delivering open were essential, proof that the defend-
ant 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 evi-
dence of C/s having been in county A. about the time ; or that
mplication had been made to D. to know of whom he received it.
The information was in the county of Leicester, for writing and
publishing a libel : and it was proved by the date of the letter that
the defendant wrote it in that county, and that Bickersteth deli-
vered it to Brooks for publication in the county of Middlesex, it
being then unsealed. Bickersteth 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 Bickersteth had it open, they might presume that he received
it open ; and that, as the defendant wrote it in the county of
Leicester, it might be presumed that he received it in that county ;
and the jury accordingly found the defendant guilty. A rule hav-
ing been obtained for a new trial, 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 pre-
suming some delivery, either open or sealed, in the county of
Leicester, {w) It appears from this case that the dating a libel at
a particular place is evidence of its having been written at that
place, (x) The post-mark upon a letter has been considered as
no evidence for tne purpose of proving that the letter was put into
the post-office at the place mentioned by such post-mark, (y)

*omitted. Id. ibid. It is settled that (e) 19 St. Tri. SSI.
the whole libel need not be set forth (d) Id. ibid. SSS.
in the indictment: but if an^ part (e) Rex v. Burdett, 4 B. & A. 05.
qualifies the rest, it may be given in (») Rex o. Burdett, 4 B. & A. 95.«

evidence, 2 Salk. 417. and MS. Bayley, J.

(a) Rex v. Beech, 1 Leach. 133. Rex (x) Rex t;. Burdett, 4 B.ft A. 95.
V. Hart, 1 Leach. 145. (y) Rex v. Watson, 1 Campb. 813.

(b) Case of the Seven Bbhops, 18 St. Lord Ellenborough, C. J. said the post-
Tri. 354. mark might have been forged.

CHAP. XXIV.] Making and Publishing. 3*1

Bot it appears to be the better opiDion that such post-marks, whe-
tJier in town or country, proved to be such, are evidence that the
letters on which they exist were in the offices to which the post-
marks belong at the dates thereby specified, (s) But a mark of
double postage having been paid on such letter is not of itself suf-
ficient evidence that the letter contained an enclosure, (a) 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 indictment, (x) Owning
the signature to a libel is no evidence in what county it was
signed. This was held in the celebrated case of the Seven Bishops :
bat additional evidence being afterwards given that the Bishops
applied to the lord pre^iident of the council about delivering a peti«
tion to the King, and that they were admitted to the King for that
purpose in Middlesex, the case was left to the jury, (t) It has
been held to be sufficient to prove a defendant to have published
a libel without proving him to have composed it, upon a count in
an information charg'ng him with having ^^ composed, printed, and
published" it.(y) So if the defendant is charged by a count in
an indictment with having ^* composed, printed^ and published" a
libel, if the evidence be that he only composed and published it,
he may be found guilty of the composing and publishing, and ac-
quitted of the printing. (2) Or he may be found guilty of the
printing only, upon an indictment for printing and publishing, if
the evidence shews him to have assisted in the printing, and to
have had nothing to do with the publishing. (A)

If the libel be in ?l foreign language, as it is necessary that it
should be set forth in the indictment in the original language, and
also in an English translation, it will be necessary to prove the
translation to be correct. Thus upon the trial of an information

(x) Rex o Pluiner, Hil. T. 1814. the letters read ; and the tellers them-

MS. B^iyley, J., and Riiss. & Ry. S64. selves contnining expressions of the

Rex V, Johnson, 7 Bast. 65 Stark, writer, indicative of his having sent

Evid. Pt. IV. p. 853 , and Fletcher f. tht*ni lo Ih^ publisher of the register

Braddyll, Stark. Evid. A pp. to p. 853. in Middlesex for the purpose of pub-

(a) Rex r. Plunder, anU^ note (z). lication, the whole was evidence suffi-

Sonie person who paid or received the cient for the jury to find a publication

posUige should he called. by the procurement of the defendant

{x) Rex r. Watson, 1 Campb. 915.; in Middlesex.
and see Rex v. Middleton, 1 Str 77. {i) Case of the Seven Bishops, 18 St.

In the case of Rex r. Johnson^ 7 East Tri. 183.

65., it was held, where the publisher (y) Rex v. Hunt and another, 9

of a public re;;ister received an anony- Cainpb. 583.

mous letter, tendering certain politi- (z) Rex v. Will iaias, 9 Campb. 646,

cal information on Irish affairs, and Lawrence, J. said, '^ There is certainly

requiring to know to whom letters ** no proof that the defendant printed

should be directed, to which an an- *Mhe libel in que^ion; but he may be

swer was returned in the register, after ** acquitted of th? printing, and found

which he received two letters in the ^* guilty of the composing and puhlish-

lame hand-writing directed ns men- ** ing. His delivering the libel in his

tiuned, and having the Irish post- mark **own hand-writing to the printer i^

00 the envelopes, which two letters ** abundant evidence of the latter of^

were proved to be in the hand-writing '* fence.** A verdict was accordingly

of the defendant, the previous letter found and recorded of '^ Guilty, ex*

havlns been destroyed, that this was a cept as to printing the libel.'*
nffioMi ground for ihe court to have \jk) Rex «. Kuell, 1 BarnArd. 905.
VML I. A

t49l Of Libels, — Evidence. [bookii.

against the defendant for a'libel in the French language on Napo-
leon Buonaparte, after a witness had proved the purchase of some
copies of the book from a certain bookseller, and the bookseller
had proved that the defendant was the publisher and had employed
him to dispose of the copies on his account, and that he had
accounted for them ; an interpreter was called, who swore that he
understood the French language, and that the translation was cor-
rect. The interpreter then read the whole of that which was
charged to be a libel in the original ; and then the translation was
read by the clerk at Nisi PriuB.(a)
DepositioQi Depositions taken before a magistrate are not evidence upon a

are not evi- trial for a libel ; the statute 1 and 2 P. and M. c. 13. and 2 and 3

QmxL ^thc* ^^* *^^ ^* ^* ^^* '^y which such depositions are made evidence,
king's procla- extending only to cases of felony. (A) It has been held that a
mation, and a Gazette is evidence to prove an averment in an information for a
an^ctofPar- ii^el, ^* that divers addresses, &c. had been presented to his Ma-
liameot, are '^ jesty by divers of his loving subjects." {c) In a recent case, the
cTidencefor king's proclamationy reciting that it had been represented that
poiea!'' ^"'" certain outrages i had been committed in different parts of certain
counties, and offering a reward for the discovery and apprehen*
sion of offenders, was held to be admissible evidence to prove an
introductory averment, in an information for a libel, that divers
acts of outrage had been committed in those parts, {d) And a
preamble to an act of Parliament, reciting the existence of such
outrages, and making provision against them, was also held to be
admissible for the same purpose, (e)
Criminal in- The criminal intention of the defendant will be matter of in-,
dcfe^nt ^^ ference from the nature of the publication. In order to constitute
a libel, the mind must be in fault, and shew a malicious intention
to defame ; for, if published inadvertently, it will not be a libel ;
but -where a libellous publication appears, unexplained by any
evidence, the jury should judge from -the overt act; and, where
the publication contains a charge slanderous in its nature, should
from thence infer that the intention was malicious. (/) The in-
tention may be collected from the libel, unless the mode of publi-
cation, or other circumstances, explain 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, (a) Publishing what
is a libel without excuse is indictable, though the publisher be free
from what in common parlance is called malice i for defaming wil*

•

(«) Rex 9. Peltier, Selw. N. P. 1048. tendered in evidence, to shew, f«»

{h) Rex o. Paine, 3 Mod. 163. «m»o the defendant pobli^ied the

{e) Rex e. Holt, 5 T. R. 436. paragraph in question. Xord Ellen-

(^ Rex «. Sutton, 4 M. and S. 53S. Dorouen said, '* No donbt they would

ifi) Id, Ibid. ^' be admissible in the case of an in-

(/) By Lord Kenjon, C. J. in Rex ''dictment; and so thev would here

«. Lord Abingdon, 1 Bsp. 2S8. And '*shew the intention of theiiarty, if it

see Rex v, Topharo, 4 T. R. 127. and ** were at all equivocalt but if tbef bo

Eex V. Woodfail, 5 Burr. 8667. In a " not admitted for that purpose, they

jjatecase, of an action for a libel con- "certainly are not admissible for tbe

tallied in the Statesman newspaper, ** purpose of enhancing the dama(|;es.**

iubnqveni publications by the defend- Stuart v. Lovel, 8 Stark. R. 93.

ant in the Statesman newspaper were (a) Rex v. Burdett, 4 B. and A. 95.

CHAP. XXIV.] Of Libels. — Evidence. 84S

fully without excuse is in law maliciouB. And even if it could be
an excuse, that the publisher held what he published to be true,
it is not so if he professes to publish it from authority. A news-
paper 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 ne-
cessary 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 the King to have been so afl9icted, and
that the answer to the question by the jury was incorrect. But
the court thought otherwise, as the defendant must know if 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, (h) In some casev, how-
ever, the paper or other matter may be libellous only with refer-
ence to circumstances which should be lud before the jury by
evidence. In an action for a libel it appeared that the plaintiff,
an attorney, was employed by one Nat^h to bring an action against
an executor ; and 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 Nash blaming
him for allowing the plaintiff to sue, and containhig this passage,
^' If you Vill 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."
And it was held that the question whether thlB letter applied to
the plaintiff indiviidually, or to the profession at large, was pro-
perly left to the jury (/)

As the defendant is not allowed to prove the truth of the libel- Defeadant'i
louB matter in justification of his conduct, (g) the evidence which evidence.
can be adduced on hia behalf at the trial will in general be con-
fined to a very narrow compass. There may, however, be cases of
a publication in point of law, where no criminal intention can be
imputed to the party } as where a person delivers a letter without
knowings its contents, or delivers one paper instead of another; {h)
and evidence to such effect may be produced. But it is not com-
petent to the defendant to prove that a paper similsur 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. (>) It was held, in a case where the supposed libel was

{b) Rex V. Harvey, 9 B. aed C. 237. Jury. ' .

if) Qodnon V. Horoe, S Moore, S2S. (jr) ^fife, p. 81 1.

And it Meim that in this case if the (A) By Lord Kenyoa, C.ll. in Rezr.

poiDt had been marie at the trial, Topham, 4 T. K. 187, 128. Rex v.

iilieUier ibis was a confideutial coin- Ntitt, Fitz. 47. And see anle^ p. 818«

luunicattoo or not, such point. would el 9equ.

not neceiMriJy bave been left to the (0 Rex v. Ho(t, 5 T. R. 436*

*44 Of Libels. — Verdkl and Judgment, [book ii.

contained in a newspaper, that the defendant had a right to have
•read in evidence any extract from the same paper, connected with
the subject of the passage charged as libellous, although disjoined
from it by extraneous matter, and printed in a different cha-
racter, [k) Though the defendant cannot have the assistance of
counsel to examine the witnesses, and reserve to himself the right
-of addressing the jury ; yet if he conducts his defence himself, and
any point of law arises which he professes himself unable to argue,
the court will hear this argued by his counsel. (/)

If a libel imputes to a man a triable offence, proof of the truth
of such imputation is inadmissible ; for it would be trying the ques-
tion behind the man's back, and creating a prejudice upon it.
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 ; for the persons charged might afterwards come to be
tned, and might be prejudiced by the previous inquiry, {x)
Verdict. It had been held in many cases, that, on trials for libels, the

Iwe''aMMral "f*^^ ^^ writing, printing, or publishing, and the truth of the
verdict upon innuendoes inserted in the proceedings, were the only matters to
be submttted to the consideration of the jury: but the justice of
such doctrine being questioned and ably arraigned, (m) the statute
32 Geo. 3. c. 60. was passed, which enacts '^ that on every such
trial, the jury sworn to trythe issue may give a general verdict
of guilty or not guilty, upon the whole matter put in issue upon
'' 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
" gi^ilty, 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 «ame in such indictment or information." (n)
'^ But it provides also, that the court or Judge before whom such
'^ indictment or information shall be tried, shall, according to tbeir
^ or ins 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." (o)

It appears to have been considered that the Judge may tell the
jurv that they are to take the law from him^ unless they are satis-
fied that he is wrong, {y)

The judgment in cases of libel is in the discretion of the court,
as in most other cases of misdemeanors ; and usually 'Consists of
fine^ imprisonment^ and the finding sureties to keep the peace, {p)

the whole
matter pat
in isiat.

Jadgmcat

{k) Rex V. Lambert and Perry, S
'Citnpb. 898.

</) Hex V. Whitens CRmpb. 99^.

\x) Rex V. Burdett, 4 B. and A.'Sd.

(m) See the celebrated speeches of
Mr. Erskine, in the case of the Dean
of St. A^ph, I Tol. of Ridgway's col.
p. 8S4, andtSt.-

(») S U

(a) S. 9. Bv 8. S it in provided that
the Jury may and a sperial verdict, in
their discretion, as in other criminal

cases. And section 4. provides that
defendants may move in arrest of
Judgment as before the passing of the
act.

(jf) Rex V. Burdett, 4 B. and A. 95.

Op) 1 Hawk. P. C. c. 73. s. S 1 . 4 Bac.
Abr..Libel (C) p. 459. Rex v. Mtd-
dlelon. Fort. 801. As to the punish-
ment of leasinff-making sedition and
blasphemy in SeoiUnd, see 0 Geo. 4.
c. 47.

CHAP. XXIV. J Of Libels. — Second Offenee. 246

In some cases prior to the statute 56 Geo. 3« c. 138. the offender
was also sentenced to the pillory.

In the case of a blasphemous or seditious libel, a second offence jq eases of
is more highly punishable by 60 Geo. 3. and 1 Geo. 4. c. 8. s. 4. l^iasphcmoat
which enacts, that if any person shall be legally convicted of hav- ^^Jt^J'jJ**cond
ing composed, printed, or published, any blasphemous libel, or any offence is
such seditious libel as aforesaid (/. e. by s.l. a libel tending to bring punishable by
into hatred or contempt the person of his Majesty, his heirs or ***^"**™«'^'-
successors, or the regent, or the government and constitution of
the united kingdom, as by law established, or either house of Par-
liament, or to excite his Majesty's subjects to attempt the altera-
tion of any matter in church or state, as by law established, other-
wise than by lawful means), and shaU after being so convicted
offend a second time, and be thereof convicted before any com- .
mission of oyer and terminer, or g&ol delivery, or in the court of
King's Bench^ such person may on such second conviction be ad*^
judged, at the discretion of the court, either to suffer such punish-^
ment as may now by law be inflicted in cases of high misde-
meanors, or to be banished from the united kingdom and all other
parts of his Majesty's dominions for such term of years as the*
court in which such conviction shall take place shall order. And
the fifth section further enacts, that in case any person,' so sen*
tenced to be banished, shall not depart from the united kingdom^
within thirty days after the pronouncing such sentence, for the
purpose of going into such banishment, his Majesty may convey
such person to such parts out of the dominions as his Majesty,
with the advice of his privy council, shall direct.

The sixth section of the statute enacts, that if any offender, who ^°^*"^5^ ^
shall be so ordered by any such court to be banished, shall, after' tobc^ban^ished
the end of forty days from the time such sentence and order has' and being at
been pronounced, be at large, within any part of the united king- M^^ *J^' ***•
dom, or any other part of his Majesty's dominions, without some days°within
lawful cause, before the expiration of the term for • which such his Mi^csty'i
offender shall have been so ordered to be banished, *' every such dominions,
" offender being so at large as aforesaid, being thereof lawfully JJJrted. '*'**'
convicted, shall be transported to such place as shall be ap-
pointed by his Majesty for any term not exceeding fourteen
years." And such offender may be tried either before any jus-
tices of assize, oyer and terminer, great sessions or gaol delivery,
for the county, &c. where such offender shaU be apprehended, or
where he was sentenced to banishnaent : and the clerk of assize,
&c. is required to give a certificate containing the effect and sub-
stance only (omitting the formal part) of every indictment and
conviction of such offender, and of the order for banishment, to
the justices of assize, &c. where such offender shall be indicted,
and such certificate is to be sufficient proof of the conviction and
order for banishment of such offender*

A similar provision is also made as to a certificate of every in- Certificate of
dictment and conviction of any offender convicted of having com- [1^0"^^"
posed, &c. any blasphemous or seditious libel, which is to be given erldence.
by the officer having the custody of the records, upon the request
of the prosecutor on his Majesty' is behalf, to the justices of assize^

it

246

Of Libels. — Punishment.

[book II.

&c. where such oiFender shall be indicted for any second offence,

and is to be sufficient proof of the conviction of such offender, (a)

By this statute, in all cases in which any verdict or judgment

by default shall be had against any person for publishing any

blasphemous or seditious libel, the Judge or court may make an

order for the seizure and carrying away and detaining all copies of

the libel in the possession of the party, or of any other person

named in the order for his use. (b)

Affidavits ia If a libel imputes to a man a triable offence, ^iffidavits of its

mitigation of truth cannot be given in evidence in mitigation of punishment.

poms men g^^ .j ^ j.j^^j jjjjpQj.^y ^ ^^ founded on certain newspaper reports,

affidavits of the existence of such newspaper reports are admissible :
and in such case affidavits of the falsehood of such reports cannot
be received in aggravation. A libel imported to be founded on cer-
tain newspaper reports, and upon the foundation of those reports
charged certain troops with acts of murder : after conviction the
defendant offisred affidavits that the newspapers did contain those
reports, and also other affidavits that the facts were true. The
former affidavits were received, because they explained the situa-
tion in which 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 preju-
dice, (g)

(a) S. 7. By s. 10. the punishment of persons

{b) See s. 1 , 9. and also s. S. as to convicted of libel in Scotland is not to

SeoUand. S. 8 and 9. provide for the be altered.

limitalion of actions brought for any (q) Rex v. Burdett, 4 B. and A. SU.

thing done in the execution of the act

847

CHAPTER THE TWENTY-PIPTH.

OF RIOTS^ BOUTS, AND UNLAWFUL ASSSMBLISS.

The distinction between these offences appears to be, that a riai
is a tumultuous meeting of persons upon some purpose which they
actually execute with violence ; a rout is a similar meeting upon a
purpose which, if executed, would make them rioters, and which
they actually make a motion to execute; and ?^ unlawful assembly
is a mere assembly of persons upon a purpose which, if executed,
would make them rioters, but which they do not execute^ nor make
any motion to execute, (a) These offences may be treated of more
at large in the order in which they have been mentioned.

I. A riot is described to be a tumultuous disturbance of the Of a riot
peace by three persons or more, assembling together of their own
authority, with an intent mutually to assist one another against
any who shall oppose them in the execution of some enterprize of
a private nature, and afterwards actually executing the same, in a
violent and turbulent manner, to the terror of the people, whether
the act intended were of itself lawful or unlawful. (A)

In some cases, in which the law authorizes force, it is not only Where the
lawful, but also commendable, to make use of it ; as for a sheriff Y^ *a'*>orf«««
or constable, or perhaps even for a private person, to assemble a gc^mbiiog will
competent number of people in order with force to suppress rebels, not be notoui.
or enemies, or rioters 3 and afterwards with such force actually to
suppress them ; or for a justice of peace, who has a just cause to

(a) 1 Hawk. P. C. c. 65. s. 1, 8, 9. would probably be deemed most cor-

3 lost 176. 4Blac. Com. 146. rect at thepres;;nt time. . It should be

{b) 1 Hawk. P. C. c. 65. s. I. Three observed, however, that riot has been

Ffrsoiiff 0r more is the correct descrip- described differently by hi$!;h autho-

tion of the number of persons neces- rtty. In Resin, v, Solcy and others, 1 1

sary to constitute a riotous meetings Mod. I )6. Holl,C.J.said,** The books

but it should be observed, that m ** are oi>scu re in the definition of riots.

Hawkins (C. 65. s. 9, 5, 7.) the words ''^I tsike it, it is not necessary to say

**more than three personn** are three ** they assenibled fur that purpose, but

times over inserted instead of ** three " there must he an unlawful assembly %

** persons or more ;** which in 5 Bum. ** and as to what act wiU make a riot.

Just. Riol^ S. 1. is remarked as an in- " or trespass, such an act as will make

stance that, in a variety of matter, it '*a trespass will make a riot. If a

is impossible for the mind of man to ** number of men assemble with arms,

be always equally attentive. The de- *' in terrorem popnii, though 110 act i»

scription of riot stated in the text, and ** done^ it is a riot. If three come out

taken from the work of Mr. Serjeant "of an ale-house, and go armed, it y^

Hawkins^ is submitted as that which **a riot/*

nature.

248 Of Riots. — Degree of Violence. [boo& ii.

fear a violent resistance, to raise the posse, in order to remove a
force in making an entry into, or detaining of, lands. Also it
seems to be the duty of a sheriff, or other minister of juBtice, hav-
ing the execution of the king's writs, and being resisted in endea-
vouring to execute them, to raise such a power as may effectually
enable them to overpower any such resistance ; yet it is said not
to be lawful for them to raise a force for the execution of a civil
process, unless they find a resistance; and it is certain that they
are highly punishable for using any needless outrage or violence, (c)
How far the It seems to be agreed, that the injury or grievance complained

object murt be qJ^ ^nd intended to be revenged or remedied by a riotous assembly,
a ^iTa must relate to some private quarrel only ; as the inclosing of
lauds in which the inhabitants of a town claim a right of common,
or gaining the possesbion of tenements the title whereof is in dis-
pute, or such like matters relating to the interests or disputes of
particular persons, in no way concerning the public. For the pro-
ceedings of a riotous assembly on a public or general account, as
to redress grievances, pull down all inclosures, or to reform relir
gion, and also resisting the king's forces, if sent to keep the peace,
may amount to overt acts of high treason by levying war against
the king. ((/)

It seems to be clearly agreed, that in every riot there must be
some such circumstances either of actual force or violence, or at
least of an apparent tendency thereto, as are naturally apt to
strike a terror into the people; as the shew of armour, threatening
speeches, or turbulent gestures ; for every such offence must be
laid to be done in terrorem populi. (e) But it is not necessary, in
order to constitute this crime, that personal violence should have
been committed. (/)

Upon these principles, assemblies at wakes, or other festival
times, or meetings for the exercise of common sports or diversions,
as bull-baiting, wrestling, and such like, are not riotous, {g) And
upon the same ground also it seems to follow that it is possible for
three persons or more to assemble together with an intention to
execute a wrongful act, and also actually to perform their intended
enterprize, without being rioters ; as if a man assemble 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

As to tbe
deg^rce of
Tiolence or
terror.

(c) 1 Hawk. P. C. c. 65. s. 8. 19
Yin. Abr. Rioi», £fc. (A) 4.

(lO 4 Blac. Com. 147. 1 Hawk. P.
C c. 66. 9. 6.

(e) 1 Hawk. P. C. c. 65. s. 5.

(/) Per Mansifieid, C. J. in Clifford
V. BrandoD, 8 Campb. 369.

ig) 1 Hawk. P. C. c. 65. s. 5. But
see in 8 Chit. Crim. L. 494. an indict-
ment said to have been drawn in the
vear 1797, by a very eminent pleader
for the purpose of suppressing an an*
cient custom of kickmg about foot-
balls on a Shrove Tuesday, at Kingstoor
uppn-Thtfmes. The first count is for
riotously kicking about a foot*ball in

the town of Kingston ; and the second,
for a common nuisance in kicking
about a foot*ball in the said town.
And in Sir Anthony Ashley*s case, I
Roll. R. 109. Coke, C. J. said, that
the gtage^playert might be indicted
for a riot and unlawful assembly : and
see Dalt. Just. c. 1S6. (citing Roll. R.)
that if such players by their shews oc-
casion an extraordinary and unusual
concourse of people to see thena act
their tricks, this is an unlawful assem-
bly and riot, for which they may be
indicted and fined. 1 9 Vin. Abr. RiQi$9
$c. (A) a. '

cflAP. XXV.] Of Riots. -^—PremeditatiM. 249

persons are not more than are necessary for the purposcf ; 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 therefore is wrong and unlawful. (A)
Much more may any person, in a peaceable manner, assemble a fit
number of persons to do any lawful thing; as to remove any
common nuisance, or any nuisance to his own house or land. And
he may do this before any premdice is received from the nuisance,
and may also enter into another mau*s ground for the purpose.
llius where, a man having erected a wear across a common navi-
gable river, divers persons assembled with spades and other instru-
ments necessary for removing it, and dug a trench in the land of
the man who made the wear in order to turn tlie water and the
better to remove it, and thus removed the nuisance, it was holden
not to be a forcible entry nor a riot, (i)

But if there be violence and tumult, it has been generally Thelrgalttyor
holden not to make any difference whether the act intended to be !i1***^*-^2'^h
done by the persons assembled be of itself lawful or unlawful ; ed to be done*
from whence it follows that if three or more persons assist a man pot material
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 tumul- tumult.
tuous manner, join together in removing a nuisance or other thing,
which may be lawfully done in a peaceable manner, they are as
properly rioters as if the act intended to be done by them were
ever so unlawful. (A) And if in removing a nuisance the persons
assembled use any threatening words, (such as, they will do it
though they die for it, or the like,) or in any other way behave in
apparent disturbance of the peace, it seems to be a riot. (/)

Rut the violence and tumult must in some degree be pre- How far the
meditated. For if a number of persons, being met together at a violence and
fair, market, or any other lawful or innocent occasion, happen on £j"iroin"dlJ-
a sudden quarrel to fall together by the ears, it seems to be agreed tated.
that they are not guilty of a riot, but only of a sudden affray, of
which none are guilty but those who actually engage in it, because
the design of their meeting was innocent and lawful, and the sub-
sequent breach of the peace happened unexpectedly, without any
previous intention, (m) But if there be any predetermined pur-
pose of acting with violence and tumult, the conduct of the
parties may be deemed riotous. As where it was held that al-
though the audience in a public theatre have a right to express

{h) 1 Hawk. P. C. c. 65. s. 5. Hef;. r. be guilty of a riot.
Solcy, 11 Mod. 117. Dalt. c. 137. 5 (0 Dalt. c. 137. 5 Burn. Jmt. Rioi,

Bum. Just Riot, s. I. s. 1. where it is said, that if there is

(i) Dalt. c. 137. 6 Burn. Riot, s. 1. cause to remove aojr such nuisance,

ib) I Hawk. P. C. c. 65. s. 7. The or to do any like act, it is safest not

law will not suffer persons to seek to assemble any multitude of people,

redress of their private grievances by but only to send one or two persons,

such dangerous disturbances of the or if a greater number, yet no more

public peace; but the justice of the than are needful, and only with meet

quarrel in which such an ansembly tools* in order to remove it; and that

may have been engaged will be con- such persons tend their business only,

sidered as a great mitigation of the without disturbance of the peace, or

offencn. And Per Cur. in 12 Mod. threatening speeches.
648. Anon., if one goes to assert his (m) 1 Hawk. P. C. c. 65. s. 3.
right miih force end violence, he may

250

Of Riols. '-^Principals.

[book It.

Though the
purties assem-
bled in the
first instance
for an inno-
cent purpose,
they maj af-
terwards be
guilty of a
riot.

Any person
taking part in
a riot is a
rioter; all are
principals.

the feelings excited at the moment by the performance, and in
this manner to applaud or to hiss any piece which is repre-
sented^ or any performer who exhibits himself on the stage ; yet
if a number of persons, having come to the theatre with a pre-
determined 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 a riot, (w)

Even though the parties may have assembled for an innocent
purpose in the first instance, yet if they afterwards, upon a dis-
pute happening to arise amongst them, form themselves inta
parties, with promises of n^utual assistance, and then make an
a&ay, it is said that they are guilty of a riot, because upon their
confederating together with an intention to break the peace, they
may as properly be said to be assembled together for that pur-
pose from the time of such confederacy, as if their first coming
had been on such a design ; and it seems to be clear that if, in *an
assembly of persons met together on any lawful occasion what-
soever, a sudden proposal should be started of goii^ 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 mo-
tion be agreed to, and executed accordingly, the persons con*
Cerned cannot but be rioters; because their associating them-
selves together, for such a new purpose, is in no way extenuated
by their having met at first upon another, (o)

If any person, seeing others actually engaged in a riot, joins
himself to them and assists them therein, he is as much a rioter as
if he had at first assembled with them for the same purpose, inas-
much as he has no pretence that he came innocently into the
company, but appears to have joined himself to them with an
intention of seconding them in the execution of their unlawAil
enterprize: and it would be endless, as well as superfluous, to
examine whether every particular person engaged in a riot were
in truth one of the first assembly, or actually had a previous
knowledge of the design, (p) And the law is that 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 is himself to be considered a rioter; for in this case all
are principals, {g) It has been ruled, however, that if three or
more, being lawfully assembled, quarrel, and the party fall on one
of their own company, this is no riot; but that 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 them that concur, so that it is a riot in them that act,
and in no more, (r) The inciting persons to assemble in a riotous
manner appears also to have been considered as an .indictable
offence, (s)

(n) Clifford V. Brandon, 9 Campb. v, Royce, 4 Burr. 807S. and the se»

858. cond and third rewlutions in the Sis-

(f») I Hawk. P. C. c. 65. s. 3. sin^hursi house case, I Hale 463.

{pMd.ibid. (r) 19 Vio. Ah. Riott^ ^c.{h) 15.

(V) By Mansfield, C. J. in Clifford tf. Reg^. r. Ellis, t Salk. 595.

Brandon, )f Campb. 370. And see Rex (^ Seeapretedetit^Cro.Ch^.Ccmif.

CHAP. XXV.] Of Riots. — Pulling dincn Churches j %c. 251

Concerning some acta done in a tumultuous and riotous manner^ Sututei.
especial provision is made by particular statutes.

By the 1 Geo, 1. st. 2, c. 5. s. 4. " if any persons unlaw'fully, ^ 0. 1. it.2.
" riotously, d^d tuuiultuously, assembled together, to the dis- Rio'J^ 'p„ij.
'Hurbance of the public peace, shall unlawfully and with force in(^ down, &c.
" demolish or pull down, or begin to demolish or pull down, any c*>«rc^«^
" church or chapel, or any building for religious worship, cer- gu\V^o( *^
'^ tified and registered (according to the 1 W. & M. sess. 1. c. 18.) felony with-
" or any dwelling-house, bam, stable, or other outhouse, that ^^^ clergy.
^' then every such demolishing, or pulling down, or beginning to
" demolish, or pull down, shall b^ adjudged felony without benefit
** of clergy, and the offenders therein shall be adjudged felons,
^^ and shall suffer death, as in case of felony, without benefit of
" clergy." (/) Principals in the second degree are within this
statute : and where a jury found by a special verdict that the de-
fendant was present at a riot, and encouraged and abetted the
rioters in beginning to demolish and pull down a dwelling house,
by shouting and using expressions to incite them, it was held
that he was a principal in the second degree, and as such ousted
of his clergy, though he did no act himself. (^^) By the eighth
section of this statute no person is to be prosecuted, by virtue
of the act, for any offence committed contrary to it, unless the
prosecution be comimenced within twelve months after the offence
committed.

The 9 Geo. 3. c. 29. s. 1. reciting the fourth section of the 9 0. 3. e. 29.
1 Geo. 1. St. 2. c. 5. and that doubts had arisen whether it ex- •• J -Rioter*
tended to the pulling down and demolishing of mills, enacts^ STcmfiis?'^'
^^ that if any person or persons unlawfully, riotously, and tumul- guilty or Ve-
" tuously, assembled together, to the disturbance of the • public "j^^ without
" peace, shall unlawfully and with force demolish or pull down, ^ ^^^'
or begin to demolish or pull down, any wind-saw mill, or other
wind-mill, or any water-mill, or other mill, which shall have
been or shall be erected, or any of the works thereto re-
spectively belonging; that then every such demolishing or
'^ pulling down, or beginning to demolish or pull down, shall be
'' adjudged felony without benefit of clergy, and the offenders
^' therein shall be adjudged felons, and shall suffer death as in
'^ case of felony, without benefit of clergy.'' The fourth section
provides^ that no person shall be prosecuted by virtue of the act

480. (8th ed.) the 1st count of ^rhich roages in Scotland, Most of the cases

is for incUing persons to assemble, upon this subject are collected in 8

and that in Consequence of such in- Saund. S77 a. et $eg. Further proT>-

citement they did so; and the second sions also were made as to particular

count stales tlie inciting, and omits kinds of property, as mills, engines^

the aasembKog in consequence of it &c. by 41 G. S. c. 24. 69 6. S. c 180.

9ee a similar precedent in 2 Chit. s.2. 66 6. 3. c. 125. and generally by

Crim.L. 506. and the principles stated, 57 G. 3. c. 19. s. 38. And a recent

ante, p. 44, el iequ, statute provides a shorter and more

(I) The sixth section of this statute summary mode of proceeding than an

makei prdvision for recovery of da- action in caMS where the damage al-

ma^es done to any church, &c. by leged to have been sustained does not

action against the inhabitants of the exceed SO/. See 3 G» 4« c. 83. t and see

handred« or in some cases against the as to Ireland, 4 G. 4. c. 73.
inhabitants of a cityt and section U. («) Rex ti. Royce, 4 Bnrr. 8078*

frovidfls for tba recovery of aach da- And see ante, 22^ et wq.

952

33 G. 3. c. 67.
84 1. Seamen^
&c. riotously
assembled who
shall forcibly
prerent the
loading, &c.
of any vessel",
&c. to be
committed to
prison.

62 G. 3. c. 130.
Rioters pull-
ing down, &c,
buildings,
engines, &c.
used in trades
or manufacto-
ries, guilty of
felony with-
out clergy.

Of Riots. — Putting down Buildings, Sgc. [book ii.

for any offence committed contrary to it, unless such prosecution
be commenced within eighteen months after the offence com-
mitted. («)

The 33 Geo. 3. c. 67. si. reciting that seamen, keehnen, &c.
had of late assembled themselves in great numbers, and had com-
mitted many acts of violence; and that such practices, if con-
tinued, might occasion great loss and damage to individuals, and
injure the trade and navigation of the kingdom, enacts, *^ that if
^* any seamen, keelmen, casters, ship-carpenters, or other per-
** sons, riotously assembled together to the number of three or
*' more, shall unlawfully and with force prevent, binder, or ob-
*^ struct, 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 lawfiUly convicted of any of the offences aforesaid upon
any indictment found in any court of oyer and terminer, or
general or quarter sessions of the peace for the county, division^
district, &c. wherein the offence was committed) shall be com-'
mitted either to the common gaol or to the house of correction
for the same county, &c. there to continue and to be kept to hard
labour for any term not exceeding twelve calendar months, nor
less than six calendar months. The fourth section provides, that
the act shall not extend to any act, deed, &c. done in the service
or by the authority of his Majesty. The seventh section enacts,
that offences committed on the high seas shall be triable in any
session of oyer and terminer, &c. for the trial of offences com-
mitted on the high seas within the jurisdiction of the Admiralty.
And by the eighth section it is provided, that no person shall be
prosecuted by virtue of the act for any of the offences therein
mentioned, unless such prosecution be commenced within twelve
calendar months after the offence committed, {w)

The 52 Geo. 3. c. 130., reciting the 1 Geo. 1. st. 2. c. 5., and
the 9 Geo. 3. c. 29. and several other acts, and stating that it was
expedient and necessary that more effectual provisions should be
made for the protection of property not within the provisions of
the said acts, makes the burning certain buildings, &c. used for
manufactories a capital offence ; and then enacts, — '^That if any
" person or persons unlawfully, riotously, and tumultuouslv, as-
" sembled together in disturbance of the public peace, shall un-
'^ lawfully and with force demolish or pull down, or begin to de-
'^ molish or pull down, any erection and building, or engine, which
^' shall be used or employed in the carrying on or conducting of
" any trade or manufactory, or any branch or department of any
'' trade or manufactory of good/s, wares, or merchandize, of any
" kind or description whatsoever, or in which any goods, warert,
" or merchandize, shall be warehoused or deposited ; that then

(a) As to thie indf«mni6cation of per- c. SS.
sons iojured by such destruction of (w) This statute wns at first only

niiUs,&c. see41 G. 3. c. 94.;and where temporary, but was made peqielual^

the damages are uadcr SO/, the 8 G. 4, by 41 Geo. 9. c - 10.

CHAP. XXV.] O/Rioti. — Pulling dotcn Buildings, ^c. 253

every such demolishing or puUine down, or beginning to demo-
lish or pull down, shall be adjudged felony, without benefit of
clergy, and the offenders therein shall be adjudged felons, and
shall suffer death as in cases of felony, without benefit of
clergy."(>)

The 66 Geo. 3. c. 125. reciting the 1 Geo. 1. st. 1. c. 5., the 56 G. 3. c. 125.
9 Geo. 3. c. 29., and the 62 Geo. 3. c. 130., and that it was expe- puliin^jo^"
dient and necessary that more effectual provisions should be made &c. engines, '
for the protection of property not within the provisions of those bridges, build-
acts, enacts, — " That if any person or persons unlawfully, riot- jonffioR to*col-
" ously, and tumultuously assembled together in disturbance of lienes, mines*
" the public peace, shall unlawfully and M'ith force demolish, pull &c. guilty of
*' down, destroy or damage, or begin to demolish, pull down, de- cUrgy.^"**°"*
" stroy or damage, any fire engine, or other engine, erected, or to
** be erected, for making, sinking, or working collieries, coal-
** mines, or other mines, or any bridge, waggon-way, or trunk,
** erected or made, or to be erected or made, for conveying coals
*' or other minerals from any colliery, coal-mine, or other mine,
'' to any place, or for shipping the same, or any staith or other
^^ erection or building for depositing coals or other minerals, or
'^' used in the managemeut or conducting of the business of any
^' such colliery, coal-mine, or other mine, whether the same en-
gines, bridges, waggon-ways, trunks, staiths, erections, and
other buildings or works, shall be respectively completed and
finished, or only begun to be set up, made and erected, that then
every such demolishing, pulling down, destroying and damag-
ing, or beginning to demolish, pull down, destroy and damage,
shall be adjudged felony, without benefit of clergy ; and Uie
offenders therein shall be adjudged felons, and shall suffer death
as in case of felony, without benefit of clergy." (y)
Women are punishable as rioters : but infants under the age of
discretion are not.(2)

II. By some books the notion of a rout is confined to such Of a rout,
assemblies only as are occasioned by some grievance common to
all the company ; as the enclosure of land in which they all claim
a right of common, &c. But, according to the general opinion, it
seems to be a disturbance of the peace by persons assembling to-

(x) The third section enacts, that the hundred shall be brought within a

persons injured by such .demolishing, year after the offence committed,

^c. may recover the value or damage (y) The second and third sections

in the same manner as is provided by provide as to the recovery of the value

the 1 Geo. I. st. 9. c. 5. in respect of of property destroyed, and as to the

the buildings mentioned in that act. proceedings for such purpose, in a

And see now where the damages are manner nearly similar to the third and

under SO/., the S Geo. 4. c. 3S. The fourth sections of the 52 Geo. S. c. ISO.

fourth section provides as to some of See ante^ note (jr). And see now where

the proceedings necessary to entitle a the damages are under 80/., the 3 Geo.

person to recovery ; a notice within 4. c. 3S.

two days alter the damage, an exa- (z) 1 Hawk. P. C. c.65.8. 14* Ante,

mination on oath, within four days S, e/ f ^g. and 1 7. Bui an infant above

after the notice, as to the pentons who the age of discretion is punishable i

commilied the fact being known, and and, though under theageof eighteen«

a recognizance to prosecute if the of- need not appear by guardian, but may

fenders are known. And there is a .appear by attorney. Regin.v.Tannert

proviso also,, that the action against 8 Lord Raym. 1284,

u
a
tf

t€
<€

d54t

Of Unlawful Assemblies.

[^BOd& II.

Of an unlawful
JMiembly.

gether with an intention to do a thing, which, if it be executed,
will make them rioters, and actually making a motion towards the
execution of their purpose. In fact, it generally agrees in all the
particulars with a riot, except only in this, that it may be a com-
plete offence without the execution of the intended enterprise, (a)
And it seenis, by the recitals in several 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. (6)

III. An unlawful assembly, according to the common opinion,
IS a disturbance of the peace by persons barely assembling toge-
ther 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. Mr. Serjeant Hawkins,
however, thinks this much too narrow an opinion ; and that any
meeting of great numbers of people with such circumstances of
terror as cannot but endanger the public peace, and raise fears
and jealousies among the King's subjects, seems properly to be
called an unlawful assembly. As where great numbers complain-
ing of a common grievance meet together^ armed in a warlike
manner, 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, (c) So in recent
cases it has been ruled that an assembly of great numbers of per-
sons, which from its general appearance and accompanying cir-
cumstances is calculated to excite terror, alarm, and consterna-
tion, is generally criminal and unlawful. (^) And all persons who
join an assembly of Uiis 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 criminal parties. (2)

An assembly of a man's friends for the defence of hb person
against those who threaten to beat him if he go to such a market^
&c. is unlawful ; for he who is in fear of such insults must pro-
vide for his safety by demanding the surety of the peace against
the persons by whom he is threatened ; and not make use of such
violent methods, which cannot but be attended with the danger
of ndsing tumults and disorders to the disturbance of the public
peace. Jbut an assembly of a man's friends in his own bouse, for
the defence of the possession of it against such as threaten to
make an unlawful entry, or for the defence of his person against
such as threaten to beat him in his house, is indulged by law; for
a man's house is looked upon as his castle, (ci) He is not, how-

(a) 1 Hawk. P. C. c. 65. s. 8.

{b) 19 Via. Ahr. Riot9, &c. (A) 8., re-
ferring to 18 Ed. 9. c. 1., IS Hen. 4.
c. ult, & 2 Hen. 5. c. 8.

(r) 1 Hawk. P. C. c. 65. s. 9. There
may be an unlawful assemblj if the
people assemble themseWes toother
for an ill purpose contra paeem^
thoudi they do nothin|^, Br. Riots, pi.
4. Lord Coke speaks of an unlawnil
assembly as hSme when three or more
aMemble themselves together to com-
mll a riot or routy- antl do not dcr H.

9 Inst. 176.

{y) Per Baytey, J., In Rex v. Hunt
and others, J^rit Spring Assizes, 1890;
and per Holroyd, J., in Bedford v.
Birhy^ Lancaster Spring Assizes, I899»
3 Stark. C. 76.

(z) Per Holroyd, J., iM.

(d) 1 Hawk, P. C. c. 65. s. 9, 10.
19 Vin. Abr. Riots, &c. (A) 5, 6. And
by Holt, C. J., in Re«;in. v. Soley. 1 1
Mod. 116., thongh a man may ride
with arms, vet be cannot take two with
-Ikim to'dcNlid huaaMf eveo-tkotigli

CHAP. XXY.3 Of Unlawful Assemblies. 255

ever, to arm himself and assemble bis friends in defence of his
close, (f)

The conspiring of several persons to meet together for the pur-
pose of disturbing the peace and tranquillity of the realm, of
exciting discontent and disaffection, and of exciting the King's
subjects to hatred of the Government and constitution, may be
prosecuted by an indictment for a conspiracy. (/)

Unlawful assemblies and seditious meetings liaving in many in- Statutei.
stances appeared t^ threaten the public tranquillity and the security
of the Government, several statutes have been passed for the pur-
pose of their more immediate and effectual suppression.

The 1 Geo. 1. st. 2. c. 5. s. 1., reciting that many rebellious 1 Geo. 1. it. 3.
riots and tumults had been in divers parts of the kingdom, to the £; ^' "* ^'
disturbance of the public peace and the endangering of his Ma- ^J^g ^r mon
jesty's person and government, and that the punishments provided unlAnrfuiiy as-
hy the laws then in being were not adequate to such heinous •c"^i«^» *?d
offences ; for the preventing and suppressing such riots and °fter beUig*°^
tumults, and for the. more speedy and effectual punishing the commanded by
offenders, enacts " that if any persons to the number of twelve or ?*® j«»i»ce, ^
^^more, being unlawfully, riotously, and tumultuously assembled mation;tobe
** togeflier, to the disturbance of the public peace, and being re- adjudged fe-
" quired or commanded by any one or more justice or justices of d^°t5i*^ttlKmr
" the pence, or by the sheriff of the county, or his under-sheriff, beoefit of
^^ or by the mayor, bailiff or bailiffs, or other head officer, or jus- clergy.
^Hice 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 bu-
^ siness, 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, that then such con-
" tinning together to the number of twelve or more, after such
** command or request made by proclamation, shall be adjudged
** felony without benefit of clergy, and the offenders therein shall
*^ be adjudged felons, and shall suffer death as in case of felony
'* without benefit of clergy."

The second section of the statute gives the form of the procla- i Oeo, 1. it. 2.
matibn, and enacts, that the justice of the peace or other person ^dcs^as^to^the
authorized by the act to make the proclamation slmll, among the form of the
said rioters, or as near to them as he can «afely come, with a loud proclamation,
voice command, or cause to be commanded, silence to be while ^hich1t°uur
proclamation is making, and after that shall openly and with loud be made,
voice make, or cause to be made, proclamation in these words, or
like in effect : — *^ Our sovereign lord the King ehargetb and com-
" mandeth all persons, being assembled, immediately to disperse
" theiQBelyes, and peaceably to depart to their habitations, or to
*^ their lawful business, upon the pains contained in the act made
^* in the first year of king George, for preventing tumults and

his life in threatened; for he is in the of Bangor, Shrewtbury Summed Am.

protection of the law, which is suffi- 1706.

cierit for bis defence. (/) R^x o. Hunt and others^ 3 B. ft

(«) By Bealk, J., }Ux v. the Bishop A. »66.

856 Of Vtdawfvl Assemblies. [book ii.

** riotous assemblieB. God save the King." And every jofitice,

sheriff, &e. within the limits of their respective jurisdictions are

.,' , authorized and required^ on notice or knowledge of any such

unlawful assembly of twelve or more persons, to resort to the
place, and there to make or cause such proclamation to be made.
1 Geo. 1. at. 2. The third section enacts that if the persons so unlawfully, riot-
soot w» Mscm- ^^^y *^^d tumultuously assembled, or twelve or more of them,
bled, And not after such proclamation, shall continue together and not disperse
dispenioff themselves within one hour, that it shall be lawful for every jus-
to be seUcd"*^' *^^®> sheriff, Or under-sheriff of the county where such stssembly
and taken be- shall be, and for every constable or other peace-officer within such
fqre a justice, county, and for every mayor, justice, sheriff, bailiff, and other
head officer, constable, and other peace officer of any city or town
where such assembly shall be, and for such other persons as shall
be commanded to be assisting unto any such justice, sheriff, or
under-sheriff, mayor, bailiff, or other head-officer (who are thereby
authorized to command all his Majesty's subjects of age and ability
to be assisting to them therein) to seize and apprehend such per-
sons so unlawfully, riotously, and tumultuously continuing toge-
ther after proclamation made ; and they are thereby required so
to do. And that they shall carry the person 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
Aod if they their being proceeded against according to law. And the section
make ^^^' also enacts that if any of the persons so assembled shall happen to
umWUing^' be killed, maimed, or hurt, in the dispersing, seizing, or apprehend-
them, &c. are ing them, or in the endeavour to do so, by reason of their resisting,
indemaified. then every such justice, &c. constable, or other peace-officer, and ail
persons being aiding and assisting to them, shall be free, discharged,
and indemnified concerning such killing, maiming, or hurting.
1 Geo. 1. 8t.2. I'he fifth section provides, '' That if any person or persons do,
c. 5. 8. 5. Pre- " or shall, with force and arms, wilfully and knowingly oppose,
proclamation " obstruct, or in any manner wilfully and knowingly let, hinder, or
from bein^ ^' hurt, any person or persons that shall begin to proclaim, or go
made, felony «' to proclaim, according to the proclamation hereby directed to be
withontclergy. <« made, whereby such proclaniation shall not be made, that then
^^ every such opposing, obstructing, letting, hindering, or hurting,
such person or persons, so beginning or going to make such
proclamation as aforesaid, shall be adjudged felony without be-
nefit of clergy; and the offenders therein shall be adjured
" felons, and shall suffer death as in case of felony, without benefit
And penons '^ of clergy ; and that also every such person or persons being so
%****'S^'** *' unlawfully, riotously, and tumultuously assembled, to the uuro-
ciamation ^h^ ^' ^^^ ^^ twelve, as aforesaid, or more, to whom proclamation
hindered, and '' should or ought to have been made, if the same had not been
"?J. .^**P*"'°8^ *' hindered, as aforesaid, shall likewise, in case they or any of
felons withoQt ^' them, to the number of twelve or more, shall continue together,
clergy. '^ and npt 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, and shall suffer death as ia
" case of felony, without benefit of clergy."

to ba com^°* ' J^? ^^ eighth section of the act, it is provided that no person
■wttMd ia shall Be prosecuted by virtue of the act for any Mfence .odomtit^d

fwtlfamonths.

' *-»-.. -* . f>»

CHAP. XXV.] Taking Unlawful Oaths, 2^7

contrary to it, unless the prosecution be commenced within twelve
months after the offence committed. (/)

By the 39 Geo. 3, c. 79- 8« 1. reciting that divers societies had 39 G. 3. c 79.
been instituted in this kingdom and in Irefand, of a new and dan- Jj^j^^i^^'^'*
gerous nature, inconsistent with public tranquillity, and with the tupprevsed.
existence of regular government ; particularly certain societies
calling themselves " Sodftties of United Englishmen, United
*' Scotsmen, United Britons, United Irishmen, and The London
** Corresponding Society,^' and that it was expedient and neces-
sary that ail such societies, and all societies of the like nature,
should be utterly suppressed and prohibited, as unlawful combina-
tions and confederacies, highly dangerous to the peace and tran-
quillity of these kingdoms, and to the constitution of the govern-
ment thereof, as by law established, it is enacted, " That all the
** said societies of United Englishmen, United Scotsmen, United
^^ Irishmen, 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 same are hereby utterly suppressed and pro-
*' hibited, 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."

The second section of the statute enacts, that the said societies, 39 G. 3. c. 79.
and every other society then established, or hereafter to be es- •• ^* Societies,
tablished, the members whereof shall, according to the rules thereof, ©f w™U:h bIibII
or to any provision or agreement for that purpose, be required or take unlawful
admitted to take any oath or engagement which shall be an unlaw- ^'^" ^^ ***"
fill oath or engagement, within the intent or meaning of the 37 G. &^^OT*where
3. c, 123. (g) or to take any oath not required or authorized by the names of
law ; and every society the members whereof, or any of them, some of the
shall take, or in any manner bind themselves by any such oath or ofV™ons
engagement, on becoming, or in consequence of being members of forming com-
such society : and every society, the members whereof shall take, "J*^^*'?* i**^;
subscribe, or assent to any test or declaration not required by law, Jccret/or*^^
or not authorised in manner hereinafter mentioned ; and every so- where there
ciety of which the names of the members, or of any of them, shall ™ <5>^»"'<'n8,
be kept secret from the society at large, or which shall have any deties, are to
conrniittee, or select body so chosen or appointed, that the mem- ^ deemed
bers constituthig the same shall not be known by the society at po]iJ^i^\ion«
large, to be members of such committee, or select body ; or which «nd con-
shall have any president, &c. or other officer, so chosen and ap- fedcracics.
pointed, that the election or appointment shall not be known to the
society at large, or of which the names of all the members, and of
all committees or select bodies of members, and of all presidents,
&c., shall not be entered in a book to be kept for that purpose, and
open to the inspection of all the members ; and every society which
shall be composed of different divisions or branches, or of different

(/) For the section of the act re- and that offendern in Scotland shall

lating to the demolishing or pulling suffer death, and confiscation of move-

down churches, chapels, hoaaes, &c. ables. This statute is commonly called

by rioters, see ante, 851. The ninth the Riot Act; and is required by s 7.

seciioo of the act eaarts, that she- to be openly read at every quarter

ril&s &c. in Sc^tUmd^ shall have the session, and at every leet or lav day.

came power for putting the act in \g) Ant^, p. 1^9, et itqu.
cxecuttoa as jntticcs, &c. bave (icre :

VOL. I* ' 1

"S^B Of IJnlamfal Jtisemblies. [book h.

part3, a,cting in any manner eeparately or distinct from each other,

or of which any part shall have any separate or distinct president,

&c. or other officer, elected or appointed by, or for such part, or to

act as an officer for such part ; shall be deemed and taken to be tin-

And personi lawful combinations and confederacies, {h) And further, that every

in^'with'such J*c>^*P^ ^^^ shall directly or indirectly maintain correspondence or

societies, or intercourse with any such society, or with any division, branch,

to^b" V***^"!^ c^"^"^t^®> ^^ other select body, president, &c. or other officer, or

jruiity of wi member thereof as such, or who shall by contribution of money, or

unlawful com- Otherwise, aid, abet, or support such society, or any members or

conf^d" "°^ officers thereof, as such, shall be deemed guilty of an unlawful

e eracy. combination and confederacy.
The act is not There is a provision, that the act shall not extend to declarations
to extend to approved by two justices, and registered with the clerk of the
a^^roycd^b' P^^^^e ; but that such approbation shall only remain valid till the
two7u8Ucc8, ^^^^ general session, unless the same shall be confirmed by the
and registered; major part of the justices at such general session. (?) And it is
of Free-m^-* ^^ enacted, that it shall not extend to the meetings of societies,
sons, where ^r lodges of Freemasons, which, before the passing of the act, had
there is a cer- been usuallv held, under the denomination of " Lodires of Free*
SsSr ^ *' masons," and in conformity to the rules prevailing among such

societies ; {k) 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 conformity 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 descrip-
tions of the members, are to be registered yearly. (/) The clerk
of the peace is required to enrol such certificate and registry, and
to lay the same once in every year before the general session of
Butthc justices the justices ; and the justices may upon complaint, upon oath, that
raeetiT**©?* ^^® continuance of the meetings of any such lodge or society is
any lodge to be likely to be injurious to the public peace and good order, direct
disconunued : them to be discontinued ; and any such meeting, held notwith-
r^hdd«'not!^~ standing such order or discontinuance, and before the same shall,
wuhsundinf by the like authority, be revoked, shall be deemed an unlawful
such order, combination and confederacy under the provisions of the act. (m)
Uwfufc'^aibi.' '^^ eighth section of the statute enacts, " That every person
nation and " who, at any time after the passing of this act, shall, in breach
confederacy. «^ of the provisions thereof, be guilty <rf any such unlawful com-
39 o. 3. c. 79. ^ bination and confederacy as in this act 4s described, shall and
inn aninst of- ** ^^^ ^® proceeded against for such offence in a summary way,
fenden before ^^ either before one or more justice or justices of the peace for the
justices, or by « county, stewartry, riding, division, city, town, or place, where
indictment. u ^^^y^ persons shall happen to be, or by indictment to be pre-

" ferred in the county, ricUng, division, city, town, or place, in
'^ England, wherein such offence shall be conmiitted, or by in-

(k) By the 59 Geo. 3. c. 19 s 27. cussed,
this enactmeat is not lo extend to (t) 39 6£o. S. c. 79. s. 3.
ineetings of Quakert^ or to aiw meet- . (k) Id. sect. 5.
iiifr or society for purposes of a reJi- (/) Id, sect 6.
l^ioDS or charitable nature onW, and (m) Id, sect 7.
m wjiifh oo'other niatter shall be dis-

CBAP xrr.] Of Vniaujlul A$^mhlies. 25^

" dictaneat in flie coart of jiKticiaiy, or in any of the circuit
^' courts in Scotland^ if the offence shall be committed in Scot-
^^had; and every person being convicted of any sudh ofience, on
^^tke oath of one or more credible mt?ness'or witnesses^ by such
^^ justice or justices as aforesaid, shall be by him or them com-
'^ mitted to the oommon gaol, or house of correction, for sucli
'^county, &c. there to remain witiiout bail or mainprise, for the
" term of three calendar months ; or shall be by such justice or
" justices adjudged to forfeit and pay the sum ^f twenty ponnfis,
^* as to such justice or justices shall seem meet ; and in case sudh
^^ sum of money shaH not be forthwith paid into the hands of sttch
'^ justice or justices, he or they shall, by warrant under his or thdr
^* hand and seal, or hands and seals, cause the same to be levied
^^ bydtetres6 and.saieof the offender's ^goods -and chattels, together
^^ mtk fall costs and changes attending such distress and side ; and,
^^ for want of sufficient distress, shall commit such offender to the
^' common <gaol or house of correction of such county, &c. for any
'^ time not exceeding three calendar months ; and every person
'^ conflicted of any such offence, upon indictment by due course of
'^ law, shall and may be transported for the term of seven years,
" io the manner provided by law for transportation of offenders;
^ or knprisoQed for any time not exceeding two years, as l^he
'^ court before whom such' offender shall be t^ied shall think Vt ;
^* and ererj such offender, who shall be ordered to be transported,
** shall be sabject and liaJ^e to ^all laws concerning offenders or-
" dered to be transported."

But the justice or justices, before whom any person shall be Justices may
convicted of any unlawful combination or confederacy, may miti- mitigate the
gate *he punishment^ so ds it be not thereby "reduced to less than P'"^^^°*'^"^
one-4fbird of the punishment by the act directed to be inflicted,
whether by imprisonment or fine, (n) And it is provided, that And persons
any person who sliaQl be convicted or acquitted by any justice, clItTw^e
upon a sunmiary prosecution, shall not afterwards be prosectrted ajustice.orin-
by indictoient, or otherwise, for the same offence ; and in like dieted, arc not
manner tiiat any, person convicted, or acquitted, upon an indict^ ^^rogec^utions"
meat, shall not afterwards be prosecuted before any justice in a ^ °"^^" ^^^^'.
swamary way. (o) But the act is not to extend to prevent any But offenders
prosecution by indictment or otherwise, for any thing which shaH maybe indict-
be an offence within the intent and meaning of the act, and which j^cuted^^ ^d^"
might have been so prosecuted if the act had not been made, thu'act!
unless the offender shall have been prosecuted for such offence
under the act, and convicted or acquitted of such offence. (/>)

The statute 60 G. 3. and 1 G 4. c. 1. reciting that in some parts qog.3. & i O.
of the United Kingdom men clandestinely and tmlawfuUy as- 4. c.l. Meet-
sembled had practised military training ancl exercise, to the great ***?' ^^^ '^«
terror and alarm of his majesty's peaceable and loyal subjects, Kt^**

exercise

and to the danger of the public peace, enacts, *' That all meetings prohibited; and
" and afiseniblies of persons for the purpose of training or drilling person* aticnd-
" themselves, or of being trained or drilled to the use of arms, or in^*"for Sie''"
*^ for the purpose of practising military exercise, movements, or purpose of
evobitions, without any lawful authority from his majesty^ or trainingothers,
the fieutenant^ or two justices of the peace of any county or therdn%able

(«) 89 Geo. 3. c. 79. ». 9. (p) S9 Geo. 8. c. 79. s. 11.

(n) Id. sect 10.

s2

2^9 Of Unlawjul Asiemblies. [book n*

to be trans- *' riding, OF of any stewartry, by commission or otherwise, for so
5ri8oncd! ^And ^' ^^^S> shall be, and the same are hereby prohibited as danger-
persons attend- " ouQ to the peace and security of his majesty's liege subjects, and
ing for the *^ of his government ; and every person who shall be present at,
EciM trainad " ?^ attend any such meeting or assembly for the purpose of train-
liable to be ' " ing and drilling any other person or persons, to the use of arms,
filled and im- ^^ or the practice of military exercise, movements, or evolutions,
pnsQB^. €c QY ^jjQ shall train or drill any other person or persons to the use

^^ x)f arms, or the practice of military exercise, movements, or evolu-
-^', tions, or who shall aid or assist therein, being legally convicted
** thereof, shall be liable to be transported for any term not ex-
^5 ceeding seven years, or to be punished by imprisonment, not
^ exceeding two years, 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 mili-
^* tery exercise, movements, or evolutions, being legally convicted
^ thereof, shall be liable to be punished by fine and imprisonment,
, . *^ not exceeding two years, at the discretion of the court in which

^' such conviction shall be had." (a)
57 b. i, c. 19. A . statute, 5J Ceo. 3. c. 19. and a more recent statute GO
& 60 G. 3. & 1 Geo. 3. & 1 Geo. 4. c. 6. contained many enactments relating to
^I'^'f • Jf "" assemblies of persons, collected for the purpose, or under the pre-

porary enact- . ^ r j i-u *• ut • j / • *.•

menu. text of deliberating on public grievances, and of agreemg on peti-

tions and addresses to the throne, or to the houses of parliament ;
« , .. which were only temporary enactments, and appear to have now

expired.
57'<9. 3. 6. 19. But . the statute 57 Geo. 3. c. Id. contains also several enact-
^^"?™^J^jj^ ments. relating to meetings and assemblies of persons which are
thtik- doratlon. not of a lunited duration.

Sect. 23. T^^ twepty-third section, reciting, ihat it is highly inexpedient

No meetings to that public meetings or assemblies should be held near the houses
Sin ^*a ** Vtb- ^^ Parliament, or near the courts of justice in Westminster Hall,
in a nuie df ' ^^ certidn days ; enacts, that it shall not be lawful for any person
m»tminsfer to couvcnc, or to give any notice for convening, any meeting con-
^^" sisting 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 liberties of Westmvistery or county of MuidleseXj within
the distance of a jnile from the gate of W^niinsler Hall^ (except
,BUch parts of the parish of St. PauFs, Omfent Gardeny as are
within such distance) for the purpose of considerijpg of or pre^
paring any petition, &c. for alteration .of matters in church or
stat^, on any day on which the two houses,, or ^ther house of
Parliament, shall meet and sit, nor on any day bn which the
courts shall sit in Westminster Hall. And that if any meeting or
.assembly for such purposes shall be assembled or holden on such
,day, it shall be deemed an unlcmful assembly, fiut there is a

, ie) Tke second section of the act six reonths. And by sect. 7. prosoca-

|»rovides fx>r the dispersion of per&ons tions for oflfeoccs against the provi-

^ so natcmMtd, or for tbeir detention sions of the act must be comroeoced

-•nd gi'vipg tail. Bt sect'S & S. &c- within six niohthM afVer the offence

lions for i^nyihing/Qne in .pursuance committed.
nS the act^mist be commenced within

n\

■1/

II

^ I

i*-

CHAP. XXT.] Societies taking unlawful Oaths. %dl

provision 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.

The twenty-fourth section recites, that divers societies and 57 Geo. 3. <j.
clubs had been instituted in the metropolis, and in various parts of JjJ^g^^J^i
the kingdom, of a dangerous nature and tendency, inconsistent iQ^ socteciM '
with the public tranquillity and the existence of the established taking uniaw-
govemment, laws, and constitution, of the kingdom ; and that the ^ c°ectinir^*^'
members of many such societies or clubs had taken unlawful committeeA,
oaths and engagements of fidelity and secrecy, and had taken or delegates, &o.
subscribed or assented to illegal tests and declarations ; and that
many of these societies or clubs appointed or employed commit-
tees, delegates, &c. to confer or correspond with other societies or
clubs, and to induce other persons to become members ; and by
such means maintained an influence over large bodies of men, and
deluded many ignorant and unwary persons into the commission
of acts highly criminal : and recites also, that certain societies or
clubs, calling themselves Spenceans^ or Spencean Philanthropists^ And also con*
professed for their object the confiscation and division of the land, ^»'JS:iJtte»
and the extinction of the funded property of the kingdom; and or clubs, &g*
that it was expedient arid necessary that they should be utterly
suppressed and'prohibited as unlawful combinations and confede-
racies highly dangerous to the peace and tranquillity of the king-
dom, and to the constitution of its government. And then it
enacts, ** That all societies or clubs' calling themselves Spenceans, And the Spen-
" or Spencean Philanthropists^ and all other societies or clubs, by or*cli5br &&*
" whatever name or description the same are called or known, are supj^iisseil
** who hold and profess, or who shall hold and profess, the same ^^^ prohibit*
" objects and doctrines, shall be, and the same are hereby utterly ",2binaUona.
^^ suppressed and prohibited, as being unlawful combinations and and coufede-
** confederacies against the government of our sovereign lord the «cies*- j
** king, and against the peace and security of his Majesty '& liege
" subjects.*'

The twenty-fifth section enacts, " That all and every the said 53^ Gto. y. c.
" societies or clubs, and also all and every other society or club Jfetles^aWnff
** now established, or hereafter to be established, the members unlawful oaths,
** whereof shall be required or admitted to take aay oath or en- &c. or electing
" gagement which shall be an unlawful engagement within the Sekgaus^Ac.
" meaning of the 37 Geo. 3. c. 123. {d) or within the meaning of to be deemed*
" the 52 Geo. 3. c. 104. (e) or to take any oath not required or unlawful comr
" authorized by law ; and every society or club, the members confedeAci^
'^ whereof, or any of them, shall take or in any manner bind them-
*' selves by any such oath or engagement, 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 ot
^ any member whereof shall be required or admitted to take, sub-
'^ scribe, or assent to, or shall take, subscribe, or assent to, any
'' test or declaration not required or authorized by law, in what-
'^ ever 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 consequence of being a member or mem-
(rf) Jnie, 129. (f) jiHie^ ISO;

!86e

Q^ Unlawful J^embites^

[book n.

ic

fi

bers of any $ucb soeiety or club; and. every society or dub tbivt
'^ shall electa appoint, nominate, or en^loy any committee, d^le-
^ gate or delegates, representative or repcesentatives, missionary
or missionaries, to meet, confer, or communicate with any other
*^ society or club, or with any ccmimittee, delegate or delegates,
^' representative or representatives, missionary or missionaries, 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 unlawful combinations and confederacies, within the
*' meaning of the 39 Geo. ft. c. 79. (/) and shall and may be pro-
^' secuted, proceeded against, and punished, according to the proi-
^^ visions of the said act ; and every person who, from and after
^^ the passing of this act, 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 corre-
^' spondence or intercourse with any such society or club, or with
^' any committee or delegate, represcctative or missionarv, or with
'.^ any officer or member thereof, as such, or who shall, by contri*
^^ bution of money, or otherwise, aid^ abet, or suppoct, such society
'^ or club, or any members or officers thereof, as such, shall b« '
'^ deemed guilty of an unlawful combination and confederacy
'^ within the intent and meaning of the said 39 Geo. 3. c. 79. and
*^ shall and may be proceeded against, prosecuted, and punished,
^' according to the provisions of the said act, witii regard to the
'^prosecution and punishment of unlawful combinations and con*
*' federacies." (g)

Nothing contained in this act is to extend to lodges of Free*
masons, complying with the regulations of the 39 Geo. 3. c. 79; {h)
nor to any declaration approved and subscribed by two or more
justices 01 the peace, and confirmed by the major part of the jus-
tices at a general session, or at a general quarter sessions of the
peace, pursuant to the regulations in the said act of the 39 Geo. 3.
proved by Jus- e. 79.;(t) nor to meetings of Quakers; nor to any meeting or
tices ; nor to society for purposes of a religious or charitable nature only, and in
societiM for ^^^^ ^^ Other matter or business shall be discussed. (A)

clittrital>le puipotes.

S. 28. Offence Any person knowingly permitting any meeting of any society, or

club, declared by this act to be an unlawful combination or con-
federacy, or of any division or committee of such society or club,
to be held in any place belonging to him, or in his possession or
occupation, is made liable, for the first offence, to a forfeiture of
five pounds ; and for any offence committed after the conviction
for such first offence is to be deemed guilty of an unlmvhd combi-
nation ajid confederacy in breach of this act. (/) And two jus-
tices, upon evidence on oath that any such meeting^ or any meet-

57 G,3. C.19.

8. 26. The

act is not to
extend to
lodges of
Freemason* ;
nor to decla-
rations ap-

of persons
permitting
nnlawfal
nwetings.

S.29. Li-
cences of

th^y^Tieiirto ™S ^^^ '^^y seditious purpose, has been held at any house, &c.
be forfeited, Hcensed for the sale of liquors, with the knowledge and consent

(/) Anle^ 257. et tcq*
(g) Ante, »68.
(k) Anir, 958.
(I) Ante, IbitL

(k) 57 Geo. 3. €, 19. s.S(/&.
(l) Id, s. 28* SeciioQ IS of tfajp Sa
Geo. 3. c. 79. is ncarfy similar.

CHAP. XXV.] 0/ UnUmful Assemblies. ^63

of the person keepii^ 8uch house^ &c. may adjudge the licence to
be forfeited, (wi)

The thirtieth and three following sections of the act relate to s. 30, 31 , 32,
the recovery of the pecuniary penalties^ which may be incurred -^3. Recovery
under the act, their application, and the limitation of actions anFumitatioii
against justices, &c. for any thing done in pursuance of the act. of actions.
Penalties exceeding 20/. may be recovered by action of debt; and
those not exceeding 20/. may be recovered before a justice in a
summary way.

The thirty-fifth section enacts that nothing contained in the By b. 35. the
act shall be deemed to take away, or abridge, anyprovision already, *^^ *• "®^ ^
made by the law of the realm, for the suppression or punishment of Jr^gions
any o£Fence described in the act. And by the thirty- sixth section made by law :
it is provided, that no person shall be prosecuted under the act, ^^ ^X ■• ^^'^
for having been a member of any illegal society, if such person rauTagainrt*"
shall not have acted as a member, after the passing of the act ; but persons not
that the act shall not extend to prevent any prosecution, by indict- having ^^J^
ment or otherwise^ for any thing which shall be an oflTence within tSc^passmg of
the act, and which might have been so prosecuted, if the act had the act.
not been made.

The thirty-sixth section also provides that no person prosecuted And by s. 36.
and convicted, or acquitted, of any offence against the act, shall persons pro-
be liable to be again prosecuted for the same offence. to^bc^if a?n'

prosecuted for tbe same offence.

The thirty-seventh section contains a provision, that where any S, 37. empow-
proceeding or prosecution shall be mstituted for any offence against nl^^GcncnO^or
the 39 Geo. 3. c. 79- or this act, either by action or information, Lord Advocate
before any justice or justices, or otherwise, the attorney-general to stay pro-
in England, or the lord advocate in Scotland, may order them to c^fajjf^ases •
be stayed ; and, in case of any judgment or conviction, one of his and a secretary
Majesty's principal secretaries of state may, by an order imder his of "tatc to stay
hand, stay tlie execution of such judgment or conviction, or miti- " mUk^at'e"'^
gate, or remit, any fine or forfeiture, or any part thereof. the forfeiturr.

The act does not extend to Ireland. And it was enacted, that
it might be repealed, or in any manner altered^ during the ses-
sion, (n)

As to Ireland the Irish act, 33 Geo. 3^ c. 29. and a late statute, Unlawful socie-
4 Geo. 4. c. 87. declares certain societies, clubs, 8tc. in that coun- ties in Ireland,
tr}', to be unlawful assemblies, combinations, and confederacies ;.
makes the members guilty of an unlawful combination and con-
federacy, and provides for the suppression of the societies and
the punishment of the members. And a more recent statujte, 6
Geo.' 4. c. 4. was passed to amend the former acts relating to un-
lawful assemblies in Ireland : but it is to continue in force only^
for two years from the passing of the act, and until the end of: the
then next session of Parlia^ient. (a)

Several statutes have lately been passed for the purpose of regu^- Of pfecetused
latii;ig places used for delivering lectures, and holding debates : ^yj*^?"**

(ot) i4. 8. 29. Section 14 of the 39 **son keeping such house ,.&c.**

Geo. 3. c. 79. is similar, e:scept that it (n) Ss. S9, 40.

does not contain the words ^' with the (a) *S. 12.
** knowledge and consent of tbe per-

26*

Of Vnlau^l Asse^nblief.

[book. II .

36 G. 3« c* 8*

39 G. 3. c. 79.
B. 15. Places
of lecturing,
debatiag, or
reading, for
the purpose of
raising money,
&c. to be
deemed disor-
derly, nnless
previously
licensed.

39 G. 3. c. 79.

8. 16. Wbo are
liable as per-
sons opeoing
bouses, &c.

S. 17. Jui-

but the enactments contained in them are for the most part of
limited duration «

Many of the. sections- of the 36 Qeo. 3. c« 8. were intctnded to
remedy the evil occasioned by persons who, under pretence of
delivering lectures and discourses on public grievances, delivei^d
lectures and discourses, and held debates, tending to stir up
hatred and contempt of the king's person and government, and of
the constitution : but this statute was limited to a duration of three
years from the passing of the act, and until the end of the theu
next session of Parliament, (o) It is referred to in the 39 Geo, 3.
c. 79- 8. 15. which, reciting that divers places had been used for
lectures or debates, which were not within the former act, but
which lectures or debates had in many instances been of a seditious
and immoral nature, and that other places had been used for sedi-
tious and immoral purposes, under the pretence of being places of
meeting for the purpose of reading books, pamphlets^ newspapers,
or other publications, enacts, that every house, room, field, or
other place at or in which any lecture or discourse shall be pub-
licly delivered, or any public debate shall be had on any subject
whatever, for the purpose of raising or collecting money, or any
other valuable thing, from the persons admitted; or to which any
person shall be admitted by payment of money, or by any ticket
or token of any kind, delivered in consideration of money or other
valuable thing, or in consequence of paying or giving, or having
paid or given, or having agreed to pay or givc^ in any manner, any
money or other valuable thing; or where any money or other
valuable thing shall be received from any person admitted, either
under pretence of paying for any refreshment, or other thing, or
under any other pretence, or for any other cause, or by means of
any device or contrivance whatever j and every house, &c. which
shall be opened or used as a phice of meeting, for the purpose of
reading books, pamphlets, newspapers, or other publications, and
to which any person shall be admitted by pavment of money, or by
any ticket, &c. (as before) shall be deemed a disorderly /umse or
place, within the said act of 36 Geo. 3. unless the same shall have
been previously licensed in the manner afterwards mentioned in
the act. And the persons by whom such house, &c. shall be
opened or used, are to forfeit 100/. for every time of opening or
using, and be otherwise punished as the law directs in cases of
disorderly houses ; and every person conducting the proceedings,
debating, or furnishing books, &c.; and also every person giving
or receiving money, &c. in respect of the admission to any such
house, &c., or delivering out, or receiving, any tickets or tokens,
knowing such house, &c. to be opened or used for any such pur-
pose, is, for every such offence, to forfeit twenty pounds.

It is further enacted, that any person appearing as master, or as
having the management of any such house, &c. shall be deemed to
be a person by whom the same is opened, or used, and liable to be
sued or prosecuted, though not the real owner or occupier. (/?)
A power is also given to any justice who shall, by information

(o) The date of the act is tho 18 {p) 39 Geo. 9. c. 79. s. 16.
December, 1795.

CHAP. xxT.] Tumtdtuous Peliti&ning. !^^

upon oatfay have reason to suspect that any house, &c. is opened or fSces (▼ in-
used for lectures, debates, reading, &c. contrary to the act, to go fo^wpiion
to such house, &c. and demand to be admitted 5 and, in case of ad- ^ any ^ce'
mittance being refused, such house, &c. is to be deemed a disarderlu to be opened
kou8€ or place within this act, and the said act of the 36 Geo. o! *?' iccturet,
and the provisions in both the acts are to be applied to such house, mand'Smitl
&c. where s^ch admittance shall have been so refused; and every tance; and if
person refusing is to forfeit twenty pounds, {q) refused, the

deemed disorderly, and tbe persons reftuing to forfdt 0OC:

The eighteenth section of the act relates to the licensing any S. i^.Use^:^ ^
place for lecturing, or reading, by two or more justices at their ■■ *^ ^^c*5°cea, ,
general sessions, or at a special session held for the purpose ; but &c. and the* '
gives a power to the justices at any general sessions to revoke such power of jui-
licence. And any justice may demand admittance to any licensed **^* j'iwi^Yi '
place ; and, in case of refusal, such place is to be deemed, notwitb* unce to pTa^eal
standing the licence, a disorderly house or place, within the act j licensed ; and
and every person refusing such admittance is to forfeit twenty ^^^J^^^^^^
poimds. (r) It is also provided, that any two justices upon evi*
dence, or oath, that any licensed place is commonly used for lec-
tures or discourses of a seditious or immoral tenaency, or that
books, &c. of a seditious or immoral nature are there commonly
kept, and delivered to be read, may declare the licence to have
been forfeited, {s) Every house, &c. licensed for the sale of ale, or
liquors, is to be deemed licensed for reading within the act : but
two or more justices on evidence, on oath, that seditious or im- '
moral publications are usually distributed there for the purpose of
being read, may declare the licence for selling ale, or liquors, to
have been forfeited, {t)

The act is not to extend to lectures delivered in the universities TIte act is not
by members, &c. or to lectures delivered in the hall of any of the *®J!!^°1 ^
inns of court by persons authorized ; and payments to school- ^* ° ^ **^''
masters are not to be deemed payments for admission to lectures
within the act. {u) And prosecutions for any penalty imposed by Prosecutiont.
the act are to be commenced within three months after it shall limited.
have been incurred, {w)

The statute 13 Car. 2. c. 5. reciting the mischiefs of tumulhious 13 Car. 2. st.
petitioning , enacts, that no person shall solicit or procure the get- h^*^*,"^**
ting of hands or other consent of any persons above the number of petitioning,
twenty, to any petition, &c. to the king or the houses of Parlia-
ment^ for alteration of matters estiablished by law in church or
state, unless the matter thereof shall have been' first consented
unto and ordered Ijy three justices, or by the major part of the
grand jury of the county, &c. at the assizes or quarter sessions ;
or, in London, by the lord mayor, aldermen, and common coun-
cil : and that no person shall repair to his Majesty or the houses
of Parliament, upon pretence of presenting or delivering any peti-
tion, &c. accompanied with excessive number of people, nor at any
one time with above the number of ten persons ; upon pain of in-
curring a penalty not exceeding one hundred pounds, and three , . - »

(ff) 39 Geo. S. c. 79. s. IT. (0 id. ». «>.

(r) Id. s. 19. W Id, ». 8«.

(f) Id. t. 20. <w) Id. s. 34,

moiiths' hnprUoBment for every offence*; such oflbnce to be prc^
secuted in the court of King's Bench, or at the assizes or quarter
sesfiioas, within six months, and proved by two credible wit-
nesses, (a) But- there is a proviso, that the act shall not hinder
persons^ not exceeding ten in number, from presenting imy puUic
or private grievance or complaint to any member of ParHament,
or to the king, for any remedy to be tbereupon^had : nor extend to
any address to his Majesty by the members of the houses of Bar-
liament^ duriog the ritting of Parliament, (b)
Suppression Xbe common law, and also several more imcient statutes than

of note.— those which have been mentioned, authorize proceedings for the
BycommoB restraining and suppression of riots. By the common law the.
^^* sheriff under-sheriff, constable, or any other peace-c^cer, may,

and ought to do, all that in them lies towards the suppressing of a
riot, and. may command all other persons to assist them: and by
the common law also any private person may lawfully endeavour
to appease such disturbances by staying the persons engaged from
executing their purpose, and also by stopping others coming to
join them, (c) It has. been holden also, that private persons may
arm themselves in order to suppress a riot; (c/). from whence it
aeems. clearly to foljiow that they may also make use of arms in
suppressing it, if there be a necessity. However, it may be very
hazardous for private persons to proceed to. these extremities ; and
such violent methods seem only proper against such liota as savour
of rebellion, (e) But if a felony be about to be committed, ^e
interference of private persons will be justifiable; for a private
v^son may do any thing to. prevent the perpetration of a felony. (/)
in the riots which took place in the year 1780^. this matter was
nmch misunderstoody and a general persuasion prevailed that no
indifferent person could interpose without the authority of a ma-
gistrate ; in consequence of which much mischief waa done, which
might otherwise have been prevented, (g)
Suppression of The Statute 34Edw. 3. c. 1. empowers justices of the peace to
uSST" restrain and arrest rioters ; andj having been construed liberally,

it has been resolved, that a single justice may arrest persons
riotously assembled^ and may. also authorize others to arrest them
by a parol command* By the statute 13 > Hen. 4. c* 7- s. L the
justices of the peace, three or two of them, at the least, and the
sheriff or under-sheriff of the county where any riot, assembly, or
rout of people against the law shall be made, shall come with the
power of the county (if need be) to arrest them ; imd shall arrest
tbem ;. and shall have power to record that which they shall find

(a; IS Car. 2. sL I. c. 5. s. $. courts that neitheiv that nor any other

{b) IS Car* 2. St. 1. c. 5. s. 3. Bj 1 act of ParliameDt ha4 repealed it, aod

, W; aod M. sess. 2. c 8. s. 1. art 6. that it was in full force. Rex tk Lord

useally stjied the BrH of Riehto, it is George Gordon, Dougl. 571.

emcAed, '* That it^ is tbo rig^t of the (e) 1 Hawk. P. C. c Ofr. Si 11.

«' subjects to petilion the kio^, aod. (^ Case of arms, Popb. Iftl. Keh

''that all commitments and prosecu- 76.

** tions for such petittonin^ are illegal." (e) I Hawk. P. C. c. 65. s^ 11 .

It was contended, that this article had (/) By Cbambre, J. in Haudcock v.

virtually repealed the statute IS Car. Baker and others, !»B'oa and Pol. S65.

8. c. 5.: but Lord Mansfield declared it (g) By Heath, J. in Handeock v. Bh-

to be the unanimous opinida of the kcr and others, tjios. anjI^Pul. 265.

CHAP, x^v.] of them hy StaMm. Ml

so done ih tbeii* presence agai)»st the law : and by suick record^ th^
offenders shall be convicted in the same manner as is contained in
the statute of forcible entries, {h) In the intevpretation* of tiiis
statute it has been bolden^ that all persons, noUemen and*otiler»y
except women, clergymen, persons decrepiH, and infants' under
fifteen, are bound to attend t£e justices in suppressing a riot, upon
pain of fine and imprisonment ; and that any battery, wounding^
or killing the rioters, that may- happen m suppressing tiio riot, is
justifiably, (f)

An indictment for a riot must shew fw what act the^ ribtemi or the indict-
assembled, that the court may judge uriietfleq it was- kwM or meat and trial,
not : {k) and it must state that the defendants unlawfully assem*
bled ; ft>r a riot is a compound offence. : there must be not only
an unlawful act to be done, but an unlawful assembly of more^thm
two persons. (/) In a case where six persons being indicted^ f&f a
riot, two of them died without beii^ tried', two were acquitted, and
the other two were found guilty, t^ court reftised to areest the
judgment, saying, that aft the jury had- feund two pepsens to be
guilty of a riot, it must have been together with tiipse two who
had nerer been tned, as it could not otjierwise have been a
riot, (m) But as two per^ns' only> oannot be guilty of a^ ijist, it
was held, that where several were indicted, and all but two were
acquitted, no judgment could be given against the two. (n) And
though the indictment in this case- Qhaiged a battery upon am inr
dividual as well as a riot^ and it was argued that the* rhtoscy ^.
was only to express the manner of the assault, and a kind of ag^
gravation of the ofifence, it waa held that the two persons eouldnot
be intended to be guilty of the battery; that the ofibnce was spe^
cial and laid as a riot, the notosa extending to all the facts, and
the battery being but part of the riot ; so that the defendants
being acquitted of the riot were acquitted of the whole of which
they were indicted. But it was aldo held, that if the indict-
ment had been, that the defendants, with divers other disturbero
of the peace, had committed this ribt and battery, and the
verdict had been as in this case, the king might have had judg-«
ment. (o)

Upon an indictment against H. Hunt and others, for a conspi- Evidence upon
racy and unlawfully meeting together with persons unknenvn, for"^con*p1-*
for the purpose of exciting discontent and disaffection, at which mcy in anla«>»

(h) 5 R. 2. Stat. 1. c. 7. of rials.

(i) 4B1ac. Coin. 14(>, 147. 1 Hftle {k) Keg. v, Gulston aad others,. ^

495. The statutes 17 R. ». c. 8. 9U. Lord Rayin. 1«}0.
5k c. g. and 19 H. 7. c. IS. relata also (I) Oeg. fu Soley el al. 2 SoJk. 993,

to tbe sMOftinary prQceediags of jus* 5|94.

Vices, &c. in case* of riots, which it is (171) Kex v. Scolt and another,. 3,

not thought necessary to mention fur- Burr. ]262«

tber in this Work. The different sta- (n) Rex v. Sadbnry and others, 1

tutes and the construction put upon Lord Raym. 484. and see 19 Yin. Abr.

them may be seen in 1 Hawk. P. G. c. AiMf, (E) 1.

<t5. s» 14. f trflff . and 5 Burn, iiiofot ^<?. (0) Rex v. Sadbury and others, I

11, 111, IV, V. The statutes 9 H. 5. c. Lord Raym. 48«. S. C. 8 Salk. 6A8.

8. %n.b. c. 9. and VH. 6. c. 14w re- pi. 2. and 12 Mod. 262. l^Via. Abr.

late to proccssout of chancery in cases HioUy (£) 6.

268 Of Riots, l^c.-^IndictmenL [book ii.

folly amm- meeting H. Hunt wm the chairman, it waB holden, that resolu-
excite diicon- ^^ons passed at a former meeting assembled a short time before, in
tent and dit- a distant place, but at which H. Hunt also presided, and the
aflfcction. avowed object of which meeting was the same as that of the

meeting mentioned in the indictment, were admissible in evidence,
to shew the intention of H. Hunt in assembling and attending the
meeting in question. And it was holden that a copy of these
resolutions delivered by H. Hunt 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 ori*
ginal. (p)

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 holden 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 day-
break, 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
ad been so ill-treated, expressed their disapprobation of his con-
duct by hissing, (q)

It was decided in this case, that parol evidence of inscriptiona
and devices on banners and flags displayed at a meeting is admis-
sible without producing the originals, (r)

And another point was also decided in this case; namely, that
upon the indictment in question evidence of the supposed mis-
conduct of those who dispersed the meeting was not admis-
sible. (5)
DeclBratimisof In another case where the question was, with what intention a
•iMmbUoff. gi^^t 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
shewing their object, {t) And in general, evidence is admissible
to shew that the meeting caused alarm and apprehension, and to
prove information given to the civil authorities, and the measures
taken by them in consequence of such information, (u)

Where several were indicted for a riot, it was moved, that the
prosecutor 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 a rule was made accord-

(|f) Rex V. Hunt and others, 3 B.«nd (f) Bedford o. Birlej, cor. Holroyd.

A. 666. J. Lanrasier Spr. Assizes, 1822* 3

(9) id. Ibid. SUrk. Evid. 1510.

(r) Id. Ibid. (If) Id. Ibid, and 3 Stark. N. P. C.

(f) Id. Ibid. 76.

CHAP. xxT.] Of Riots, ^.'—Pundhment. 269

ingly ; this being to prevent the charges in putting them all to
plead, (p)

The punishment for ofiences of the nature of riots, routs, or un- Paniibmant.
lawful assemblies, at common law, is fine and imprisonment, in
proportion to the circumstances of the offence : (q) and formerly,
m cases of great enormity, it appears that the offenders were some-
times punished with the pillory ; (r) but such punishment is now
taken away by the statute 56 Geo. 3. c. 138.

(p) Anon. S Salk. SI 7. Rcgin. v. (4) 1 Hawk. P.C. c 65. s. 19.
Middlemore, 6 Mod. SIS. (r) Id. iMd.

270

CHAPTER THE TWENTYSIXTH.

OF AFFRAYS.

Affrays are the fighting of two or more persons in some public
place^ to the terror of his Majesty's subjects, (a) The derivation
of the word affray is from the French effrayer, to terrify ; and as
in a legal sense it is taken for a public offence to the terror of the
people^ it seems clearly to follow that there may be an assault
which will not amount to an affray : as where it happens in a pri-
vate place, out of the hearing or seeing of any except the parties
concerned ; in which case it cannot be said to be to the terror of
the people, {h) And there may be an affiray which will not amount
to a riot, though many persons be engaged in it : as if a number
of persons, being met together at a fair or market, or on any other
lawful or innocent occasion, happen on a sudden quarrel to fall
together by the ears, it seems agreed that they will not be guilty
of a riot, but only of a sudden affiray, of which none are guilty but
those who actually engage in it ; and this on the ground of the
design of their meeting being innocent and lawful, and the subse-
quent breach of the peace happening unexpectedly without any
previous intention, (c) An affray differs also from a riot in this,
that two persons oidy may be guilty of it: whereas three persons
at least are necessary to constitute a riot, as has been shewn in
the preceding Chapter.
AggrsTated An affray may be much agj^ravated by the circumstances under

affrayi. which it takes place, either, first, in respect of its dangerous tend-

ency; secondly, in respect of the persons against whom it
is conmiitted ; or, thirdly^ in respect of the place in which it
happens.

An affiray may receive an aggravation from its dangerous tend-
ency ; as where persons coolly and deliberately engage in a duel
which cannot but be attended with the apparent danger of mur-
der^ and 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 (d) And an affi-ay may

(a) 4 Blac. Com. 144. 3 Inst 158. so called because it affrighteUi and

1 Burn. Just. Affrajf^ I. maketh men afraid ; and is enqutrable

(ft) 1 Hawk. P. C. c. 68. s. 1. In S in a leet as a common nuisance.

Inst it is said that an affrajr is a public (c) 1 Hawk. P. C. c. 65. s. 8.

offence to the terror of the king^s \ii 1 Hawk. P.C. c. 63.S. 81. This

subjects ; and is an English word, and would apply to such 4lueU as wtre

CHAP. XXVI.] Of 4i^^* — Perwns g<nng Armed. 271

receive an 'Oggnnwtion from the personfi agaiiiBt whom it is com-
niitted ; as where the officers of justice are violently disturbed in
the due execution oi their office, by the rescue of a person legally
arrested) or the bare attempt to miUie sudh a rescue.; the ministers
of the lofw beiQg under its more immediate protection, (e) And
further, an aiSFray may receive an aggravation from the place in
which it is committed ; it is therefore severely punishable when
committed in the kii|^% courts, or even in -the palace -yard -nectr
those courts j and it is highly fineable When made in the presence
of any of the king's inferior courts of justice. (/) And, upon the
same account also, affrays in a church or church-yard have always
been esteemed very hdnous offences, as being very great indigni-
ties to the Divine Majesty, to whose worship and service such
places are immediately dedicated, {g)

It is said, that no quarrekome or threatening words whatsoever Wordi will not
can amount to an affray; and that no one can justify laying hiis make an affray,
hands on those who shall barely quarrel with angry words, without
coming to blows : but it seems that a constable may, at the re- But there may
quest of the party threatened^ carry the .person who threatens to ^^ *^™7 .
beat him before a justiee, in order to find sureties. And granting no a!^taaf Wo^
that.no bare words, in the judgment of law, carry in them so much lence, as where
terror as to amount to an. f^ray, yet it seems certain that in some ^ person goea
cases there may be:an affray wli^re there is no actual violence ; las ^'^^ '
where persons arm themselves with dangerous and unusual
weapons, in such a maimer as will naturally cause a terror to the
people ; which is said to have been always an offence at comemon
W, and is strictly prohibibed by several statutes, (h)

The principal of these statutes is 2 Edw. 3. c. 3. sometimes 2 Edw. 3. c. 3.
spoken of as the statute of Northampton. It enacts, that no man, vlT^S*/™"
of "what condition soever, except the king^s servants in his pre- g^i^ arme?.
senee, azid his mim$te«9 in exeoutilig their office, and such as be
in their compiu^y assisting them, and >also 'upon a .cry made for
arms to keep the *peiiae, ahfdl come tbefore the king's ijusfices or
other of the king-s Tministevs ^oing dwir office, with force and
arms, 2)or bring any foree in affray of peace, (t) nor go nor ride
armed, by.iiight orday, in ffars.or*niarlfists, or in theipresenoe of
the king's justices, or other ministers, or elsewhere ; upon pain to
forfeit tiieir armour to the king, and their bodies to prison at the
king's pleasure. The statute also provides, that the king's jus-
tices in their presence, sheriffs, and other ministers in their baili-
wicks, lords^ of >franchises and their 4miliffs inihe same, and mayors
and bailiS» of ehies and boroi^s wHbin the sftme, and boirdugh-

fougbt \a sacieDt times i and to such (gr) 1 Hawk. P. C. c. 6a.<s. S9. And

as have b^eo occasionally board of» ia loe ijMiff, Chap, xxvtii. Of lEWtlarfr-

roore laodero days, ip neigbbouring ances in Placet qf^PmblSei^ovwkip.

countries, foinght aii>idst a number of (A) id. Und» seot. $,4.

spectators. But ,911. if a duel, as (/) The words of the sUtule are en

U3uallj conducted io this countcy of afraide la pee». Builiord Coke, ia

Ute ][ear8, would be an affray? 3 Inst. 158. cites ii os^m ^taUr de

(e) I 'Haw(L. P. C. c. 63. s. 'i2. And la paia ; and observes, that the wtfit

see jMtl, Chap, on l^efoir. grounded aponthestatBto -says ja ^9-

(/) 1 Hawk. P. C. c. «1. s. 6, KO. rundamde. populo ttrntrem^ aad that

c.'SS. •• S3. As to strikiiig in the therefore the .printed book (tu ^roff

cQucis 9f Justice, see poHy^^piji^ Ui. ^ia'j»eci:»:)>8iiovld betaniended.
C}£k^,onJggravaiedA9$aulU,

.272 Of Affront. — Smppreman oftkem. [book ii.

lioldeTCy ooDstaMes, and wardens of the peace within their wards,

ahall have power to execute the act : and that the judges of as-

aize nay enquire and ponish such officers as have not done that

which pertained to their office. This statute is further enforced

by 7 Rich. 2. c. 13. and by the 20 Rich. 2. c. 1. whidi adds the

further punishment of a fine.

Coartracfkm In the exposition of this statute of 2 Edw. 3. it has been holden,

of 2 Edw. 3. c that no wearing of arms is within its meaning, unless it be ac*

^^^J^l^ companied 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 ofiending against the statute by wear^
ing 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 com-
mit any act of violence, or disturbance of the peace, {k) And no
person is within the intention of the statute, who arms himself to
suppress dangerous rioters, rebels, or enemies, and endeavours to
suppress or resist such disturbers of the peace and quiet of the
realm. (/) 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 will incur the penalty of the statute, for assembling his
neighbours and friends in his own house, against those who
threaten to do him any violence therein, because a man's house is
as his castle, (m)

It may be useful to mention shortly the acts which may be done
Sot the suppression of an affiray, by a private person, by a consta-
ble, or by a justice of peace.
^^ '"'PP'^*- It seems to be agreed, that any one who sees others fighting
hj\ prirate^ ™ V ^^^% P^^ them, and also stay them till the heat be over,
penon. and then deliver them to the constable, who may carry them be-

fore a justice of peace, in order to tiieir finding sureties for the
peace; and it is said that any private person may stop fliose
whom he shall see coming to join either party, (it) And it seems
to be clear tiiat if either party be dangerously wounded in such an

{k) 1 Hawk. P. C. c. 63. s. 9. are panisbable by twelve roonths* im*

(/) At sect. 10. j^risonmetit for the first offeQCe. sod

(m) id* 8. 8. and see in s. 5, 6, 7. as tor an? subseqaeot offence to be ad -

to the proceedings of Justices, &c. Judged felons.

executi^ the act As to anB» in Ire- <it) 1 Hawk. P. C. c. 6.t. s. II.
Isiftf, the 47 G. 3. sess. 8. c. 54 was Where it is said that from hence it
passed, and is intituled, " An act to seeins clearly to follow, that if a nnaa
*' prevent improper persons from hay- receive a hurt from either party, in
*' ing anus in Ireland ;** and having thus endeavouring to preserve the
been continued and amended from peace, he shall have his remedy by an
time to time, was further continued action against him : and that upon the
for five years, and until the end of the same ground it seems enually reason-
then neil sewion of parliament by 4 able that if he unavoidably Imppen to
G. 4. c. 14. By this act of 47 G. 3. it hurt either party, in thus doing what
is felony to make pikes, &c. under the law both allows and commends,
certaia cireomstances, without a Ii- he may well Justify it; inasmuch as
cence, s. 11. And by s. 18. Justices he is no way in faalt, and tiie damMe
aaay search for pikes, &c. % and per- done to the other was occasioned Wff
sons havine suca instmmente in pos- a laadable intenlioa to do him a Uatl-
•cnioB iinicr certaia circumttances, nesa.

O0A»^u:ti.3 Of AJn^^-'-Aippresmanq^ 273

affir»y, ud a standerby^ endeavoming to acregt tbe other^ benot
able to takft him inthout hurting or even woundug hinr, yet he ia
in no way liable to be pmuahed, inaamuch aa he ia bound, tmder
pain of fine and impriaonmeQt, to arrest auch an offender^ and
either detain him till it appear whether the party will live or die,
or carry him before a justice of peace, (o) .

It aeema agreed, that a constid>le is not onlyimpowered, aa all Of tkemppraf*
private persona are, to part an aflhay which happens in hit pre^ ^ of affrm
tencc; but ia also bound, at his peril, to uSe his best endeavours °^* ^'^'^ ^*
for thia purpose : and not only to do his utmost himself, but also
to demand the assistance of others, which, if they refuse to give
him, they are pmiishable with fine and imprisonment* And it is
laid down in the books, that if an afiray be in a house, the con-
stable may break <^n the doors to preserve the peace ; and if af-
fcayera fly to a house, and he follow with fresh suit, be may break
open* the doors to take them, {p) And so far is the constable in*
trusted with a»power over all actual affrays, that though he him-*
self ia a sufferer by them, and therefore liable to be objected
againat, aa likely to be partial in his own cause, yet he may sup->
press them ; and therefore if an assault be made upon him, he
may not only defend himself, but also imprison the omnder in the
same manner as if he were in no way a party, (q) It is said also
that if. a ocnstable see persons either actually engaged in an affray,
as by striking, or offering to strike, or drawing their weapons, 8cCk
or upoa the very point of entering upon an affray, as where one
shall threaten to kill, wound, or beat another, he may either carry
the offender before a justice of the peace, to the end that such jus-
tice may compel him to find sureties for the peace, &c. or he may
imprison him of his own authority for a reasonable time till the
heat be over, and also afterwards detain him till he find such surety
by obligation. But it seems that he has no power to imprison
such an offender in any other manner, or for any other purpose ;
for be cannot justify the committing an affrayer to gaol till he
shall be punished for his offence ; and it is said that he ought not
to lay bands on those who barely contend with hot words, with-
out any threats of personal hurt : and that all which he can do in
such a case, is to command them, under pain of imprisonment, to
avoid fighting, (r)

But it seems to be the better opinion, that a constable has no
power to arrest a man for an affray done out of his ofvn vtewy
without a warrant from a justice of peace, unless a felony be done,
or likely to be done : for it is the proper business of a constable
to preserve the peace, not to punish the breach of it : nor does it
follow, from his having power to compel those to find sureties
who break the peace in his presence, that he has the same power
over those who break it in his absence ; inasmuch as in such case
it is most proper to be done by those who may examine the whole

(o) 1 Hawk. P. C. G. 63. 8. 18. 3 At least, it should seem, there must be

lost IBS. some circumstances of extraordinary

{p)Jd. ibid, a. 13, 16. Bat fii. if a violence in the affray to Justify him

constable can safely break open tbe in so 4oing.
(loenwJ>f a 4ireUtn^ bouse la auch (q) id. ibid. xcL 15.
case, without a magistrate's warrant? (r) id* ibid. sad. 14.

VOJL. I. T

874

Of the rap-
pression of
nffnys by a
juBtice 01
peace.

Panishment
of affnyt.

Of Affrays. — Punishment. [bookii.

circuniBtances of the matter upon oath, which a constable cannot
do : yet it is said that he may carry those before a justice of
peace who were arrested by such as were present at an affiray,
and delivered by them into his hands, {s)

^ There is no doubt but that a justice of peace may and must do
all such things for the suppression of an affray, which private men
or constables are either enabled or required by the law to do : but
it is said that he cannot, without a warrant, authorize the arrest
of any person for an affi^y out of his view. Yet it seems clear,
that in such case he may make his warrant to bring the offender
before him, in order to compel him to find sureties for the peace.
Also it seems that a justice of peace has a greater power over one
who has dangerously wounded another in an affray, than either a
private person or a constable ; for there does not seem to be any
good authority, that these have any power to take sureties of such
an offender : but it seems certain that a justice of the peace has
a discretionary power, either to commit him, or to bail him till
the year and day be past. It is said, hov^ ever, that a justice ought
to be very cautious how he takes bail, if the wound be dangerous;
since, if the party die, and the offender do not appear, the justice
is in danger of being severely fined, if upon the whole circum-
stances of the case he has been too favourable. (/)

The punishment of common affrays is by fine and imprison-
ment; the measure of which must be regulated by the circiun-
stances of the case : for where there is any material aggravation,
the punishment will be proportionably increased, {u)

Jadffinent of Mansfield, C. J. in Clif-
ford V. Brandon, % Campb. S67, 371.
and see Reg. v. Tooley and others, 2
Lord Rayro. 1996. and poii. Book III.
Chap. iii. on JfmmSaugkiert S,4.

(I) 1 Hawk P. C. c. 63. s. 19.

(u) 4 Blac. Corn. 145. 1 Hawk. P. C
c. 63. s. 80.

(t) 1 Hawk. P. C. c. 63. s. 17. It is
submitted that a constable cannot, in
a case of affray, arrest without a war-
rant from a raa^strate, unless he sees
jin actual breach of the peace com-
mitted ; or, in other- words, flagrante
Mieto. He cannot arrest of his own
authority after the affray is over. See
the argument of Best, Seijt. and the

275

CHAPTER THE TWENTYSEVENTH.

OF CHALLBNGINO TO FIGHT.

It is a very high offence to challenge another, either by word or
letter, to fight a duel, or to be the messenger of such a challenge,
or even barely to endeavour to provoke another to send a challenge,
or to fight; as bv dispersing letters, for that purpose, full of re^
flections, and insinuating a desire to fight, (a) And it will be no
excuse for a party so offending, that he has received jMrovocation :
for as, if one person should kill another, in a deliberate duel, under
the provocation of charges against his character and conduct ever
so grievous, it will be murder in him and his second : the bare
incitement to fight, though under such provocation, is in itself a
very high misdemeanor, though ho consequence' ensue thereon
against the peace, (i)

The offence of endeavouring to provoke another to send a chal- Of endeaTour-
lenge to fight was much considered in a modem case, in which it ing to provoke
was held to be an indictable misdemeanor: and more especially as J^^^chi-
such provocation was given in a letter containing: libellous matter, lenge.
and as the prefatory part of the indictment alleged that the de-
fendant intended to do the party bodily harm, and to break the
king's peace, (c) And /the sending such letter was held to be an
act done towards the procuring the commission of the misdemeanor
meant to be accomplished. (J) In this case, with respect to the of the intent.
intent of the defendant, the rule was adopted that where an evil
intent accompanying an act is necessary to constitute such act a
crime, the intent must be alleged in the indictment and proved ;
though it is sufficient to allege it in the prefatory part of the in-
dictment: but that where the act is in itself unlawful, the law
infers an evil intent ; and the allegation of such intent is merely
matter of form, and need not be proved by extrinsic evidence on
the part of the prosecution, (e)

(a) 1 Ha^. P. C. c. 63. s. S. 3 Inst.
158. 4 Blac. Com) 150. Hick»*s case,
Hob. tfl5.

(b) Rex V. Rice, 3 East. 581.

(e) Rex o. Phillips, 6 £ast. 464. The
letter was ** Sir — It will, I conclude,
from the description you gave of

' of the Carmarthenshirt election bu-

* siness, as far as it relates to me, you

* have behaved like a blackguard. I

* shall expect to hear from you on

* this subject, and will punctually

* attend to any appointment you may
< think proper to make.*'

'* your feelings and ideas with respect (d) See ante, 44, 45.

" to iasult, in a letter to Mr. Janet, {e) Rex v, Phillips, 6 East. 470 to

** of last Monday *s date, be sufficient 475.

'* for me to tell you, that in Uic whole

t2

276

Of words of
proTOcation.

Of Challenging to Fight.

[book u.

9 Ann. c. 14.
I. 8. challenges
on account of
money won by
gaming.

The renue may
be in the coun-
ty in which the
challenge is put
into the post-
office.

Of proceedini^
by criminal
information.

Punishment.

It has been considered that mere words of provocation, as
^' liar" and ^' knave," though motives and mediate provocation
for a breach of the peace, yet do not tend immediately to the
breach of the peace, like a challenge to fight, or a threatening to
beat another. (/) But words which directly tend to a breach of
the peace may be indictable ; as if one man challenges another by
words; {g) and if it can be proved that the words used were in-
tended to provoke the party, to whom they were addressed,
to give a challenge, the case would seem to fall within the same
rule. (A)

With respect to challenges given on account of money won by
gaming, it is enacted by 9 Ann. c. 14. s. 8. that whoever shall
challenge or provoke to fight any other person or persons what-
soever upon account of any money won by gaming, playing, or
betting, at any of the games mentioned in the act, (t) shall, upon
conviction by indictment or information, forfeit all their goods,
chattels, and personal estate, and suffer imprisonment without
bail, in the county prison, for two years.

In a case where a person wrote a letter with intent to provoke a
challenge, sealed it up, and put it into the twopenny post-office in
a street in fPestmimter, admressed to the prosecutor in the city of
London J by whom it was there received; Lord EUenborough, C. J.
held that the defendant might be indicted in JUiddleses, 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 deli-
vered to the prosecutor elsewhere; and that if the letter had
never been delivered, the defendant's offence would have been
the same, (k)

It may be observed, before this subject is concluded, that send-
ing a challenge is an offence for which the court of King's Bench
will grant a criminal information : but in a case where it appeared,
upon the affidavits, that the party applying for an information,
had himself given the first challenge, the court refused to proceed
against the other party by way of information ; and left the pro-
secutor to his ordinary remedy by action or indictment. (/) A rule
to shew cause why such an information should not be granted
has been made, upon producing copies only of the letters in
which the challenge was contained, such copies being sufficiently
verified, (m)

The punishment for this offence, as a misdemeanor, is dis-
cretionary, and must be guided by such circumstances of ag-
gravation or mitigation as are to be found in each particular
case, (n)

(/) Kind's case, 4 Inst. 181. (0 Rex v. Hankey, 1 Burr. 316.

ig) RegiD. o. Laogley, 6 Mod. 125. where it is said that the court held

S. C. 8 Lord l^ayin. 1031. that it might have been right to have

(ib)The rule gi?eo in 3 Inst. 158. granted crou informaUont^ in case

is---^uan4io aliquid prohtbetur^ prohi- each [laftj had applied for an in-

beiur ei omne per quod devemiur ad formation against the other.

iliud, (m) Rex v. Chappel, 1 Burr. 408.

(i) In the first section of the act, the (n) Rex v. Rice, 3 East 584. in

words are *' cards, dice, tables, tennis, which case the defendant (though he

'* bowls, or othsr game or games what- had undergone some imprisonroentt

'* soever." and though there were several cir-

(k) Rex r. Wiltiams, 2 Campb. 506. cumstances tending materially to miti-

CHAP. XXVII.] Of Challenging to Fight. 277

gate his offence,) was sentenced to pay duelling, says, " upon which consi-

a fine of 100/. and to he imprisoned " derations persons conyicted of harelr

for one calendar month, ana at the " sending a challenge have heen ad«

expiration of that time to giye seen- *' judged to pay a nne of 1001. and

rity to keep the peace for three ^rears, '* to oe imprisoned for one month

himself in lOOOl. and two sureties in ** without bail, and also to make a

S50/. each, and to he farther irapri- " public acknowledgment of their of-

sonad till such fine was paid and such ** fence, and to be bound to their

securities given. Hawkms, speaking ** good behaviour.^ 1 Hawk. F- C.

of the pernicious consequences of c.^6S.s.8l»

278

J.

CHAPTER THE TWENTY-EIGHTH.

OF DISTURBANCES IN PLACBS OF PUBLIC WORSHIP*

It has been already stated that affrays in a church or church-
yard have always been esteemed very heinous offences, as being
very great indignities to the Divine Majesty, to whose worship
and service such places are immediately dedicated ; (a) and upon
this consideration all irreverent behaviour in these places has been
esteemed criminal by the makers of our laws. 80 that many dis-
turbances 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)

Several statutes have been passed for the purpose of preventing

disturbances in places of worship belon^ng to the established

church, and also in those belonging to congregations of Protestant

Dissenters and Roman Catholics.

5 & 6 Edw. fi. The 5 & 6 Edw. 6. c. 4. enacts, '* that if any person whatsoever

c.4.a8toquar- " shall, by words only, quarrel, chide, or brawl, in any church or

ii^^o^r bwwi- " church-yard, that then it shall be lawful unto the ordinary of

ing'in a church ^' the place where the offence shall be done, and proved by two

or church- <^ lawful witnesses, to suspend every person so offending; that is

yard. ^c ^ g^y^ jf jj^ jjg ^ layman, ab ingressu ecclesiee, and if he be a

^^ clerk, from the ministration of his office, for so long time as the
'' said ordinary shall by his discretion think meet and convenient,
** according to the fault."

5.2. Smiting By the second section of the same statute, *'if any person or
?'^r'*d^^ ** persons shall smite or lay violent hands upon any other, either
chuVch or* "* *' ^^ ^^Y chufch or church-yard, then ipso facto every person so
church- yard. '^ offending shall be deemed excommunicate, and be excluded from

'^ the fellowship and company of Christ's congregation.^'

5.3. Striking And the third section enacts, '^That if any person shall mali-
with a weapon ^^ ciouslv strike any person with any weapon in any church or
in a church or « church-yard, or shall draw any weapon in any church or church-
or^wfng '^ yard, to the intent to strike another with the same weapon, that
one with in- f^ then every person so offending, and thereof being convicted, by
tent to strike, a verdict of twelve men, or by his own confession, or by two kiw-

^' ful witnesses, before the justices of assize, justices of oyer and
" terminer, or justices of peace in their sessions, by force of this

u

(a) JnlCf 971. * (^) 1 Hawk. P. C. c. 63. s. 83.

CHAP. xxTiii.] Of Disturbance of Public Worship. ^Vi9

^^ act, shall be adjudged by the same justices before whom such
^' person shall be convicted to have one of his ears cut off:" then
after providing for the offender bein? branded, in case he shall
have no ears, it concludes, '^ and besides that every such person to
^^ be and stand ipso facto excommunicated as is aforesaid."

In the construction of this statute it has been held that the Constrnction
ecclesiastical court may proceed upon the two first sections, and is ®^ '*** sututc.
not to be prohibited j for though the offence, mentioned in the
second section of smiting in the church or church-yard is still an
offence at common law, and the offender may be indicted for it ;
yet besides this, he may, by the act, be ipso facto excommuni-
cated, (c) No previous conviction is necessary in this case ;
though, if there be one, the ordinary may use it as proof of the
fact. But before the ecclesiastical court can proceed for the
offence, in the third section, of maliciously striking, &c. there
must be a previous conviction, and a transmission of the sentence
to the ordinary, (d) Indeed, if the ecclesiastical court proceeds
for damages on either clause, the court of King's Bench will pro-
hibit them ; for the proceedings of the ecclesiastical court are pro
salute atiimm, (e)

Cathedral churches, and the church-yards which belong to them,
are within the statute. (/) And it has been held that it will be
no excuse for a person who strikes another in a church, &c. to
shew that the other assaulted him. {g) But church-wardens, or
perhaps private persons, who whip boys for playing in the church,
or pull off the hats of those who obstinately refuse to take them
off themselves, or gently lay their hands on those who disturb the
performance of any part of divine service, and turn them out of
the church, are not within the meaning of the statute. (A)

The statute 1 Mary, sess. 2. c. 3. enacts, " that if any person or i M. 8eu.2.c.
" persons, of their own power and authority, do and shall willingly tu"aocc«*
'^ and of purpose, by open and overt word, fact, act, or deed, mali- during the
'^ ciously or contemptuously molest, let, disturb, vex, or trouble, timcofdiriac
** or by any other unlawful ways or means disquiet or misuse, any **'^®**
'^ preacher or preachers, licensed, allowed, or authorized, to preach
'^ by the Queen's highness, or by any archbishop or bishop of this
" realm, or by any other lawful ordinary, or by any of the univer-
sities of Oxford and Cambridge, or othermse lawfully authorized
or charged by reason of his or their cure, benefice, or other spi-
'^ ritual promotion or charge, in any of his or their open sermon,
'^ preaching, or collation, that he or they shall make, declare,
^' preach, or pronounce, in any church, chapel, church-y^, or in
'^ any other place or places, used, frequentea, 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 par-
** son, vicar, parish-priest, or curate, or any lawful priest, pre-
paring, saying, doing, singing, ministering, or celebrating, the

ft

(e) Wilson, Clerk, v. Greaves, 1 C. J. in the same case, ** We proceed

Burr. S40. ** to punith, they to amendJ'^

(d) Id. Ibid. if) Dethick's case, 1 Leon. 248.

(e) Wilson, Clerk, v. Greaves, 1 Or) 1 Hawk. P. C. c. 63. ^ 88.
Burr. 840. And by Lord Mansfield, (A) Id. IHd. s. 89.

290

Of Disturbances in Places

[book n.

Rescuing of-
fenders, or
hindering
their arrest.

Escape of
offenders.

1 W. and M. c.

18. Disturb-
ing dissenting
congregations.

'^ ma8S^ or other such dinne ^rvice, 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 autho-
^^ rized, by the Queen's majesty ; or if any person or persons shall
" unlawfully, contemptuously, or maliciously, of their own power
'^ or authority, pull down, deface, spoil, or otherwise break, any
'' altar or altars, or any crucifix or cross, in any church, chapel, or
*' church -yard," every such offender, his aiders, procurers, or abet-
tors, may oe apprehended by any constable or churchwarden of the
place where such offence shall be committed, or by any other officer
or person then being present at the time of the said offence, and
being so apprehended, shall be brought before some justice of
peace, by whom he shall upon due accusation be committed forth-
with; and within six days next after the accusation the said jus-
tice with one other justice shall diligently examine the offence ;
and if the two justices find the person guilty, by proof of two
witnesses, or confession, they sh^ commit him to raol 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 ; aiid
if he will not repent, he is to be further committed till he does, (t)

It has been resolved, that the disturbance of a minister in saying
the present common prayer is within this statute ; for the express
mention of such divine service as should be afterwards authorized
by queen Mary impliedly includes such service also as should be
authorized by her successors, upon the principle that as the king
never dies, a prerogative given generally to one goes of course to
pthers. (k)

The statute further provides, that persons rescuing offenders so
apprehended as aforesaid, or hindering the arrest of offenders, shall
suffer like imprisonment, and pay a fine of five pounds for each
offence. (/) And if any offenders be not apprehended, but escape,
the escape is to be presented at the quarter sessions, and the inha-
bitants of the parish where the escape was suffered are to forfeit
five pounds, (m)

Precedents are to be met with of indictments for breaking the
windows of a church, by firings a gun against them t (n) but it has
been doubted whether such an indictment is sustainable, as being
for a mere trespass, (o)

The arrest of a clergyman in any church or church-yard, while
attending to divine service, makes the offender liable to impri-
sonment and ransom at the king's will, and gree to the party ar-
rested, (p)

The statute 1 W. and M. c. 18. s. 18, which was passed for the
purpose of exempting Protestants dissenting from the church of
England from the penalties of certain laws therein mentioned.

(0 1 Mar. seas. 8. c. 3. s. 2, 3, 4, 5, 6.
(k) 1 Hawk. P. C. c. 63. s. 31. Gibs.
37«.
(/) S. 7.
(m) S. 8.
(fi) 8 Chit. Grim. L. 83.

(o) Id. Rid. And see anftf, 51.

(p) 50 Edw. 3. c. 5. 1 H. 8. c. 15.
Bat the arrest notwithskandiDg, if not
on a Sunday^ 13 good io law. Wats. c.
34. 5 Bura. Just FukUc ff0r$kip, p.
111.

CHAP. XXVIII.] ofPvhKo Wanhtp. 281

enacts, *^ That if any person or person^ shall, willingly and of pur-
^' pose, maliciously or contemptuously, 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 recognizance in the penal sum of
** fifty pounds ; and in default of such sureties shall be committed
^^ to prison, there to remain till the next general or quarter ses-
'^ sions ; and upon conviction of the said offence at the said general
'^ or quarter sessions, shall suffer the pain and penalty of twenty
'^ pounds," to the use of thd king.

Before this statute the court of King's Bench refused to grant a
certiorari to remove an indictment 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 eccle-
siastical censures, the court considered it properly to come within
the cognizance of the justices of the peace, (q) An indictment
upon ^e statute, found at the quarter sessions, may be removed
by certiorari before verdict, notwithstanding the words of the sta-
tute, which seem at the first view to confine the cognizance of the
offence to the justices in the first instance, and in the next to the
quarter sessions, (r)

The oaths taken by a preacher under this act are matter of Points de-
record, and cannot be proved by parol evidence : but it is not ne- fi^JJP**^
cessary, upon an indictment for disturbing a dissenting congrega-
tion, to prove that the minister has taken the oaths, (s) 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, (t) And it has been held diat a congregation of foreign
Lutherans, conducting the service of their chapel in the German
language, are within the protection of the statute, (u) Upon the
conviction of several defendants, each of them is liable to a penalty
of twenty pounds, (w)

A late statute makes further provision for the punishment of 52 Geo. 3. c.
persons disturbing religious assemblies; and enacts, "that if any 155. further
" person or persons do and shall wilfully and maliciously or con- J^SSSTSie
" temptuously disquiet or disturb any meeting, assembly, or con- duturbance
" gregation of persons assembled for religious worship, permitted ^^^^^S?^
" or authorized by this act, or any former act or acts of Parlia> "**"
" ment, or shall in any way disturb, molest, or misuse any
" preacher, teacher, or person officiating at such meeting, assem-
" bly, 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 recognizances in the penal sum
^' of fifty pounds to answer for such offence ; and in default of
" such sureties shall be committed to prison, there to remain till
^^ the next general or quarter sessions ; and upon conviction of the

(«) Rex 9. , 1 Keb. 49 1 . 5 Burn. (0 Id. Ibid.

Just. PmhUe WoTMMp, p. U I. (v) Id. Ibid.

(r) Hex V. Hube, 5 T. R. 543. (w) Rex o. Hube, 5 T. R. 542.
(<) R6z V. Hube, Feake R. 131.

dsd

Certiorari.

31 Geo. 3. c.

32. disturbing
RonTan Ca*>
tkolic Gon-
gregationa.

Conapiracies
orriota.

Of DistMrbance of Public fVorship. ([book ii.

'^ said offence at the said general or quarter sessions shall suffet
'^ the pain and penalty of forty pounds." (s) A subsequent sec-
tion of the statute provides that nothing contained in the act shall
extend to Queers, nor to any meetings or assemiblies for religious
worship held or convened by them, (y)

It has been holden upon this statute^ in conformity to the deci-
sion which has been mentioned upon the I W. and M. c. 18. (z)
that an indictment foimd at the quarter sessions may be removed
into the court of King's Bench by certiorari before trial, (a)

A similar provision to tliat contained in the 1 W. and M. c. 18.
s, 18. (i) relating to Protestant dissenters, is enacted in the 31 Geo.
3. c. 32. s. 10. with respect to Roman Catholic congregations, ot
assemblies of religious worship permitted bv the latter statute.

The facts attending disturbsoices of religious assemblies may
sometimes authorize proceedings at common law for a conspiracy
or a riot : (c) and we have seen that by the enactment of a statute
of George 1 . if persons riotously assembled begin to demolish or
pull down any church, chapel, or building for religious WOTship^
certified and registered according to the 1 W. and M. sess. 1. c. 18.>
they will be guilty of felony witibout benefit of clergy, (d)

(jr) b% Geo. 3. c. U5. 8. IS.
(y) Id. 8. 14.

(s) Rex V. Hube, anient 281.

(a) Rex r . Wadley , 4 M and S. 508.

(b) JnU, S80.

(c) See Preced. 8 Chit Crim. L.29.
{d) Jnte^ 851.

283

CHAPTER THE TWENTY-NINTH.

OV FORCIBLB BNTRT AND DBTAINBR.

A FQRCiBi^B eniry or detainer is committed by violently taking or Offence at
keeping posseggion of lands and tenements ivith menaces, force, common law.
and arms, and without the authority of the law. (a) It has been
laid down in the books that, at common law, and before the pass-
ing 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 j and to detain his possession by force, where his
entry was lawful : (6) and that even at this day he who is wrong-
fully dispossessed of his gootb, may justify the re-taking of them
by force from the wrong doer, if he refuse to re-deliver them, (c)
However, it is clear that, in many cases, an indictment will lie at
common law for a forcible entry, if it contain, not merely the
common technical words, ^' with force and arms,'' but also such a
statement as shews that the facts chaiged amount to more than a
bare trespass, for which no one can be indicted, {d) And, in a
modem case in the court of King's Bench, it was mentioned, by
the great Judge who then presided in that court, as a part of the
law which ought to be preserved, that no one shall with force and
violence assert his own title, (e) 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 desired that it might
not be considered as a precedent in other cases to which it did not
apply. He then proceeded : ^' Perhaps some doubt may hereafter
^' arise respecting what Mr. Sjeijeant Hawkins says, that at com-
'^ mon 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 shall arise, all that we wish to
^' say is, that our opinion in this case leaves that question un-
^' touched; it appearing by this indictment that the defendants

(a) 4Blac.Com. 148. 1702. Rex v. WiboB and otheni, 8

lb) Dalt Just 297. Lamb. 1S5. T. R. S57. io which last case the in-

Crom. 70. a, b. 1 Hawk. P. C. c. 64. dictmeot charged the defendants

>^ 1, 2, 3. 3 Bac. Abr. Forcible Entry (twelve in number) with having iinZaw-

and Detainer, fully and with a ttrong hand entered,

(c) 1 Hawk. P. C. c. 64. 8. 1. Ac and it was held good.

(tf) Rex V. Bake and others, 3 Burr. (e) By Lord Ken j on, C. J. Rex v.

1731. Rex V. Bathurst, Say. 225. re- Wilson and others, 8 T. R. 361.
ferred to in Rex v. Storr, 3 Burr. 1699,

284

Of Forcible Entry

[book II.

Offence by
sUtutes.

Stotntesy 5 R.
2. c. 8. None
shall enter in-
to landSy &c.
with strong
hand.

15 R. 2. c. 2.

On complaint
of forcible
entry, justices
may commit
tiie offender
until fine and
ransom.

8 H. 6. c. 9.
Justices may
enquire as
weU of those
that make
forcible en-
tries as of
those that
bold lands, &c.
with force.

^' unlawfully entered, and therefore the court cannot intend that
« they had any title/' (/)

Whatever may be the true doctrine upon this subject at common
law, the statutes which have been passed respecting forcible en-
tries and detainers are clearly intended to restrain all persons from
having recourse 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
grieved.

By the 5 R. 2. c. 8. none shall make entry into any lands and
tenements but in cases where entry is given by the law ; and in
such cases not with strong hand, nor with multitude of people,
but only in a peaceable and easy manner, on pain of imprisonment
and ransom. This statute gave no speedy remedy, leaving the
party injured to the common course of proceeding by indictment
or action ; and made no provision at all against forcible detainers.
Tlie 15 R. 2. c. 2. goes nirther, and enacts, that on complaint of
forcible entry into lands and tenements, or other possessions what-
soever, to the justices of peace or any of them, the justices or
justice take sufficient power of the county, and go to the place
where the force is made ; and if they find any that hold such place
forcibly, after such entiy, they shall commit them to the next gaol,
there to abide, convict by the record of the same justices or jus-
tice, until they make fine and ransom : and that the people of the
county and the sheriff shall assist, &c. on pain of imprisonment
and fine. And it also enacts, that it shall be done in the same
manner of them that make such forcible entries in benefices or
offices of holy church. But this statute gave no remedy against
those who were guilty of a forcible detainer after a peaceable
entry, nor against those who were guilty of both a forcible entry
and forcible detainer, if they were removed before the coming of a
justice of peace; and it gave no power to the justice to restore the
party injured to his possession, and did not impose any penalty
on the slieriff for disobeying the precepts of the justices in the
execution of the statute. Further enactments were therefore ne-
cessary, (g)

The statute 8 H. 6. c. 9. enacts, that though the persons making
forcible entries be present or else departed before the coming of
the justices or justice, 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 authority to enquire,
by the people of the same county, as well of them that make such
forcible entries in lands and tenements as of them which hold the
same with force ; and if it be found that any doth contrary to this
statute, then the justices or justice shall cause to re-seise the lands
and tenements, and shall put the party in full possession as
before. (A) And after making provision concerning the precepts
of the justices to the sheriff to return a jury to enquire of forcible

entries, the qualification of the jurors, and the remedy by action

•

(/) 8 T. R. 364. collected id 3 Bac. Abr. FhrHNe Em-

(g) Upon the imposing and levying try and Detainer , (A) in the notes.

the fine under this statute of R. 8. see {h) S. S.

1 Uawk. P. C. c. 64. s. 8. and the cases

I

CHAP. XXIX.] and Detainer. — StattUes. 285

against those who obtmn fordble possession of lands, &c. it enacts,

that mayors, &c. of cities, towns, and boroughs, having jbanchise,

shall have in such cities, &c. like power to remove such entries,

and in other articles aforesaid, rising within the same, as the jus-*

tices of peace and sherifb in counties, (i) And it is then provided, TUg itatnte

" that they which keep their possessions with force in any lands ^ ^ tS»

^^ or tenemepts, whereof they or their ancestors, or they whose who maintain

*^ estates they have in such lands and tenements, have continued poMCMion af-

*' their possessions in the same by three years or more, be not ^^ij^^^^^

" endamaged by force of this statute.'^ (k) three years.

This proviso is further enforced by a statute, 31 Eliz. c. 11. 31 £Uz.c. 11.
which enacts, ''That no restitution, upon any indictment of for- Norestitutloa
" cible entry, or holding with force, be made to any person or J^c^iSs^Ui^
'' persons, if the person or persons so indicted hath had the occu- dieted hath
^ pation, or hath been in quiet possession by the space of three been three
" whole years together next before the day of such indictment so TOMcsaion'"**
^ found ; and his, her, or their estate or estates therein not ended and his esute
'' or determined ; which the party indicted shall and may allege ^^ ended.
'' 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 al- Coau.
'' legation 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*''

In the construction of these statutes it has been holden, that if Doubt upon
a lessee for years or a copyholder be ousted, and the lessor or the statutes
lord disseised, and such ouster, as well as disseisin, be found in an J^^^^^^
indictment of forcible entry, the court* may, in their discretion, copyholder
award a restitution of the possession to such lessee or copyholder; ousted by the
which was, by necessary consequence, a re-seisin of the freehold J.o'JJidhave"^
also, whether the lessor or lord had desired or opposed it. But it restitution :—
was a great question, whether a lessee for years or a copyholder,
being ousted by the lessor or lord, could have a restitution of their
possession within the equity of 8 H. 6., the words of idiich are,
that the justice ^' shall cause to re-seise the lands," &c. and by
which it seems to be implied that the party must be ousted of such
an estate whereof he may be said to be seised, which must at least
be a freehold. For the purpose of removing this doubt, it was Removed by
enacted by 21 Jac. 1. c. 15. that such judges or justices of the 2iJac.i.c.i5.
peace as by reason of any act of Parliament then in force were au-
thorized to give restitution to tenants of any estate of freehold of
their lands, &c. entered upon by force, or withholden hy force,
shall have the like authority (upon indictment of such forcible en-
tries or forcible withholdings) to give like restitution of possession
to tenants for term of years, tenants by copy of court roll, guar--
dians by knight's service, tenants by elegit, statute merchant and
staple. It has been holden, that a tenant by the verge is not
within this statute : but. the propriety of this decision is doubted;
as such person, having no other evidence of his title but by the

(0 S. 6. {*) 5. 7. ' •

286 Of Forcible Enlry. [book ii.

copy of court roll, seems at least to be within the meaningj if not
within the words, of the statute. (/)

If a lessor eject his lessee for years, and afterwards be forcibly
put out of possession again by such lessee, he has no remedy for a
restitution by force of any of the above mentioned statutes : there
seems, however, to be no doubt but that a justice of peace, &c, may
remove the force, and commit the o£Pender. (m)
Conitniction. The law upon these statutes respecting forcible entries and de-
tainers may be further considered with re^remce,— I. to the persons
who may commit the o£knce ; II. to the nature of the possessions
in respect of which it may be committed; III. to the acts which
will amount to a forcible entry; and, IV. to the acts which
amount to a forcible detainer.
As to Uie per- ], A man who breaks open the doors of his own dwelling-house,
^mw^t^^ or of a castle, which is his own inheritance, but forcibly detained
offence. firom him by one who claims the bare custody of it, cannot be

euilty of a forcible entry or detainer within these statutes, (n) But a
joint-tenant or tenant in common may offend against them either bv
forcibly ejecting or forcibly holding out his companion ; for though
the entry of such a tenant be lawml per my et per tout, so that he
cauQot in any case be punished in 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 companion ; and, consequently,
an indictment of forcible entry into a moiety of a manor, &c. is
good, (o) Also where a man has been in possession of land for a
great length of time by a defeasible title, and a claim is made by
him who has a right of entry, the wrongful possessor, continuing
his occupation, will be punishable for a forcible entry and de-
tainer ; because all his estate was defeated by the claim, and his
continuance in possession afterwards amounts in the judgment of
law to a new entry, (p)
As to the pos- II. A person may be guilty of this offence by a force done to
'^"'f "^ ^xJX ecclesiastical possessions, as churches, vicarage-houses, &c. as
^^oifonce*^ much as if it were done to a temporal inheritance. And it has
may be com- been holden, as a general rule, that a person may be indicted for a
mitted. forcible entry into any such incorporeal hereditament for which a

writ of entry will lie« either by the common law, as for rent, or by
statute as for tithes, &c. It is, however, questioned whether
there be any good 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 terre-
tenant or a stranger, who shall forcibly disturb the lawful proprie-
tor in the enjoyment of these possessions ; as by violently resist-
ing a lord in his distress for a rent, or by menacing a conunoner
with bodily hurt, if he dare put in his beasts into the. common,
&c. No one can come within the danger qf these statutes by a
violence offered to another in respect of a way, or such like ease-

it) 1 Hawk. P. C. c. 64. s. 17. into land in the possession of his own

(m) lii. Ibid. 8. 17, 18. lessee at will ; but a qu. issobjoined.
(fi) S Bac. Abr. Forcible Entry^ ^r. (o) 1 Hawk. P. C. c. 64. s. 3S.
(D). 1 Hawk. P. C. c. 64. s. 38. where (p) Id. s. 82: 34. CroiD..4i9. Dalt

it IS said also that a man will not be c. 77. Co. Lit. 856.
within the statutes who forcibly enters

CBAV. acxn.] fVhat toUl Amount to. 9IS1

xnent which is no possession. Bat it seems that a man cannot
be convicted, upon view, by force of the 16 R. 2. c. 2. of a forcible
detidner of any incorporeal inheritance wherein he cannot be said
to have made a precedent forcible entrv. {q)

III. A forcible entry must regularly be with a strong hand, Ai to the aeu
with unusual weapons, or with menace of life or limb : it must be '^^^^ fp
accompanied with some circumstances of actual violence or terror \ forcible entry,
and an entry which has no other force than such as is implied by
the law in every trespass is not within these statutes, (r) An
entry may be forcible not only in respect of a violence actually
done to the person of a man, as by beating him if he refuse to re-
luiquish his possession ; but also in respect of any other kind of
violence in the manner of the entry, as by breaking open the doors
of a house, whether any person be in it at the time or not, espe-
cially if it be a dwelling house, and perhaps also by any act of out-
rage after the entry, as by carrying away the party's goods, &c.
which being found in an assize of novel disseisin, wUl make the de-
fendant a disseisor with force, and subject him to fine and impri-
soi^nent. (s) If a man enters to distrain for rent in arrear with
force, this is a forcible entry, because, though he does not claim
the land itself, yet he claims a right and title put of it, which by
these statutes he is forbid to exert by force : but if a man wl^o has
a rent be resisted from his distress with force, this is a forcible
disseisin of the rent, for which he may recover treble damages in
an assise, or may fine and imprison the party : but he cannot have
a writ of restitution ; for the statute does not give the justices
power to reseise the rent, but only the lands and tenements them-
selves, (t) If one find a man out of his house, and forcibly urith-
hold him from returning to it, and send persons to take peaceable
possession of it in the party's absence, this, according to the better
opinion, is a forcible entry, (u) And there may be a forcible
entry where any person's wife, children, or servants, are upon the
laaim to preserve the possession ) because whatever a man does by
his agents is his own act : but his cattle being upon the ground
do not preserve his possession, because they are not capable of
being substituted as agents ; and therefore their being upon the
land continues no possession, {w)

Whenever a man, either by his behaviour or speech, at the time Forcible entry
of his entry, gives those who are in possession of the tenements which ^^ cireum-
he claims just cause to fear that he will do them some bodily hurt, if terror.
they will not give way to him, his efitry is esteemed forcible ; whe-
ther he cause such a terror by carrying with him an unusual number
of servants, or by arming himself in such a manner as plainly inti-
mates a design to back his pretensions by force, or by actually
threatening to kill, maim, or beat those who shall continue in pos-
session, or by giving out such speeches as plainly imply a purpose

(q) I Hawk. P. C. c. 64. 8. S 1. Bac. it is given as the author's opinioa ; and

Abr. Forcible Enirp^ ^c. (C). contrary opinions are noticed proceed-

{r) $ Bac. Abr. Forcible JBfUry, 9fc. ing on the ground that do violence

(D). Dalt. 300. 1 Hawk.-P. C. c. 64. was done to the house, but only to the

sect. 25. person of the party.

(f) 1 Hawk. P. C. c. 64. s. S6. (w) 3 Bac. Abr. Forcible Entry ^

(0 3 Bac. Abr. Forcible Entry, 8^e.(B). ^e. (B).

(a) 1 Hawk. P. C. c. 64. s. 96. where

Circumstances
which do not
amount io a

S88 Of Forcible Entry and Detainer. [book u.

of using force against those who shall make any resistance, (s)
And thot^h a man enter peaceably^ yet if he turn the party out of
possession by foree^ or frighten him out of possession by threats, it
is a forcible entry, (y) But threatening to spoil the party's goods,
or destroy his cattle, or to do him any similar damage, which is
not personal, if he will not quit the possession, seems not to
amount to a forcible entry, (a)

If a person who pretends a title to lands merely go over them,
_ either with or without a great number of attendants, armed or un-
forcibie enrry. armed, 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 cannot be considered as making an
entry within the meaning of the statutes : otherwise, if he make
an actual claim with any circumstances of force or terror, (a)
Drawing a latch and entering a house seems not to be a forcible
entry according to the better opinion : {b) so if a man open the
door with a key, or enter by an open window, or if the entry be
without the semblance of force, as by coming in peaceably, en-
ticing the owner out of possession, and afterwards excluding him
bv shutting the door, without other force, these will not be forci-
ble entries, (c)

A single person may commit a forcible entry as well as a num-
ber, {d) But all who accompany a man when he makes a forcible
entry will be deemed to enter with him, whether they actually
come upon the lands or not. {e) So if several come in company
where their entry is not lawful, and all of them, except one, enter
in a peaceable manner, and that one only use force, it is a forcible
entry in them all, because they come in company to do an unlaw-
ful act : but it is otherwise where one had a right of entry, for
therie they only come to do a lawful act, and therefore it is the
force of him only who used it. (/) And he who barely agfees to
a forcible entry made to his use, without his knowledge or privity,
is not within the statutes, because he did not concur in or promote
the force, (g)

IV. forcible detainer is where a man, who enters peaceably,
afterwards detains his possession by force : and the same circum-
stances of violence or terror which will make an entry forcible,
will also make a detainer forcible. From whence it seems to
follow that whoever keeps in his house an unusual number of peo^
pie, or unusual weapons, or threatens to do some bodily hurt to
the former possessor, if he dare return, is guilty of a forcible de-
tainer, though no attempt be 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 any one who
shall attempt to make an entry into it ; and that he is in like

As to the acts
which wiU
amount to a
forcible de-
tainer.

(x) 1 Hawk. P. C. c. 64. 8 87.

(^) Dalt. 299. 3 Bac. Abr. Forcible
EtUry, ^c. (B).

(z) 1 Inst. 257. Bro. tit. Durets^
12, 16< 1 Hawk. F. C. c. 64. s. 28.

(a) 1 Hawk. P. C. c. 64. s. 20, 21.

(b) There have been different opi-
nions upon this point, Noy, 1S6, ISl*
3 Boc. Abr. f^cible Entry, t^c. (B).

1 Hawk^ P. C. c. 64. s. 26.

{e) 4 Com. Dig. Forcible Entry^ dfc.
(A3.)

(d) Id, (A 2.) 1 Hawk. P. C. c. 64.
6. 29.

(e) 1 Hawk. P. C. c. 64. s. 22.

(/) 3 Bac. Abr. Fordble Entry ^ ^e.
(B).
(e) I Hawk. P. C. c. 64. s. 24.

CHAP. XXIX.] JbuUctment, 289

manner goilty who shuts his doors against a justice of peace
coming to view the force, and obstinately refuses to let him come
in. (A) This doctrine will apply to a lessee who, after the end of
hit term, keeps arms in his house to oppose the entry of the
lessor, though no one attempt an entry ; or to a lessee at will de-
taining with force after the will is determined : and it will apply
in like manner to a detaining with force by a mortgagor after the
mortgage is forfeited, or to the feoffee of a disseisor softer entry or
claim by the disseisee. And a lessee resisting with force a distress
for rent, or forestalling or rescuing the distress, will also be guilty
of this offence, (t)

But a man will not be guilty of the offence of forcible detainer Circumstances
for merely refusing to go out of a house, and continuing therein ^**>^'* ^^ "**^
in despite of another. (A) So that it is not a forcible detainer if a f^^ciUe dj^
lessee at will, after the determination of the will, denies posses- tainer.
sion to the lessor when he demands it ; or shuts the door against
the lessor when he would enter ; or if he keeps out a commoner^
by force, upon his own land* (/) And it has been seen that the
statute 8 Hen. 6. c. 9. does not apply to a person who has been in

Eossession for three years by himself, or any other under whom
e claims, (m) 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 posses-
sion was interrupted, (n)

The remedies against such as are guilty of forcible entries or Remedies,
detainers are either by action, by complaint to justices of peace,
(who may proceed upon view or inquisition), or by indictment at
the general sessions, (o) And if a forcible entry or detainer be
made by three persons or more, it is also a riot ; and may be pro-
ceeded against as such, if no inquiry has before been made of the
force, (p) 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, (q)

The statutes seem to require that the entry should be laid in Of tbe indict-
the indictment manufortij or aim multitudine gentium : but some "®'^*- -^**'®'
have holden that equivalent words will be sufficient, especially if and' violence.
tbe indictment concludes contra formam statuti; but it is not
sufficient to say only that the party entered vi et armisy since that
is the common allegation' in every trespass, (r) No particular
technical words are necessary in an indictment at common law ;
all that is required is, that it should appear by the indictment,

(*) 1 Hawk. P. C. c. 64. s. SO. (B 2.)

(i) 4 Com. Dig. Forcible Detainer (o) See the statotes, ante, 284 to

(B 1.) S8A. 4 Com. Dig. Forcible Entry (C)«

(ilr) 1 Hawk. P. C. G. 64. s. SO. 4 Blac Com. 148. 2 Burn. JusL

(/) 4 Com. Dig. Forcible Detainer Forcible Entrjf, £jf. III., IT., V.

(B 2.) ( p) 2 Burn. Just Forcible Entry

(m) JnU^ 285. And bj 31 Eliz. and Detainer VIL Jnte,2X9.

c. 11. {ante^ 285) no restitution is to {q^ As to the proceedings by justices

be giTea oh an indictment of forcible of peace, see 2 Burn. Just. Forcible

entry or deti^ner, where tbe party has Entry ^ S;c. V. 2 Com. Dig. Forcible

been three years in quiet possession Entry (D).

before the indictment founa» and his (r) Baude's case, Cro. Jac. 41. Rast.

estate not determined. Ent. 354. 3 Bac. Abr. Forcible Entry ^

(«) 4 Com. Dig. Forcible Detainer ifc. (E).

VOL. I, U

290 Of Forcible Entry and Detainer. [book ir.

tliat 8uch force and violence have been used as constitute a public
breach of the peace, (s)
Description of The tenement in which the force was committed must be
the premises, described with convenient certainty ; for otherwise the defendant
will not know the particular charge to which he is to make his
defence, nor will the justices or sheriff know how to restore the
injured party to his possession. Thus an indictment of forcible
entry into a tenement, (/) (which may signify any thing whatso-
ever wherein a man may have an estate of freehold), (u) or into
a house or tenement, (tu) or into two closes of meadow or pas-
ture, (x) or into a rood or half a rood of land, (r/) or into certain
lands belonging to such a house, (z) or into such a house without
shewing in what town it lies, (a) or into a tenement with the ap-
purtenances called Truepenny in D., {b) is not good. But an in-
dictment for a forcible entry in domum mansionalem sive messua-
gium, &c. is good, for* these are words equipollent, (c) And an
indictment for an entry into a close called Serjeant Heme's close,
without adding the number of acres, is good ; for here is as much
certainty as is required in ejectment, (d) And an indictment may
be void as to such part of it onlv 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, (e)
Description of ^^ indictment on the 8 Hen. 6. c. 9. (/) must shew that the
the estate of place was the freehold of the party grieved at the time of the
*eiiS^^" lorce.(^) And in a case where the court of King's Bench
^ ' quashed an indictment, because it did not appear what estate the

person expelled had in the premises, they said that it was abso-
lutely necessary that this should appear, otherwise it would be un-
certain whether any one of the statutes relative to forcible entries
extended to the estate from which the expulsion was : the 5 Ric.
2. c. 7-> the 15 Ric. 2. c. 2., and the 8 Hen. 6. c. 9., only extending
to freehold estates; and the 21 Jac. 1. c. 15. extending only to
estates holden by tenants for years, tenants by copy of court -roll,
and tenants by elegit, statute merchant, and statute staple. (A)
And it has been laid down as a general rule that an indictment
cannot warrant a restitution, unless it find that the party was
seised at the time, (t) But in an indictment at common law,
where the breach of the public peace is the gist of the oflfence, and
the prosecutor is not entitled to restitution and damages, it ap-

(•) By Lawrence, J. in Rex v. Wil- (d) 3 Bac. Abr. Forcible Entry ^ 8(c,

son and others, 8 T. R. 862. (E). 1 Hawk. P. C. c. 64. s. 37.

(0 Dalt. 15. 2 Roll. R. 46. 2 Roll. (e) 3 Bac. Abr. Forcible Entry ^ $^c.

. Abr. 80. pi. 8. 3 Leon. 102. (E). 1 Hawk. P. C. c. 64. s. 37.

(«) Co. Lit. 6 a. (f) Jnte, 410.

(w) 2 Roil. Abr. 80. pi. 4, 5. Roll. (g) Rex v. Domy, 1 Lord Rmym.

R. 334. Cro. Jac. 633. Palm. 277. 210. 1 Salk. 260. Anon. 1 Vent. 89.

(jt) 2 Roll. Abr. 81. pi. 4. 2 Keb. 495. Hetl. 73. Latch, 109.

iy) Bulst. £01. (k) Rex v. Wannop, Say, R. 142.

(s) 2 Leon. 186. 3 Leon. 101. Bro. (i) 3 Bac. Abr. Forcible Entry ^ 8;c.

tit. Forcible Entry, 23. (B) where, and in 1 Hawk. P. C. c. 54. s.

(«) 2 Leon. 1 86. 88. see the cases on this subject collect*

(ft) 2 Roll. Abr. 80. pi. 7. ed. And see also Rex v. Griffith et at.

(c) BHis^s case, Cro. Jac. 633. Palm. 3 Salk. 169.
277.

CHAP. XXIX.] Indictment. 891

peara to be sufficient to state only that the prosecutor was in pos*
session of the premises. {J)

A repugnancy in setting forth the ofience in an indictment on lUpug^naiicy;
these statutes is an incurable fault : as where it is alleged that ^^^^^
the party was possessed of a term of years, or of a copyhold estate^ '*"*'
and that the defendants disseised him ; or that the defendants dis-
seised J. S. of land then and yet being his freehold, for it implies
that he always continued in possession ; and if so, it is impossible
he could be disseised at all. (A) It seems that an indictment on
8 Hen. 6. c. 9. setting forth an entry and forcible detainer is good,
without shewing whether the entry was forcible or peaceable : but
it must set forth an^ntry ; for otherwise it does not appear but that
the party has been always in possession, in which case he may
lawtully detain it by force. (/) The time and place of the dis«
seisin must be sufficiently set forth in the indictment : but it ap->
pears to be sufficient to state that the defendant on such a day en-
tered, &c. ehA. disseised, &c. without adding the words then and
there ; for it is the natural intendment that the entry and disseisin
both happened together, (tn) 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 ^' unlawfully," or
*^ expelled," for they are implied, (n) But no indictment can warrant
an award of restitution, unless it find that the wrong-doer ousted
the party grieved, 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 vain to award it to one who does not appear to have lost
it. (o)

If a bill, both for a forcible entry and forcible detainer, be pre-
ferred 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. {p)

rhe same justice or justices before whom an indictment of Of the award
forcible entry or detainer shall be found may award re«/t^^ton: but ©^ 'cstitation.
no other justices, except those before whom the inquest was found,
can award restitution, unless the indictment be removed by
certiorari into the court of King's Bench ; 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 in-
ferior 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

0) Rex V. Wilson and others, 8 T. (E).

R. 357. (o) 1 Hawk. P. C. c. 64. s. 41.

(k) I Hawk. P. C. c. 64. i. 89. 3 (p) 1 Hawk. P. C. c. 64. s. 40. Bat

Bac. Abr. /ImxjM^ fniry* ^e. (E). this it seems does not apply. to the

(/) I Hawk. P. C. c. 64. s. 40. 8 case of different counts m the same

Bac. Abr. ibid. And see the statute, indictment, but only where the |rrand

anU, «64. Jury find '' a true biU.'' and '' not a

(«) Bande's case, Cro. Jac. 41. 1 " true biir' upon different parts of

Hawk. aid. u 42. one and the same charge. See Rex v.

(s) 8 Bac. Abr. F9rcibie Entrjf^ ^e. Fieldhouse, Cowp. 929,

V 2

292 Of Forcible Entry and Detainer, [book ii.

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. (9) But the justices of oyer
and terminer^ or general gaol delivery, though they may enquire
of forcible entries, and fifne the parties, yet cannot award a writ of
restitution, (r)

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 per-
son that disturbs him in the enjoyment of them ; and all the re-
medy that can be desired against a force in respect to such pos-
sessions is to have the force removed, and those who are guilty of
it punished, which may be done by 15 R. 2. c. 2. {s) And resti-
tution is to be awarded only to him who is found by the indict-
^ment to have been put out of the actual possession, and not to one
who was only seised in law. (/) Upon the removal of the pro-
ceedings into the court of King's Bench by certiorari^ that court
may award a restitution discretionally ; and will so award, unless
the defendant plead very soon, and take notice of trial within the
term, (u) And where a conviction of a forcible entry was quashed
in that court for uncertainty ; but the restitution was opposed on
an affidavit that the party's title (which was by lease,) was expired
since the .conviction ; the court said they had no discretionary
power in this case, but were bound to awanl restitution on quash-
ing the, conviction, (w)
Of the bar or It appears by the proviso in the statute of 8'Hen. 6. c. 9. and

*wHrd'o?rc8ti- ^^^ ^^ ^^^ ^^ ^^^^* *^* ^'' ^^** ^"^ ^^^ indicted upon these sta-
tatioo.^ '** '" tutcs may allege quiet possession for three whole years to stay the

award of restitution ; in the construction of which it has been
holden, that such possession must have continued without in-
terruption during three whole years next before the indict-
ment, (or) And it has also been said that the three years' posses-
sion must be of a lawful estate ; and therefore that a disseisor can

(q) S Bac. Abr. Forcible Entry y Sfe. tices of gaol delivery may award resti-
(F). tutioQ upon an indictroent before
(r) Id, ibid and 1 Hawk. P. C. c. 64. them : and SaT. 68. is cited : and af-
$.51. where it is said that justices of terwards Id. (D 7.) it is said that resti-
4>yer and terminer have no power tution shall not be by justices of as-
either to enquire of a forcible entry size, gaol delivery, or justices of
or detainer, or to award restitution on peace, if Ike indictment wa$ not found
an indictnaen ton the statutes; because before them; and H. P. C. 140. Dalt.
when anew power is created hj sta- c. 44. ISI. are cited; assuming here,
tute, and certain justices are assigned as it should seem, that if the indict-
to execute it, it cannot regularly be ment were found before justices of
executed by any other: and inasmuch assize and gaol delivery, they might
as justices of oyer and terminer have award restitution,
a commission entirely distinct from (f) 1 Hawk. P. C. c. 64. 8. 45. Lamb,
that of justices of peace, they shall Just. 15S. Co Lit. 323.
not from the general words of their (I) Lamb. Just 1 33. Dalt. c. 83.
commission ad inquirend^ de omnibus^ (u) Rex v. Marrow, Ca. temp, fiardw.
£fc. be construed to have any such 174.
. |K>wers as are specially limited to jus- (w) Bex v. Jones, 1 Str. 474.

tices of peace. But in 4 Com. Dig. (x) 3 Bac. Abr. Forcible Entry, ^c

Fore. Entr, (D 5.) it is said that jus- (G). .1 Hawk. P. C. c. 64. s. 53.

CHAP. XXIX.] Of Restitution, ^ 293*

m 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 havings by his laches, lost his right
of entry, {y) Wherever such possession is pleaded in bar of a
restitution, either in the King's Bench or before justices of the
peace, no restitution ought to be awarded till the truth of the plea
be tried ; and such plea need not shew under what title, or of
what estate, such possession was ; because not the title, but the
possession only, is material, (z) If the defendant tender a traverse
of the force (which must be in writing), no restitution ought to be
till such traverse be tried ; in order to which 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 a restitution, it will be sufficient, though they find the
other part of it to be false, (a) Where the defendant pleads three
years' possession in stay of restitution, according to 31 Eliz. c. 11.,
and it is found against him, he must pay costs. (A)

The same justices who have awarded a restitution on an indict- Of Bopened-
ment of forcible entry, &c. or any two or one of them, may .after- !°?j^^* '®*^^'
wards supersede such restitution upon an insufficiency in the in-
dictment appearing unto them : but no other justices or court
whatsoever have such power, except the court^ of King's Bench ; 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, (c)

The court of King's Bench has such a discretionary power over ofMttiDg
these matters, from an equitable construction of the statutes, that aside the res-
if a restitution shall appear to have been illegally awarded or exe- titution.
cuted, that court may set it aside, and grant a re-restitution to the
defendant. But a defendant cannot in any case whatsoever, ex rigore
jtf rt^,demand a restitution,either upon the quash ing of the indictment,
or a verdict found for him on a traverse thereof, &c.; for the power
of granting a restitution is vested in the King's Bench only, by an
equitable construction of the general words of the statutes, and is
not expressly given by those statutes ; and is never made use of by
that court but when, upon consideration of the whole circum-
staocca of the case, the defendant shall appear to have some right
to the tenements, the possession whereof he lost by the restitution
granted to the prosecutor, (d )

The court of King's Bench has been so favourable to one who,
upon his traverse of an indictment upon these statutes being found
for him, has appeared to have been unjustly put out of his posses-
sion, that they have awarded him a restitution, notwithstanding it
has been shewn to the court that, since the restitution granted
upon the indictment, a stranger has recovered the possession of
the same land in the lord's court, {e)

(y) 3 Bac. Abr. Forcible Entry^ hie, the statute, ante^ 285.

(G). 1 Hawk. c. 64. 8. 54. (c) S Bac. Abr. Id, ibid. 1 Hawk. c.

{%) 1 Hawk. c. 64. s. 56. 64. s. 61, 62.

(a) S Bac. Abr. Forcible Entry, ffc. (d) S Bac. Abr. Id. ibid. 1 Hawk. c.
(G). 1 Hawk. c. 64. s. 58, 59. Reg. 64. s. 63, 64, 65.

V. Winter, 8 Salk. 588. (r) 9 Bac. Abr. Id. ibid. 1 Hawk. c.

(b) Reg. V. Goodenougb, 2 Lord 64. s. 66.
RajtD. 1036. And see the words of

294 Of Forcible Entry and Detainer, ^c. ([book n.

How ^cstita- The Justices or justice may execute the writ of restitution in
m^e. person, or may make their precept to the sheriff to do it. (/) The

sheriff, if need be, may raise the power of the county to assist him
in the execution ef the precept ; and therefore, if he make a re-
turn thereto that he could not make a restitution by reason of re-
sistance, he shall be amerced, (g) And it is said, that a justice
of peace or sheriff may break open a house to make restitution, (h)
it possession under a writ of restitution is avoided immediately
after execution by a fresh force, the party shall hare a second writ
of restitution without a new inquisition : but the second writ
must be applied for within a reasonable time, (t) And where
restitution is, not ordered till three years after the inquisition^ it is
bad. (k)

if) 1 Hawk. c. 64. s. 49. (D 6.)

ig) Id, ibid, sect 52. (0 Rex v. Harris, 1 Lord Rayni. 489.

{hi 4 Cora. Dig. Forcible Entry (k) Rex v. Harris, S Salk. 313.

295

CHAPTER THE THIRTIETH.

OF NUISANCES.

NuisANCB^ nocumentum, or annoyance^ signifies any tMng that
worketh hurt^ inconvenience, or damage. And nuisances are of
two kinds ; public or common nuisances, which affect the public,
and are an annoyance to all the King's subjects; and private
nuisances, which may be defined as any thing done to the hurt or Naiuncea are
annoyance of the lands, tenements, or hereditaments of another, (a) ^^^ *°^ **^'"
Private nuisances, as they are remedied only by civil proceedings^
do not come within the scope of this Treatise : but public or com-
mon nuUances, as they annov the whole community in general,
and not merely some particular person, are properly punishable
by indictment, and not the subject; of action ; for it would be un-
reasonable to multiply suits by giving every man a separate right
for what damnifies him in common only with the rest of his
fellow-subjects. (6) In treating of public or common nuisances,
we may consider, I, of public nuisances in general ; II, of nui-
sances to public highways ; III, of nuisances to public rivers ; and,
IV, of nuisances to public bridges.

(a) 3 Blac. Coin. 216. 2 Inst. 406. in this cpse inosi be direct, and not

(6)4Blac.Com.l66. There are, how- consequential, ashy being delayed in

erer, circnrastances mentioned in the a journey of importance. Bull. N. P.

books upon which a party has been ad- 26. In Rex v, Dewsnap and another,

raitted to have a private satisfaction by 16 East. 196. Lord Ellenborough, C.

civil suitfor that which is a public nui- J. said, ** I did not expect that it

sance; namely, where he has sustained ** wonld have been disputed at this

some extraordinary damage by it be- " dav that though a nuisance may be

yond the rest of the king*s subjects. '^ public, yet that there may be a spe-

As if by means of a ditch dug across a *' cial grievance, arising out of the

public way, which is a common nni- " common cause of mjury, which

sance, a roan or his horse suffer any ** presses more upon particular indi-

injury by falling, therein; there, for ** viduals than upon others not so im-

this particular damage, not common '* mediately within the influence of it*

to otliers, it has been held, that the '* In the case of stopping a common

party may have his action. Co. Lit '* highway which may affect all the

66. 5 Rep. 73. 3 Blac. Com. 219. *' subjects, yet if a particular person

And see also Fowler v. Sanders, Cro. " sustain a special injury from it, he

Jac. 446. But the particular damage ** has an action.**

2d6

Of Nuisances.

[book II.

SECT. I.

0/ Public Nuisances in OeneraL

Of public nui'
sances in ge-
neral.

OfTensive
trades and
luanufactures.

The existence
of the nui-
sance depends
upon the num-
ber of houses
and concourse
of people ; and
also upou its
making the
enjoyment of
life an4 pro-
perty uncom-
fortable.

Public nuisances may be considered as offences against the
public order and ceconomioal regimen of the state ; being either
the doing of a thing to the annoyance of all the King's subjects,
or the neglectiDg to do a thing which the common good re«
quires, {c) But the annoyance or neglect must be of a real and
substantial nature : and the fears of mankind^ though they may be
reasonable, will not create a nuisance, (d)

Offensive trades and manufactures may be public nuisances. A
brewkoiisCy erected in such an inconvenient place that the business
cannot be carried on without greatly incommoding the neighbour-
hood, may be indicted as a common nuisance : and so in the like
case may a glasshouse^ or swineyard. With respect to a candle
manufactory^ it has been holden, that it is no common nuisance to
make candles in a town, because the needfulness of them shall
dispense with the noisomeness of the smell : but the reasonable-
ness of this opinion seems justly to be questionable, because, what-
ever necessity there may be that candles be made, it cannot be
pretended that it is necessary to make them in a town, (e)

An indictment will not lie for that which is a nuisance only to
a few inhabitants of a particular place : as where, upon an indict-
ment against a tinman for the noise made by him in carrying on
his trade, it appeared in evidence, that the noise only affected
the inhabitants of three numbers of the chambers in Clifford's Inn,
and that by shutting the windows the noise was in a great mea-
sure prevented, it was ruled by Lord £llenborough, C. J. that the
indictment could not be sustained, as the annoyance was, if any
thing, a private nuisance. (/) But an indictment for a nuisance,
by steeping stinking skins in water, laying it to be committed
near the highway, and also near several dwelling houses, has been
held sufficient : and the court said, that if a man erects a nuisance
near the highway, by which the air thereabouts is corrupted, it
must in its nature be a nuisance to those who are in the highway ;
and that therefore the indictment was well enough, {g) And an
indictment was held good for a nuisance in erecting buildings,
and making fires which sent forth noisome, offensive, and stinking

(c) 4 Blac. Com. 166. 1 Hawk. P. C.
c. 75. 9. 1. 2 Roll. Abr. 83.

{d\ By Lord Hardwicke, Anon. 3
Alk. 750.

(#) 1 Hawk. P. C. c. 75. 8. 10. In 6
Bac. Abr. JVuitdnee, (A) it is said, " It
'' seems the better opinion that a
*' brewhouse, glasshouse, chandler's
** shop, and sty for swine, set up in
" such inconvenient parts of a town

*' that thej cannot but greatly incoro-
*' mode the neighbourhood, are com-
'* mon nuisances:*' and 9 Roll. Abr.
139. Cro. Car. 510. Hut. ISA. Palm.
636. Vent. 86. Keb. 500. 8 Salk.
458. pi. 3. 460. pi. 7. 8 Lord Raym.
116S, are cited.

(/) Rex V. Lloyd, 4 Esp. SOO.

{g) Rex V. PappineaUi 1 -Str. 686.

CHAP. XXX. § 1.] Offemwe Ixodes and Manufactures. 997

smokes, and making great quantitieB of noisome, offiensire, and
stinking Uquors, near to the King's common highway, and near
to the dw euing houses of several of the inhabitants, whereby the
air was impregnated with noisome and offensive stinks and
smells. (A) Upon the report of the evidence it appeared that the
smell was not only intolenibly offensive, but also noxious and
hurtful, and made many persons sick, and gave them head-aches ;
and it was held that it was not necessary that the smell should be
unwholesome, but that it was enough if it rendered the enjoyment
of life and property uncomfortable ; and further, that the exist-
ence of the nuisance depended upon the number of the houses
and concourse of people, and was a matter of fact to be judged of
by the jury, (t) But the carrying on of an offensive trade is not
indictable, unless it be destructive of the health of the neighbour-
hood, or render the houses untenantable or uncomfortable, {k)

It appears to have been ruled that a person cannot be indicted ^^^ ^■^ *
for setting up a noxious manufactory in a neighbourhood in which may bcT^c^
other offensive trades have long been borne with, unless the in- tioned.
convenience to the public be greatly increased. {I ) And also that
a person cannot be indicted for continuing a noxious trade which
has been carried on at the same place for nearly fifty years, (m)
But this seems hardly to be reconcileable to the doctrine, subse-
quently recomiased, that no length of time can legalize a public
nuisance, although it may supply an answer to the action of a prir
vate individuals (n) It should seem that in judging whether a
thing is a public nuisance or not, the public good it does may, in
some cases, when the public health is not concerned, be taken
into consideration, to see if it outweighs the public annoyance.
With respect to offensive works, though they may have been ori-
ginally established under circumstances which would prima facie
protect them against a prosecution for a nuisance, it seems that a
wilful neglect to adopt established improvements, which would
make them less offensive, may be indictable.

It seems,. that erecting gunpotvder mills, or keeping gunpowder Gunpowder
magazines near a town, is a nuisance by the common law, for ^^ combusti-
which an indictment or information will lie. (o) And the making, ^'*
keeping, or carrying, of too large a quantity of gunpotvder at one
time, or in one place or vehicle, is prohibited by the statute 12
Geo. 3. c. 61. under heavy penalties and forfeiture. And it ap-

(A) Rez V. White and Ward, 1 Burr. (o) Rex v. Williams, E. 12. W. an

933. indictmeat against Roger WilliaiDS for

(i) Rex V. While and Ward, 1 Burr, keeping 400 barrels of gunpowder

337. where see also that the word near the town of Bradford, and he was

*^ noxious** not onlj means hurtful convicted. And in Rex o. Taylor, 1 5

and offensive to the smell, but in- Geo. S. the Court mnted an in forma-

eludes the complex idea of insalubrity tion against the defendant as for a

and offensiveness. nuisance, on affidavits of his keeping

{k) Rex V. Davey and another, 5 great quantities of gunpowder near

Ssp. 317. JUaidan in Surry, to the endangering

(/) Rex V. Bartholomew Neville, of the church and houses where he

Peake^l. lived. 8 Str. 1167. 2 Burn. Just.

(m) Rex V Samuel Neville, Peake 93. Gunpowder ; where it is said, ** or ra«

(a) Weld r. Hornby, 7 East. 199. '' ther it should have been expressed

Rei V. Cross, 3 Campb. 287.^ and see *' to the endangering the lives of iuB

pott, 305. '' roajesty^s subjects."^

29& Of Nuisances. — Inns, Batody-Houses, ^c. [book ii.

Kears, that persons putting on board ^ sfaip an article of a com*
ustible and dangerous nature^ without giving due notice of its
contents^ so as to enable the master to use proper precautions in
the stowing of it, will be guilty of a misdemeanor. The case did
not come before the court of King's Bench directly upon its cri-
minal nature : but that court, in adverting to the conduct imputed
to the defendants, declared it to be criminal ; and sidd, '^ in order
'^ to make the putting on board wrtrngful the defendants must be
*^ conusant of the dangerous quality of the article put on board ;
'^ and if, being so, they yet gave no notice, considering the
'' probable danger thereby occasioned to the lives of those on
'' board, it amounts to a species of delinquency in the persons
^^ concerned in so putting such dangerous article on board, for
'^ whicb they are criminally liable, and punishable as for a mis*
" demeanor at least/* {p)
Diaorderly All disorderly inns or ale-houses, bawdy-houses^ gaming-houses^

inaf, &c. play-houses^ unlicensed or improperly conducted, booths and
stages for rope-dancers, numntebanks, and the like, are public
nuisances, and may therefore be indicted, {q)

It seems to be agreed, that the keeper of an inn may, by the
common law, be indicted and fined as being guilty of a public
nuisance, if he usually harbour thieves, or persons of scandalous
reputation, or suffer frequent disorders in his house, or take exor-
bitant prices, or set up a new inn in a place where there is no
manner of need of one, to the hindrance of other ancient and well
governed inns, or keep it in a place in respect of its situation
wholly imfit for such a purpose, (r) And it seems also to be clear
that if one who keeps a common inn refuse either to receive a tra-
veller as a guest into his house, or to find bim victuals or lodging,
upon his tendering him a reasonable price for the same, he is not
only liable to render damages to the party in an action, but may
also be indicted and fined at the suit of the king; and it is also
said, that he may be compelled by the constable of the town to
receive and entertain such a person as his guest; and that it is in
no way material whether he have any sign before his door or not,
if he make it his common business to entertain passengers, {s)

The keeping of an inn is no franchise, but a lawful trade when
not exercised to the prejudice of the public; and therefore there is
no need of any licence or allowance for such erection, {t) But if
an inn use the trade of an alehouse, as almost all innkeepers do, it
will be within the statutes made concerning alehouses, (ti)

(p) Williams v. The East India (I) Dalt c. 56. Blackerbj 170. 1

Compainr, 3 Ea«t 102, SOl. Burn. Just. tit. Jlchouae$t 1. 3 Bac.

(q) 4 Blac. Com. 167. Abr. Jmu, jfc. (A)

(r) 1 Hawk. P. C. c 78. s. 1. And (u) 1 Burn. Just. JiekouBe*^ where

see in 3 Bac. Abr. Inm, ^c. (A) that as those statutes are collected. Before

inns from their number and s^uation the stat. 5 and 6 Edw. 6. c. 25. it was

may become nuisances, they may be lawful for any one to keep an aUkmie

suppressed, and the parties keeping without licence, for it was a means of

them maT at common law be Indicted livelihood which any one was free lo

and fineor And see also as to exor* follow. But if it was so kept as to be

bitant prices. Id. (C) 8. 81 Jac. 1. c. disorderly, it was indictable as a aui«

%\. saoccs. 1 Salk. 45. 1 Hawk. P. C. c

(i) 1 Hawk. P. C. c 7S. s. S. 78. s. 5S. in fnarg.

CBAT. XXX. § 1.3 Common Gaming- Housa. 299

It is clearly agreed that keeping a bawdy-house is a eommon B«vdf-.
nuisance^ as it endangers the public peace by drawing together ^'^"■••*
dissolute and debauched persons ; and also has an apparent tend-
ency to corrapt the manners of both sexes^ by such an open pro-
fession of lewdness, (w) And it has been adjudged that this is an
offence of which a feme covert may be guilty as well as if she were
sole^ and that she, together with her husband, may be convicted of
it ; for the keeping the house does not necessarily import property,
but may signify that share of government which the wife has in a
family as well as the husband ; and in this she is presumed to have
a considerable part, as those matters are usually managed by the
inti%ues of her sex. {x) If a person be only a lodger, and have
but a single room, yet if she make use of it to accommodate people
in the way of a bawdy-house, it will be a keeping of a bawdy-house
as much as if she had a whole house, (t/) But an indictment can-
not be maintained against a person for being a common bawd, and
procuring men and women to meet together to commit fornica-
tion : the indictment should be for keeping a bawdy-house. (2)
For the bare solicitation of chastity is not indictable, but cogni-
zable only in the ecclesiastical courts, (a)

It is clearly agreed, that all common gaming-houses are nui- Common
sances in the eye of the law, being detrimental to the public, as |*"%"
they promote cheating and other corrupt practices ; and incite to
idleness, and avaricious wap of gaining property, great numbers
whose time might otherwise be employed for tiie good of the
community, (b) And in a late case it was held, that the keeping
a common gaming-house, and for lucre and gain unlawfully
causing and procuring divers idle and evil disposed persons to fre-
quent and come to play together at a game called ^^rcfuge et noivy*
and permitting the said idle and evil disposed persons to remain
playing at the same game for divers large and excessive sums of
money, is an indictable ofience at common law. (t) It has also
been adjudged, that it is an offence for which a feme covert may
be indicted ; for, as she may be concerned in acts of bawdry, as
has been observed above, so she may be active in promoting
gaming, and furnishing the guests with conveniences fpr that pur*
pose, (r) There are also certain penalties imposed by statutes
upon the offence of keeping a common gaming-house, {d)

An indictment against & defendant for that he did keep a com-
mon, ill-governed, and disorderly house, and in the said house for

(») 3 Inst c. 9d, p. 204. 1 Hawk.
P. C. c. 74. aud c. 75. 8. A. 5 Boc.
Abr. Nuigancei (\). 3 Bum. Just
Lewdne$§ ao<l JVttiaanee.

(X) Reg. V. Williams, 1 Salk. 383.
cfi/tf, 16.

(y) Rex V. Pienon, 8 Lord Raym.
1197. 1 Salk. 889.

(z) Id. Ibid.

(ff) I Hawk. P. C. c. 74. 3 Barn;
Jusl. Lewdne$»,

(b) 5 Bac Abr. NuUaneu (A). 1
Hawk. P. C. c. 75. s. 6. Rex v. DUon,
10 Mod. 336.

(0 Rex 9. Rogier aod Bumphr j, 1

B. and C. 272. And Holrovd, J. said,
that in his opinion it would have been
sufficient merely to have allied, thai
the defendants kept a common jppim-
ing-house. And see Rex v. Taylor, 3
B. and C. 502.

(c) Rex V. Dixon, Trin. 2 Geo. 1. 5
Bac. Abr. NuUanee$ (A ). 10 Mod. 335.
1 Hawk. P. C. c. 92. s. 30. andseeanto,
16.

(d) I Hawk. P. G. c. 92. s. 14. e%
$equ. And see 25 Geo. 2. c 36. s. 5.
42 Geo. 3. c. 119. And see posi^ p.
304, as to lotteries and little goes.

900 Of Nuisances. — Playhouses and [book Ut

hiB lacre^ &c. certidn perBons of ill-name^ &c. to frequent and come
together, did cause and procure, and the said persons in the said
house to remain /ighting qfcocks^ basingy playing at cudgels^ and
misbehaving themselves^ did permit, has been held to be good, {e)
And it seems that the keeping of a cockpit is not only an indict-
able, offence at common law, but that a cockpit is considered as a
gaming-house within the statute 33 Hen. 8. c. 9. s. 11. which im-
poses a penalty of forty shillings per day upon such houses ; and
therefore, on a conviction on an indictment at common law, the
court will measure the fine by inflicting forty shillings for each day,
according to the number of days such cockpit was kept open. (/)
PUyhoQseB. It seems to be the better opinion that playhouses, having been

originally instituted with a laudable design oi recommending virtue
to the imitation of the people, and exposing vice and folly, are not
nuisances in their own nature, but may only become such by acci •
dent ; as, where they draw together such numbers of coaches or
people, &c. as prove generally inconvenient to the places adjacent;
or, when they pervert their original institution by recommending
vicious and loose characters, under beautiful colours, to the imi-
tation of the people, and make a jest of things commendable,
serious, and useful, {g) Players and playhouses are now put under
PUicet of ppb- salutary regulations by the provisions of several statutes. (A) And
lie •nt^tein- places of public entertainment in the neighbourhood of London, if
MDBed to^be ^^^ proDcrly licensed, are to be deemed disorderly hotises by the
deemed disor- Statute 25 Geo. 2. c. 36. (i) which, reciting the multitude of places
dcriy houBes. ^f entertainment for the lower sort of people as a great cause of
thefts and robberies, enacts, " that any house, room, garden, or
'^ other place, kept for public dancing, music, or other public en-
'^ tertainment of the like kind in the cities of London and ff^est-
'^ mittster, or within twenty miles thereof,'' without a licence from
the last preceding Michaelmas quarter sessions, under the hands
and seals of four of the justices, ** shall be deemed a disorderly
*' house or place.'' The act then particularizes the mode of grant-
ing the licence, makes it lawful for a constable or other person,
authorized by warrant of a justice, to enter such house or place,
and to seize every person found therein ; and makes every person
keeping such house, &c. without a licencp liable to a penalty of
100/., and otherwise punishable as the law directs in cases of dis-
orderly houses, {k)

(e) Rex V. Bigginson, 2 Burr. ISSS. Justices of the peace at their quarter

(/) Rex V, Howell, 3 Keb. 510. 1*' sessions may license theatrical repre-

Hawk. P. C. c. 98. s. 29. sentations occasionally, under certain

(^) 6 Bac. Abr. Nuitances (A). 1 restrictions The words ^'entertain-

Hawk. P. C. c. 75. s. 7. And as to the '* inent of the stage/* in 10 Geo. 8. c.

^rformance of an obscene play, see £8. have been held not to extend to an

ante^ 880, note (iQ. exhibition of tumblin§^» Rex r. Han-

{h) The 10 Geo. 8. c.88. enacts that dy, 6 T. R. 886. By special acU of

persons performing any entertainment Parliament playhouses are permitted

of the stage without authority or li- to be erected in particular places,

cence, shall be deemed rogues and (t) Made perpetual by the 88 Geo. 5L

vagabonds, and liable to the penalties c. 19.

of 18 Ann. stat. 8. c. 83. (an act re- (k) By s. 3. this act is not to extend

pealed, but re-enacted by 17 Geo. 8. to the theatres in Drury Lane and

c. 5.) and also to a penalty of 50/. See Covent Garden^ or the King^$ Theatre

also the 88 Geo. 3. c. 30. by which in the Hajfmarket ; nor to perform-

ctiAP. XXX. §1.3 Unlicemed Places of Entertaimnenl. 961

It seems also to be the better opinion, that all common stages for Stufes for
rope-dancers, £^c. are nuisances, not only because they are great 2>pe-^«ncergf
temptations to idleness, but also because they are apt to draw
together numbers of disorderly persons, which cannot but be very
inconvenient to the neighbourhood. (/)

The proceedings in respect of prosecutions against persons Proceedings in
keeping bawdy-houses, gaming-houses, or other disorderly houses, prosecationB
are facilitated by 25 Geo. 2. c. 36. by which it is enacted, that if J*^°for^p-
two inhabitants of any parish or place, paying scot and lot, give ing bawdy-
Aotice in writing to the constable, of any person keeping a bawdy- houses, gam-
house, gaming-house, or any other disorderly house, in such ^JSw^Is-
parish or place, the constable shall go with such inhabitants to a oideriy
justice 5 and shall, upon such inhabitants making oath before the houses. 25
justice that they believe the contents of the notice to be true, and ®*®* *'
entering into a recognizance in twenty pounds each to give mate-
rial evidence against the person for such offence, enter into a re-
cognizance in the sum of thirty pounds to prosecute with effect at
the next sessions or assizes as to the justice shall seem meet. And
provision^ is also made for the payment by the overseers of the
charges of prosecution to the constable, and ten pounds on con-
riction to each of the two inhabitants, (m) The person keeping
such bawdy-house, &c. is also to be bound over to appear at the
sessions or assizes.

The eighth section of this statute, reciting that by reason of the persons act-
many subtle and crafty contrivances of persons keeping bawdy- ingaskeepen
houses, &c. it is difiBicult to prove who is the real owner or keeper, ^oi^to*
enacts, that any person ^^who shall appear, act, or behave as be deemed
" master or mistress, or as the person having the care, govern- l^eepers.
" ment, or management, of any bawdy-house, gaming-house, or
'^ other disorderly house, shall be deemed and taken to be the
^^ keeper thereof, and shall be liable to be prosecuted and punished
*^ as such, notwithstanding he or she shall not in fact be the real
" owner or keeper thereof." By the ninth section any person Witness,
may give evidence upon such prosecution, though an inhabitant of
the parish or place, and though he may have entered into the
before-mentioned recognizance. The tenth section enacts, that Certiorari,
no indictment shall be removed by certiorari, but shall be tried at
the same sessions or assizes where it shall have been preferred
(unless the court shall think proper, upon cause shewn', to adjourn
the same,) notwithstanding any such writ or allowance. Upon
this last clause it has been decided, that the general words do not
restrain the crown from removing the indictment by certiorari;
there beii^ nothing in the act to shew that the Legislature intended
that the crown should be bound by it. (n)

Any number of persons may be included in the same indict- indictment
ment for keeping different disorderly houses, stating that they and evidence
" severally" kept, &c. such houses, (o) It seems that it is neces- j^h^^'^®'^'

antes and public entertainments car- being indicted for a riot and unlawful

ried on under letters patent, or licence assembly.

of the crown, or licence of the lord (m) S. 4.

chamberlain. (n) Rex o. Davies and others, 5 T.

(/) 5 Bac. Abr. XuUan^ea (A). 1 R. 626.
Hawk. P. C. c 76. s. 6. • And see anU^ io) 8 Hale 1 74, where it i^r said, *' It is

P- 846, note {g)f as to stage-players *' common ezpericDce at this day thai

dois

Openlewdnen
and indecent
exposure.

Eavesdrop-
pers.

Common
scold.

0fNui8anee$. — bidecencjf^ Eaves-droppers, [book n.

Banr to state where the house is situate, and the time, so as to
make a particular statement of the offence, which is the keeping
of the bouse. (/)) But particular facts need not be stated; and
though the charge is thus general, yet at the trial evidence may be
be given of particular facts, and of the particular time of doing
them. (9) It is not necessary to prove who frequents the house^
for that may be impossible : but if any unknown persons are
proved to be there behaving disorderly, it is sufficient to support
the indictment, (r)

In general, all open lewdness grossly scandalous is punishable
by indictment at the common law : and it appears to be an esta-
bushed principle that whatever openly outrages decency, and is
injurious to public morals, is a misdemeanor. (5) In a late case it
was held to be an indictable ofience for a man to undress himself
on the beach and to bathe in the sea near inhabited houses, from
which he might be distinctly seen ; although the houses had been
recently erected^ and^ until their erection, it had been usual for
men to bathe in great numbers at the place in question. McDo-
nald, C. B., ruled, that whatever place becomes the habitation of
civilized men, there the laws of decency must be enforced. (/)
And to shew a being of unnatural and monstrous shape for money
is a misdemeanor, (ti)

Eaves droppersj or such as listen under walls or windows, or
the eaves of a house, to hearken after discourse, and thereupon
to frame slanderous and mischievous tales, are a common nui-
sance, and presentable at the court leet ; or are indictable at the
sessions, and punishable by fine and finding sureties for their good
behaviour, (ic^)

A common scold, communis rixtttris, (for our law confines it to
the feminine gender) is a public nuisance to her neighbourhood,
and may be indicted for the offence ; and, upon conviction, pu-
nished by being placed in a cert^ engine of correction called the
trebucket, or cucking stool, (jr) And she may be convicted with-

** twenty persons may be indicted for And the Court of King's Bench, when
** keeping disorderly houses or bawdy the defendant was broughiup for j udg-
** houses ; and they are daily con? ic ted ment, expressed a clear opinion that
** upon such indictments, for the word the offence^ imputed to him was a mis-
*' teparaUier makes them several in- demeanor, and that he had been nro-
*' dictments." And in Rex v. King- perly convicted. In Rex o. Sir Clns.
ston and others, 8 East. 41., it was Sedley, Sid. 168., IKeb. 690. S.C. the
held that it is no objection on demur- defendant heii;g indicted for ^wwing
rer that several different defendants himself naked from a balcony in Co-
are charged in different counts of an vent Garden to a great multitude of
indictment for offences of the same people, confessed the fndictment ; and
nature ; though it may be a ground was sentenced to pay a fine of 9000
for application to the discretion of the marks, to be imprisoned a week, and
court to quash the indictment. to give security for hisgood liehaviour

(p) Bv Buller, J. in J'Anson v. Stu- for three years.

art, 1 T. R. 754. . (u) Barring v. Walrond, 9 Cba. Ca.

(q) By Lord Hardwicke, in Clarke 110, the case of a monstrous child that

«. Periam, 9 Atk, 339. died, and was embalmed tobe keptfor

(r) J' Anson v, Stuart, 1 T. E. 754., shew, but was ordered by the Lord

by Buller, J. Chancellor to be buried,— <cited in

(t) 1 Hfiwk. P. C. c. 5. s. 4« 3 Burn. * Burn. Just Ntdmnce.)

Just. Lewdneii, 4 Bla. Com. 65, (a). (w) 4 Bla. Com. 167^ 166. 1 Biini*

1 East P. C. c. 1. 8. 1. Jost E0vei Dropperq.

i$) Rex V. Cnindeot 9 C»mpb. 89. (jr) I Hawk. P. C. c 75. a. 14. 4 BIm.

CHAP zzx. § 1.] Noises, Sheading htfeetim, Mantiff, Ijsc.^ MS

out BetdDg forth the particulars in the indlctitient :(y) thoagh the
offence must be set forth in technical words, and with convenient
certainty ; and the indictment must conclude not only against the
peace, but to the common nuisance of divers of his Majesty's liege
subjects, (x) It is not necessary to give in evidence the particular
expressions used ; it is sufficient to prove generally that the de*
fendant is always scolding, (a)

A defendant was convicted on an indictment for making great Noises in iIm
noises in the night with a speaking trumpet, to the disturbance of ^^^
the neighbourhood : which the court held to be a nuisance.(i)

The exposing in public places persons infected with conta- Sprea^ng in-
gious disorders, so that the infection may be communicated, is a ^^^'^^
nuisance, and has been already treated <rf in a preceding Chap -
ter. (c)

It is said that a mastiff' going in the street unmuzzled, from the Mastiff un-
ferocity of his nature being dangerous and cause of terror to his ™****^«**-
Majesty's' subjects, seems to be a common nuisance ; and that,
conse<|uently, the owner may be indicted for suffering him to go
at large, (fif)

There are also some offences which are declared to be nuisances Nuisances by
by the enactments of particular statutes. statutes.

By the 9 & 10 W. 3. c. 7* it is enacted that it shall not be law- Fireworks. 9
fill for any person to make, or cause to be made, or to sell or &WW.3.C.7.
utter, or offer or expose to sale, any squibs, rockets, serpents^ or
other JireworkSf or any cases, moulds, or other implements for the
making any such squibs, &c. or for any person to permit or suffisr
any squibs, &c. to be oast, thrown, or fired from out of or in his
house, Ibdging, or habitation, or any place thereto belonging or
adjoining, into any public street, highway, road, or passage, or
for any person to throw, cast off, or fire, or be aiding or assisting
in the throwing, casting, or firing of any squibs, &c. in or into
any public street, house, shop, river, highway, road, or passage,
^' and that every such offence shall be a common nuisance.'' The
statute also imposes pecuniary penalties for these offences, to be
inflicted upon conviction before a magistrate : but as it declares
the offences to be common nuisances, they may clearly be also
prosecuted by indictment, (e)

Com. 168. Burn. Just. Nuisance^ III. see a precedent of an indictinent for

Cuek^ or guck^ in the Saxon language, this offence, 3 Chit. Crim. Law, 643.

(according to Lord Coke) signifies to It should be observed, however, that

BcolcT or brawl ; taken from the bird the offence seems to be stated too ^e-

euckow^ or guekkaw: and ing in that nerallj in the authority from which

language signifies water, because a the text is taken. To permit afuriouB

scoTdinfc woman, when placed in this mastiff or bull dog to go at large and

stool, was for her punishment soused unmuzzled may he a nuisance ; but

in the watdr. 8 Inst 219. those dogs are freauently quiet and

(y) 2 Hawk. P. C. c. 85. s. 59. gentle in their haniU, exceot when

(z) Rex r. Cooper, 3 Str. 1846. incited by their owners; ana it can

(a) By Buller, J. in J* Anson v. Sta- hardly be said to be a nuisance to per-

art, I T. R. 754. roit them to go at lar^ and unmuz-

{b) Rex V. Smith, 1 Str. 704. And zled, because some or their breed are

see a precedent of an indictment for ferocious.

keeping dogs which made noises in the (e) Ante^ p. 47. The pecuniary pe-

sigBt, 8 Chit. Crim. Law, 647. nalties are imposed by ss. 8. and S. of

(c) Jnie, Chap. it. p. 1 18, ei $eq. this statute. And see 8 Burn. Just.

(^ 8 Bura. Just. JiMimtetfJL, And FIreworkB.

30t

Lotteries. 10
ft 11 W. 3. c.
17.

Oftberemoyal
of ntusances.

Of the probi-
biUon of them
by writ from
the King's
Bench.

Of the indict-
ment in cases
of nnissnce.

Of Nuisances. -^Lotteries. [book u.

By the 10 & 11 W. 3. c. VJ. all lotteries are declared to be pnb-
lic nuisances ; and all grants, patents, and licences, for such lot-
teries to be against law. But for many years past it has been
found convenient to the Government to raise money by the means
of them; and accordingly different state lottery -acts have been
passed to license and regulate offices for lotteries. (/) But the
statute 42 Geo. 3. c. 1 19. declares all games or lotteries, called
little Goes, to be public nuisances, and provides for their sup-
pression ; and also imposes heavy penalties upon persons keeping
offices, &c. for lotteries not authorized by parliament.

It is laid down in the books that any one may pull down, or
otherwise destroy, a common nuisance ; and it is said that if any
one, whose estate is, or may be, prejudiced by a private nuisance,
may justify the entering into another's ground and pulling down
ana destroying such nuisance, surely it cannot but follow a for-
tiori that any one may lawfully destroy a common nuisance. (Q
And it is also said that it seems that in a plea justifying the re-
moval of a nuisance, the party need not shew that he did as little
damage as might be : {m) but tnis may perhaps be doubted, as, even
where there is a judgment to abate a nuisance, it is only to abate
so much of the thing as makes it a nuisance, (n)

It is also stated as the better opinion, that the Court of King's
Bench may by a mandatory writ prohibit a nuisance, and order
that it shall be abated ; and that the party disobeying such writ
will be subject to an attachment, (o) Such writs appear to have
been granted in some cases ; and the proceeding in one case was
that the Judges, upon view, ordered a record to be made of the
nuisance, and sending for the offender, ordered him to enter into
a recognizance not to proceed ; but he refusing to comply, the
Court committed hun for the contempt, issued a writ to the sheriff
on the record made, to abate the building, and ordered the offender
to be indicted for the nuisance, (p)

But the more usual course of proceeding in cases, of nuisance
is by indictment^ in which the nuisance should be described ac-
cording to the circumstances ; and it should be stated to be con-
tinuing, if that be the fact.(jr) An indictment for carrying on
offensive works may state them to be carried on at such a parish.
It is not necessary to state that they were carried on in a town or
village ;(^) stating them to be carried on near a common King's
highway, and near the dwelling-houses of several persons, to toe
common nuisance of passengers and of the inhabitants, is sufficient :
it need not be stated how near the highway or houses they were car-
ried on.(y) The offence shoidd be charged to be done ad commune
nocumentumy ** to the common nuisance of all the liege subjects,
&c.''(2) But an indictment against a common scold, using the

another case in 8 Car. 1. of a writ to
prohibit a bowling^allej erected near
St. Donstan's church.

(9) Rex V. Stead, S T. R. 142,; other-
wise there will not be judgnieat to
abate it.

(JT) Burr. S33.

iy) Id. au,

{%) Tin. Abr. Indictment (Q). JWi-

(/) See the acts collected, 8 Bum.
Just Gaming J III.

(/) 1 Hawk. P. C. c 75. s 18. 5 Bac.
Abr. Nuisance^ ^C).

(m) Id. i'nd.

(n) Poii, 306.

(•) 6 Bac. Abr. Ntdsancey (C).

<f) Rex V. Hall, 1 Mod. 76. I Vent
169. S. C. And Hale, C. J. mentioned

CHAP. XXX. § 1.] Indictment J Defence. 305

words communis rixatrix baa been considered to be good, though
it concluded €td commune nocumentum iliversorutny instead of
omnium, because from the nature of the thing it could not but be
a common nuisance. And Hawkins says that for the same reason
it may be argued that an indictment, with such a conclusion, for
a nuisance to a river, plainly appearing to be a public navigable
river, or to a way, plainly appearing to be a highway, is sufficient :
and he says that perhaps the authorities which seem to contradict
this opinion might go upon this reason, that in the body of the
indictment it did not appear with sufficient certainty whether the
way wherein the nuisance was alleged were a highway, or only a
private way ; aj^d that therefore it should be intended, from the
conclusion of the indictment, that the way was private. («) The
safer mode, however, will be to lay the offence to have been com-
mitted ^^ to the common nuisance of all the liege subjects, &c.''

It will t)e no excuse for the defendant that the nuisance, for The defendant
which he is indicted, has been in existence for a great length of himself by^"**
time; as however twenty years' acquiescence may bind parties shewing that
whose private rights only are affected, yet the public have an in- ^^ nuisamic
terest in the suppression of public nuisances though of longer a*onr2me.°^
standing, {t) It lias been held that a party could not defend the
putting his woodstack in the street before his house, on the ground
that it was according to the ancient usage in the town, leaving
sufficient room for passengers : for it is against law to prescribe
for a nuisance. (?/) And Lord EUenborough, C.J. said in a late No length of
case, " It is immaterial how long the practice may have prevailed, ^'^^J^a pu^^c
" for no length of time will legitimate a nuisance. ITie stell nmsance.
" fishery across the river at Carlisle had been established for a
" vast number of years : but Mr. Justice BuUer held that it con-
" tinued unlawful, and gave judgment that it should be abated." (ti;)
But in some cases length of time may concur with other circum-
stances in preventing an obstruction from having the character of
a nuisance : as where, upon an indictment for obstructing a high-
way by depositing bags of clothes there, it appeared that the place
had been used for a market for the sale of clothes, for above
twenty years, and that the defendant put the bags iJiere for the
purpose of sale, Lord EUenborough, C. J. said that after twenty
years' acquiescence, and it appearing to all the world that there
was a fair or market kept at the place, he could not hold a man to
be criminal who came there under the belief that it was such &ir,
or market, legally instituted, (x)

All common nuisances are regularly punishable by fine and im- of the judg-
prisonment : but, as the removal of the nuisance is usually the ^^nujaancef '
chief end of the indictment, the court will adapt the judgment to
the nature of the case. Where the nuisance therefore is stated in
the indictment to be continuing, and does in fact exist at the time

tanee^ IS. Prat v. Steam, Cro. Jac. churchyard ** to the nuisaDce of the

382. Rex v. Hay ward,, Cro. Eliz. 148. ^^ inhabitants of the pariah^ Bui qu.
Anon. 1 Yenlr. 86. 2 Roll. Abr. 83. (s) 1 Hawk. P. C. cTd.s. 5.
7 Hawk. P. C. c. 75. s. 3, 4, 5, and (0 Weld v. Hornby, 7 East. 199 1

the authorities there cited. And see 5 and see pott^ Sect. 3.
fiac. Abr. Nuisance (B). In 6 East. 315, (u) Fowler t\ Sanders, Cro. Jac. 446.
Rex V, Reyncll, there is an indict- (tp) Rex v. Cross, 3 Campb. 227.
mcnt for noi repairing the fences of a {x) Rex v. Smith 6( othersy 4 Bsp. UK
VOL, I. X

306 Of Nuisances, — Judgment. [book ii.

of the judgment^ the defendant may be commanded by the judg-
ment to remove it at his own costs: (y) but only so much of the
thing as causes the nuisance ought to be removed ; as if a house
be built too high, only so much of it as is too high should be
pulled down ; and if the indictment were for keeping a dye-house,
or carrying on any other stinking trade, the judgment would not
be to pull do\<Ti the building where the trade was carried on. (*)
So in the case of a glass-house the judgment was to abate the
nuisance ; not by pulling the house down, but only by preventing
the defendant from using it again as a glass-house, (a) But where
the indictment does not state the nuisance to be continuing, a
judgment to abate it would not be proper. In a case where this
point arose, Lord Kenyon, C. J. said, " When a defendant is in-
'^ dieted for an existing nuisance, it is usual to state the nuisance
^^ and its continuance down to the time of taking the inquisition ;
it was so stated in Rex v. Pappineau, et adhuc existit; and in
such cases the judgment should be that the nuisance be abated.
^^ ^But in this case it does not appear in the indictment that the
'^ nuisance was then in existence ; and it would be absurd to give
^^ judgment to abate a supposed nuisance which does not exist.
^' If however the nuisance still continue, the defendant may be
" again indicted for continuing it," (b)
Cosu upon an The statute 5 W. & M. c. 11. s. 3. enacts that if a defendant
indictment prosecuting a Writ of certiorari (as mentioned in the act) be con-
where the"de- victed of the offence for which he is indicted, the court of King's
fendant had Bench shall give reasonable costs to the prosecutor if he be the
"^"JT^oW^' ^d P^'^'^y grieved^ or be a justice, &c. or other civil officer, who shall
teen convicu prosecute for any fact that concerned them as officers to prosecute
ed. or present. Upon this clause it was decided in a recent case, that

persons dwelling near to a steam engine, which emitted volumes
of smoke affecting their breath, eyes, clothes, furniture, and
dwelling houses, and prosecuting an indictment for such nuisance,
are parties grieved entitled to their costs, the defendants having
removed the indictment from the sessions by certiorari, and been
afterwards convicted, (c)
Costs in cases The Statute 1 & 2 G. 4. c. 41« reciting the great incwivenience
of nuisances and injury sustained from the improper construction and negli-
ansing from grent usc of fumaccs employed in the working of engines by steam,

furnaces used « * oo^^'

for steam- ^^^ ^^^^ though such nuisance, being of a public nature, is aba-
engines, table as such by indictment, the expense had deterred parties
suffering thereby from seeking the remedy given by law, enacts
** that it shall and may be lawful for the court by which judg-
*' ment ought to be pronounced, in case of conviction on any such
" indictment, to award such costs as shall be deemed proper and
" reasonable to the prosecutor or prosecutors, to be paid by the
" party or parties so convicted as aforesaid; such award to be
'' made either before or at the time of pronouncing final judgment,
^^ as to the court may seem fit."

(y) 2 Roll. Abr. 84. 1 Hanrk. F. C. strong opinion was intimated upon

G. 75. s. 14. Rex V, Pappineau, 1 Str. the point when the same case was

6S6. previously brought before the court

. (z) Rex V, Pappineau > ante, note (^) in another ^ape, Rex v. the Justices.

9 Co. 53. Godb. 891. of Yorkshire, 7 T. R. 468.

(<z) Co. Bnt. 99 b. (e) Rex v. Dewsnap and another,

(5) Rex V. Stead, 8 T. R. 142. A 16 East. 194, 2

CHAP. XXX. § 3.3 Of Nuisances to Highways. 307

The second section enacts^ that if it shall appear to the court An order may
by which judgment ought to be pronounced that the grievance ^,^*for ^T *
may be remedied by altering the construction of the furnace, it alteration of
shall be lawful fo^ the court, without the consent of the prosecutor, t^« furnace.
to make such orders as shall be by the court thought expedient
for preventing the nuisance in future, before passing final sen-
tence on the defendant.

The statute then enacts, that the provisions contained in it, as But tbese pro-
far as they relate to the payment of costs and the alteration of J^extenrtS^'
furnaces, shall not extend to the owners or occupiers of any Ain^esof
furnaces of steam engines, erected solely for the purpose of work- engines for
ing mines of different descriptions, or employed solely in the ^?«'^'">^^
smelting of ores and minerals, or in the manufacturing the pro- '

duce of ores or minerals, on or immediately adjoining the pre-
mises where they are raised, (c)

SECT. n.

Of Nuisances to Public Highways^

Im treating of nuisances to public highway Sy we may consider in the Of nnisances
first place what is a public highway; secondly, of nuisances to a J^P^*>^c high-
public highway by obstruction; and, thirdly, of nuisances to a
public highway by the neglect, on the part of those who are liable,
to put it in repair.

Highway is said to be the genus of all public ways; {d) of WhatUapub-
which there are three kinds, a footway; a foot and horseway, Hc^ghway.
which is also a pack and prime- way; and a foot horse and cart
way. (e) Whatever distinctions may exist between these ways, it
seems to be clear that any of them, when common to all the king's
subjects, whether directly leading to a market-town, or beyond a
town as a thoroughfare to other towns, or from town to town, may
properly be called a highway; and that the last, or more consider-
able of them, has been usually called the king's highway. (/)
But a way to a parish-church, or to the common fields of a town,
or to a private house, or perhaps to a village, which terminates
there, and is for the benefit of the particular inhabitants of such
parish, house, or village only, is not a highway ; because it belongs
not to all the king's subjects, but only to some particular persons,
each of whom, as it seems, nmy have an action on the case for a
nuisance therein, {g) And in a late case, a very learned Judge

(e)S. 3. public footway, it was held that the

(lO R^g* V* Saintiff, 6 Mod. S55. description was sufficient. Allen v.

(e) Co. Lit 56 a. Ormond, 8 East. 4.

(/) Id. Ibid. 1 Hawk. P. C. c. 76. (g) 1 Hawk. P. C. c. 76. s. 1. So by

s. 1. S Ba^, Ahr. Bigfwajf 8 (A). And Hale, C.J. in Austin's case, 1 Vent,

in a case where the terminus ad quern 189. A way leading to any market

was laid to be a public highway, and it town, and common for all travellers,

appeared in evidence that it was a and coramunicatinsf with any great

x2

308

The number
of persons
using a way
or repairing it
will not make
it a public
way if it be
not common
to all the
king's sub-
jects.

The freehold
and the profits
(as mines,
trees, &c.) of
a highway be-
long to the
lord of the
soil.

Of Nuisances to Highways. • [book H;

said, he had great difficulty in conceiving that there can be a
public highway which is not a thoroughfare, because the public at
large cannot well be in the use of it. (a)

It is not to be understood by the term cart-way, that the way
is to be used only with the particular vehicle called a cart ; for ijf
it is a common highway for carriages, it is a highway for all man-
ner of things. (A) Many public highways however, as a footway,
are to be used only in a particular mode. Thus, though a towing
path is to be used only by horses employed in towing vessels, yet
it is a common highway for that purpose, (i) And where a rail-
way or tram road was made under the authority of an act of par-
liament, by which the proprietors were incorporated, and by which
it was provided that the public should have the beneficial enjoy-
ment of it, such rail- way or tram road was taken to be a public
highway. (A)

The number of persons who may be entitled to use the way, or
may be obliged to repair it, will not make it a public way, if it be
not common to all the king's subjects. Thus where the commis-
sioners under an inclosure act set out a private road for the use of
the inhabitants of nine parishes, directing the inhabitants of six
of those parishes to keep it in repair, it was held that no indict-
ment could be supported against those six parishes for not repair-
ing it; because it did not concern the public. It was argued,
amongst other reasons in support of the indictment, that there
was no other remedy ; for that there were not less than 250 per-
sons who were liable to the repair of the road, and that the diffi-
culty of suing so many persons together was almost insuperable.
But the court said that, nowever convenient it might be that the
defendants should be indicted, there was no legal ground on which
this indictment could be supported ; that the known rule was that
those matters only which concerned the public were the subject
of an indictment ; that the road iji question, being described to be
a private road, did not concern the public, nor was of a public
nature, 1)ut merely concerned the individuals who had a right to
use it; and that the question was not varied by the circumstance
that many individuals were liable to repair, or that many others
were entitled to the benefit of this road. (/)

Though a highway is said to be the king's, yet this must be
understood as meaning that in every highway the king and his
subjects may pass and repass at their pleasure ; for the freehold
and all the profits, as trees, mines, &c. belong to the lord of the
soil, or to the owner of the lands on both sides the way. (m) The
rights, however, of the owner of the soil wfll be subject to those
of the public as to their exercise of their right of way in its full
extent. Thus it seems to be established, that if a common high-
way is so foundrous and out of repair as to become impassable, or

road, is a highway : but if it lead only and Wye Railway Company, 8 B. & A.

to a church, or to a house or village, 648.

or to fields, it is a private way. (Ar) Rex v, Severn and Wye Rail-

(a) By Abbott, C J. in Wood v, way Company, 2 B.& A. 646.

Teale, 1 B. & A. 454. (/) Rex v. Richards, 8 T. R. 634.

(A) Rex V. Hatfield, Cas. temp. (oi) S Bac. Abr. ^^Jtapa^t (B) 3 Com.

Hard w. 315. Dig. Chemin (A. 2.)

(0 Per Bay ley, J. in Rex v. Severn

CHAP. XXX. § S.] fVhat a Public Highxtay. S09>

even dangerous to be travelled over, or incommodiouB, the public
have a right to go upon the adjacent ground; and that it piakes no
difference whether such ground be sown vrith grain or not. (A)
But it is a right of passage only which is given up by the owner of
the soil, even where the way is dedicated by him to the public.
Thus where, in an action of trespass, a case was made that the
place where the supposed trespass was committed was formerly
the property of the plaintiff, who some years ago had built a street
upon it, which had ever since been used as a highway, that the
defendant had lands contiguous, parted only by a ditch, over which
ditch he had laid a bridge, the end of which rested on the highway;
and it was insisted, for the defendant, that by the plaintiff's having
made this a street, it was a dedication of it to the public, and that
he could not therefore sue as for a trespass on his private pro-
perty ; the court held that though it was a dedication to the pub-
lic, so far as the public had occasion for it, which was only for a
right of passage, it never was understood to be a transfer of the
absolute property in the soil. (/)

A way may become a public highway by a dedication of it, by a way may be-
the owner of the soil, to the public use. Thus where the owners co™® public
of the soil suffered the public to have the free passage of a street tionof itby
in London J though not a thoroughfare, for eight years, without the owner of
any impediment (such as a bar set across the street, and shut at thosoUto the
pleasure, which would shew the limited right of the public,) it ^" *^ '*'*'
was held a sufficient time for presuming a dereliction of the way
to the public, (m) And though if the land had been under lease
during that time, or even for a much longer period, the acquiescence
of the tenant would not have bound the landlord, without evidence
of bis knowledge ; («) yet it was held, that where a way had been
used by the public for a great number of years over a close in the
hands of a succession of tenants, the privity of the landlord, and
a dedication by him to the public, might be presumed, although he
was never in the actual possession of the close himself, and was
not proved to have been near the spot, (o) And it was also held
in this case that where a way has been so used, notice of the fact
to the steward is notice to the landlord, {p) In a case where it
appeared that a passage, leading from one part to another of a
public street, (though by a very circuitous route) made originally
for private convenience, had been open to the public for a great
number of years, without any bar or chain across it, and without
any interruption having been given to persons passing through it,
it was ruled, that this must be considered as a way dedicated to
the public, {q) But the erection of a bar, to prevent the passing
of carriages, rebuts the presumption of a dedication to the public ;

(At) 1 Roll. Abr. 390(A) pi. 1. and ButsomeobservatioDS were made upon

(B) pi. I. Absor V. French, 2 Show, this doctrine; and it was somewhat

S8. Tajlor r. Whitehead, Dougl. 749. shaken in a late case of Woodjer v.

(/) Sir John Lade v. Shepherd, 2 Hadden, 5 Taunt. 125. l\)«<.310,n.(l).

Str. 1004. (n) Trustees of the Rugby Charity

(m) Trustees of the Rugby Charity v. Merry weather, 1 1 East. 375. Wood

r. Merry weather, 11 EasL 376. in tho v. Veali 310, note (a),

note. Lord Kenyou also said, *' In a {p) Rex v. Barr, 4 Campb. 16.

*' great case, which was much con- (p) Id, ibid.

** tested, six years was held sufficient." (q) Rex v. Lloyd, 1 Campb. 260.

310 . Of Nuisances to Highways. [book ii.

although the bar may have been long broken down : and though
Buch a bar do not impede the passing of persons on foot^ no pubUc
right to a footway is acquired^ as there can be no partial abandon-
ment to the public, (r) And it has been ruled that the owner of
the soil may replace the bar after it has been taken away for
twelve years, {s) It must be observed, however, that in every
case the facts must be such as are sufficient to shew that the
owner meant to give the public a right of way over his soil, be-
fore a dedication by him will be presumed. Thus in a late case,
where the plaintiff erected a street, leading out of a highway
across his own close, and terminating at the edge of the defendant's
adjoining close, which was separated by the defendant's fence
from the end of the street for twenty-one years, during nineteen
of which the houses were completed, and the street publicly
watched, cleansed, and lighted, and both footways, and half
the horseway paved, at the expense of the inhabitants, it was held,
that this street was not so dedicated to the public, that the de-
fendant, pulling down his wall, might enter it at the end adjoining
to his land, and use it as a highway. (/) And nothing done by a
lessee without the consent of the owner of the fee will give a right
of way to the public. Thus in a late case of an action of trespass,
and a justification under a public right of way, the facts were,
that the place in question, which was not a thoroughfare, had been
under leasefrom 1719tol818; but had been used by the public, as far
back as living memory could go ; and had been lighted, paved, and
watched, under an act of Parliament, in which it was mentioned
as one of the streets of Westminster : and that the plaintiff, who
inclosed it after 1818, had previously lived for 24 years in its
neighbourhood. But it was held, that even under these circum-
stances the jury were well justified in finding that there was no
• public right of way, inasmuch as there could be no dedication to

the public by the tenants for ninety-nine years, nor by any one,
except the owner of the fee. (o) And where^ the owner of the
soil has been under a compulsory obligation to permit a qualified

Eassage over his soil, the curcumstance of a general passage having
een used by the public for many years will not lead to the con-
clusion of a dedication to the public. Thus where a road was set
out by comtnissioners under a local act, and certun persons only
were by the act to use it, but in fact it had been used by the

(r) Roberts v. Karr, cor. Heath, J. *' that eight years* acquiescence after-

Kittgaton Lent Ass. 1808. 1 Carapb. *' wards were sufficient: he says that

86 1 , note (b), ** in another case, six years were held to

(fl) Lethbridge v. Winter, Somertet " be enough, not narains the case ; — ^if

Spr. Assiz. \SOS. ear. Marshal, Serjt. 1 '' six, why not one? Wny not half a

Campb. 263. in the note. *' year? It would then become neces-

(OWoodyer and another v. Hadden, ** sary for every reversioner, coming

6 Taunt. 125. Chambre, J. disseni. ** into possession of his estate after a

In this case Mansfield, C. J. said, ** No '^ lease, instantly to put up fences all

** one can respect Lord Kenyon more " round his property, to prevent de-

*' than I do ; but I always thought, as ** dication." Ann see Rex v. Hudson,

*' to the Rugby case, (ante, 309, note 2 Str. 909.

** in.) there was reason to doubt. I (a) Wood v. Veal, 5 Bam. ft; Aid.

** never could discover when the dedi- 454. The case was decided independ-

cation b^n : he says that during ently of the fact of there not being

the lease there wafi no dedication, but a thoroughfare.

4C
C(

CHAP. XXX. ^ 2.] What a Public Highway. 311

public for nearly 17 years, it was held, that this was not sufficient
evidence of a dedication to the public, (a) '

By the common law an ancient highway cannot be changed Anaaclent
without the king's licence first obtained upon a writ of ad quod b?c^Mcd*Jy
damnum, and an inquisition thereon found that such a change will a writ of ad
not be prejudicial to the public : and it is said that if one change 9**od damnum.
a highway without such authority, he may stop the new way when«
ever he pleases ; and it seems that the king's subjects have not
such an interest in such new way as will make good a general jus-
tification of their going in it as in a common highway ; but that
in an action of trespass, brought by the owner of the land, agaiinst
those wh(0 shall go over it, they ought to shew specially, by way of
excuse, how the old way was obstructed, and the new one set out.
And it is also said, that the inhabitants are not bound to keep watch
in such new way, or to make amends for a robbery therein com-
mitted, or to repair it. {u)

It is certain that a highway may be changed by the act of God ; A highway
and therefore it has been holden that if a water, which has been ^^JJ^^j |,y
an ancient highway, by degrees change its course, and go over act of God.
different ground from that whereon it used to run, yet the highway
continues in the new channel as it previously was in the old.(ttf)

By the statute 13 Geo. 3. c. 78. a power was given to the jus- 13 G.3. c. 78.
tices of peace to widen, divert, and change, highways as they should ?*^® ^ To*^ ^
judge most convenient. This power was in aid of the common widen and
law, and in order to render the changing of highways less trouble- change high-
some and expensive, ^*y'*

This statute enacts, that the surveyor shall make every public
cartway, leading to any market town, twenty feet wide at the
least ; and every public horse- way or drift- way, eight feet wide at
the least, if the ground between the fences inclosing the same will
admit thereof, {x) And that where it shall appear, upon the view
of two justices, that any highway between the fences thereof is
not of sufficient breadth, and may be conveniently widened and
enlarged, or that the same cannot be conveniently enlarged and
made commodious for travellers, without diverting and turning the
same, the said justices shall order such highway to be widened
and enlarged, or diverted and turned, in such manner as they shall
think fit, so that the said highway, when enlarged and diverted,
shall not exceed thirty feet in breadth ; and that neither of the
said powers do extend to pull down any house or building, or to
take away the ground of any garden, park, paddock, court, or
yard. The statute then proceeds to empower the surveyors to

(a) Rex V. St. Benedict, 4 B. & A. into the chancery, directed to the

447. And see the case post, 321 , as to sheriff, to inquire by a jury whether

the opinion of Bayley, J., that though such change will be detrimental to the

there be a dedication of the road by public; which inquisition beins a pro-

the owner of the soil, and the public ceeding only cfjr parte^ is in its own

use it, the parish is not bound to re- nature traversable ; and heretofore the

pair, unless there has been some act party grieved might be heard against

of acquiescence or adoption on the it before the chancellor. 2 Burn. Just,

part of the parish. Highways, s. 1 1 .

{u) 1 Hawk. P. C. c. 76. s. 3. The (w) I Hawk. P. C. c. 76. s. 4.
writ of ad quod damnum is an original (x) 1 Hawk. P. C. C. 76. s. 15.
irrit issuing out of, and returnable

312 Of Nuisances to Hightoays. [book VL\

agree with the owners of the ground wanted for such purposes,
for their recompence ; and provides, that if they cannot agree, the
same may be assessed by a jury at the quarter sessions : and, after
directing the proceedings in such event, it enacts that, *^ upon
'^ payment or tender of the money so to be awarded and assessed,
•' to the person or persons, bodies politic or corporate, entitled to
^^ receive the same, or leaving it in the hands of the clerk of the
^' peace of such limit, in case such person,-&c. canuot be found, or
^^ shall refuse to accept the same, for the use of the owner of, or
'^ others interested in the said ground, the interest of the said per-
'^ son, &c« jn the said ground shall be for ever divested out of
'^ them ; and the said ground, after such agreement or verdict as
^^ aforesaid, shall be esteemed and taken to be a public highway, to
*^ all intents and purposes whatsoever." (y) . When such new
highway is made, the old highwgiy is to be stopped up, and the
land thereof sold by the surveyor in the manner directed in
the act : but if such old road shall lead to any place which
cannot, in the opinion of the justices, be accommodated with a
convenient way or passage from the new highway, then the old
highway is only to be sold, subject to the right of way and pass-
age to such place, {z)
This power of It has been decided, that the power thus given to two justices
justices to or- ^ order any highway to be widened extends to roads repairable
widened ex- rcUioiie tenures; and that upon disobedience to such order the
tends to roads party may either be proceeded against smnmarily under the sta-
/vSTT*^^* *■"' tute, or by an indictment as for an offence at common law. («)

' The nineteenth section of this statute then enacted, that high-
1. 19. regaled ways, bridleways, and footways, might be turned by the justices,
in part by 55 at their Special sessions, with the consent of the owners of the
G. 3. c. 68. lands, so as to make them nearer and more convenient to the pub-
lic ; and provided for an appeal to the quarter sessions by persons
injured by any such proceeding, or by the inclosure of any road
by an inquisition upon a writ of ad quod damnum ; but this part
of the section is repealed by a recent statute, 55 Geo. 3. c. 68.
which recites, that it was expedient that more public notice should
be given of any order or proceeding for diverting or stopping any
such ways ; and also that a greater facility of appeal to the quarter
sessions against such order or proceeding should be given to any
person aggrieved thereby: and also that the justices of peace
should have power, under certain regulations, to stop up unneces-
sary highways, bridleways, and footways.
55 G. 3. c. 68. The second section of the statute 55 Geo. 3. then enacts, that
8. 2. Justices ^hgn it shall appear, *^ upon the view of any two or more of the
cMcs, with the "said justices of the peace, that any public highway, or public
consent of the '* bridleway or footway, may be diverted, so as to make the same
2^^®"°^*^* ^'nearer or morq commodious to the public, and the o^Tier or
at a special '^ Owners of the lands and grounds through which such new high-
aessions, di- « way, bridleway, or footway so proposed to be made, shall con-
ways * ridJe^' *^ ^^^ thereto, {w) by writing under his or their hand and seal, or

ways, and

footways. (y) S. 16. There is a saving to the (a) I Hawk. P. C. c. 76. s. 57. Rex

owners of the ground of mlDes, timber, v. Balme, Cowp. 648.

&c. ^ (w) There must be a consent of the

(z) Sect. 17. ' person who is the owner of the estate

CHAP. XXX. § S.] What a Public Highway, ^13

** hands and seals, it shall and may be lawful, by order of such

^^ justices, at some special sessions, \x) to divert and turn, and to

'* stop up such footway, and to divert, turn, stop up, and inclose,

" sell, and dispose of, such old highway or bridleway, and to pur-

" chase the ground and soil for such new highway, bridleway, or

" footway, by such ways and means, and subject to such excep-

'^ tions and conditions, in all respects, as in the said recited act

*' mentioned with regard to highways to be widened or divert-

*^ ed ; (y) and also when it shall appear, upon the view of any two And the jn»-

" or more of the said justices of the peace, that any public high- ***^f ■ ™*y »'«<'

u L -ji Cm. • r y ^^^^ j u order unneccB-

^ way, bridleway, or footway, is unnecessary, it shall and may be g^^ highways,

^ lawftil, by order of such justices, or any two of them, to stop bridleways,

" up, {z) and to sell and dispose of such unnecessary highway, J^lf*^^^*^'

" bridleway, or footway, by such ways and means, and subject to ^p^

'^ such exceptions and conditions in all respects as in the said re-

^' cited act is mentioned, in regard to highways to be widened and

" diverted ; except that the money to arise from such sale, where,

^ by the said act, it would be applicable to the purchase of the

" ground and soil of the new highways or bridleways therein men-

" tioned, shall be paid to the surveyor or surveyors, and be applied

^ towards the general repairs of the highways and bridleways of

*^ the parish, township, or place, within which the said highway,

" bridleway, or footway, so stopped up, shall be situate. Pro-

^ vided that in the several cases before mentioned a notice, in the But a notice

** form, or to the effect of the schedule (c) to this act annexed, ^t"hc^,^''*^

^* shall be affixed in legible characters at the place and by the ^c. be inserted

" side of the said highway, bridleway, or footway, from whence in a newspaper,

at the time iirhen the order is made. (^) IS Geo. 3. c. 78. s. 16. Ante^

An order stated that the new road was 311,312.

to pa.ss through the lands of the late (z) This order for itopping up an
T. Jones, Esq., and that the justices unnecessary highway must be made at
had received eYidence of the consent a special sessions, and that fact must
of the said T. Jones. in his lifetime, appear on the face of the order. Rex
But it was held, that this order was v. Sbeppard, 3 B. & A. 414.
b^d, because it did not thereby appear (c) The form of the notice is this:
that T. Jones was the owner of the ** Notice is hereby given, that on the
estate at the time when the order was day of last an order
made. Rex v. Kirk, 1 B. & C. 21. was signed by J. W. and T. H., two of
And an assent to the turning of a road, his majesty^s justices of the peace in
given under the hand and seal of the and for the county of for (if
solicitor and agent of tlic party through the order be for turning, diverting,
whose ground the new road is to pass, and stopping up, &c. here to state t'/,
18 not sufficient. Rex v. Justices of and describe the road ordered to he
Kent, 1 B. & C. 622. turned, diverted, and stopped up; — if
(x) It has beeu holdcn, that th^ 13 ihe order be for slopping up a useless
G. 3. c. 78. s. 62. is applicable to pro- road, here so slate it, and describe the
ceedings, by order of two justices, road ordered to be stopped up;) and
under this statute ; and that therefore that the said order will be lodged with
it is necessary to give reasonable no- the clerk of the peace for the said
tice of the special sessions at which county, at the general quarter sessions
any sach order is to be made to the of the peace to be holden at
several justices acting and residing in and for the said county, on the
within the division ; and that, unless day of next ; and also
SQch notices be given, the sessions thi^ the said order will, at the said
ought not to confirm and enrol such quarter sessions, be confirmed and en-
order, even though there be no appeal rolled, unless upon an appeal i^ainst
against it. Rex v, the Justices of the same to be tnen made it be other-
Worcestershire, 2 B. & A. 228. wise determined."

ic

And the^ tbe
order is to be
returned to
the clerk of
the peace at
the quarter
Besuons, and
be confirmed
and enrolled.

314 Of Nuisances to Highways . []boo& ii.

and also affixed <^ the game is directed to be turned, diverted, or stopped up, and
^e^hutch'&c. ^' ^^ inserted in one or more newspaper or newspapers published
* ' ^^ or generally circulated in the county where the parish, town-
*^ ship, or place in which the highway, bridleway, or footway, so
^^ ordered to be diverted and turned, or stopped up, as the case
^^ may be, shall lie, (or, in case no such newspaper shall be so
published or circulated in such county, then in any newspaper
or newspapers published or circulated in the nearest adjoining
'^ county) for three successive weeks after the making of such order;
^^ and a like notice shall be affixed to the door of the church or
*' chapel of every parish or township in which such highTV'ay, bri-
*^ dleway, or footway, so ordered to be diverted, turned, or stopped
^^ up, or any part thereof, shall lie, on three successive Sundays
^^ subsequent to the making of such order ; and the said several
^^ notices having been so published, the said order shall, at tiie
^' quarter sessions which shall be holden within the limit where
^^ the highway, bridleway, or footway, so diverted and turned, or
^' stopped up, shall lie, next after the expiration of four weeks from
'^ the first day on which such notices shall have been published as
'^ aforesaid, be returned to the clerk of the peace in open court,
'^ and lodged with him ; and the said order shall, at such quarter
^^ sessions, be confirmed, and by the clerk of the peace enrolled
^' amongst the records of the said court of quarter 8essions«''(t)

The third section provides for an appeal to the quarter sessions
by any person aggrieved by such order or proceeding, or by the
inclosure of any road by an inquisition upon a writ of tui quad
damnum ; and enacts, ^^ that where any such highway, bridleway,
^' or footway, shall be so ordered to be stopped up or inclosed, and
" such new highway, bridleway, or footway, set out and appro-
** priated in lieu thereof as aforesaid ; or where any unnecessary
^' highway, bridleway, or footway, shall be so ordered to be stopped
^^ up as aforesaid ; it shall and may be lawful for any person or
" persons injured or aggrieved by any such order or proceeding, or
'^ by the inclosure of any road or highway, by virtue of any inqui-
^' sition taken upon any writ of ad quod damnum^ to make his or
^' their complaint thereof, by appeal to the justices of the peace at
'' the said quarter sessions, upon giving ten days' notice in writing
'^ of such appeal to the surveyor of the highways of the parish,
'* township, or place, wherein such highway, bridleway, or footway,
^^ shall be situated ; and also affixing such notice to the door of
^^ the church or chapel of such parish, township, or placef ; {d)
^^ and the said coiurt of quarter sessions is hereby authorized and
^^ empowered to hear and finally determine such appeal/' {e)

(0 This computation of four weeks '^ requisites enrolled amongst the re-
must be made from tbe first dav of " cords of the sessions, as evidence of
giving that description of notice wnich '* tbe riebt to tbe new path.**
IS last published. Rex v. the Justices (d) These notices must be given in
of Kent, 1 B. and C. 6SS. And the case of an appeal against an inclosure
sessions ought not to confirm an order of a highway by virtue of a writ of sd
unless it be regularly made. Rex v. ^iMnfifamfitim, and a notice to the party
the Justices or Worcestershire, anle, interested is not alone sufficient. la-
p. 313. And by Bay ley, J. in Rex v, deed the act is express upon this point
the Justices of Kent, supra, ** The Rex v, the Just of Essex, 1 B. and A.
** public have a right, if a path is di- 373.
*' verted, to see the order with all its (e) This section saya nothing as to

55 Geo. 3. c.
68. 8. 3. gives
an appeal to
the sessioDB
by any person
aggrieved by
such order or
proceeding, or
by the inclo-
sure of any
road upon a
writ of <iJ
quod damnum
apon giving
ten days'
notice.

— --1

\ cHiP. XXX. § 3.] What a Public Highway. S15

I The fourth section then enacts, '^ that if no such appeal be 55 Geo. 3. c.
I " made, or, being made, such order and proceedings shall be con- ^S- •• *• ^^no
i " firmed by the said courts the said inclosures may be made, and ^^j^^ ^^ ^
fi " the said ways stopped ; and the proceedings thereupon shall be the order be
f; " binding and conclusive to all persons whomsoever; and the new confirmed, Uio
i " highways, bridleway Sy and footways, so to be appropriated and Itopp^t and
r ^' set out, shall be and for ever after continue a public highway, the proceed-
£ " bridleway, or footway, to all intents and purposes whatsoever : ^^"* ^^^
-' " but no inclosures of such old highways, bridleways, or footwajrs, concluuFe,
7 ^' (except in the case of stopping up of such useless highways, and the new
;: " bridleways, or footways, as hereinbefore is mentioned,) shall be *****l]J[^* ^^
: " made, until such new highway, bridleway, or footway, shall be Uc^highwai^,"
» " completed and put into good condition and repair, and so certi- &c. to aUin-
/ •* fied by two justices of the peace upon view thereof; which cer- ^^^ *^
" tificate shall be returned to the clerk of the peace, and by him P'"^'^
^^ enrolled amongst the records of the court of quarter sessions
" next after such order as aforesaid shall have been confirmed or
" enrolled pursuant to the directions hereinbefore contained ; but
" from and after the enrolment {d) of such order and certificate,
^^ such old highway, bridleway, or footway, shall be stopped up ;
^' and the soil of such old highway or bridleway sold, in the man-
'^ ner, and subject to the reservations and restrictions in the said
" recited act mentioned, with respect to highways to be diverted
" by virtue of the said recited act." (e)

A part of section 19 of the 13 Geo. 3. c, 78. remains unrepealed ^^-9^'?q
by the 55 Geo. 3. c. 68. ; and by this it is enacted that " where any where ways
" highway, bridleway, or footway, hath been diverted and turned had been m-
" above twelve months, either from necessity, where the same have TS*^®^ "^^^
" been destroyed by floods, or slips of the ground on which they and^o^eia'

cosU: and where notice ef appeal Common Pleas that if the orders and
against an order for diverting a foot- certificates of raagistrates were deli-
way was given, and the order was not vered to the clerk of the peace to be
filed with the clerk of the peace for enrolled, the statute was satisfied, al-
enrolment, but the Justices who made though the clerk of the peace made no
it, before the next quarter sessions, transcript thereof, the statute being
ga?e the appellant notice that they only directory to the officer as to the
abandoned the order, it was held that enrolment ; and it is doubted whether
the justices at sessions had no power that statute intended that a transcript
to award to the appellant the costs of should be made. De Ponthieu v. Pen-
preparing to try the appeal. It was ny feather, 5 Taunt. 634. In the same
contendra that the general right of case it seems to have been considered,
appeal given by IS Geo.S. c. 78. 8.80. that as the statute IS Geo. S. did not
wasapplicabletothis case: but neither prescribe any particular form ofrer- <
a notice of appeal had been given, nor tificate, by the magistrates, of the new
a recognizance entered into as required road being complete and in good con-
by that section. And qu» whether the dition and repair, previous to the stop-
right of appeal against such an order ping up of the old road, a recital that
does not depend solely upon the above they had so certified, contained either
section of the 55 Geo. 3. c. 68., and not in ttie order for diverting the road, or
upon the 13 Geo. 3. c. 78. Rex v. in the order for stopping up the old
Wing, 4 B. and C. 188. road, was a sufficient certificate with-

{d) In section 19 of the 13 Geo. 3. c. in the 19th section.

78. the words were "from and after {e) f^iz. the 13 Geo. 3. c. 78. s. 17.

''such certificate,** but in other re- ani^, 311, 312. The 55 Geo. 3. c. 68.

spects the clause was nearly similar to is not to annul or affect any order or

that in the recent statute ; and upon proceeding made or had previous to

that section it was held by the court of the passing of the act. S. 5.

S\6

made in Hen
thereof and
acquiesced in,
the new ways
were to be the
piiblic ways.

34 Geo. 3. c.
64. Where
the boundaries
of parishes are
in the middle
of a highway,
two justices
roaT divide the
highway by a
transverse line.

Highways may
be changed I
&c. by parti-
cular acts of
Parliament.

Towing path
under the cir-
cumstances
held not to be
affected by an
act of Parlia-
ment.

Of Nuisances to Highway s^ [book li.

*^ were made^ or from other causes and motives, if new highways,
'* bridleways, or footways, Iiave been made in lieu thereof nearer or
^^ more commodious to the public, and the same have been ac-
'^ quiesced in, and no suit or prosecution hath been commenced
^^ for the diverting or turning the same, every new highway, bri-
" dleway, or footway, set out and used in the place of that so di-
'^ verted and turned, shall from henceforth be the public highway,
" bridleway, or footway, to all intents and purposes whatsoever."
But it has been decided that this clause is only retrospective in its
operation. (/)

It frequently happened that the boundaries of parishes passed
through the middle of a highway ; one side of the highway being
situated in one parish, and the other side of the highway being
situated in another parish, whereby great inconveniences arose to
the parishes in settling the time and manner of repairing such
highway : and it was therefore provided by the 34 Geo. 3. c. 64.
that two justices, upon application by the surveyor, may divide
the whole of any such common highway, by a transverse line
crossing it, into two equal parts, or into two such unequal parts
and proportions as in consideration of the soil, waters, floods, the
inequality of such highway, or any other circumstances, they think
just, (g)

Besides the methods which have been already mentioned, roads
are sometimes changed or stopped, or new ones created by turnpike
acts, inclosure acts, or other acts of Parliament, containing specific
enactments for such purposes ; but such new roads may or may
not be public, according to the provisions of the particular acts :
and we have seen that where a road was set out by commissioners
under an inclosure act, the number of persons using or repairing
it would not make it a public way, it not being common to all the
king's subjects. (A)

A statute authorizing the making a new course for a navigable
river, and turning the old part into a floating harbour, will not,
without words for the purpose, put an end to a public towing path
upon that part ; but such towing path will be liable to be used as
such for the purposes of the harbour : and it will make no differ-
ence though the river was a tide river, and at low water admitted
of no navigation. By an act 43 Geo. 3. power was given to carry
part of the Bristol river along a new course, and to convert the
old part into a floating harbour. There had immemorially been a
towing-path on the north side; and whether that continued a
public towing path along the side of the floating harbour was the
question. It was urged that it did not, because this was a tide
river, not navigable at low water ; and the floating harbour would
make it useable at all times, and therefore increase the burthen on

(/) Waite V. Smith, 8 T. R. ISS.
Lord Kenyon, in giving his judgment,
said, '* If any jobs had been done be-
*' fore the act passed, that act has cer-
" tainly cured them : but the Legisla-
** ture did not mean to give a sanction
"to any jobs in future.

{g) The act sets forth particularly
the proceedikigs to be had tor the pur-

pose of such dirision ; and afterwards
enacts as to (he liabilities of the pa-
rishes respectively to repair their por-
tions after such division; which pro-
visions, as to the repairing, will be fur-
ther noticed in a subsequent part of
this chapter, upon nuisances in not rc-
pairing highways.
{h) Anie, SOS.

CflAP.xxx. §d.] 6y Obstructions. 31?

the land. But, after taking time to confiider, the court held that
as there were no words in the act to annihilate the right of the
public, that right would continue notwithstanding the improved
state of the water within the bank ; that such water being still
applied to navigation purposes, for the use of the public, was still
in a state to derive the benefit from the path for which the path
had first been given to the public : and judgment was given for the
King, (a)

In some instances a highway may, it seems, be in some measure And in some
changed or confined to a particular course by a private individual; ^J^^^
as, where it lies over an open field, and the owner of the field turns viduals.
it to another part of the field for his own convenience, or incloses
the field for his own benefit, leaving a sufficient way. (t) But in
such case, as the public had clearly a right before such alteration
to go upon the adjacent ground when the way was out of repair,
the owner of the field can only make the alteration subject to the
onus of making a good and perfect way. (k)

Having thus inquired concerning the different sorts of highways, 9^^ °h*°^^'h
and the methods by which they may be changed, widened, or ©bstniction. ^
stopped up, we may now consider of nuisances to highways^ by
obstruciions.

There is no doubt but that all injuries whatsoever to a highway^
as by digging a ditch, or making a hedge across it, or laying logs
of timber in it, or by doing any other act which will render it less
commodious to the king's subjects, are public nuisances at com-
mon law. (l) And it is clearly a nuisance at common law to erect
a new gate in a highway, though it be not locked, and open and
shut freely ; because it interrupts the people in that free and open
passage which they before enjoyed and were lawfully entitled to :
but where such a gate has continued time out of mind, it shall be
intended that it was set up at first by consent, on a composition
with the owner of the land, on the laying out the road ; in which
case the people had never any right to a freer passage than what
they continue to enjoy, (m)

It ifl a nuisance to suffer the highway to be incommoded by Obatructions
reason of the foulness of the adjoining ditches, or by boughs of anccsin Wffh-
trees hanging over it, &c. ; and an occupier, as such, though at ways by means
will only, is indictable for suffering a house standing upon the ?^ '***• hang'
highway to be ruinous ; and it is said that the owner of land next ditchirnot
adjoining to the highway ought of common right to scour his bein^ scoured,
ditches ; but that the owner of land, next adjoining to such land, carriages, &c.
is not bound by the common law so to do, without a special pre- highway"^ mis*
scription : and it is also said that the owner of trees hanging over conduct of
a highway, to the annoyance of travellers, is bound by the common drivers, and
law to lop them ; and that any other person may lop them, so far lowUng of *^^
as to avoid the nuisance, (n) The general high^j^ay act also relates carriages,
to offences of this description, imposing pecuniary penalties upon

(fl) Rex ». Tippett, Mich. T. 1819,
MS. Bayley, J. * The indictment was
for an obstruction of the public patb.

(t; S Salk. 188.

(k) Id. Ibid. And see the cases col-
lected in Rex v, Stoo^hton, 8 Saund.
160. a. note (18). And see also pott^
as to the repair of highways.

(0 1 Hawk. P C. c. 76. s. 144.

(m) 1 Hawk. P. C. c. 75. s. 9. and c.
76. s. 1 46. 3 Com. Dig. Chemin (A. S.)

(fi) 3 Bac. Abr. Highways (£). 1
Hawk. P. C. c. 76. s. 5, 8. 147. But
the building of a house in a larger
manner than it was before, whereby
the street became darker^ has been

318 OfNuisanees to Highways, [|book ii.

persons obstructing highways by means of trees or hedges^ and
omitting to cleanse and scour their ditches, drains, and water-
courses; and penalties are also imposed upon persons laying
stones, timber, or other matter, or leaving any carriages, or imple-
ments of husbandry, in the highways ; and also upon persons en-
croaching upon them, (o) Provision is also made for the pimish-
ment, by siniilar penalties, of drivers of carriages who may create
annoyances in the public ways by their misconduct, (p) And
with the view of preventing the highways 'from being destroyed
by the narrowness of the wheels of tne carriages travelling
thereon, and by the excessive burdefas which might be carried in
them, it is eniicted that no waggons, &c. the wheels of which are of
a specified breadth, shall be drawn with more than a certain num-
ber of horses, on pain that the owner forfeit five pounds, and the
driver ten shillings, for every horse or beast above the number. (9)
With respect to turnpike roads, similar provisions are contained
in the general turnpike acts, 3 Geo. 4. c. 126., and 4 Geo. 4. c. 95.
It has been held that if a carrier carries an unreasonable
weighty with an unusual number of horses, it is a nuisance to the
highway, by the common law. (r) And upon an information for
this ofience, it was adjudged, that, though it Was stated that the
carrier went '^with an unusual number of horses,'^ without setting
forth what number, yet the information was good, because it was
the excessive weight which he carried that made the nuisance, {s)
Evenrimautlio- It appears to have been holden that an indictment will not lie
Tised obstroc- for setting a person on the footway in a street to distribute hand-
way,^to*heM"- ^^^9 whereby the footway was impeded and obstructed ;(/) nor
noyaiice of the for throwing down skins into a public way by which a personal
king's subjects, injury is accidentally occasioned : (tx) but acts of this kind, if im-
oftni?. properly performed, might possibly be deemed nuisances ; as it

seems now to be well established that every unauthorized obstruc-
tion of a highway, to the annoyance of the King's subjects, is an
indictable offence. («;) Thus where a waggoner occupied one side
of a public street in the city of Exeter j before his warehouses, in
loading and unloading his waggons, for several hours at a time,
both day and night, and had one waggon at least usually standing
before his warehouses, so that no carriage could pass on that side
of the street, and sometimes even foot-passengers were incom-

held not to be a public nuisance by Lowen r. Kaye, 4 B. and C. 3.

reasonof the darkening, Rex v. Webb, (p) I Geo. l.st. 9, c. 57. 24 Geo.

1 Lord Rayin. 737. 8. c. 43. and 30 Geo. 2, c. 92. as to

(0) 13 Geo. 3. C.78. s. 6, 7, 8, 9, 10, drivers in London, fFeHmiuMter, and

11, 12, 13, 14, 63. which makes pro- the neighbourhood ; and 13 Geo. 3. c.

vision also for the removal of such 78. s. 60. as to drivers in general. Sec

annoyances by the surveyor and other the statutes abstracted, 2 Burn. Just,

persons. The different sections of the IHd, and for enactments relative to

statute are abstracted in 2 Burn. Just, the misconduct of drivers of public

Highwayi, S.YIII. This statute does coaches, see 5 Burn. Just. Pott. S. 4.

not say that every highway shall be (q) 13 Geo. 3. c.78. s. 55. And as to

thirty feet wide; and m a late case it furious driving, poti. Book III. Chap,

was held that it did not authorize the xii.

surveyor to remove a fence in front of (r) 3 Com. Dig. Chemin (A. 3.)

a house for the purpose of widening («) Rex v. Egerly, 3 Salk. 18.^.

the road, which in that part was not (t) Rex v. Sermon, I Burr. 516.

more than twenty-four feet in breadth (o) Rex t^. Gill, 1 Str. 190.

— ^ach fence not being on the high way. (w) Rex v. Cross, S Campb. 227.

CHAP. XXX. $ 3.] by Obstructions. 319

moded by cumbrous goods lying on the ground on the same side,
ready for loading, he was held to be indictable for a public nui-
sance : although it appeared that sufficient space was left for two
carriages to have passed on the opposite side of the street, (jr)
Upon the same principle it has been held to be an indictable
offence for stage coaches to stand plying for passengers in the
public streets ; and Lord Ellenborough, C. J., said. '^ A stage
*^ coach may set down or take up passengers in the street, this
'^ being necessary for public convenience : but it must be done in
*' a reasonable time ; and private premises must be procured for
'^ the coach to stop in during the mterval between the end of one
"journey and the commencement of another." (y) In the same
case his Lordship intimated that there would be no doubt but that,
if coaches, on the occasion of a rout, should wait an unreasonable
length of time in a public street, and obstruct the transit of his
Majesty's subjects wishing to pass through it in carriages or on
foot, the persons who might cause and permit such coaches so to
wait would be guilty of a nuisance, (x;)

Laying logs of timber in a highway has been already stated as
one of the clear instances of nuisance, (a) And the party will not
be excused by shewing that he laid them only here and there, so
that the people might have a passage through them by windings
and turnings, (i) And though it is not a nuisance for an inhabit-
ant of a town to unlade billets, &c. in the street before his house,
by reason of the necessity of the case, yet he must do it promptly,
and not suffer them to continue in the street an unreasonable
length of time.(c) From a recent case it appears also that an
obstruction to a public highway will not be excused on the plea
of its being necessary for the carrying on of the party's business,
though such obstruction be only occasional. It was proved that
the defendant, who was a timber merchant^ occupied a small tim-
ber-yard close to a street, and that from the narrowness of the
street and the construction of his own premises he had in several
instances necessarily deposited long sticks of timber in the street,
and had them sawed into shorter pieces there before they could be
carried into his yard : and it was contended on his behalf that he
had a right so to do, as it was necessary to the carrying on of his
business ; and that it could not occasion more inconvenience to
the public than draymen taking hogsheads of beer from their
drays, and letting them down into the cellar of a publican. But
Lord £Ilenborough, C. J. said, *• If an unreasonable time is occu-
" pied in the operation of delivering beer from a brewer's dray
" into the cellar of a publican, this is certainly a nuisance. A
" cart or waggon may be unloaded at a gateway : but this must
" be done with promptness. So as to the repairing of a house^
" the public must submit to the inconvenience occasioned neces-
" sarily in repairing the house : but if this inconvenience be pro-
" longed for an unreasonable time, the public have a right to com-
" plsdn, and the party may be indicted for a nuisance. The rule

(s) Rex V. Russell, 6 East. 427. (b) 2 Roll. Abr. 137. 1 Hawk. P. C.

iy) Rex t^. Cross, 3 Canipb. 224. c. 76. s. 145.

(«) Id. ibid, (c) Id. ibid, and 3 Bac. Abr. Ei^h-

(«) Ante^ p. 817. way$^ (E).

m

Of Nuisances to Highways, [book ii.

'^ of law upon this subject is much neglected, and great adyan-*
*' tages would arise from a strict and steady application of it. I
^^ cannot bring myself to doubt of the guilt of the present defend-
** ant. He is not to eke out the inconvenience of his own pre-
'^ mises by taking in the public highway into his timber yiurd ;
^^ and if the street be narrow, he must remove to a more commo-
'^ modious situation for carrying on his business." (c) And in
repairing or rebuilding a house, care must *be taken that the
encroachment on the highway be not unreasonable. The owner
will himself be responsible for any excess, if committed by his
servants ; for, according to Eyre, C. J., " suppose that the owner
'^ of a house, with a view to rebuild or repair, employ his own
^^ servants to erect a hoard in the street (which being for the
" benefit of the public, they may lawfully do,) and they carry it
'' out so far as to encroach unreasonably on the highway, it is
" clear that the owner would be guilty of a nuisance." (cf)
. As a nuisance in not repairing highways is an offence in the
nature of a non-feazance, the pnucipal enquiry upon this subject
will be as to the persons who are liable to be called upon to keep
them in repair.

The inhabitants of the parish at large are pritnd faxAe^ and of
common right, bound to repair all highways lying Mdthin it, unless
rcpairhSS^ ^ ^^ prescription, or otherwise, they can throw the burden upon
ways wi^ it. particular persons, (e) And to such an extent is this obligation,

that if the inhabitants of a township bound by prescription )x>
repair the roads within the township be expressly exempted by
the provisions of a road act from the charge of repairing new
roads to be made within the township, that charge must neces-
sarily fall upon the rest of the parish. (/) And upon the same
principle it was holden that if particular persons were made
chargeable to the repair of such highways by a statute lately
made, and became insolvent, the justices of -peace might put that
charge upon the rest of the inhabitants. (^) And where a statute
enacted diat the paving of a particular street should be under the
care of commissioners, and provided a fund to be applied to that
purpose, and another statute, which was passed for paving the
streets of the parish, contained a clause that it should not extend
to the particular street, it was held that the inhabitants of the
parish were not exempted from their common law liability to keep
that street in repair ; that the duty of repairing might be imposed
upon others, and the parish be still liable ; and that the parisli
were under the obligation, in the first instance, of seeing that the
street was properly paved, and might seek a remedy over against
the commissioners. (A) And where a local turnpike act, empower-

Of nuisances to
highways by
not repairing
them.

The parish is
of common
right' bound to

* (c) Rex V. Jones, 3 Campb. 210.

\i) Bush V. StetninaD, 1 Bos. & Pul.
407, 408. And the learned Jadee pro-
ceeds thus, — '* And I apprehend there
can be but little doubt that he would
be equally guilty if he had contracted
-with a person to do it for a certain
sum of money, instead of employing
his own servants for the purpose; for,
in contemplaliou of law, the erection

of the hoard would be equally his
act." •

(e) 1 Hawk. P.O. c. 76. s. 5,6, 7,8.
Austin*8 case, 1 Vent. 189. Anon. 1 Ld.
Kaym. 725.

r/) Rex V. the Inhabitants of Shef-
field, 2 T. R. 106.

ig) Anon. 1 Lord Raym. 725.

(A) Rex V. the Inhi^itants of St.
GeorgCyHaDover Square, 3 Gunpb* 222.

CHAP. XXX. $ 3.3 by not Repairing. 321

ing the trustees under it to take tolls, directed that the roads
should from time to time be repaired by the trustees, out of the -
money arising by rirtue of that act, it was holden that this only
made the tolls an auxiliary fund in the hands of the trustees ; and
that the inhabitants of the township where the road was situate,
who by prescription were bound to repair all roads within it, were
nevertheless liable to be indicted for the non-repair of the road, (or)
No agreement can exonerate a parish from the common law lia*
bility to repair ; and a count in an indictment against the corpora-
tion of Liverpool^ stating that they were liable to repair a highway,
by virtue of a certain agreement with the owners of houses along-
side of it, was held to h^ bad ; on the ground that the inhabitants
of the parish, who are prima facie bound to the repair of all
highways within their boundaries, cannot be discharged from such
liability by any agreement with others, (t)

With respect to the repair of roads dedicated to the public by
the owner of the soil, it has been considered that, notwithstanding
the use by the public, the parish will not be liable to repair,
unless there has been on their part some act of acquiescence or
adoption. The learned Judge, m giving his opinion to this eiFect,
proceeded thus : — ^^ In the case of bridges there always is what is
'* to be considered as an acquiescence by the county. The county
*' 18 not liable except for bridges made in highways; the making
^^ of the brid^, and thereby obstructing the road while the bridge
^' is making, may be treated as a nuisance ; and the county mayj
if it think fit, stop its progress by indictment ; and the forbearing
to prosecute in that way is an acquiescence by the county in the
building of the bridge. But in the case of a parish they have
no power to prevent the opening of a road, or to obstruct the
^' public use of it. It would be most unjust if, by the public use
'^ of what was at first a private road, the burthen of repairing it
*^ could be removed from the persons to whom the use of it was
'^ at first confined, and cast upon the parish." (^)

Formerly it was held that 11 a parish lay in two counties, the
inhabitants of that part of the parish in which the road chained
to be out of repair lay were bound to repair it, and not the inha-
bitants of the whole parish. (A:) But it has been more recently
decided that if part of a parish be situate in one county and the
rest in another, md a highway l^ing in one part be out of repair,
an indictment against the inhabitants of that part only is bad :
and that in such case the indictment must be against the whole
parish. (/) And it appears to have been always considered that

(x) Rex V. the luhabitants of Nether- (i) Rex v. the Mayor, &c. of Lrver-

ton^, 2 B. & A. 179. It was also hold- pool, S East. 86. And see 3 Bac. Abr.

en that such inhabitants inieht, after Highway^ (F).

conviction, spjply by motion for relief ig) Rex v. St. Benedict, 4 B. & A.

against the trustees under the 13 Geo. 450. Ante^ 311, per Bay ley, J. The

S. c. 84. s. S3. And it was holden also road had been made under a private

that the 13 Geo. 3. c. 84. s. 63. only re- act of parliament for particular iodi-

ferred to diversions under writs of ad viduals only.

quoddamnum^ and under 13 Geo.. 3. c. {k) Rex v, the Inhabitants of Wcs-

70. s. 16. As to the liability to repair, ton, 4 Burr. 9507.

notwithstanding the act of parliament, (/) Rex v. the Infaabitantsof Clifton^

see also Rex v. the Inhabitants of Ox- 5T. R. 498.
fordshire, pot$y s. 4. Bridget,

VOL. I. Y

tt

€i

M8 Of Nif^Uai^i to Highways, {>o6&h«

€he incBetment' under midi circiiikitd:anee8 ttra^^t btf ' pfcfei'itkl In

that county wherein the ruinous part of the road lies.fm) If Ac

indictment be a^aingt that part of the paririi only WUiefa liei m

fcfae county in which the indictment is preferred, it must shew on

what account such part only is chargeable, otherwise it will be bdud

in substaiice : and the objection maybe taken, even affer ad issue

pn the point, whether the inhabitants of that part were boinid io

[ «tbair, and a verdict for the King.(a) . " I

^^^w^^* The statute 34 Geo. 3. c. 64., which, when the botlndar«^8 ^f

andVuottJSLby P^^shes are in the middle of highways, gives two jusfice^ pbVer

ja8tice».oaaip- to divide such highways by a transverse line, has been alr^dy

count of tke^ noticed, (n) The object of that statute was to facilitate the repair-

pari^bni^^ lug of a highway so situated : and it enacts that the justices may

in the muldU Order that the whole of such highway, on both sides, in one of

of them. gixch parts, shall be repaired by one of such parishes ; iaiid iSist

the whole dF such highway, on both sides, in the odier of crhdi

peace«

'' and plan shall be so filed with the clerk of the peace as dftire-
'' said, sudi parishes, and the inhabitants thereof respectively,
^ shall be bound, as of common right, to maintain and keejlk m
^' repair such parts of such common highway so allotted to flicrii
^^ as aforesaid, and shall be liable to be prosecuted and itnR^d
'^ for neglect of such duty, and shall in all respects whatsoc^^
^ be liable and subject to idl the provisions, regulations, and f^-
^^ nateies, contained in any act or acts of parliament, for thets^frii^
'' of the highways which are or shall be in force, in liketdaj^t^
^ as they are liable and subject to with respect to tiie repnr kX
'' any omer common highway within such parishes respectii1?ly t
'^ and also shall be discharged from the repair of such parts' of
^ sudi highway as shall not be included in their respective afldti-
'^ ments."(o) It is further enacted that the statute shall not a^i^
or alter the boundaries of counties, lordships, &c. nor atty'tilSier
division of public or private property, nor the boundaries tf ^ -^
ii3hes, otherwise than for the purpose of repairing such particdfii^

Jortion of the highways.(p) And also that it shall not relate li^
ighways repairable by any bodies politic or corporate, tbwBsh!^
&c. or oy a private person : but in case such bodies politic; tw.
shall be desurous to be placed under its regulations, and the pwr^
ties bound to the repair of the other side of the highway conseirt, tifm
justices may malce an order for the purpose, (a) In a case wherH^
iroad lay in two parishes, and no division and allotment under VRi

1^

(m) Rex o. Uie lohabiUots of Clif^ ^ vbo live tvithio the eomrtf , ttf«a

t«n, § T. E. MS. I and Rex v. Weston, ^' wbooi Ihewtiole fioe mw Jq klfMi

«Ml<, note (Jir). lo Rex v. Ciiftoa^ '* and tbe rest of the inhabitants must

Lord KenyoD, C. J., in answer to one of f * re-imbarte those two under the se-

the supposed difficulties of this mode «^neral highway ttCt*^lSlle«(7i. e.n8.

of proceeding, said, '' On an indict- s.47. '*'^ ^'»^^

V inent against a parish fer not repair- («) Rex v. CHIAob, B T; tti'MflL' •
*'ingaroad,1tiMn«ttneeeaaaryfortlie (s) ^uto, SIS. ' > ^ ^^^^

*^ nrofi^ul^r tq serte et«ry iodMdifal (e)' Seen 9\ . * o t i ^a .fn^^ .>itl
*«tti the parish wM proceafi lie may (p) #*eii'4i' >»' > )'< ^<' *"« ^^^
''compel the appearance df^nflw^ t^/Sea^«>^' v ■> *l i^^Ml i\} .

OHAP, XXX. 5 S.3 . Ifjf not REf^ring^ 9t$

vtatute bad been^mada^ it waa held thut an indictment against one
9C i}ie parishes for not repwing one aide of tl^ie ro^ Qug^t to
banre fi^tated tbat the parish waa liable to repair ad/Uum vi(t ^ . ,^Lnd
it ^eems that in auch caae it ia not aufi&cient to av^r that a c^tain
prt of the road (setting out the length apd ope hdif. .of the
breadth) ia.oift.of repair^ and that the inhabitants^ {kc« p^gbt/to

Exceptions were taken to an indictment for aunc^g a highway Exceptions to
to.bfi v^y puddy, and so narrow that people could ^ot pas^ ^th- S^i^S^*"*^
^ut danger of their lives : firsts that it is no offence for a bigh^i^ ofteticbfor
U> be dirty in winter ; and, secondly, that the parish h^d no ppTy4r ^^^ ***
Xq >f iden itf as there was a particular power vested by act of pajp- ^i^^tS'tmriA
Ijament in justices of the peace to do so. The indictujient Wfifi k'Mtimnhd
held bad for want of saying that the way was out of repair; ai^ Sl^***^
one of the Judges observed, that saying that the way was 9o,f»^r- "i^'^^y-
row tji^^t the people could not pass was repugnant to ita oeing
'^thejmng's hug^hway;" for that if it had been so narrow,, tb^
peoplf^ could never have passed there time out of nund.(«)

J^t though the parish is bound prima facie and of qomrnqn Farticnlar tub-
riglit to repair the highways within it, yet a particular subdivision diviBioos of a^
Ota pariah, or particular individuals, may be liable to relieve them SeaUrlndi^'
fron^ that ont», by reason of prescription, or the inclosure of the yiduais maybe

lao'd in whi^cb the highway lies. ... idSIwil^r^

"liiuif the inhabitants of a district, township, or other divisioi^ of ^ ^^^
api^risb, and also particular individuals, may be bound, to repair a
highway by j^rescn^/tm^- and it is said, that a corporatioi^ aggr^
ff^ may ho, charged by a general prescription that it ought and
halChused to.do it, without shewing that it used to do so inj?eapieGt
gf the tenuie of certain lands, or for any other consideratiuq ; be^
cause aoch a corporation never dies, and therefore, if it 5vere i^ver
bpund to such a duty, it must continue to be so | neither is it any
^ea that the corporation have done it out of charity. (/) But it ia
said, ^hat such . a general prescription is not sumcient to charge
a^ private. person; because no man is bound to do a thing which
hiji ancestors ha^ve done, unless it be for some special reason f.aa
bavii^. l^nds deacended to him holden by such service, 8ic,,{u}
iW 1^ man pannot be liable to repairs merely as lord of a manpr,
though it is stated that the lords have repaired it from time whereof,
&c* (a) This iqpplies to individual persons only, and not to an
^gregate of persons who compose the inhabitants of a district or
division in a parish or township in which the ):oad is situate, (fo)
But it baa been holden ki a late case, that where a parish 19
charged with the reparation of a highway, lying in cdiena parpoMoi,
a consideration must be stated. The point arose upon an indict-
ment against a parish for not repairing a highway lying wii^hin-it,
and a ^ea which stated that the inhabitants of anoUier pamsk

(r) Res e. |be InbabitaDts of St Mr. iT^g^ftm^ (F>*

Paacni^ Peake Bep^ 219. (a) Id, Ibid.

(H Ees V. the lubsbitaots of Stfet- (a) Lord Rayin. 709,804. It ibould

fbrdt % Lord Raym. LI 60. AnA it is be* laid nUi^ne temtr^^ 1^ faa^oa of the

the suae as io a bcidge : aa iadietment demones of the maaor.

do» not lie for uot wtde9in£, ik (») Jftez v. &Q€laitf«ldt I Rarppyfif .and

(0 1 Hawk. P. C. c. 76, 8. a. 3Bac. AUm^/a^a. ^ y,. <, .^miv .

y2

it

3f4^ Of Nuisances io Hig^ays, : £Bpot. if.

ha^e repaired^ and been used and accustomed to repsiXf and of

righi; ought to have repaired ;'' and it was held ill, and that the
fleti ought to have shewn a consideration. Holroyd, J. at the
conclusion of his judgment said^ ^^ I say nothing as to the, form of

pleading where the highway lies within a township or divisioa

of a parish which is charged with the repairs." (r) . .

And in a more recent case^ where the mhabitants of a coui^tjr
pleaded that the inhabitants of a particular township had inime-
morially repaired the highway at the end of a county bridge, situate
within the township, the court held that it was not necessary to
State any consideration for such prescription, (d)

And where, in an indictment against a township for non-repair
of a road, the prescription stated and prdved was, that its inhabjit-
ants had been immemorially used to repair all roads situate withiiji
it, which but for such usage would be repairable by the parish at
large ; it was holden that this placed the township in the BituAtion
of a parish ; and that it was necessary for the defendants to shew^ by
evidence, some other persons in certainty who were liable^ in order,
to deliver themselves from their liability to repair, (e) It may be*
observed that, where the origin of a way is accounted for, t;he pre-
scription is destroyed, (w)

The liability of a township to repair by prescription may, a§ WQ
have seen, be such as to place the township on the same footing as
a parish, in respect to the roads within its limits. The. liability
ihay be to repair all highways within the township, which })]ip fpr.
the prescription and usage would have been repairable by the
parish at large ; and in such case the township must not only ^r.
pair immemorial roads, but also any new highway which may have
been made within its limits, and which the parish might haVeb^eQ
Called upon to repair in the absence of any such prescription.. (:r)
But an extra-parochiai jilace is not as such bound of common right
to repair its own roads % and some ground for charging it mi^st bc^'
stated : at least, unless it be shewn negatively that it is not pancpl
of any district bound to repair the district roads. The indictu^ent,
stated, that part of a common King's highway, in the extra-paro*
cbial hamlet of Kingmoor, was out of repidr, and that the inhar
bitants of the hamlet ought to repair it. After judgment for the
crown, a writ of error was brought, on the ground that.no imme-
morial obligation, nor any specid ground to make them liable, was
stated. It was urged that they were liable of common right, a^
tliat an extra-parochial place stood in this respect on the foptii^gi
of a parish : but the court thought otherwise ; and held, that th^J^
could not consider a common law obligation as attaching x^pon ^c^
inhabitants of the hamlet from necessity, unless it were- shewi^;
negatively that the hamlet was not parcel of any other district li^hl^.
to repair its own roads ; and the judgment was reversed, {x)

(e) Rex V. St Giles, Cambridge, 5 110W, SSI*.
M-L and S. 260. And see Bex t^. Ma- (w) Hex v. Hudson^ 8 Strv9,99
chynlleth, po«l. 825. \x)Vie?i v, Eccles(iet4, 1 ft. ai|

{i) Hex »; West Riding of York- 348. Rex v. Ncthertopg, « B. ;ii

If

shlfc, 4 B. and A. 623. ' 179. Rex v. Hatfield, 4 B. tof ^V72

{i) Bex V* Hatfield, 4 B. and A. 73.^ {x) Rex v. KiDg:moor»2'l||^#n^.C
The general issue was pleaded. - See' 190. n .* / ^

♦»

cUAP. XXX. ^ 2.3 iy not Repairing. 3tS

The inhabitants of a district cannot be charged ratione tenuns,
because vinincorporated inhabitants cannot^ qua inhabitants, hold
lands : and a district cannot be charged by presciription alone
(without a consideration) to repair what is not within such district.
These points were decided in the case of a bridge. The indictment
stated that an ancient bridge, in the parishes of M. and P., in the
King's highway there, was out of repair ; and that the inhabitants
of the saia parish of P. and of the town of M . aforesaid, from time
whereof, &c. and by reason of the tenure of certain lands in the
said parish and town, had repaired and of right ought to repair it.
After judgment for the crown a writ of error was brought j and it
was urged that inhabitants as such could not be charged ratione
tenures ; and that as it did not appear that any part of the bridge
was in the township of M., the indictment against the township,
on the ground of immemorial obligation, could not be supported j
and the court being of that opinion the judgment was rever8ed.(a)

Where lands bound to the repair of a bridge or highway ratione Eachof leveral
temirie are conveyed to several persons, every one of the grantees, '^"^g^'°*
being a tenant of any parcel, is liable to the whole charge, and unds bound to
must have contribution from the others. So where a manor so repwi"* » K»ble
bound is conveyed to several persons, a tenant of any parcel, either i^^|jL^^®^*
of the demesnes or services, is liable to the whole repair, and may
call ttpon the tenants of the residue to contribute ; ana the grantees
are chargeable with the repair, though the grantor should convey
the lahds or manor discharged of the repair; and the grantees
must have their remedy against the grantor. And the reason
seems to be, because the whole manor or land, and every part
thereof, in the possession of one tenant, being once chargeable
with the repair, it shall remain so, notwithstanding any act of the
owner. For the law will not suffer him to apportion the charge,
and so make the remedy for the public benefit more difficult ; or,
by alienations to insolvent persons, to render the remedy a^nst
such persons quite frustrate. And though such lands or manor
come into the hands of the crown, yet the obligation or duty cour
tinuea ; and any person afterwards claiming the whole, or any part
of it, under the crown, will be liable to an indictment for not
repairing, (or)

As an inclosure of a highway takes away the liberty and con-. Of tbelUbilitj
v^nlence which the public have of going upon the adjoining lands ^ ^^^L
wfien tie highway is out of repair, {y) it has been holden, that if clotare.
the owner of lands not inclosed next adjoining to a highway in^
closes his lands on both sides, he is bound to make bl perfect good
way as long as the inclosure lasts ; and is not excused by shewing
that lie has made the way as good as it was at the time of the in-
ct^tire ; because, if it was then defective, the public might have
gone upon the adjoining land.. (2) So if a man incloses land on

(tf) Rex o. Machjnlletb, 8 B. and C. combers case, Cro. Car. 366. Heon's

166. ea^. Sir W. Jones^ 896. . Sly. 364. 8

(s) tTote (0^ to Bex r. Stougbton, 8 Lord Raym. 1 170. 1 Hawk. P. C. c.

niOtl. I5P* tiling Reg. r. Docheas of 76. s. 6. 3 Bac. Abr. Bighwsgi (F).

iv/dpkAf \ MC S58. S Viaer ^p- Rex v. Stoughton, % Sau^d. 160. note

jNn^iiISil, 5! pL d. (18). And see Steel v. PrickcU aad

^'Jit&:9tf/ others, 2 Stark. R. 469.

(z) I Roll. Abr. 390. (8) pi. 1. Dun-

S26

Repidnof a
road made in
punuance of
a writ of a«?

OUOli iLlMUtttUkm

-I.' ' ■ ' .«.

Jtt J .'

'f •

«« ■ f ■ < I .(

3 Geo. 4. flu

126.9.105.
Toiatees of
turnpike road^
may agree with
pendns liable
to r^aSr any
pa^ of such
Toitihhj tenure
cottdArmni^ ttifs
future repair
of them.

Of Nuisances to Hightoays, f book! ii.

one side, which hits been anciently inclosed on the other side, he
ought to repair all the way : but if there is no such ancient inclo-
sure on the other side, he ought to repair but half the way. Thua^
if there be an old hedge, time out of mind, belonging to A. on the
one aide of the w&y^ and B. having land lying on the other side^
make a new hedge, there fi. ah^ be charffed with the whole
repair : but if A. make a hedge on the one side of the way, and B«
on the other, they shall be chargeable by moieties, (a) But a per-
son, having made himself liable to repair a highway by reason of
iaclosure, may relieve himself from the burthen of any further
reparations by throwing it open again. (A) Thus it was ruled that
if a person remove an encroachment, and leave that part of the
road which was injured by the encroachment in a perfect state, his
liability to repair ratione coarctationis ceases, (c) l^ut it was held,
in the same case, that if a person charged ratione tanirce pl^iids
that the liability to repair arose from an encroachment. which 1^
been removed^ and it i^pears that the road has been .rc^paired-by
the defendant for twenty-five years since the removal of the allegea
encroachment; this is presumptive evidence that the defendant
repaired ratione tenuns generally, and renders it necessary fqr him
to shew the time when the encroachment was made, {d) Where a
ipad has been so inclosed, and it is insufficient, any passenger n^y
Streak down the inclosure, and eo over the adjoining land, (e)

Where a new road is made m pursuance of a writ of ad ,guod
damnum, the owner of the land is not obliged to repair the new
road, unless die jury impose such a condition upon him : but the
parishioners ought to keep it in repair for the future; because,
neing discharged from repairing the old road, no new burden ia
laid upon them, but their labour is only transposed from one place
to another. But if the new road lie in another parish, then the
person who sued out the writ and his heirs ought not only to makc^
It, but to keep it in repair ; otherwise the parishioners of suirh
odier parish would have a new charge upon tnem, and no recom-
pence, by the former road being taken away. (/) Where a high-
way is inclosed under the authority of an act of Parliament for
dividing and inclosing open common fields^ the person who incloses
is not bound to repair it. (g)

The general turnpike act 3 Geo. 4. c. 126. s. 106. enacts, that
it shall and may be lawful for the trustees or commissioners of apy
turnpike road, to contract and agree with any person or persons
liable to the repair of any part of the road, under the care apd
m^Bagement of such trustees or commissioners, or of any bridges
thereoi^ by tenure, or otherwise, for the repair thereof, for such
tenn as they shall thi^k proper not exceeding three years; and to
eontribute towards the repair of such road or bridges, such sum or^

im) S Bae. Abr. Higkway${¥). Rex
9. StaaghtoB, I Sid. 464. I HawlB. F.
C. 0. t«> ft. 7. Bkk v. Stougktoo, •
9kfamd, lM.Doie(lSt.

(k) S Bac Abr. IMA Kax v. VMk-
mmv i Barr. 46ft. I fiawk. P. 0. c.
f6. ^ 7. Bttt where the party ia*
churged with the repairio^ yntfiw^ 1^
awtf 9 be will be still bound to repair.

though he Uy the gronad open la the
bighwaf. S Selk. 389.

(c) Rex o. Skinner, S B^. Sill.

(il> Id. Ibid.

(e)' S Salk. 189.

(/) Sx parU YeooM, S ^Ik. 771^^^
1 Hawk. P» C. c. 76%^ 7, 74v 7A^. ^V)

(g) Rex e. Flecknow, 1 Burr. 40.

J'

•«

CMAF. 3at$. $ 2] h^ ikol Repairing. , ^Kt7

sums of mone^ m thev shall think proper out of the' tdLk ttnuiiig
on'sactf tttifnpike rdad. The sixty-third sectioiiof the repeated And where
tnrnpikci act 13 Ge^. »* c. 84. ». 62. enacted, that idi^ve p^ of J^J^J/^^^
hijghways or tampike toads were turned by legal authority, to persons liable
niake the same nearer or more commodious, tlie inhabitants or to the repair of
other persons, who were ttible to the Repair of the old higbs^, ^ to^bTibble
should be liable to the repair of the new, or so much thereof as to the repair of
should be equal to the burthen and expense of repaiiing such old the new roads,
highway from wluch they were exonerated by so turning th6 same, ^^i^^^^i
Ahd if the several parties interested could not agree, two justices them,
were empowered in the manner therein mentioned to view and
settle the same; and to fix a gross sum or annual sum, to be paid
by the inhabitants or other such persons towards the repair of the
new highway. And provisions of a nature nearly similar are con-
tained in the late turnpike act 4 Geo. 4. c. 96. s. 68.

The general statutes, making provision for repairing highways^ SUtntes 13
were repealed and reduced into one act : namely, the 13 Geo. 3. ^'^\ ^^'
c»78. (A) and the general statutes at present existing with respect other statutes,
tl> turnpike rofeids, are the 3 Geo. 4. c. 126. and the 4 Geo. 4. c.'9&. relating to the
Tliete are also inclbsure acts and other statutes, both of a pub- ^Shww ^d
lie and private nature, which relate to the repairs and manage * turnpike roads,
nient of the roads in particular places and districts. But these
afitd, and especially the general statutes, are of great lengthy and
branch out into a variety of clauses, a detaQ of which would not
be consistent with the prmosed limits of this Work. It may, how-
evef , be useful to notice a few of the. decided points which relate to
tfi;eir construction.

It is no excuse for parishioners, being indicted at common law The statntet
for not repairing the h^hways, that they have done their i^\^^l^^^
work required by statute ; for the statutes, being made in the- utr pioti^oat;
affirmi^tive, do not abrogate any provision of this kind by tite-
commou biw. ( j)

If trustees under a road act tarn a road through an inelosure, iVtfsteee unaur
and make the fences at their own expense, and repur them for *^2«d*to ^^
several years, they cannot be compelled td continue such repairs,- ^^ fenoea.
unless there be a' special provision in the act to that effect. (Ar) In'
this case it was considered, that what is meant by a road is-the^
surfiEUse over which the king's subjects have a right to pass, and'
not the fences on each side : and that the owners of the land are
bound to- repair the fences on- eadi' side,, unless otherwise provided'
bytheact,(/) ; . .

It has been held that a turnpike act, giving directions for reptur- Conatmct;^
ing the road to vaAffom a town, excluded the town, (m) In the ^cu^^M- *
caae'upon which the decision was made it was stated, that the tfiy ther^ri;
town hady lately before the act was passed, been paved by the in- ?J .• ^^ ^ ^

fliy SoflMrbfitap^ovitiona and enacts (0 lHawk.P.C«e.7«Ja.4S. SBac.

mento have received alteratiotis from Abr. £R%ftwd!y# f€^.

time to time b? different atatutes; (k) Rex v. theGom.of tbeLlaodilo

amongst others Dy 34 Geo. S. c. S4. District, 9 T. lU 98S.

ank9,99^ 34 Geo. a. e. 74.> 44Geo^ (l)/ii./Mf;

3. c 5^. &4 Geo. 8. c« 109; Aid 55 (m) Hanuaood^r. Bctnrer, 1 Bdrr-E*

Geo. S# c. es. JnU^ 319. ei §eq^ 976.

</ 1

Commlsskmen
under an inclo-
■ore act not
empoweral to
throw the re-
pair of prmite
roads on the-
parish.

Award under
an inclosore
act rejected as
evidence of
locality of a
highway, the
usage not hay-
ing been pur-
suant to it, nor
the proper no-
tices proved.

Proceedings
against plirties
guilty of nui-
sances in high-
ways by indict-
ment, present-
ment, or in-
fonnatioB.

Presentment
to be in the
juriadiction
where the nui-
sance is. And
no presentment
or indictment
to be remored
by certiorari.

hafakants^aiidtiiati'itivaB faept in repan- bythem, and w» tiien^w:
aod in several parta of the act the roads were described as leading
from, to, and tbrottgh, particular towns ; but when it mentioM^d
the town in questian, it only aaid^ to and firom the town^ omitting
the word ^Ukrough." (n)

The oomniiasioiierB appointed by the 6 Geo. 3. e. 7S. (an act fisir
dhdding and. inclosing c^ain lands in the parish ^of Cottingham)
wfakh enaicted, that the public roads to be set out by them 2ioiild
•be vepaiced in aneh manner as other publie roada are by hnr t^i* be
r^Hured, and that the private roads shbcdd be x«epaired by sutk
pemtm or persons as they should award, have no p6wer to impose
on the parish at large the burden of repairing any of the private
roads set out in pursuance of the act. (o)

Upon an indictment against the parish of HasHngfieU^iow'not
repairing a highway, an award made by commissioners tinder^ an
inclosure act, which awarded the highway to be in « difSerent
parish, was holden not to be admissible evidence for the defendaBts,
witiiout shewing that the commissioners had given notices whiok
the act required to be given previously to the boundaries having
been ascertained by them; it appearing that the usage had not
been pursuant to the award; the defendants having since the
award, as well as before, repaired the highway. The learned
Judge who tried this case reported that he should have had no diftt-
cidiy in admitting the award, and, if the usage had been pursuant
to it, presuming that the proper notices had been givm. (p)

We may how shortly consider the modes of prooeeding by
which persons- guilty of these nuisances to highways may be
pvosecoted.

Nuisances or annoyances to highways, whether positive, in the
nature of actual obstructions, or negative, by the defect of proper
reparations, may be made the subject of indictment, which is the'
more usual course of proceeding. And the 13 Geo. 3. c. 78. s.24»
enacts that ** every justice of assize, justices of the counties paiar
^^ tine of Chester, Lancaster, and Durham, and of the great ses-
'^ sions in Wales, shall have authority by this statute, upon his
^' or their own view, and every justice of the peace, either upon
'^ his own view or upon information upon oath to him given by
'^ any surveyor of the highways, to make presentment at their Te-
*^ spective assizes, or great sessions, or in the open general quar<^
'^ ter sessions, of such respective limit of any highway, causeways
^^ or bridge, not well and sufficiently repaired and amended, or of
^^ «ny other drfault or offence committed and done contrary %o the
" provision and intent of this statute ; and that all defects kx the
'^ repair thereof shall be presetted in such jurisdiction where the -
^^ same do lie, and not elsewhere ; and that no such presentment^
'* nor any indictment for any such default or offence, shs^l be
" romovfid by certiorari, pr otherwise, out of such junsdictiQi^
^^ till such indictaent or presentment be traversed, and judgment

;/

(0) Hsmtii«nd v ^ Br ewer< 1 Borr. R. tiiigham» 6 T. B. 80. '
STO^and -see -Rmi v. GaifiliDfagr* po$it (p) Bex v. the Inhnbiteat* of fls^^
3Sflr;<and Rex v. HarrOfv^ 4Boit^09>K ' lingfieldi a M. aod S. &&&•

(#> Bwvti. ,the liUiabtljaits oC CdtK . . . ..,•

fr

'[

\'

• I

.■''•:

CHAP. KEX. § 9.3 lw2ibto«Mtbr JPiwa^in0fl<. 9t9l.

*' thapei]{xiit jgivea, eaoc^t where tbe diiity<irobl%iAldir4>f^rej^ftbtfii

'Mng the 6»d highwajrs, caxaeways, or bridges, plsfcomB bmi

" question ; and that every snch presentinent fl»de by any sushi 1

'^ justioe of assize, eonnties pdatine, gFeat sesskmsy or of* 'the''

" peace, upon his own view, or upon such infomrakion 'hwiiuft;

'^ b^en given to such justice of the peace upon tlie oathof' such ""' ;' ^; '" ;'

*^ surreyor of the highways as aforesaid, shall be as good^ and-oC ' ' V.'n rJ tVc

*^ tbe sane force, strength, and effect in the law, aa if' the 'sanaid / w i>>t.r^<xpr

^^ hlid bean presented and found by the oaths of twelve maxymkA^^^^'^P^^'

*^ that for every such default or offence so presented as'aforesaidt'i^SfSlSttN'

''tiieJusticeB of assize^ counties palatine, and great ses^ionsy Mtv^nent.

" their respective courts, and the justices of the peace at tii0ir<»

" general quarter sessions, shall have authority to assess !sadi;;Sfi«f"'

" aa«ti> them shall be thought meet : saving to every person< aoU R'ff^itfif .t«^

^^ persoDS that shall be afiected by any such presentment, his, hec^ ^cuTof^^^^e^

" or their lawful traverse to the same presentment, as well withtineDt. j..

" respect to the fact of non-repair as to the duty or obligation of •

'^ tepairing the said highways, as they might have had upoD'any

'^ indictment of the same presented and found by a grand jury ;'

'^ and the justices of the peace, at their general quarter sessions, Bxpenmoft .

" or the major part of them, may, if they see just cause, direct ^J|J|^^JJJ^ ' ^

'^ the prosecutions upon such presentments as shall be made at sentments.

'^ tfe' quarter sessions as aforesaid to be carried on et the general •

^^ expense ol such limit, and to be paid out of the general ratea

" vdthin the same/'

Another mode of proceeding is by informaiianj which may be Information,
gndited by tiie Court of King^s Bench at their ^scretion. But .
they will not grant an information to compel a parish to repur »
highway which is not much used ; and when it appears that another ..,.,.<

highway, equally convenient to the public, is in good repair^
And indeed the V never give leave to file an ixtformation for not<
repidring a highway, unless it appear that the grand jury have
beeii guilty of gross misbehaviour in not finding a bill : and they
refuse it for this reason, that the fine set on conviction upon an
information cannot be expended in the repair of the highway,
whereas on an indictment it is always so expended, {q)

Thongh it is often stated in indictments or presentments for Of the fonn of
nuisances to highways, that "from time whereoi the memory of JJ "prew^***
'^ man is not to the contrary," or, " from time immemorial," inent.(r)
there was and is a common and ancient king's highway, yet it is
not necessary to do so ; for it is sufficient to state in a compen«*
dious manner that it is a highway. (s) And though it is usual to
state the termini of the highway, it is said not to be necessary^
on the ground that a public highway is intended to go through aU
the realm, and to lead from sea to sea.(i) But if the termini are

(9) a Bac. Abr. Highways, (H). Rex the Cro. Circ. Corop, (8th ed.) 301 . 6

«.the Inhabitants ofSteyoing, Say. 99. Wen tw. 405. S Stark. 664. SChit;€r.

(f) 'It 18 not within the scope of this L. Bie^ 607, aad tht ntnes to Rer if. '

Work to treat particularly of the forms Stougfaton, S Saund. 157» et $eq.
of tbe pleadings, thoogh sotne of the * (#) Aspiadall v. Brown, ST. R< S66<
promfheBt poials concerain^them are {h) Eex v. Hamtnond^ 6^. 44k 10 "■

occasionally nieatiosed. For indiet*- Mod. SS2. lUseirs awe, Noy:- SO*.

meats, pleas, &c. relating to nuisances Latch; 183. Rex «• Ifesle, S'Keb« 89*

to highways the reader is referred to Rouse v: Bardie , I H. Blac. 361. : but

0 . . -'^ •

1 1.

Blaied, it seems they mxalk be ^bstafttiaUy proved, aoeordiag to
tbe statement ;(c) and the road muat in general, (UT described at
all,) be described correctly* Thus, where a highway leadiiiff from
A»to C«, not passing through B., though communicating wiui it by
means of a cross road, was described as a road leading from A. to
B. and from thence to C, the variance was held to be fatal<r(<^}
Tbe highway mnst be alkgied in the presentment or indictment to
lie in the parish indicted, otherwise such parish is not bound to re-
pair it ; and if it be not so alleged, the indictment or presentment is
erroneous, and judgment will be reversed, (t) Nor will it cure the
objection, that the part which is out of repair is expressly stated
to be in the parish indicted^ if such part be represented as part of
the road before described. Thus, where an indictment agwist
the parish of Gamlingay stated that there was a highway leading
fma the parish of Hartley St. Creorge towards and unto the parish
of Gamlii^y, and that a certain part of the said highway situate
itt the saio pariah of Gamlingay was out of repair, it was mov^
iiy avrest of judgment that no piurt of the road, as describee^ lay in
Gamlingay ; and the C^urt held the objection fatal, (e) Where
tbe indictment is asainst a particular person, charging him with
the repair of a highway in respect of certain lands, it seems that
the occupier, and not the owner,, is the proper person against
whom the indictment should be brought ; on tne ground that the
pabMe have no means of knowing who is the fnofier oC the lands
charged with the repair : and it does not seem to be material wlia^
estate the occupier has in the lands liable, (ti) The averment of
obUgalion to repair, in an indictment, against a person for not
repairing b^ reasom of tenure, will> it seems, be sufficient, if it
slate that the defendant ought to repair bjf reason of the tenure of
hhhmds, without adding ibat those who held the lands for the
time being hare immemorialfy repaired ; a prescription being
implied in the estate of inheritance in the land.(fif) But it is not
sufficient to state that the party is chargeable by being owner and
proprietor of the property subject to the charge, (t) But an indict-
ment against a particular part of a parish^ such as a district,
township, division, or the like, for not repairing a highway in the
parish, statins that the inhabitants of the district from time im-
memorial ought to repair and amend ity is erroneous ; it should
state tdiat the inhabitaiita of such district from time whereof, &c.
have: used and been* aectistomedy and of right ought to replor and
amend it : for the inhabitants of a particular division of a parish,
not being bound to repair by common law, and their obligation
arising necesariiy only from custom or prescription, the indict-
ment ought to shew such custom, prescription, or reason, of their
bion.(jr) So it has been decided that a presentment under

see Lord Longhbonough's jodginent,. 366, LordLooriiborDai^^sjudgpMiit

wlto^difiered. ('») Reg. v. Watts, 1 Salk.367. Ueg.

(fc)' Rouse V. Bardtn, I 0. Blac. SSr. r.. Bucknell, 7 Mod. 55.

(d) Rex V. Great Canfield,. cor. Bi- (w) Rex v^ Stoughton, 9 Saood. 15S

leHboroogh, C« J. 6 Esp. C. 130. d. note (9). 1 CbiL C. L. 475,tfl tif^

(f) Rex o; Hartford, Cowp«. 111. (t) Rex v. Kerrison* 1 M. & S. 435.

M Hier«. temliagayt 3 T. Ri. 513. (x) Jnle^.notm (w). Rex n. Bm^iH

And^ see Hanimovd- »• Brewer, oiOe, toe, 5 Burr, if 00*. Fre£i]i..589, Kpx P.

h, aBd(R•lMB't^ BardiOt 1 B. Bk& StoogUoa. I(«i;, S)iefllel^S:^Y''f«''''

cfiA^. XXX. $ 3.] hdictment-^Defhiee. 991

the statute 13 Geo, 3. c. 78* b. ^4. against a gnrnDer ffistrfct ihntk
a parish, must state expressly how the inhabitants thereof are liable
to the repair of the roads, or that they have been liable immen»H
rially. (y) We have seen that a material variance from the de*
scription of the road in the indictment will be fetal: so that a high-^
way leading from A. to B., and communicating with C. by a cross
road, cannot be described as a highway leading from A« to C, and
from thence to B.(z) In every indictment against a parish for
not repairing a highway, there are three essential averments : the
first, that the road is a highway; the second, that it is out of
repair 3 and the third, that it is situated in the parish, (a) A pre-
sentment for a nuisance in a highway nrast conclude^against the
form of the statute, (m)

Where a person who is boimd ratione tenures j to repair a high-
way lives out of the county in which such highway is situate^
he may nevertheless be inmcted in such county for not repair^
ine it.(n)

It was ruled m a late case, that if the description of a highway Of the defence
in an indictment for the non-repair of it be too indefinite, being «^erthegen©-
equally applicable to several highways, advantage should be taken Jf the necewd-
by plea in abatement ; and that the description given, if true fal tr for a epedal
feet, caQnot be objected to at the trial under the plea of the ge« P^
neral issue. (&)

Where an indictment or presentment is against the inhabitants
of a parish at large, who, as it has been seen, are bound of com*
mon right to repair all the highvrays lying within it, they may
upon the general issue, not guilty^ shew that the highway is in
repair, or that it is not a hi^way, or that it does not lie tvitfain
tliie parish; for all these are facts which the prosecutor must
aDege in his indictment, and prove on the plea of not guHty.(c}
But it is settled that they cannot, upon the general issue, throw
the burtlien of repairing on particular persons, by prescription, or
otherwise ; but must set forth their discharge in a special plea.(rf)
This rule, however, was recently held not to apply to a case where
the burthen of repairing was transferred from we inhabitants of a
parish to other persons by a public act of parliament, to which all
are supposed to be privy, and of which all are supposed to have
cognizance, (tf) Where a person is charged with the repairs of tt
highway or bridge, against common right, he may discharge
himseu upon not guilty to the indictment : and therefore where a
particular division of a parish is charged ^vith the repair by pre-
scription, or a particular person by reason of tenure or the like>
which are obligations against the common law, they may thvow
the burthen either on the parish, or even on an indiviflnal on the
general issue. And the reason seems to be, because upon thid

Cy) Ttcx «. Penderryu, S Tl R. 51S. Rep. S8T.

Rex tf. Mafton, Andr. 276. (c) Rex o. the lubabitaats i^ Kor^

^> Rex V. Great Caofield, 6 Esp. wicb^ 1 Str. 1 81 , el $eq»» Rer o.

196. ante Date (lA. Stonghtbn, St ftiuad. 15S, note (9).

(«) 8 Stark. Crtm. Pfead. 067^ note (tff Rex r. St. Andrafs, 1 Mbd; lir.

(/)i Anon. 1 Tent. 256.

(«0 B^ ^' Winter, IS Etist 2SS. (^ Rex v, the Ibhxbitiaim of St

^) R^ex tf« Cliften, 5 T. R. 502, 50S. George, .9 Campb. 22f ;

if) Ktt. ». Hammersmitb, 1 Stark.

S8B Of Nui$ances to Highways^ - {[booit ii.

issue the prosecutor is. bound to prove that the defendants are
chargeable by tenure or prescription^ and therefore the de^etidaats
may disprove it by opposite evidence : but if they will, though
unnecessarily, plead the special matter, it is held not to be enough
to say that they ought not to repair, but they must go further
and shew who ought. {/) If a parish consisting of several tbwn-
flbips be indicted for not repairing a road within it, a plea that
each township has immemorially maintained its owii roads must
shew how much of the road indicted lies in one township, and htm
much in another; lor it is considered that the parish must know
tiie limits of each township^ and is bound to shew with eertainty
the parties liable to repair every part of the highway indicted, and
in M^at right they are so liable, (a)
Trarene of ob- If a person indicted for not repairing ratione tefiurce^ or a town*
li^tion to re- gjjp^ qj- other particular persons, indicted for not repairing by pre-
^^' scription, plead (though unnecessarily) to the indictment, and shew

who ought to repair, as they must do, it is necessary to traverse
their obligation to repair : but if a parish be indicted for not
Impairing a highway, or a county for not repairing a bridge, and
they throw the charge upon another, they ought not to traverse
their obligation to repair, for it is a traverse of matter of law ;
and such traverse, though very often inserted, is demurrable to,
and therefore ought always to be omitted, (g") Where an ind}<^
ment charged that the defendant ought to repair ratione tenwrds
of certain lands inclosed and encroached by him out of the high-
way, a plea, traversing the obligation ratione tenures, was held
gmd; on the ground that it professed to charge the defendant'
ratione tenune, and not by reason of the encroachment ; and tfatit
the obligation ratione tenuns would continue, though the land
• shoakl be again thrown open to the highway, whereas the obliga-
tion by reason of the encroachment would not.(jr)
Wbcre •t^*^ . Where any subdivision of a parish is liable to the repair of a
arobdlTisionof highway, and the indictment is, notwithstanding, preferred against
rach iMuish is the whole parish, care should -be taken to plead the liability of
S?^*A****"h ®"^^ subdivision; for if judgment be given against the parish,
m^t take^caxe whether after verdict upon not guilty, or by default, the judgment
to plead such Will be conclusive evidence of the liability of the whole parish td
liabiUty. repair, unless fraud can be shewn. (A) Fraud, however, is only'

ETidenee of pmi; (q^ example ; for if the other districts can shew that they had

former convic- * * . ^

tioa coDclusiye . ^. -. « ^ . «.s ,^^ . . . .^ «

nnleis frandy (/) Rex v. Yaroloo, 1 Sid. 140. inserted it. Supposing such tmveree

Ac. bediewn. Rex v. Hornsey, Carth. 218. Rex v. to be necessary, it is sufllcieiitly ex-
City of Norwich, 1 Str. 180, et iequ. pressed by a plea concluding thu9t
Rex V. St. Andrews, S Salk. 189. pi. 3. «' And that the inhabiUnU of the said
Rex e. Stbaghton, 9 Saund. 169 a. ** parish at large ought not to be
note (10). ** charged with the repairing and a-
(a) Rex V. Bridekirk, II East 904. '* inending the same.**
ig) Rex V. Stoughton, S Saund. 169 («) Rex ». Stoughtoa, 8 Saund.ieo.
a . Bote (10). Beimet «. Filkins, 1 (h) Rex v. St. Pancras, TetikM Rep^
Saund. 29« note (6). In Rex v Eccles- 219. A«d id a case of a preBcri|lti6n
field, 1 B. & A. 350, 961 , J. Willians for a public right «f «w«y, a v^dkt
air^gmend, denied that such traverse is against one defendant negativing such'
demufrablei and said thai Rex v. Inha- a right, is 'evidehee igMMt ^Mother
bplMut^ of Glam^rgaa-oontiincd such deCsSdant who Jaslifiesnid^fxtlM saitie
a traverse, (8 East 356, in fitf<2>«>'and right Read v. Jackaon, 1 East Rep.
that the better precedents have always 355.

'It I •)

CHAP XXX. §2.] EvideMe.

no noiic0 ot the indictment^ and that the drfence was made and

conducted entirely by the district in which the highway indicted

lay, without their knowledge or privity, the Court will consider it

as being substantially an indictment against that district, and give

the other districts leave to plead the prescription to a subsequent

indictment for not repabring the highways in that parish, (t) ^And-

in ^'lat^ case of an indictment for not repairing a highway against

the parish of EardUland, consisting of three townships^ JSardif*-

landy Burton, and Hardwicke, where there was a plea on the part

of the township of Burton that each of the three townships had

immemorially repaired its own highways separately ; it was held'

that the records of indictments against the parish generally for

not repairing highways situate in the township of JSoftUsland, and

the township of Hardwicke, with general pleas of not guilty, and >

convictions thereupon, were prima facie evidence to disprove the

custom for each township to repidr separately ; but tiiat evidence

was admissible to shew that these pleas of not guilty were pleaded

only by the inhabitants of the townships of Eardisland and ^forcf*

wicke, without the privity of Burton.{t) In a case where the-

inhabitants of a parish pleaded that the inhabitants of a particular

district were bound by prescription to repair all common <high<k-

ways situate within that district, save and except one commoo >

highway within the said district, it was holden that the plea might

be si^ipported, although it appeared that the excepted highway

w^s of recent date ; and it was also holden that in such a plea it*

was not necessary to state by whom the excepted highway was.

repairable. (u) 'And such a plea will be good although it doesnot^

state any consideration for the liability of the inhabitants of the

di9l;rict.(a)

It has been held that the record of an acquittal upon an indict^^ Record of an
ment for not repairing a highway is not evidence to shew that the '^f^*'^ ^««>'
parish is not liable ; on the ground that some other parties might shew that ihp
nave indicted them, and that those parties could not be bound by P&nsh is not ' '
this record, (w) And a satisfactory reason for rejecting such evi- I'^^^e *« repair.,
dence altogether seems to be that the acquittal might have pro*- '^

ceeded upon the want of proof that the road was out of repair, (x) -., ,1

In the ca;ie of an indictment for not repairing a highway, which it
Wf)s.alleged the defendant was bound to repair ratione tenune, it' ^

was held that an award made under a submission by a former te« . . . *

nant for years of the premises, could neither be received as an ad- , ,?

judication, the tenant having no authority to bind the rights of . ■ r

his landlord, nor as evidence of reputation, being post liteni
mbianL (i^)

The general highway act 13 Geo. 3. c. 78. s. 66. enacts that the* 13 Geo. 3. c. 78.

8.68. Sunreyor

(0 Rex v. Stougbton, S Saand. 150 - (y) 'Rjext. Cotton, - S Campb. 444,

c.ii€fte[()0)r'Eexff«Towtfeettd,Dougl. c^. Dampter, J. Stafford Sirm. ibs.

4%| . , Pintf. S87. 1 8 1 3. Tfas learned Jdd|re stated tliat.

Q^) 4«x.tt» EardislsBd, S Campb. 494. ' it wts a question of considerable hUH'
.(f(),E«X4;.&€cle^eki, I Stark. Hep. * portancey, and of some noteliy; and(

393ni i/t,^ >' ■ wished that bis opinion upon it covldv

M' ' £sx V. ftcciesfidd* 1 B . & A . 34S . be reviewed t bnt^ from tbe manner In '
iwy ViuL tf, Sl^ Paocrasv Peake Rep. which tbe qaestion arose, tbat waft uof >

21^'..l ' • • %. M possible. , * on*

{r) Mann. Ind. N. P. R. 128. ^'^ "»'» >" " ' » • ' -• *" **'^* ♦'*'•

to be A compe-
tent witnessy
And also sa in-
liabitaAt of any
pAiish, Ac. in
cerUin caiei.

Hie proiecntor
may, it leenify
be a witness
fortheproee-
cation.

Certiarmi,

Of Nuisances to Highwayt. . [BO^ikth

fiir?ejK>rof anyparidbi or place shall be deemed a Mnpetent wit-
liega m all matters relative to the executkm of the act, aotmth-
ataodUig his salary may arise in part from the forfeitures .and
penalties thereby inflicted. And a subsequent section fiutber
eni^ts, that no eonviction shall be bad by virtue of that act^ uijlefls
upon confession of the party accused, or upon the oath of one or
more credible witnesses, or upon the view of a justice 5 sild thst
any inhabitant of any parish or place, in which My ivS^ce. sIiaJI
be committed contrary to the act, shall be deemed a /^ompoteat
witness. But the inhabitants of a parish indicted for not-repmiing
a highway are not competent to gjive evideiice for the. 4fifmir
ants, (y)

In a late case of an indictment for not repairing a highway, Mt
prosecutor was examined as a witness for the prosecution, and 00
objection was taken to his competency: (z) and it seems thats
prosecutor in auch case is a competent witness ; for, thou^ the
Qourt is authorized to award costs against him in case the procee4^
isg shall appear to have been vexatious, (a) yet the court weidd
scarcely presume^ in the first instance, that the jprosecutor's.:C(W(-
duet had been vexatious, so as to raise an objection to his cowpf"
tfincy ; especially after tiie finding of a bill by the gnuid jury.4 (2)

Thmgh the same statute of Geo. 3. by s. 24. declares>.,aSMWe
hsKve seen,(c) that no presentments or indictments therein. menr
tinned shall be removed by cerHorari before traverse and judgmeoi^
ea^Q^t where the obligation of repairing may oome in ^i^^tion,
yet this clause does not taike away the writ at the instance ef i}»
pfosecutor, for the crown does not traverse *, and it wan calcuUkd
aaerdv ta prevent delay on the part of defendants^ {d) And it lifia
been nolden to be no objection to a certiorari to remove oadk.s
presentment, that it is prosecuted by another than tdhe justice pre*
senjting^ if it be bv his consent, {e) The 5 W. & M.c ILs. 1^
also provides that if any indictment or presentment be against say
persons for not repainng highways or bridges, and the right or
title to repair the same may come in question, upon a sugges^on
and affidavit made of the truth thereof a certiorcfri may h^ .graq^s^
provided that the party prosecuting such certiorari entep intoithe
recognizance mentioned m the act. In a late case it waA bHdtbaite
upon an indictment against a parish for not repairinx a hig^^v^
the right to repair may come in question so as to entiUe the pari^
to remove it by certiorari, though the parish jplead not guilty onif,
it beinff stated in an affidavit filed by the defendants, that, on^
trial of the indictment, the question, whether the parisb wer6
liable to repair, and the right to repair, would come in is^e^ (/ji
And in a more ancient case it was decided that the prosecutor. losy

ijd 1 PbiL Ev. 186*1 cilisg IB. & A. proceedtngs bad is purau^ace ef tke

as. lSfiaslu474. act shall be quasbed or Tacstedi&f

(fi) Rex v« Hamiaec8Diilh« iStaikia want ofform, or removed bjrccp|ft#r«f4

B- 9S7. or so J* other writ or process f xoipftM

(a) By the lS-6e0..3- c*.78. s. 64.. tbareia before iueniioiied> f -> •

fa«<9,3a7. (0 Rex V. Bodenharo, C«wp. TSi- «

(A) Rex V. HsmmersmiU^ 1. Starkie («) Rex v. Peadtn7n, S>T« Ml S60.

Ik S68«, notQ (a). (/) Bcx «. XauaMwi^ ft. Mtf^ SJii

(e) Jnie, 3S8. And hj a. 80. of ibis k S. 46ft.
Statute it is further enacted, that aa

■ :'o

<i .)• M-.I t«.

tBH^. ma. 4 S'] Certiarwi,

remnvfs* aa indictment bf certiorari, dimgh thtiv be no affidtfiit
taadBf not veeogaizance given acoording to the statute, (g)

The general rule of a new trial never being allowed where the A i»w tiiiaiii
defendant is acquitted in a criminal caae hae been held to prevail ^^J^^^
bk a proaeentbn for not repairing a highway, though audi pro* qoitti^ ^'
aectttion is usually carried on for l£e purpose of trying or enforcing
a dvil liability. (A) But if the defendants be found guilty, and the
JQStiee ol the case seem to reqmire it, the court would probably
gniat a new trial, or stay the judgment upon payment of costs,
until another in^ctment be preferred for the purpose of tryuig the
question of liability to repaur. (t)

The object of prosecutions for nuisances to highways is to efSsct Of tbe judg-
either a removal of the nuisance in cases of obstruction, or the re*- °^^^^'
pair of tlie highway in eases where the nuisance chained is the
want of reparation. The judgment of the court is usually a fine,
and an order on the defendant at his own costs to abate the nui>
sance in the one case, (A) and in the other a fine, for the purpose
of obliging the defendants to repair the nuisance : for they will not
be dischairged by submitting to a fine, aa a distringas will go ad
infbnium until they repair. (/) But writs of distringas are the only
further remedy on an indictment, upon which the court has already
pronounced judgment by imposing a fine. For the fine is the pu«
mshment for the neglect and offence of which the defendants are
ladicted; and, though the court may compel an actual repair, yet
the pui^hment has been inflicted, and they cannot inflict a further
puntahment or fine. The parish may, however, be agam indicted }
and a fine nuiy be imposed on such new indictment, {m) And
upon this prlndpie an order of a court of quarter sessions b^
whieh it was ordered that the fine theretofore imposed for th* nci
repairing a bridge should be increased by a certain sum, was
q^mshed. (n) In order to warrant a judgment for abating the nui-
sance, it must be stated in the indictment to be C4mtinuing ; as

(ff) Bexv. Farevell, 2Str. 1909. 16 East 893. It was said bv Lord

(^' Hex V. Silverton, 1 Wils. S9S. Keoyon, C. J. ia Rex f^. MawBey and

ehsd e Salk . S46. in the note. Rex ». ethers, ST. R. 619.^»Mn mfsd^

llkiHif' a M; li S. 937. Res »• Cohen ^* meanors tiisre Is no anthori^ t#

ami Jaal>h l Slarkie E« 5(6. and see ** sheiw that ve cannot g«aot a aow

Rei fk. .RejneH, 6 East 315, and the *' trial in order that the gqllt or iano-

cases there cited. See ante, 333. that ** cence of those who have been con'

the record of acquittal is not evidence ** victed maj be again examined into.**

to shew that the fiarish is noi UakU to It may be observed also thai, in cases

repair* But in a recent case, where of indictments for misdemeanors, the

W defendants bad bees acquitted oa court will, in its discretion, save the

an indictment for not r«;pairiiiga road, point for consideration, giving the de-

thecourt of king*s bench, though they feudaot an opportunity, in case he

sefnsed a new trial, yet upon very spe- Siball he convicted, to i»o^ to ha^« aa

cial cMreumstaaces suspended the entry acquittal entered. Rex v. Gash and

of the ^drment so aa lo enable the another, 1 SdarkieR. 445.

Kiea \m nave the queatibn reoonsi- (k) Rex v. Pappineaa^ 1 Sir. S8S»

d upon another indictment^ with* 1 Hawk. P. €. o. Hb^ s. 15.

OQltbe prejudice of the former judg*. (0 Rex r. Ciuworthi 1 Salk. S5S*

mcnt Rex o. The lobab. of Waa4& 6 Mod. I63» 1 Hawk. P. C. e. 7& s.

worth, 1 Barn. & Aid. 63.. S4a.

W nejutoaeni wassoalayed in a (m) Rex v. Old Maltofli, 4B. Is A.

daa 9rbere tie liab»U^ to repair % 470. note.

con^ hridgf vsa. in iweatioa. Sea (a) Rex s. Mschyaidetk, 4rB. dt A.

V. the Inhabitants b? Oxfordshire, 4att. ;

t

S36 Of Nuisancer io Hightoa^s. [iooKit.

otherwise such a judgment would be absurd, (m) And if the oooit
be satisfied that the nuisance is effectually abated before judgmenA
is prayed upon the indictment, they wiU not in theur macretion
^ve judgment to abate it. And though it was contended, on the
authority of several cases, (») that if the nuisance be of a p^-
manent nature the regular judgment must be to abate it, the court
refused to give such judgment upon an mdictn\ent for an obstmc-^
tion in a public highway, where the hi^way, after the convictkm
of the defendant, was regularly turned by an order of magiatrstes,
and a certificate was obtained of the new way being fit for tlie
passage of the public, and the affidavits stated that so much of the
old way indicted as was still retained was freed from all obatruc-
tion. (o) ^ But where the existence of a building, &c. is a nuisance,
and the indictment imports that it was existing at the time of the
bill being found, it seems that if a judgment be. pronounced, it can
only be a judgment to abate the nuisance, (a) But where the nui-
sance arises not from the existence of the thing, but from the use .
to which it is applied, a judgment to abate, &c. is not necessary ;(i)
and, therefore, ii a stinking trade is indicted, it does not follow
that the house in which it is carried on is to be pulled down, (e)
And if a house is a nuisance from being too high, so much only as
is too high shall be pulled down, {d)

Levying and "^^^ ^ ^^* 3- ^' 78- &• ^* enacts, that no fine, &c. for not re-

appiicatioa of pairing the highways, or not appearing to any indictment or pre-
fines. sentment for not repairing the same, shall be returned into the

> court of exchequer, or other court, but shall be levied by and paid
to such person or persons residing in or near the parish, townsnip,
or place, where the road shall lie, as the court imposing such
fines, &c. shall order and direct, to be applied towards the repair
amd amendment of such highways ; and the person or persons so
ordered to receive such fine shall receive, apply, and account, for
the same, according to the direction of such court, or in de&olt
thereof shall forfeit double the sum received ; and if any fine, &c.
imposed on any such parish, &c. shall be levied on any one or
more of the inhabitants of such parish, &c. then that such iidia-
bitapt or inhabitants may make his or their complaint to the ias-
tices at their special sessions, and the justices are authorized by
warrant under their hands and seals to cause a rate to be made ac-
cording to the form and manner thereinbefore prescribed for the
. reimbursing such inhabitant or inhabitants : and the rate so made

(m) Rexv. Stead, 8T.R. 142. court are about to impose a five. Is

(») Rex v.Pappiueau, ante, DOte(X:). Rex v. Wingfield, 1 Bine. Rep. 60<«

Rex 9. the Justices of Yorkshire, 7 T. where a person was coDvicted upoa as

R. 467, Rex v. Stead, ante, note (m), lodictmeDt for not repairiaff a roai

aad other cases cited in those. ratioue tenurtt^ it was Md llMt tlie

(o) Rex V. Incledon, IS Bast. 164. court would not inflict a small fiae.

Judgment was given that the defend- on a certiticate of the road beiag rs-

ant should paj a fine to the king of paired, until the prosec«tor*t ciMb

6«. %d. lo Rex V. Sir Joseph Mawbey were paid,

and others, 6T.R. 619. it was held (a) I Str. 6S6.

that a certificate by justices of the (k) Id. iMd,

peace, that a highway indicted is in (e) By Ld. Raymaai mai fljjsiiiffi

repair is a legal instrument recoeaiaed J. 1 Str. 68B, 9.

by the comjte of law, and admisMbfe in {4) Bf Ld. Raynoai, I flir.

etideoce aller conTictioa when the

cttAP. XXX, § 2.] Ftnc».— Co»<5* 337

tad ocmfirined by any two justices is to be collected atid levied by
the surveyor of the parish, &c. indicted ; and the surveyor is within
a iDQath after the making and confirming the rate to collect, levy,
and pay, irato such inhabitant or inhabitants the money so levied
oo him or them as aforesaid. Upon the latter part of this section
it has been held that the apj^cation for the rate to reimburse the
inhabitants, on whom a fine has been levied, after a conviction
upon an indictment against the parish for non-repair, ought to be
inade within a reasonable time aftersuch levy, and before any ma-
terial change of inhabitants ; and the court of king's bench refused
a mandamus to the justices to make such rate after an interval of
eight yeaxs ; though applications had been made in the interval,
. from time to time, to • tne magistrates below, who had declined to
make the rate on the ground that the parish at large had been im-
properly indicted and convicted, and though, so lately as the year
before the appKcation to the court of king's bench, the magistrates
had ordered an account to be taken of the quantum expended upon
the repairs out of the money levied, {p) In a case where it ap-
peared that although separate parts of a parish were bo\md to
maintain their own roads, there had been an indictment, and judg-
ment against the parish generally, but that such indictment was
only known to and defended by that part of the parish in which the
defsctive road lay, it was held that the justices might make a war-
rant to reimburse upon that part only ; and the court of King's Bench
granted a mandamus to collect to the surveyor of that part only, (sr)

The 3 Geo. 4. c. 126. s. 10. provides for a portion of the fine Where turn-
being paid by the turnpike trustees when the highway shall be a P^Jjf '^**' v*"
turnpike road; and enacts that, when the inhabitants of any couitmay pro-
parish, township, or place, shall be indicted or presented for not portion the fine
repairing any highway, being turnpike road, and the court, before ^^ *^^ ^'
whom such indictment or presentment shall be preferred, shall haMtanta^and
impose a fine for the repair of such road,' such fine shall be ap- the trustees.
portioned, together with the costs and charges, between such in-
babitanta and the turnpike trustees as to the court shall seem just ;
Aid the court may order the treasurer of such turnpike road to pay
the same out of the money then in his hands, or next to be re-
ceived by him, in case it shall appear to such court, from the cir-
cumstances of such turnpike debts and revenues, that the same
may be pfdd without endangering the security of the creditors who
have advanced their money upon the credit of the tolls. The tine
construction of a similar provision in the repealed act of 13 Geo. 3.
was held to be, that the court which imposed the fine had the power
to apportion it between the parish and the trust ; so that where an ^
indictnaent was originally preferred at the assizes, and afterwards
removed into the court of King's Bench by certiorari^ it was held
that the court of King's Bench might apportion the fijie. (q)

The 13 Geo. 3. c. 78. s. 64. enacts, " that it shall be lawful Upon the trial
" for the court, before whom any indictment or presentment shall ment or pre-
*^ be tried for not repairing highways, to award costs to the prosecu- sentment the

court may
^ Rex«.tiie Justices of Lancashire, obligation to repair, and the situation sward costs.
12 East. 360. of the road indicted wholly id one part

(H^ Rex s. Towoscttd, Dou^l. 4S1. (f ) Rex v. Upper Papwortb^ f £ast
^ The mandamiis was Bpecial, stating the R. 41 3.

voa. I. z

338 Of Nuisances to Highways, — Costs, [booi ii.

" tor, to be paid by the person or persons so indicted or presented,
^^ if it shall appear to the said court that the defence made to such
** indictment or presentment was frivolous : or to award costs to
** the person indicted or presented, to be paid by the prosecutor,
'^ if it shall appear to the said court that such prosecution was
'^ vexatious." It has been held that it is matter to be deter-
mined by inquiry, whether a person is or is not the prosecutor
within this section of the statute ; and that a court of quarter ses-
sions, before whom a parish is acquitted upon the trial of an in-
dictment for not repairing a highway, tnay, by their order, award
C. and E. to pay costs to the parish, although the names of C. and
E. be not on the back of the indictment, and although the indict-
ment originated in a presentment of A. and B. constables, whose
names are on the indictment : and it was also held to be enough,
if the order is entitled as in the prosecution of C. and E. without
shewing further that C. and £. are prosecutors ; and that it need
not appear on the face of the order that the indictment was tried,
if that appear by the record of the proceedings ; and also that the
order is good in form, if it be for the payment of the costs to the
solicitor of the parish, (r) The statute does not direct any
certificate to be given in a precise form of words, in order to
entitle the party to costs; therefore where the Judge, on the
trial of an indictment, certified that the defence was frivolous,
without also awarding costs in express terms, it was held that the
prosecutor was entitled to costs, {s) But it has also been holden,
m the construction of this section of the statute, upon an indict-
ment, which had been removed into the court of King's Bench by
certiorari and been sent down for trial to the assizes, where the
defendants were acquitted for want of prosecution, that the court
of King's Bench had no power to award costs to the defendants
on the ground of the prosecution having been vexatious, but that
the application ought to have been made to the Judge at Nid
Prius. (t)
.3 to costs un- The 6 W. and M. c. 11. s. 3. (which has been already cited)
7^ u ^^3 ^^^^^^9 ^^^^ '^ ^^^ defendant, prosecuting such writ of certiorari
ere the de- ^ is mentioned in that act, ^^ be convicted of the offence for
dant has *' which he was indicted, that then the court of King's Bench
iictment'b ^' ^^^^^ ^^^ reasonable costs to the prosecutor if he be the pa^ty
trtiorari, " grieved or injured, or be a justice of the peace, mayor, bailiff,

*' constable, &c. or any other civil officer, who shall prosecute
^^ upon the account of any fact committed or done that concerned
" him or them as officer or officers to prosecute or present " to be
taxed, &c. Upon this statute it has been held, that a justice of
the peace who indicts a road for being out of repair is entitled to
his costs, after a removal of the indictment by certiorari, if the
defendant be convicted, (t/) But the prosecutor must shew him-
self to be the party grieved in order to obtain costs under this
statute : therefore, in a case where he did not apply for the costs
until two years after judgment given, and it did not appear that
he had ever used the highway before it was stopped, and it was

(r) R«z 9, Coinmerell and Ellis, 4 (I) Rex v. Chadderton, 6 T. R*

. and S. 90S. S72.

(f) Rex V. Clifton, 6 T. R. 344. (tO Rex r. Eettiewortb, 5 T. &. 9S.

CHAP. XXX. ^ S.'] Of Nuisances to Public Rivers. $39

stated, that while the highway was stopped, he had declared that
he did not care aboat it, the court held that he was not entitled to
costs as the party grieved, although the prosecution was at his
instance and expense, (x) In a recent case, where this statute
was considered as a remedial law^ (y) it was held that several per-
sons were entitled to costs under it as prosecutors of an indict-
ment, removed by certiorari, for not repairing a highway; one, as
constable of the manor within which the highway lay; the others,
as parties grieved ; they having used the way for many years in
passing and repassing from their homes to the next market town,
and being obliged, by reason of the want of repair, to take a more
circuitous route. (2)

Section 63 of the 13 Geo. 3. c. 78. enacts, that if the inhabitants payment of
of any parish, township, or place, shall agree at a vestry, or other expenges of
public meeting, to prosecute any person by indictment for not re- ^^SSff " ^
pairing any highway within such parish, township, or place, which prosecutions
they apprehend such person to be obliged by law to repair, or for agreed upon
committing any nuisance upon any highway, or shall agree at such Jtw puSic'
vestry meeting to defend any indictment or presentment against meeting,
them, the surveyor may charge in his account the reasonable ex-
penses thereof, after the same shall have been agreed to by such
inhabitants at a vestry or public meeting, or allowed by a justice
within the limit where such highway shall lie.

SECT. m.

Of Nuisances to Public Rivers.

In books of tlie best authority a river common to all men is Riren consl-
called a highway : (a) and if it be considered as a highway, any ^ered as high"
obstructions, by which its course and the use of it as a highway ^"^^
by the king's subjects are impeded, will fall within the same prin«^
ciples as those which relate to public roads, and which have been
considered in the preceding section of this Chapter. But it should
be observed that a learned Judge appears to have considered a river
as differing, in some respects, at least, from a highway, where he
is reported to have said, '^ Callis compares a navigable river to
^^ an nighway : but no two cases can be more distinct. In the
'^ latter case, if the way be foundrous and out of repair, the public
** have a right to go on the adjoining land : but if a river should

(*) Rex 9. Indedon, 1 M. and S. where that learned Judge said, that

S6S. the statute had always been construed

(jf) By Lord EUenborongh, C. J. as strictly as possible,

in conforDsity with the opinion of (z) Rex v. Taunton St. Mary, S H.

Lord Kenyon, C. J. in Rex v. Kettle^ ana S. 465.

wortti, ft T. R. 38. and contrary to (a) 1 Hawk. P. C. c. 76. s. I. citing

the view tdten of it by Buller, J. 27 Ass. 2S. Fits. 879. 8 Com. Dig.

ia Bex Vp Sharpaeasi* 2 T. R. 48. S97. And see Anw. Lof^ 6ft6,

z 2

Obitnictions
in public ri-
yen.

340 Of Nuisances to Public Rivers, [book ii.

^' happen to be choaked up with mud, that would not give the

^' public a right to cut another passage through the adjoining

^' lands/' (b) In the same case the court decided, that the public

are not entitled at common law to tow on the banks of ancient

navigable rivers, (c)

Where tbe It has been before observed, that a highway may be changed by

course of a n- the act of God ; and upon the same pnnciple it has been holden,

ru8*8tiu*^ ' that if a water, which has been an ancient highway, by degrees

highway. change its course^ and go over different ground from that whereon

it used to run, yet the highway continues in the new channel, in

the same manner as in tlie old. (d) It has been held that the soil

of a navigable river prima facicj though not necessarily, belongs

to the kinfi^ ; and is not by presumption of law in the owners of the

adjoining lands, (e)

It is a common nuisance to divert part of a public navigable
river, whereby the current of it is weakened and made unable to
carry vessels of the same burthen as it could before. (/) And the
laying timber in a public river is as much a nuisance, where the
soil belongs to the party^ as if it were not his, if thereby the
passage of vessels is obstructed, {g) The placing a floating dock
m a public river has been' also held to be a nuisance, though
beneficial in repairing ships : {h) and the bringing a great ship
into Billingsgate dock, which, though, a common dock^ was
common only for small ships conung with provisions to the
markets in London^ appears to have been considered as a
nuisance, in the same manner as if a man were so to use a
common pack and horse way with his cart, as to plough it
up, and thereby render it less convenient to riders, (t) And the
erection of wein across rivers was reprobated in the earliest
periods of our law. '^ They were considered as public nuisances.
*' The words of Magna Charta are, that all weirs from henceforth
^' shall be utterly pulled down by Thames and Medway, and
*^ through all England, &c. And this was foUowed up by subse-
^' quent acts treating them as public nuisances, forbidaing the
^^ erection of new ones, and the enhancing, straitening, or en-
*' larging, of those which had aforetime existed.'* (A) Upon the
principle, therefore, which has been before stated, (/) that the
public have an interest in the suppression of public nuisances,
though of long standing, it was held that a right to convert a
brushwood into a stone weir (whereby fish would be prevented
from passing, except in flood times,) was not evidenced by shew-
ing that forty years ago two-thirds of it had been so converted

(b) By Buller, J. in Ball v. Herbert,
3 T. R. 863.

(e) Ball V. Herbert, 3 T. R. 253.

(i) 1 Hawk. P« C. c. 76. 8. 4. S2
Ass. 03. 1 Roll. Abr. 300. 4 Tin.
Ab. Oamin (A).

(e^ Rex V. Smith, Dougl. 441.

(/) 1 Hawk. P. C. c. 76. s. II.

(g) 5 Bac. Abr. NuU, (A), where it is
also said, ** And bence it seems to
«* follow tbat private stairs, from
«< those bouses that stand by the
" Jlasieti ioto it, are common aul-

** sances. But it seems that where
*' there are cuts made in the banks
** that are not annoyances to the river,
'* the timber lying there is no nni*
" sance/'

ifi) Anon. Surry Ass. at Kingtt&n^
1785, cited in the notes' to 1 Hawk.
P. C. c. 75.8. II.

(i) Reg. V, Leech, 6 Mod. 145. 5
Bac. Abr. NuU. (A).

(A:) By Lord Ellenborough, C. J. in
Weld V. Hornby, 7 £a$t. 108, 100.

CHAP. XXX. $ 3.] By Obstructions. ^

without interruption, (m) So in a more recent ease it was holded^
that twenty years' possession of the water at a given level was not
conclusive as to the right. Abbott, C. J. said, '^ If it be ad-
'^ mitted that this is a public navigable river, and that all his ma-
jesty's subjects had a right to navigate it, an obstruction to such
navigation for a period of twenty years, would not have the
*^ effect of preventing his majesty's subjects from using it as
*' such." (*) But where there was a grant of wreck from Henry
II. to the Abbey of Ceme by all their lands upon the sea confirmed
by inspeximus by Henry VIII. and also a grant from Henry VIII.
of the island of Brownsea and the shores thereof, belonging to the
late monastery of Ceme, together with wreck, &c. ; and there was
also evidence that between forty and fifty years ago the proprietor
of the island of Brownsea raised an embankment across a
small biay, and had ever since asserted an exclusive right to the
soil without opposition ; it was holden, that although the usage of
forty years' duration could not of itself establish such exclusive
right, or destroy the rights of the public, yet it was evidence from
whic^ prior usage to the same effect might be presumed, and
whicb^ coupled with the general words contained in the grants,
served to establish such right. If, however, it had appeared, that
the public had a right to fish over the place in question, prior to
the forty years, and that the raising the bank was an act of usurp-
ation, the exclusive right would not have been established, (s)

By the 1 Eliz. c. 17. the taking of fish, except with the particu- Cases wkich
lar trammels or nets therein specified, was prohibited, upon pain not\^^o^**
of the forfeiture of a certain penalty, of the fish taken, and also Btructions.
of the unlawful engines : and upon this act it was contended, that
a party laying certain illegal engines called bucks in his own
fishery was guilty of a nuisance ; but the court held that it could
not be considered as a nuisance public or private, (n) And it has
been ruled that where a vessel has been sunk in a navigable river
by accident and misfortune, no indictment can be maintained
against the owner for not removing it. (o) Lord Kenyon, C. J.
said, that the grievance had been occasioned, not by anv default
or wilful misconduct of the defendant, but by accident and misfor-
tune ; and that it would be adding to the calamity to subject the
party to an indictment for what had proceeded from causes against
which he could not guard, or which he could not prevent : and
though it was urged that if the defendant was not punishable for
having caused the nuisance, yet it was his duty to have removed
it, and that he was liable to be indicted for not having done so,
the learned Judge said, that perhaps the expense of removing the
vessel might have amounted to more than the whole value of the
property *, and that he was therefore of opinion, that the offence
charged was not the subject of indictment, {p)

It is said to have been adjudged that if a river be stopped, to the Of the liabi-
nuisance of the country, and none appear bound by prescription to ^Jy ^^|^ ^
clear it, those who have the piscary, and the neighbouring towns, ^ riw^wSl of

(m) Weld V, Hornby, 7 East. 195. (n) Bulbrooke v. Sir R. Goodere

(x) Yooght ti. Winch, S B. & A. ana others, S Burr. 1768. '

662. (o) Rex V. Waits, 2 Bsp. R. 675.

(«) Chad V. Tilsed, 5 Moore 185. (p) /</. UntL

34»

tbe indict-
ment for ob«
structing it.

Of Nuisances to Public Bridges, [book n;

who have a common passage and easement therein, may be com-
pelled to do it. (y) For nuisances in the nature of obstructions an
indictment will of course lie, if the river be such as tnay be consi-
dered a public highway.

SECT. IV.

Of public
bridn^es.

Of private
bridges.

Dedication
a bridge to
the public.

of

0/ Nuisances to Public Bridges.

Thb more ancient cases do not supply any immediate definition or
description in terms of what shall be considered *^ public bridges."
fiut a distinction between a public and a private bridge is taken in
one of the books, (r) and made to consist principally in its being
built for the common good of all the subjects, as opposed to a
brid^ made for private puoposes : and though the words ^^ public
'^ bridges" do not occur in the statute 22 Hen. 8. c. 6. (caUed the
statute of bridges) yet as that statute empowers the justices of the
peace to inquire of *^ all manner of annoyances of bridges broken in
" the highways/' and applies to bridges of that description, in all
its subsequent provisions, it may be inferred that a bridge in a
highway is a public bridge for all purposes of repair connected
with that statute. And, ^^ if the meaning of the words public
^* bridge could properly be derived from any other less authentic
'^ source than this statutable one, they might safely be defined to
^^ be such bridges as all his Majesty's subjects had used freely and
^' without interruption, as of right,' for a period of time competent
^^ to protect themselves, and all who should thereafter Use them,
^' from being considered as wrong doers in respect of such use, in
^^ any mode of proceeding, civil or criminal, in which the legality
'* of such use might be questioned," (s)

But a bridge built for the mere purpose of connecting a private
mill with the^ublic highway, or for any other such merely private
purpose, would not necessarily become a part of the highway,
although the public might occasionally participate with the private
proprietor in the use of it : and it is not every sort of bridge,
erected possibly for a temporary piurpose, during a time of flood,
that may have rendered the ordinary fords impassable, or the ordi-
nary means of passage impracticable, which can be considered as a
bridge in a highway^ to be repaired, when broken down, according
to the provisions of the statute of bridges, (t)

As there may be a dedication of a road to the public ; (u) so in
the case of a bridge, though it be built by a private individual, in
the first instance, for his own convenience, yet it may be dedicated

(q) 1 Hawk. P. C. c. 75. s. 13. 5 Bac. Rex v, the Inbabitaofs of Backs, 12

Abr. JVuis. (C). 37 Ass. 10. 2 Roll. East. 804.
Abr. 1 37. (0 Rex v. the Inhabitants of Bucks,

(r) 2 Inst. 701. 12 East. 803, 204.

1$) By Lord Ellenborpugb, C. J. in (ii) Ante, 309.

2

CHAP. XXX. § 4.] By Obstructions. S43

by him to the public, by his Buffering them to have the use of it,
and by their using it accordingly. (f<^) And though, where there
is such a dedication, it must be absolute, (r) yet it may be definite
in point of time ;, so that a bridge may be a public bridge, if it be
used by the public at all such times only as are dangerous to pass
through the river, (v) A bar across a public bridge, kept locked,
except in times of flood, is conclusive evidence that the public have
only a limited right to use the bridge at such times : and if an in-
dictment for not keeping it in repair states that it is used by the
king's subjects, *^ at their free wUl and pleasure," the variance is
fetal, (s)

But a bridge built in a public way, without public utility, is in- A bridge may
dictable as a nuisance : and so it is if built colourably in an imper- ^ indictable

» • • ..1 • i''i ^»a8E nuisance.

feet or mconvenient manner, with a view to throw the onus of
rebuilding or repairing it immediately on the county* (a)

Where a bridge is, in the sense which has been described, a Of nuisances
bridge in a highway, it will of course be as public as the highway *b tof^ioMr
itseli in which it is situate, and of which, for the purpose of pass-
age, it must be understood to form a part, {h) All actual obstruc-
tions, therefore, to such bridges will come within the rules already
stated with respect to nuisances to highways by obstruction, (c)
and do not require a repetition in this place. There is, however,
one case not previously mentioned, where the defendant was in-
dicted for not repairing a house adjoining to a public bridge, which
he was bound to repair ratione tenures, but permitted it to be so
much oat of repair that it was ready to fall upon people passing
over the bridge. It was found by a special verdict that the de-
fendant was only tenant at will of the house : but the court ad-
judged that he ought to repair, so that the public should not be
prejudiced ; and though not properly chargeable to repair the
house ratione tenura, yet that the averment should be intended of
the possession, and not of the service, (d) It may also be men-
tioned that by the 13 Geo. 3. c. 78- &• 63. if any person collecting
the tolls of a public bridge shall keep any victualling house, ale-
house, or other place of public entertainment, or shall sell, or per-
mit to be sold therein, any wine, beer, liquors, &c. by retail, he
shall, upon conviction before a justice of the peac^. forfeit five
pounds for every such offence.

The nuisances which more frequently arise to the public in Of nuisances
respect of bridges are in the nature of non-ftasance, from the ^o^^l^^rinj
neglect of the parties, upon whom the burden is thrown, to keep theia.
them in a proper state of repair.

(v> Rex V. the Inhabitants of 61a- ham, 4 Canlpb. 189.

morgan, 2 East. 356. Glusburne bridge (a) Rex «. the Inhabitants of the

case, 5 Burr. 2594. 2 Blac. R. 687. West Riding of Yorkshire, 2 East R.

Rex V. the Inhabitants of the West 342. But see p0«/, 43 Geo. 3. c. 69. s.

Riding of Yorkshire, 2 East. 342. 5. as to the liability of counties to re-

And see post, 349, ei seq^ pair bridges thereafter io be erected.

(x) According to the doctrine in (5) Rex v. the Inbabitants of Bucks,

Roberts v. Karr, \ Caropb. 262. in the 12 East. 202, 203.

note. And sec ante^ 310. (e) Ante, 317, el »eq.

(^) Rex V. the Inhabitants of North- (d) Reg, v. Watson, 2^ Lord Raym.

aropton, 2 M. and S. 262. 856.

{%) R«x V, the Marquis of Bucking-

The connty is
of common
right liable to
the repair of
all public
bridges: but
they may
shew that
others are
liable.

Of Nuisances to Public Bridges, f booi. n.

As parishes are bound to repair the public ways within their
district; so the inhabitants of the county at large are, prima fade j
and of common right, liable to the repair of all public bridges
within its limits, unless they can shew a legal obligation on some
other persons or public bodies to bear the burthen : {e) and thb
without any distinction as to foot, horse^ or carriage bridges. (/)
The statute of bridges shews that the burthen is prima facie on
the county ; and it is exactly analogous to the liability of the
parish to repair a road, (z) &ut a hundred or parish, or other
known portion of a county, may by usage and custom be charge-
able to the repair of a bridge erected within it. (a) And a corpo-
ration aggregate, either in respect of a special tenure of certain
lands, or in respect of a special prescription, and also any other
persons by reason of such special tenure, may be compelled to re-
pair them, [g) And if a part of a bridge lie within a franchise,
those of the franchise may be charged with the repairs for so
much : also by a special tenure a person may be charged with the
repairs of one part of a bridge, and the inhabitants of the county
be liable to repair the rest. (A) A prescription, that the lords of the
manor ought to repair a bridge is good, being laid ratio^ie tenurte^
by reason of the demesnes of the manor, (t*) And, as the obligation
is by reason of the demesnes of the manor, if part of the demesnes
be granted to an individual, he will be obliged to contribute to the
repairs : but the indictment may be against any of the tenants of
the demesnes, and it will be no defence on an indictment against
one of them that another is also liable, {k) And where an indi-
vidual is liable to repair a bridge, his tenant for years, being in
possession, will be under the same obligation, and liable to an in-
dictment for the neglect. (/) We have seen that the inhabitants
of a district cannot be charged ratione tenuriBj because unincor-
porated inhabitants cannot qtm inhabitants hold lands; and that a

not appear to be liable upon a ^nenil
prescription. 8 Inst. 700. IS Co. 33.
1 Salk. 358. 3 Salk. 77, 381. and see
ante^ 383.

(k) 1 Bac. Abr. Bridget. 1 Hawk.
P. C. c. 77. s. 1.

(0 Reg. V. Sir John Bucknall, 2
Lord Raym. S04. In the first instance,
at JViH Priui, {2 Lord Raym. 792)
Holt, C. J. ruled that the prescription
was good without sa}iog ratione ie-
nuT€Ry on the ground that the manor
might have been granted to be held by
the service of repairing the bridge be-
fore the statute quia emptoret terra-
rum^ or that the kin^ might make such
a grant, he not hemg bound by the
statute : but he afterwards changed bis
opinion.

{k) Id.ibid,79t. Reg. v. the Duchess
of Buccleugh, 1 Salk. 358. And see
an/e, 325.

(/) Reg. V. Sir John Bucknall, 2
Lord Raym. 804. And see Reg. r.
Watson, 2 Lord Raym. 856. ante^ 343,
3S5. Seealso aale, 330.

(e) 2 last. 700, 701. in the comment
upon the statute of bridges, 22 Hen. 8.
c. 5. The reparation of public bridges
was part of the trinoda necesntas to
which, by the ancient law, every man*s
estate was liable, namely, expeditio
contra hottem, ardum eofutructio, et
pontium reparatio,

(J) By Lord Ellenborough, C. J. in
Rex v. the Inhabitants of Salop, 13
East. 97. The point was not argued,
as it was brought before the court bv
a special case, reserved upon the trial
of an indictment at the sessions, which
the court considered as a .very great
irregularity, and did not pronounce
any judgmeot

(z) By Bay ley, J. in Rex %k the In-
habitants of Oxfordshire, 4 B. and C.
196.

(a) Rex V, Ecclesfield, 1 B. and A.
359. Per Cur.

(g) 1 Hawk. P. C. c. 77. s. 2. 1 Bac.
Abr. Bridgei. A body politic may be
bound either ratione tenure sive prte-
icriptionis: but a private person docs

^

CHAP XXX. $ 4.] By not Rq^airing.

345

district cannot be chai^d by prescription alone^ without ft consi-
deration, to repair what is not within such district, (a) As the UabOitj «ot
burthen resting upon a county to repair the public bridges is ex- "'^^f**'^
actly analogous to the liability of a parish to repair a road, it is parliament,
not removed by an act of Parliament directing trustees to lay out
the tolls thereby granted in repairing roads, and empowering them
to make and repair bridges. To an indictment against a county
for not repairing a bridge in a public highway, there was a plea
tiiat, by a certain act of Parliament for amending this road, certain
trustees were directed to lay out the tolls thereby granted in re-
pairing the roads, and were empowered to make and repair bridges ;
that the bridge in question was erected by the trustees under and
by virtue of tShat act ; that the trustees had been liable to repairs,
and had repaired the bridge from the time it was so erected ; and
that they were still liable to keep it in repair. The replication
traversed that they were so liable. And the court held that the
bridge having been erected for public purposes, in a public high-
way, the common law liability to repair attached upon the in-
habitants of the county as soon as it was built; and that the
plea was clearly insufficient to exonerate them, as it did not
aver that the trustees had funds adequate to the repair of the
bridge. (i6)

In a late case a question was made, as to the evidence on which
a jury might find that the defendants were an immemorial corpo-
ration, and liable, in their corporate character, to the repair of a
bridge.

The evidence was of a charter of Edward VI. granted upon the Stratford npon
recited prayer of the inhabitants of the borough of Stratford upon ^^°" '^"^
jivoUy *^ that the king would esteem them, the inhabitants, worthy corporation
^' to be mocfe, reduced^ and erected^ into a body corporate and po- liable in their
*^ litic;" and thereupon proceeding to ^^ grant (without any word ^^^^^^
^' of confirmation) unto the inhabitants of the borough, that the Impair of a
'^ same borough should be a free borough for ever thereafter \'* bridge,
and then proceeding to incorporate them by the name of the* bailifis
and burgesses, &c. And this, it was considered, would, without
more, imply a new incorporation. But the same charter recited
that it was an ancient bcroughy in which a guild was theretofore
founded, and endowed with lands, out of the rentSy revenues^ and
profits of which a school and an alms-house were maintained, and
abridge was from time to time kept up and repaired; which ^ild
was then dissolved, and its lands lately come into the king's
hands ; and further recited that the inhabitants of the borough,
from time immemorial, had enjoyed franchises, liberties, free cus-

(a) Rex V. Machynlleth, anle, 325.

{b) Rex V. the Inhabitants of Ox-
fordshire, 4 B. and C. 194. And it
Deems that even if the fact of adequate
funds in the hands of the trustees had
been averred and proved, the county
would still have been primarily liable,
and must have taken their remedy
against the trustees. Bayley, J. said,
*'lt was necessary to allere in the
'* plea, aed prove at the trial, that the

*' trustees had funds adequate to the
*' repair of this bridge. £ven tlien, I
" thmk, a valid defence would not
" have been made out ; for the public
" have a right to call upon the inha-
'* bitants of the county to repair, and
** they may look to the trustees under
** the act" /</. 197. And see the opi-
nions of Holroyd, J.and Littiedale, J.
And see Rex v. Nethertong, and other
cases, auto, 321.

3^

22 Hen. 8.
c. 25. enacts
as to the re-
pairing of
bridges.

C(

IC

Of Nuisances to Public Bridges, [book il

toms, jurisdictions, privileges^ exemptions, and immunities, by
reason and pretence of the guild, and of charters, grants, and con-
firmations to the guild, and otherwise, which the inhabitants could
not then hold and enjoy by the dissolution of the guild, and for
other causes, by means whereof it was likely that the borough and
its government would fall into a worse state without speedy re-
medy; and that thereupon the inhabitants of the borough had
prayed the king's favour (for bettering the borough (md government
thereof, and /or supporting the great charges which from time to
time they were boimd to sustain,) to be deemed worthy to be made,
&c. a body corporate, &c. And thereupon the king, after granting
to th^ inhabitants of the borough to be a corporation (as before
stated), granted them the same bounds and limits as the borough
and the jurisdiction thereof from time immemorial had extended
to. And then '^ willing that the alms-house and school should be
kept up and maintained as theretofore, (withoiit naming the
bridge) and that the great charges to the borough and its inhor
^* bitants from time to time incident might be thereafter the better
^' sustained and supported,** granted to the corporation the lands of
the late guild. There was also evidence by parol testimony, as far
back as living memory went, that the corporation had always re-
paired the bridge. And the court held that, taking the whole of
the charter and the parol testimony together, the preponderance of
the evidence was, first, that this was a corporation by prescription^
• though words of creation only were used in the incorporating part
of the charter of £dw. 6.; and, secondly, that the burden of re-
pairing the bridge was upon such prescriptive corporation, during
the existence of the guild, before that charter ; though the guild
out of their revenues had, in fact, repaired the bridge, but only in
ease of the corporation, and not ratione tenurte ; and that the
corporation were still bound by prescription, and not merely by
tenure. A verdict, therefore, against them upon an indictment
for the non-repair of the bridge, charging them as immemorially
bound to the repair of it, was held to be sustainable, (m)

The statute 22 Hen. 8. c. 6. called the statute of bridges, and
made in affirmance of the common law, enacts, that the justices of
the peace in every shire, franchise, or borough, or four of them,
whereof one to be of the quorum, may inquire and determine, in
their general sessions, of annoyances of bridges broken in the
highways ; and make such process and pains on every presentment
against the persons charged, &c. as the King's Bench is used to do,
or as it shall seem by their discretions to be necessary and conve-
nient, (n) It then enacts, that where it cannot be known what
hundred, city, town, &c. ought to make such bridges decayed, they
shall, if without city or town corporate, be made by the inhabitants
of the shire or riding ; and if within any city or town corporate,
then by the inhabitants of such city or town corporate; and
that if part shall be in one shire, &c. and part in ainother, the
inhabitants of each shall repair and make such part as lies within
their respective limits, (o) The statute then proceeds (after making

(m) Rex V. the Mayor, &c. of Stral- (n) S. 1 .
ford upon Avon, 14 Bust. S48. (o) S. 8, 3.

cffAP. XXX. $ 4] By not Repairing. 347

provisions for the taxing of the persons liable to contribute to the And as to the
repairs and for the appointment of collectors, &c.) by enacting that 3oc^?i>f the
such parts of highways as lie next adjoining to the ends of bridges, highways next
by the space of three hundred feet, shall be amended as often as adjoining to
need shall require ; and that the justices, or four of them, whereof d"«sc».
one to be of the quorum, within their several limits, may enquire
and determine, in their general sessions, all annoyances therein,
and do in every thing concerning the same in as ample a manner
as they may do for making and repairing bridges, by virtue of the
act. {p) It has been holden in the construction of this statute
that no private bridges are within its purview, but only such as
are common in the highways where all the king's liege people
have or may have passage, {q) Unless the justices of a town, &c.
be four in number, and one of the quorum, they have no jurisdic-
tion under this statute. But the justices of the county in which
such town (not being a county of itself, and not having the
number of justices,) shall lie, may determine as to the annoy-
ances of bridges within the town, &c. if it be known for a cer-
tainty what persons are bound to repair them : but if it be not
known, it seems that such annoyances are left to the remedy at
common law. (r)

It appears adso to have been holden, that where the king enlarges Where the
the boundaries of a city, by annexing part of the county to the county of a
county of the city, the enlarged part is to be considered as parcel ©df i"nuiy*be"
of the old county of the city, so as to charge its inhabitants with liable to repair
the repairs of bridges which were situate, at the time when the J.^"?8c»n^^e
statute 22 Hen. 8. c. 5. was made, within the county at large. ^JJ ^ ^
The point was put upon the ground that the statute lays no ab-
solute charge till a bridge, is in decay; so that though, when the
statute was made, the bridges in question were witliin the
county of Norfolk, yet, as they were not then in decay, the sta-
tute had no operation upon them before they were annexed to the
city of Norwich, {s)

But though the inhabitants of a county, by common right, and No persons
other persons, by the obligations which have been mentioned, are ^ne^ tcTbuilrf
hound to repair existing bridges, no person can be compelled to new bridges,
build, or contribute to the building, any new bridge, without an
act of parliament ; nor can the inhabitants of a county, by their
own authority, change a bridge or highway from one place to
another. (/) Before the statute 14Geo. 2. c. 33. the justices at
the sessions had no authority to change the situation of bridges :
but by that statute they were empowered, at their quarter sessions,
to purchase any piece of land adjoining or near to any county
bridge, within the limits of their respective commissions, for the
more commodious enlarging or convenient re-huilding the same ;

(p) S. 9. 8 Lord Kay ID. 1849.

(q) 1 Hawk. P. C. c. 77. s. 19. and (t) 2 Inst. 700, 701. By Magna

see anle^ 342. Charta it is enacted that nuUa villa nee

(r) 1 Hawk. P. C. c. 77. 8. 80. -S liber homo ditiringatur facer e pontot^

Inst. 708. aut ripartas^ nisi qm ab aniiquo et de

(f ) Rex V. the Inhabitaats of Nor* jurefacere eonsueverunt tempore Hen-

wich, 1 Str. 177. And see also Rex v. rid regis avinottri. And see 8 lost. 89.
tbe Inhabitants of St. Peter in York,

348

By the 43 Geo/

«S« C« Otf* 8« M>

power is given
to justices at
the quarter
sessions to or-
der bridges to
be widened,
&c. or rebuilt
either in the
old situation,
or in one more
convenient.

((

(€
CI
€C

((
C(

ii
tc
tc

C(

Pulling down
an old bridge
before the new
One was pass-
able.

Of Nuisances to Public Bridget, [book ii«

•

but the land was not to exceed an acre for any such bridge, (u) It
was considered by a very learned judge^ that this statute impliedly
enabled the magistrates to alter the position of bridges to suit the
convenience of the public : {v) but a more recent statute expressly
gives them that power where bridges are so much in decay as to
require to be taken down. The 43 Geo. 3. c. 59. s. 2. enacts, ^' that
where any bridge or bridges, or roads at the ends thereof, re-
paired at the expense of any county, shall be* narrow and incom-
modious, it shsdl and may be lawful to and for the justices, at
any of their general quarter sessions, to order and direct such
bridge or bridges and roads to be widened, improved, and made
commodious for the public; and that where any bridge or
bridges, repaired at the expense of ,any county, shall be so
much in decay as to render the taking the same wholly down
necessary or expedient, it shall and may be lawful to and for
the said justices, at any of their said general quarter sessions,
to order and direct the same to be rebuUt, either on the old site
or situation, or in any new one more convenient to the public,
contiguous to or within two hundred yards of the former one, as
to such justices shall seem meet." And the statute also provides
for the purchasing of land necessary for such purposes^ not ex-
ceeding an acre at any one bridge ; and for assessing a compeDS-
ation for such land, by means of a jury, where the surveyor cannot
agree for the price with the owner, in the same manner as is done
by the 13 Geo. 3. c. 78. in relation to highways, {w) By a sub-
sequent statute, 54 Geo. 3. c. 90. s. 1. these provisions, relating to
the purchase of land, are extended to such buildings and other
erections as may be necessary to be purchased for the purposes of
the act of the 43 Geo. 3. ; and the provisions of the 43 Geo. 3.
(except such as relate to bridges thereafter to be re-erected) (x)
are extended as well to bridges, and the roads at the ends thereof,
repaired by the inhabitants of hundreds, and other general divisions
in the nature of hundreds, as to bridges and the roads at the ends
thereof, repaired by the inhabitants of counties.

In a case where the justices of the coimty of Dorset^ proceeding
under this statute, had contracted for the building of a new bridge
in a different site, in lieu of the old one, which was ruinous ; and
had directed the old bridge to be taken down befofe the new one
was passable, for the benefit of the old materials, which were to
be used by the contractor in finishing the new bridge ; the court
refused a writ of prohibition to them, to restrain them from pulling
down the old bridge before the new one was passable : and this,
though there were strong affidavits of the inconvenience and loss
which would be sustained by the people in the neighbourhood, by
being obliged to use a circuitous way in the interval. And they
referred the complainants to the ordinary remedy by indictment, if

(«) 14 Geo. 9. c. 3S. s. 1. It also lices of Glamorganshire, 5 T. H.28S.
proTides for the payment of the land (iv) Anle^ 811. This act of the

out of the county rates; and its con- 43 Geo. 3. is not to extend to bridges

veyance to such persons as the justices repaired by reason of tenure, ic.

shall appoint, in trust for the purposes S. 7.
of the bridge. (x) iV«f, 351.

(t;) By BuUer, J. in Rex r. the Jus-

CHAP. JOix. $ 4.3 By not Repairing. 349

the j^ulling down the old bridg^^ under these circumstances, were
a nuisance ; and did not think there was any occasion to interfere,
by applying a prompt remedy of a novel kind in modern prac-
tke. (y)

The question, whether the inhabitants of a county, from their Counties liable
common law liability to the repair of public bridges, are liable to JlJij'^^rb^'t^'
repair a bridge not originally built by them, appears to have been by pmau per-
formerly a subject of much discussion. But, after able argument sons,
and great consideration, the principle was established ^' that if a
" man build a bridge, and it become useful to the county in gene-
" ral, the county shall repair it." (z) Upon this principle, where
the inhabitants of a township took down an ancient foot-bridge,
which they were bound to repair, and built another, for horses and
carriages, in a different and more commodious part of the river,
which became afterwards of general public utility, it was held that
this bridge should be repaired by the county, and not by the town-
ship, (a) And the same principle of the public being obliged to
support a bridge of public utility has been acted upon in many
subsequent cases, llius the county was held liable to repair a
bridge erected in the king's highway, which, about forty years
before, had been erected by an individual, for his private benefit
and utility, and for making a commodious way to his tin-works,
upon proof that the public had constantly used the bridge from the
time of its being built. (A) And in a case where an old foot-
bridge had been enlarged,, in the first instance to a horse -bridge,
and afterwards to a carriage-bridge, by a township, at their ex-
pense, it was recognized as the general law that where a township,
or any private individuals, build a new bridge, and dedicate it to
the public benefit, and it is used by the public, the onus of repair-
ing it falls upon the county at large, (c) In a* case also where the
doctrine was fully investigated and considered, it Was held that
the county or riding was Uable to the repair of a bridge built by
trustees under a turnpike act, there being no special provision for
exonerating them from the common law liability, or transferring
it to others. (<i)

In a case where it appeared that queen Anne, in the year 1708,
for her greater convenience in passing to and from Windsor castle,
built a bridge over the Thames^ at Daichetj in the common high-
way leading from London to fFindsor, in lieu of an ancient ferry,
witii a toll, which belonged to the crown ; and she and her suc-
cessors maintained and repaired the bridge till 1796, when, being
in part broken down, the whole was removed, and the materials
converted to the use of the king, by whom the ferry was re-esta-
blished as before ; it was held that the bridge was a public one,
repairable by the inhabitants of the county, (e) And in a more re-

isi) Rex V. the Justices of Dorset, shire, 2 East S53. note (a).
15 East. 594. (d) Id. ibid. 2 East. 348. and the cir-

(%) Glusburne Bridge case, 5 Burr, cumstance of the trustees being ea-

2594. SBIac. R. 685. abled to raise tolls for the support of

(a) Id. ibid. the roads was not considered as taking

{b) Rex V. the inhabitants of Gla- the case out of the general principle,
morgan, 8 East. 356. note (a). 1 Bac. (e) Rex v. the Inhabttaots of Bucks,

Ihr. Br(dge$. 12 East. 198.

(c) Rex V. the WestRidiog of York-

$50 Of Nuisances to Public Bridges j [[book t i.

cent case, where the facts were, that a person about forty-five years
before had erected a mill, and dam thereto, for his own profit, by
which means he deepened the water of a ford through which there
was a public highway, but the passage through which was^ before
the deepening, very inconvenient at times to the public, and the
miller had afterwards built a bridge over it, which the public had
ever since used ; it was decided that the county, and not the
miller, were chargeable with the reparation. (/) In this last case
the court was much pressed by an ancient authority to this effect :
'^ If a man erect a mill for his own profit, and make a new cut for
'* the water to come to it, and make a new bridge over it, and the
^^ subjects use to go over this as over a common bridge ; this
" bridge ought to be repaired by him who has the mill, and not
" by the county, because he erected it for his own benefit/' (g)
And as that authority seemed to constitute an anomaly in the law,
and to be at variance with all the cases, the court directed a dili-
gent search to be made for the record of the case ; and it was at
length found in the chapter-house at fTestminster, From this it
appeared that the real question was on an obligaticm to repair by
reason of the tenure of certain lands; and that no such questioa
as was supposed, namely, of a legal obligation resulting from the
building of the bridge by the mill owner for his benefit, was ever
directly or indirectly decided, or could properly have been argued. (A)
Relieved, therefore, from this case, the court considered the au-
thorities from first to last as uniform ; and as establishing the doc-
trine that if a private person build a private bridge, which after-
wards becomes of public convenience, the county is bound to re-
pair it. (f)

In these cases there is always that which is to be considered as
an acquiescence by the county. The county is not liable, except
for bridges made in highways ; and as the making of the bridge,
and thereby obstructing the road while the bridge is making, may
be treated as a nuisance, and the county may, if it think fit, stop
its progress by indictment, the forbearing to prosecute in that way
is an acquiescence by the county in the building of the bridge, {k)
A bridge built But though a bridge built by an individual may thus become
mthout public public, yet it will not become so from the mere circumstance of
Qtilitv, orco- j^ being built in a public way : and it appears to have been con-
charge i^e sidered that a bridge built in a public way, without public utility^
county, may or built colourably in an imperfect or inconvenient manner, with a

(/) Rex V. tiie inhalntents of Kent, ants of JFUtiy 1 Salk. S59. With re-

8 M. and S. 513. spect to the property id the materials

(gr) 1 RolK Abr. 368. citing the of a bridge, 'when built and dedicated

8 Edw. 9. as adjudged in B. R. for Bow to the public, it appears to have been

bridge and C%imii^/ bridge, against the decidea that it stiii continues in the

prior of Stratford, individual, subject to the right of pas&-

{h) See a copy of the record in this age by the public, so that, whense-
case of the Strafford bridge, in 2 Af. and vered and taken away by a wrong doer,
S. 620. tffafftt. It contains matter of he may maintain trespass for tne as-
great curiositr. portation. Harrison o. Parker and

(0 Rex V. the Inhabitants of Kent, another, 6 East. 154.

8 M. and S, $20. This doctrine ap- (^^.^J Bajley, J. in Rex v. the In-;

pears to have been laid down long habitants of St. Benedict, 4B. ^ Ar

ago in a case cited by ^orthey, at- 450. Ante, SftU
tomey geoeral* in Sex o. the Inhabit-

be a noisance.

CHAP. XXX. § 4.] By not Repairing. 361

view to throw the burthen of rebuilding or repairing it immediately
on the county, may be indicted as a nuisance. (j) A protection is And by 43 O. .
also given to counties by the 43 Geo. 3. c. 59. from the burthen ^^^^' ^^^''
of repairing certain bridges, erected after the passing of that sta- ^c charged
tute. The fifth section, for the more clearly ascertaining the de- with the re-
scription of bridges, theraafter {k) to be erected, which inhabitants S*^®^')'^^^'
of counties shall be liable to repair and maintain, enacts, " that no pminy of that
** bridge hereafter to be erected or built in any county, by or at the atatute, unless
" expenseof any individual or private person or persons, body politic g^tUdm"*-"
or corporate, shall be deemed or taken to be a county bridge, or a ncr, to the sa-
bridge which the inhabitants of any county shall be compellable tisfaction of
'^ or liable to maintain or repair, unless such bridge shall be erected g^^^" p*^
*' in a substantial and commodious manner, under the direction or
*^ to the satisfaction of the county surveyor, or person appointed
by the justices of the peace at their general quarter sessions as-
sembled, or by the justices of the peace of the county of Lan-
cctsteTy at their annual general sessions ; and which surveyor, or
*^ person so appointed, is hereby required to superintend and in-
*' spect the erection of such bridge, when thereunto requested by
'^ the party or parties desirous of erecting the same ; and in case
^^ the said party or parties shall be dissatisfied, the matter shall
** be determined by the said justices respectively at their next ge-
*' neral quarter sessions, or at their annual general sessions in the
'* county of Lancaster/' {I) It has been observed, upon this sta-
tute, that as it was passed to limit the liability of the county to
those cases only where the new bridge is substantially built, it
shews suflBciently, that by the common law they would otherwise
be liable to the repair of all new bridges which might be erected
within their district, (m)

It may be useful shortly to notice a few cases in which counties Cases where
have been holden not to be liable to repair certadn bridges built by conntics have

. _^ J J,' ^ i. £ 1' ^ ^ oeen bolden

companies or trustees under particular acts of parliament. not to be lia-

Where the Medway Navigation Company, being empowered Wc to repair
under a local act to make the river navigable, and to take tolls, by companies
and '^ to amend or alter such bridges or highways as might hinder ortmateesun-
** the passage or navigation, leaving them or others as conveiiient ^^'^ particular
*' 171 their rooniy* had, forty years before, destroyed a ford across ^fj^^ P^rlia-
the river in the common highway, by deepening its bed, and built
a bridge over the same place ; it was held that they were bound to
keep such bridge in repair, as under a continuing condition to pre-
serve the new passage in lieu of the old one^ which they destroyed
for their own benefit, (n)

A case not distinguishable in principle from the foregoing was
decided shortly afterwards. A Canal Company, authorized by an
act of parliament to make the river Bain navigable, and to make

(J) Rex r. the InhabitaDts of the porate, is, are, or shall be liable to

West Ridini^ of Yorkshire, 2 East, maintain or repair by reason of tenure

34S. ^fi/^, S43. or by prescription, or to alter or affect

(Ar) The date of the act is June C4, the right to repair such bridges or

1803. roads.

(/) Section 7. provides, that nothing («) By Abbott, C. J. in Rex v. Ne-

in the act contained shall extend to thertong, 2 B. & A. 188.

any bridges or roads which any per- (n) Rex v. the Inhabitants of Kent»

800 or persons, bodies politic or cor- l9 East. 220. ''

8^2 Of Nuisances to Puhlio Bridges, [book if.

and enlarge certain navigable cuts, and build bridges and other
works connected with the navigation^ made a navigable cut, and
deepened a ford which crossed the highway, for their own benefit,
and thereby rendered a bridge necessary for the passage of the
public, which was accordingly built at the expense of the com-
pany in the first instance : and it was held that the company (who
were found to have profitable funds for the purpose) were bound
to maintain it. (n)

The 49 Geo. 3. c. 84. appoints trustees for taking down the old
and building a new bridge over the river Tone, and empowers
them to take tolls j^ and enacts, that it shall be lawful for them,
out of the monies received, to build a new bridge, &c. and
vests the property in the old and new bridge, during the con-»
tinuance of the act, in the trustees ; and further enacts, that as
soon as the purposes of the act shall be executed, then and from
thenceforth the tolls shall cease, and the bridge, &c. shall be re-

E aired by such persons as are by law liable to repair the old
ridge. Upon this statute it was decided that, during the time the
trustees were engaged in executing the powers of the act, and be-
fore they had completed them, the county was not liable to repair
the bridge, (o)

The commissioners appointed by the statute 22 Car. 2. to make
the river fFaveney navigable, were authorized to cut through any
land they thought fit, and make channels, l^ey cut through a high-
way ; and that cut made a bridge over it necessary for the public,
though such bridge was of no use to the navigation. A bridge
was accordingly mdde, but by whom did not appear; and the
bridge being out of repair, an indictment was preferred against the
proprietor of the navigation (who received tolls upon the naviga-
tion) for not repairing it. Upon a case reserved he contended that
he was not liable : but the court held clearly that he was ; for by
the act of his predecessors the bridge was made : they cut, not for
public purposes, but for private benefit ; and the county could not
be called upon, for it could be no advantage to them to have a
bridge in lieu of solid ground. \a)
Of thcUabaity It has been seen, (;>) that by the statute 22 Hen. 8. c. 6. it is
aoof^^of the enacted, that such parts of highways as* lie next adjoining to the
ToadB adjoin- ends of bridges, by the space of three hundred feet, shall be
ingto the ends amended as often as need shall require : but it does not say by
^ n S«»' whom they shall be amended. It proceeds, however, to provide
that the justices may enquire and determine and do in every thing
concerning the same in as ample a manner as they may do for
making and repairing bridges by virtue of that act. {q) It has
been decided that by the common law, declared and defined by this
statute, and other subsequent statutes, (r) the inhabitants of a
county, liable to the repair of a public bridge, are liable also tp re-

(fi) Rex V. the Inhabitants of Lind* lend its aid to expedite their fiiac-

sej, in Lincolnshire, 14 ^ast. SI 7. tions.

(o) Rex V. the Inhabitants of Somer- (a) Rex v. Kerrison, S M. & S. 5S6»
set, 16 East. 305. Lord Eltenborou^h, (p) AntCy 346. 347.
C. J., intimated an opinion, that if the {q) Ante, Ibid,
trustees were dilatory in executing (r) 1 Anne* st 1. c. 18* a» 9t ^» ^^

the powers of the* act« the court or aad 19 Geo* 8. c. 89.
Ktng^ Bench, opoD applicatioo, would

CHAP. XXX. ^4.3 By not Repairing. S5S

pair to the extent df three hundred feet of the highwav at each end
of it : and that, if indicted for not repairing such highway, they
can only exonerate themselves by pleading specially that some
other is bound to repair it by prescription or tenure, {s) And it
seems that private ^rsons are equally liable. (2) But where a new
and substantial bridge, of public utility, was built within the Umit
of one county, and adopted by the public, it was held that the in-
habitants of that county were bound to repair it, although it was
built within three hundred feet of an old bridge, repairable by the
inhabitants of another county, who were bound as a matter of
coarse uilder the statute 22 Hen. 8. c« 6. to maintain three hun-
dred feet of road adjoining to their bridge, though it lay in the
other county. The court said, that whue the space where the
bridge was built continued a road, it was repairable as part of the
old bridge ; but that when there was a substantial bridge built
upon it, such bridge was repairable, as a bridge by the inmtbitants
of the county in which it was situated, according to the statute. (/)

It seems clear that those who are bound to repair public bridges Those who are
must make them of such height and strength as shall be answer- liable to re-
able for the course of the water, whether it continues in the old (^JiJ^t^^**
channel, or makes a new one ; and that they are not punishable ^ ^ ^'
as trespassers for entering on any adioining la^d for such purpose,
or for laying on the materials requisite for such repairs, (u) A
case occurred in which the court of King's Bench strongly inti-
mated an opinion, that if a bridge used for carriages, though for-
merly adequate to the purposes intended, were not of a sufficient
width to meet the present public exigencies, owing to the increased
width of carriages, the burthen of widening it must be borne by
those who are bound to repair the bridge : (w) but, when the same
case came before the house of Lords on error, this point appears
to have been considered as doubtful, (x) And, in a recent case,
the court of King's Bench held, that the obligation upon a county
is only to repair a bridge to the extent to which that bridge has
been originaUy j^ven to the public, and that they are not bound to
widen it. (a)

The taxing and collecting monies for the repairing of bridges. Of the mode
and the highways at the ends thereof, were regulated in the first ^l procuring
instance by 22 Hen. 8. c. 6., and afterwards by the 1 Anne, stat. 1. J^c ^^ ot
c. 18» by which the justices at their quarter sessions were em- bridi^es, and
powered, upon presentment of any bridge being out of repair, to of contribu-
niake assessments upon every town or place within their commis- ^ ^°'
dions for the charges of the repairs. The 12 Geo. 2. c. 29. s. 1.,

{i) Bex p. the Miabitants of the (v) Rex v. the Inhabitants of Com-

WeatRidlltf of YorkBhire, 7 East 588. berlaad, 6 T. R. 194.

and the Joclgiiient vras afterwards af- (#) Cumberland Inhabitants v. R^.*

firmed in the house of Lords, 5 Taunt. S Bos. and Pul. 354. But Uie juog-

284. ment of the c6art of King's Bench

(x) 3 Chit. C. L. 589. was affinned upon the ground that,

<l> Rexv.the Inhabitants of Devcm, after Terdict, it must be presumed

14 East. 477. that the over-oaFrowness of tke bridge

(a) I Hawk. P. C. c. 77. s. 1. I Bac. arose from its haTiag been coatracted

Abr. UrMSgrt. 43 Ass. al. 87 Br. tit. from its ancient width.

Preaenimeniin Cowi$,^, W>90.'Jh\i. (a) Rex v. Inhabiteats of Devon,

c. 14. Mich. T. e G. 4.

VOL. J. 2 A

354 Of Nuisances to Public Bridges. [book if.

for the better collection of such monies, appointed that they should
be paid out of the general county rate : but that statute enacted,
that no money should be applied to the repair of any bridge, until
a presentment should be made by the grand jury of its want of re-
paration. The 43 Geo. 3. c. 59. s. 2., which provides for the
amendment and alteration of county bridge8,(y) also enacted, that
no money should be applied to such purposes until presentment
made of the insufficiency or want of reparation of such bridges.
B5 6.3. c. 143. The statutes 52 G. 3. c. 110. and 55 G. 3. c. 143. make alterations
Justices, &c. in this respect and in other matters relating to the proceedings of
for^he repair- ^® justices for the repairing of bridges repairable by counties or
inir of county hundreds. The last of these statutes enacts, that ^' it shall and
or hundred « may be lawful to and for the justices of the peace of any county,
iiie roadB'^- " ^^^Y^ "ding, division, town corporate or liberty, at their general
joining, and ^^ quarter sessions respectively, to contract and agree, or to au-
order pay- « thorize any other person or persons to contract and agree, with

mentoutof cc c a.\. • i. • • j i • •

the county ^^7 person or persons, for the maintammg and keeping in

rate, or by the ^^ repair any county or hundred bridge, and the road over
of'SPh*"'*^' " *^^^ county or hundred bridge, and so much of the roads at
dred,aiaiough '^ ^^^ ^'^^^ thereof as are by law liable to be repaired at the ex-
no present- '^ pense of any such county, hundred, city, riding, division, town
hln^'bee ^* '* ccwpporate or liberty, or any part of the same ; and the said jus-
made, nor no- '^ ^^^^^ ^^ hereby empowered to order such sum or sums of money
tice given ac- *^ as may be contracted for and agreed to be paid for the repairing,
Geo'?c^29^ " amending, and supporting such bridges, and the roads over the
But notices of ^^ Same, or tiie ends thereof, to be paid (in cases where the county
the intention ** is liable to the repair thereof) by the treasurer of the county
to bc'giVen^ " °"* ^ ^^ countv rate, or (in cases where the hundred is liable
A public paper. ^' to the repair of the same) by the bridge-master (or other public

'' officer Charged with the repair of bridges) of the hundred by
'^ which such bridge is liable to be repaired, for any term not ex-
'^ ceeding seven years, nor less than one, although no presentment
^^ of the insufficiency, decay, or want of repair of the same, shall
'^ have been made, and although no public notice shall have been
^^ given by the said justices, at their respective general or quarter
'^ session, of their intention to contract for the repair of such
'^ bridges, or the roads at the ends thereof, as respectively directed
'^ by the said act (12 Geo. 2. c. 29.) provided nevertheless that,
'^ before any such contract shall be made, the said justices shall
'^ cause notices to be given in some public paper circulated in such
^^ county, city, riding, hundred, division, town corporate or liberty,
'^ of their intention to contract." (s) By the statute 22 Hen. 8.
c. 5. s. 3. it was provided that where part of a countv bridge shall
he in one shire, &c. and part in another, the inhabitants of each
qhirc, &c. shall be contributory, (a) And it has been questioned
whether a borough, which has no bridge within its own limits, be
ndt ^ble to contribute to the repairs of a county bridge, {b)

i^) JnU, 84^. Clifton, 5 T. B. 501, 9. The ofmal

(s) 55 Geo. 3. c. 14S. a. 5. proceeding at this time appears to be

(a) This provision is alluded to by to indict each county. separatdj, for

Lord Mansfield* C.J. in Rex v. the. neglecting to repair its own division. .

InhabiUnts of Weston, 4 Burr. 8511. (b) 1 Hawk. P. C. c. 77. s. 25. 1

and by counsel arguend, in Rex v. Keb. 6S.

CHAP. XXX. § 4.] Indictment. 355

Where certain townships had enlarged a bridge to a carriage-
bridge, which they were before bound to repair as a foot-bridge,
it was held that they should still be liable to repair pro rata.{c)

The methods of appointing surveyors, &c. for effecting the
repairs or re-building of bridges; and the powers given to such
surveyors, and persons employed under contracts, to procure
materials for such purpgses, are contained in different acts of
parliament, the provisions of which do not fall within the object
of this Work, (d)

Where those upon whom the liability rests of repairing public Proceedings
bridges neglect their duty, such non-feazance is a nuisance to the fornuiaanccs
public, punishable by information, presentment, or indictment, i^foraftion^
An informcUion was held to lie in the court of King's Bench for presentment,
the non-repair of a bridge in a case where it was considered that or indictment,
the statute of 22 Hen. 8. c. 5. gave only a concurrent, but not an
exclusive, jurisdiction to the sessions : (e) but probably it would
not be granted, except in some case of a peculiar nature, in w'hich
the court might be satisfied that the purposes of justice would not
be effected by an indictment. The more usual course of proceed-
ingis by indictment or presentment. (/)

The statute 22 Hen. 8. c. 5. s. 1. gave power to the justices of Proceedings
the peace to hear and determine in their general sessions all an- «>f Justices in
noyances of bridges broken in thp highways, and to make process, ■*"**'"-
&c. as the King's Bench used to do. The fifth section of that
statute enacted, that where any bridge is in one shire, and the
persons or lands, which ought to be charged, are in another shire;
or where the bridge is within a city or town corporate, and the
persons or lands that ought to be charged are out of the said city;
the justices of such shire, city, or town corporate, shall have
power to hear and determine such annoyances, being within the
limits of their commission ; and if the annoyance be presented,
then to make process into every shire of the realm against such as
ought to repair the same, and to do further in every behalf as they
might do if the persons or lands chargeable were in the same
shire, city, or town cori>orate where the annoyance is.

Any particular inhabitant or inhabitants of a county, or tenant Of the indict-
or tenants of land chargeable with the repairs of a public bridge, "*^"*'
mav be made defendants to an indictment for not repairing it, and
be liable to pay the whole fine assessed by the court for the default
of such repairs; and shall be put to their remedy at law for a con-
tribution fi'om those who are bound to bear a proportionable share
in the charge, {g) The indictment ought to shew what sort of

(c) Rex V. the Infaahitants of the that an action ivill not lie by an indi-
West Riding of Yorkshire, 2 East, vidnal against the inhabitants of a
S53. note (a)\ and see Rex v. the In- • county for an injury sustained from a
habitants of Surry, S Campb. 455. count? bridge being out of repair.

(d) See them collected in 1 Bum. . Russei «. Men of Devon, % T. R. 607.
Just. Bridget yi.,and see aho the late {g) 1 Hawk. P. C. c. 77. s. S. 1 Bac.
act 55 Geo. 3. c. 143. By the 43 Geo. Abr. Bridget^ where the reason given
3. c. 59. s. 4. inhabitants of counties is, that cases of this nature require the
may sue for damages done to bridges greatest expedition t and bridges being
in tne name of the surveyor. of the utmost necessity are not to lie

(e) Rex V. the Inhabitants of Nor- uarepaired till lawsuits are deter-
wich, 1 Str. 177. mined.

(/> 2 Inst. 701. It has been held

2a2

356 Of Nuisances to Public Bridges. [book ii.

bridge it is; whether for carts and carriages, or for horses or foot-
men only : and if the duty to repair arise by reason of the tenure
of certain lands, the indictment must shew where those lands
lie. {h) It has been holden, that an indictment charging an indi-*
- vidiial with the repair of a bridge, by reason of his being owner
and proprietor of a certain navigation^ is not equivalent to charg-
ing him ratione tenune, but is erroneous; and, if judgment be
given thereon, it will be reversed upon a writ of error. And it
seems that a count, charging an individual by reason of being
owner of a navigation under a private act of parliament, must set
forth the act. And it is not sufficient to state that such party is
chargeable, by being owner and proprietor of the property subject
to the charge, {i) In presentments by the grand jury, it is said
that there is no occasion to shew who ought to repair; and that
it is sufficient if the defect be shewn, and the bridge stated to be
public. (At)
Of the plea. It is laid down, that it is not sufficient for the defendants in an

indictment for not repairing a bridge to excuse themselves by
shewing either that they ^re not bound to .repair the whole or any
part of the bridge, without shewing what other person is bound to
repair it, and that in such case the whole charge shall be kdd
upon the defendants by reason of their ill plea, (i) But it is sub-
mitted that, from analogy to the case of highways, this doctrine
must be understood only of indictments against the county, and
not of indictments against individuals, or bodies corporate, who
are not of common right bound to repair; because, as it lies on
the prosecutor speciafiy to state the grounds on which such per-
sons are liable, they may negative these parts of the charge under
the general issue, {m) And it has been holden upon an informa-
tion for not repairing a bridge, that the defendants, if not chai^-
able of common right, may discharge themselves upon the general
issue, {n) But it is clear that the inhabitants of a county, in order
to exonerate themselves from the burden of repairing a bridge
lying within it, must shew by their plea that some other person is
hable to repair, (o) It has, however, been recently decided, that
it is competent to the inhabitants of a county, upon the general
issue, to give evidence of the bridge having been repaired by
private in£viduals. But this evidence appears to have been con-
sidered barely admissible as a medium of proof that the bridge was
not a public bridge, which undoubtedly the defendants had a right
to prove by every species of evidence : and the coiurt seemed to
think that it woiUd have but little effect ; though, in order to ascer-
tain whether a bridge be public, the mode of its construction,
and the manner of its continuance, may be circumstances which,
as they are connected with others, may haVe much or little
weight, {p)

(A)lHawk. P.C.C.77..S. fi. wich, 1 Str. 117. and see mie, 331,

(i) Rex V. KerrisoD, 1 M. ao4 S. 4S5. SSS.

(k)S Chit Criiii. Law, 592. citing (o)Rez «. the lofaabilaiits of Wilts,

Andr. 885. 1 Salk. 859. 8 Lord Raym. 1174.

(0 1 Hawk. F. C. c. 77. s. 4. 1 Bac (p) Rex v. the Inhabitaats of Kortb-

Ahr. Bridg€i$, 1 Burn. Just. BridgCB^ V. ampton, 8 M. aad & 868. . If ahishop,

(in) S Chit. Crim. L. 598. &Cb hath once or twice of alas re-

(fi) Rex V. tbc^ Inhabitants of Nor- paired a brid^, this binxls liot : bot

CHAP. XXX. $ 4.] Plea. 357

To au indictment for not repairing a bridge described as lying

in two parishes, it is no pica that there has been a verdict and

judgment against J. S. finding him liable to repair it rtitione te-

nurcs^ upon a presentment describing it as lying in one of the

parishes; for he may be liable to repair only what is in one parish.

The information was against the comity of Essex for not repairing

Dagenham bridge, in the several parishes of Homchmrch and Da-

genham ; and the plea was that Knatchbull and Fanshaw had been

presented for not repairing it ratione tenured of lands in Barking,

and that a verdict and judgment had passed against Fanshaw ;

and to this there was a demurrer, because the presentment stated

in the plea deticribed the bridge as in Dagenham parish. And the

court said that Fanshaw might be bound to repair what was in

Dagenham parish, and the county might be bound to repair the

rest; and gave judgment for the King. (a)

It is said, that where the defendants plead that an individual
ought to repair the bridge mentioned in the indictment, and take
a traverse to the chaise against themselves, the attorney general,
in this special case, may take a traverse upon a traverse, and in-
sist that the defendants are bound to the repairs, and traverse the
charge alleged against the individual : and that an issue ought to
be taken of such second traverse; and that the attorney-general
may afterwards surmise that the defendants are bound to repair it,
and that the whole matter shall be tried by an indifferent jury, {q)
But where the inhabitants of a county are indicted for not repair-
ing a bridge, and they throw the charge upon another, they ought
not to traverse their obligation to repair; as it is a traverse of a
matter of law, and might be made the subject of demurrer, (r)

Where to an indictment against a riding for not repairing a The plea must
public carriage bridge the plea alleged that certain townships had correspond
immetmmaUy used to repair the said bridge, it was held that evi- ^^^^ ^^ ^""**'
dence that the townships had enlarged the bridge to a carriage
bridge, which they had before been bound to repair as a foot
bridge, would not support the plea, (s) And, upon the same prin-
ciple, where it was proved that a particular parish was bound by
prescription to repair an old wooden foot bridge, used by carriages
only in times of flood, and that about forty years ago the trustees
of the turnpike road built on the same site a much wider bridge
of brick, which had been constantly used ever since by all car-
riages passing that way; it' was holden that these facts did not
support a plea pleaded by the county .that the parish had imme-
warially repfured, and still ought to repair, the said bridge, {t)
In a case where the county was indicted for not repairing a
bridge, and pleaded that one Marsack was liable to repair ratUme
tenura, it was holden that this plea was not sustained by evi-

yet it is evidence against him, that he (s) Rex o. the Inhabitants of the

ou|(ht to repair, unless he proves the West Riding of Yorkshire, 8 East S5S.

contrary, 8 Inst. 700. note (a).

{a) Rex V. Essex county, T. Raym. (/) Rex v. the Inhabitants of Surry,

38-1. S Campb. 455. The facts would not

(q) 1 Hawk. P. C. c. 77. s. 5. I Bac. have availed the county if the plea

Abr. Bridget, had been framed diffierently, as the

(r) AiUe^ 332. and the authorities county was clearly liable to the repair

there cited. of the new bridge. See ante^ 349.

358

Of the trial.

Inhabitants of
counties to be
admitted as
witnesses in
prosecutions
against pri-
vate persons,
&c.

Of the judg-
ment.

Of staying the
judgAent.

Of Nuisances to Public Bridges, [book. ii.

dence that the estate of Marsack was part of a larger estate;
which part Marsack purchased of the Lord Cadogan^ who had
retidnea the rest in his own hands, and had repaired Uie bridge
as well before as after the purchase, {u)

The 1 Ann. st. 1. c. 18. s. 5. enacts, that all matters concerning
the repairing and amending of bridges and the highways there-
unto aajoining shall be determined in the county where they lie,
and not elsewhere : but it seems that objection may be made to
the justices where they are all interested, and that in such case
the trial shall be had in the next county, (w) And no inhabitant
of a county ought to be a juror for the trial of an issue, upon the
question whether or not the county be bound to repair, (x) So
that where the matter concerns the whole county, a suggestion
may be made of any other county's being next adjacent : (y) and
if the bridge lies within the county of a city, and the question is,
whether the county of the city, or the county at large, ought to
repair, on a suggestion of these facts on the record, the venire wiU
be awarded into the county adjacent to the larger district. {%)

Inhabitants of counties may be witnesses in prosecutions against
private persons or corporate bodies for not repairing bridges.
The 1 Ann. stat. 1. c. lo. s. 13. reciting that many private per-
sons, or bodies politic or corporate, were of right obliged to repair
decayed bridges, and the highways thereunto adjoining, and that
the inhabitants of the county, riding, or division, in which such
decayed bridges or highways lay, had not been allowed, upon in-
formations or indictments against such persons or bodies for not
repairing them, to be legal witnesses; enacts, that in all informa-
tions or indictments in the courts of record at TFestminster, or at
the assizes or quarter sessions, the evidence of the inhabitants of
the town, corporation, county, &c. in which such decayed bridge
or highway lies shall be taken and admitted. Even before this
statute such evidence had been thought admissible from neces-
sity, (a)

As a prosecution for a nuisance to a public bridge has for its
object the removal of the obstruction, or the eSecting of the ne-
cessary separations, the judgment of the Court upon a conviction
will generally be regulated by the same principles as those which
have been mentioned in relation to the judgment for a nuisance to
a highway. (A) The stat. 1 Ann. stat. 1. c. i8. s. 4. enacts, that no
fine, issue, penalty, or forfeiture, upon presentments or indict-
ments for not repairing bridges, or the highways at the ends of
bridges, shall be returned into the Exchequer, but shall be paid
to the treasurer, to be applied towards the repairs. But this
seems only to relate to county bridges.

Where a county indicted for not repairing a bridge had pleaded
a plea which their evidence did not support, and were in conse-

(m) Rex V. the Inhabitants of Ox- 6 Mod. 807. and see 1 Salk. 380. 8 Ld.

fordshire, 1 6 East. SS3. Raym. 1 174.

(w) Re^ V, the Inhabitants of Nor- (t) Rex v. the Inhabitants of Nor-
wich, 5 Geo. 1. cited in 2 Burr. 859» wicb, I Sir. 177. 3 Chit Crira. L. &9S.
860. 1 Burn. Just. Bridf^es^ V. (a) Rex v. Carpenter, 8 Show. 47.

(x) I Hawk. P. C. c. 77. s. 6. (b) AnU^ 335.

(y) Reg. V. the Inhabitants of Wilis,

ran.

CHAP. XXX. § 4.] Certiorari, 359

quence found guilty,, but the evidence seemed strongly to shew
diat they were not liable to repair ; the Court of King s Bench,
upon a motion for a new trial, or for a stay of judgment against
the defendants until another indictment was tried, directed a rule
to be drawn up for staying the judgment upon pajrment of the
costs of the prosecution : and Lord Ellenborough, C. J., added
that, if the public exigency required it, the county mu§t repair
without prejudice to their case; and Le Blanc, J., said, that the
county might proceed to indict the parties whom they contended
to be liable, (c)

The 1 Ann. st. 1. c. 18. s. 5. enacts that no presentment or in- ^[^ ^^^*^
dictment for not repairing bridges, or the highways at the ends of
bridges, shall be removed by certiorari out of the county into any
other court. But it has been decided that, notwithstanding these
general words of the statute, an indictment for not repairing a
bridge may be removed by certiorari at the instance of the prosecu-
tor.{d) And it has been resolved that this clause of the act extends
only to bridges where the county is charged to repair ; and that
where a private person or parish is charged, and the right will
come in question, the act of 5 W. & M. c. 11. had allowed the
granting a certiorari.{e) A certiorari lies to remove an order made
by the justices concerning the repair of a bridge, * pursuant to a
private act of parliament ; and the justices ought to retain the
private act upon which their order is fowided.(/)

(e) Rex V. the Inhabitants of Ox- S54. And see ante, S34.

fordshire, 16 East. 223. (e) Rex «. the Inhabitants of Ham-

(d) Rex V. the Inhabitants of Cum- worth, 2 Str.900. 1 Barnard. 445. See

beriand, 6 T. R. 194. The case was as to the stat. 6 W. & M. ante, 334.

afterwards brought before the House (/) Dalt 604. 1 Burn*s Justice^

of Lords by a writ of error ; and the Bridget ^ V,
judgment was afiirmed, 3 Bos. & Pul.

360

CHAPTER THE THIRTYPIRST,

OF OBSTRUCTING PBOCBSS^ AND OF DISOBSDIBNCE TO OBDKES OV

SfAGISTRATBS*

SECT. I.

Of Obstructing Process.

upon criminal
process be-
comes parii'
cepi criminit.

Apartyoppos- Thb obBtructing the execution of lawful process is an offence
ing an arrest against pubUc justice of a very high and presumptuous nature;
and more particiilarly so when the obstruction is of an arrest upon
criminal process. So that it has been holden that the party oppos-
ing an arrest upon criminal process becomes thereby particeps
criminis; that is^ an accessory in felony, and a principal in high
treason, (a)

And it should seem that the giving assistance to a person sus-
pected of felony and pursued by the officers of justice, in order to
enable such person to avoid being arrested, is an oflfence of the
degree of nusdemeanor, as being an obstruction to the course of
public justice. Thus, in a late case, an indictment was preferred
against the defendant for a misdemeanor in the obstruction of
public justice by rendering assistance to one Olive, who was sus-
pected of forgery and pursued by the officers of justice, in order
to enable Olive to avoid being arrested. It appeared in evidence
that Olive had committed a forgery, as. stated in the indictment;
and had afterwards, in a state of desperation, thrown himself from
the top of a house, by which he ivas greatly hurt ; and that the
defeumint, who was a relation and commiserated his wretched
condition, conveyed him secretiy on board a barge from Glouces-
ter to Bristol, and was actively employed at the latter place in
endeavouring to enable him to escape from this country in a West

.(a) 4 BU. Com. 198. 2 Hawk. P. C. it is not felonv in the party himself,
c. 17. s. 1., where Eawkins submits who is attacked in order to be arrest-
that it is reasonable to understand the^ ed, to save himself from the arrest bj
books which seem to contradict this such resistance,
opinion to intend no more than that

CHAP. XXXI. § 1.3 Of Obstructing Process. 361

India vessel. It also appeared that advertisements had beea
printed and circulated, stating the charge against Olive^ and
offering a large reward for hi^ apprehension : but it was not
proved that any one of these advertisements had come to the
knowledge of the defendant, or that the defendant was acquainted
with the particular charge against Olive^ or knew that h6 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, (o)

Formerly, one of the greatest obstructions to public justice^
both of the civil and criminal kind, was the multituoe of pretended
privileged places, where indigent persons assembled together to
shelter themselves from justice (especially in London and Souths
work) under the pretence of their having been ancient palaces of
the Crown^ or the like i{b) and it was i&und necessary to abolish
the supposed privileges and protection of these places by several
legislative enactments. The 8 & 9 W. 3. c. 27., 9 Geo. I . c. 28.^
and II Geo. 1. c. 22., enact that persons opposing the execution of
any process in the pretended privileged places therein mentioned,
Gt abusing any officer in his endeavours to^ execute his duty
therein, so that he receives bodily hurt, shaU be guilty of felony,
and transported for seven years : and persons in disguise, joining
in or abetting any riot or tumult on such account, or opposing
any process, or assaulting and abusing any officer executing, or
for having executed the same, are declcured to be felons wiSiout
benefit of clergy, (c)

In some proceedings, particularly in those relating to the exe-
cution of the revenue laws, (d) the Legislature has made especial
provision for the punishment of those who obstruct officers and
persons acting under proper authority. But in ordinary cases,
where the offence committed is less than felony, the obstruction
of officers in the apprehension of the party will be only a misde-
meanor, punishable by fine and imprisonment, (e) ,

It should be observed that a party will not be guilty of this ''***{3*'* ->
offence of obstructing an officer, or the process which such officer tomake^a pS
may be about to execute, unless the arrest is lawful. And in an tj (pxiity of an
indictment for this offence it must appear that the arrest was made obstruction,
by proper authority. Thus where an indictment for an assault^
false imprisonment, and rescue, stated that the judges of the court
of record of the town and coimty, &c. of P. issued their writ,
directed to T^B., one of the Serjeants ai mace of the said town and
county, to arrest W., by virtue of which T. B. was proceeding to
arrest W. within thejurisdiction of the said court, but that the
defendant assaulted T. B. in the due execution of his office, and
prevented the arrest ; the Court held that it was bad, as it did
not appear that T. B. was an officer of the court ; a- Serjeant at

(a) Rex V, Buckle, cor. Giirrow, B. of Olive's crime at the time that he

Glouee$ler Spring Ass. 1 82 1 • Olive bad rendered the assistance,

died by suicide soon after the defend- (b) The WhiU Friars and its envi-

anf s attempt to prevent his arrest, so rons, the Savoy ^ and the Mint in SouUt'

that the deiendant could not have been wark^ were of this description,

eflfectively prosecuted as an accessory (c) 4 Bla. Com. 188, 129.

after the fact to the forgery, even if it (d) Anle^ p. 1 17, et teq,

could have b<ien proved that he knew {e) % Chit. Cr. L. 145, note (a).

362 Of Obstructing Process. [book ii.

mace ex vi termini meaning no more than a person who carries a
mace for some one or other. And the Court also held that there
could not be judgment^ after a general verdict on such a count, as
for a common assault and false imprisonment ; because the jury
must be taken to have found that the assault and imprisonment
were for the cause therein stated ; and that cause appeared to'have
been the attempt by the officer to make an illegal arrest. (/) Lord
Ellenborough, C. J.^ said, '^ process ought always to be directed
^^ to a proper known officer ; otherwise, if it may be directed to
^^ any stranger, it might be resisted for want of knowledge that
^' the party is an officer of the court. Then, taking the whole
^* count together, the jury in effect find that there was an assault
'^ and imprisonment, but committed under circumstances which
'^ justified the defendant. For if a man without authority attempt
*' to arrest another illegally, it is a breach of the peace ; and any
" other person may lawiFulIy interfere to prevent it, doing no more
'f than is necessary for that purpose ; and nothing further appears
" in this esse to have been aone."{g)
But where the But where the process is regular, and executed by the proper
?T^i** 4TC officer, it will not be competent even for a peace officer to obstruct
execution of it him. On the ground that the execution of it is attended with an
be attended affray and disturbance of the peace ; for it is an established prin-
eren apea^' ^^P^® ^^^^ ^ ®°®» having a sufficient authority, issue a lawful com-
officer must mand, it is not in the power of any other, having an equal autho-
not interpose nty in the Same respect, to issue a contrary command ; as that
the offic^cn. ^^"^^ ^ ^ legalize confusion and disorder. (A) The foUowing
dearouring to case iipon an inaictment for an assault and rescue proceeded upon
effect it. this principle. Some sjieriff'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 charged with the custody of the bailiff who had struck the
woman. The bailiffs, on the other hand, gave the constable no-
tice of their authority, and represented the violence which had
been previously offered to them ; notwithstanding which the con-
stable proceeded to take them into custody upon the charge of
murder, and at first offered to take care also of their prisoner;
but their prisoner was soon rescued from them by the surrounding
mob. The next morning, the woman having recovered, the bai-
liffs were released by the constable. Upon these facts. Heath, J.,
was clearly of opinion that the constable and his assistants were
guilty of the assault and rescue, and directed the Jury accord-
ingly.(i)
Of obstructing In cases where the obstruction of process by the rescue of a
reicue*of ^e* P*'^ arrested is accompanied, as is usually the case, with cir-
party arrested, cumstances of violence and assault upon the officer, the offence
may be made the subject of a proceeding by indictment : and, as

(f) Rex V. Osmer, 5 Bast. 304. {h) 1 East. P. C. c. 5. s. 71. p. S04.

(r) Id, ibid% Judgment was accord- (0 Anon. Exeter Sum. Ass. 179S.
iDgly arrested. 1 East. P. C. c. 5. s. 71. p. 305.

CHAP. XXXI. § 1.] Of Obstructing Process. 363

will be shewn more fiilly in a subsequent Chapter, (/) the rescue,
or attempt to rescue a party arrested on a crimmal charge is
usually punished by that mode of proceeding. And the offence of
rescuing a person arrested on mesne process, or in execution after
judgment, subjects the offender to a writ of rescous, or a general
action of trespass vi ei armis, or an action on the case ; in all
which damages are recoverable. (A) And it has also been the fre-
quent practice of the courts to grant an attachment against such
wrongdoers, it being the highest violence and contempt that can
be offered to the process of the court. (/)

It may be mentioned in this place, that the forcibly rescuing of retcniog
goods distrained, and the rescuing cattle by the breach of the goods dis-
pound in which they have been placed, have been considered as *7*° und^^
offences at common law, and made the subject of indictment, (m) breach.
It has before been stated, that an indictment will lie for taking
goods forcibly, if such taking be proved to be a breach of the
peace: (n) but, as a mere trespass, without circumstances of
violence, is not indictable, (o) it nas been doubted whether even
a pound-breach, which has been considered as a greater offence
at common law than a rescue, (p) is an indictable offence, if un-
accompanied by a breach of the peace, (q) But, on the other
hand, it has been submitted that, as pound-breach is an injury
and insult to public justice, it is indictable cu such at common
law. (r) The civil remedy, however, given ^by the 2 W. & M.
c. 5. s. 4. will, in most cases of a pound-breach, or a rescue of
goods distrained for rent, be found the most desirable mode of
proceeding, where the offenders are responsible persons. That
statute enacts that, upon pound-breach, or rescous of goods dis-
trained for rent, liie person grieved shall, in a special action of
the case, recover treble damages and costs against the offenders,
or against the owner of the goods, if they come to his use. (s)

It is laid down in the books that, if a rescue be made upon a
distress, &c. for the king, an indictment lies against the res-
cuer, {t) And we have seen that a lessee, resisting with force a
distress for rent, or forestalling or rescuing the distress, will be
guilty of the offence of a forcible detainer, {u)

U) t^9t. Chap.zxxiv. OfRcMcue^ £fc. kie*8 Crim. PI. 617. 8 Chit Criin. L.

<fr) 0 Bac Abr. Heteue (C). 6 Com. 901 . precedents of indictments for res-
Dig. Reteatu^ (D). cuing goods distrained for rent : and

(/) 6 Bac. Abr. iMd. 6 Com. Dig. Cro. Circ. Comp. 410. , 8 Chit. Crim.

Reicaut^ (D. 6). But, in order to ground L. 804, 806, precedents of indictments

an attachment for a rescue, it seems for ponnd-breaches.

there must be a return of it by the (n) Ante^ 51. Anon. 3 Salk. 187.

sheriff; at least, if it -was on an arrest (0) Ante, 51.

on roenne process, 6 Bac. Abr. ibid, t (p) Mirror, c. 8. s. 86.

Hawk. P. C. c. 88. s. 34. Anon.6Mod. iq) 8 Chit Crim. L. 804. note(b.)

141. And see, as to the return of the referring to 4 Leon. 18.

rescue by the sheriff, 6 Com. Di^.A0#- (r) 8 Chit Crim. L. 804. note (b.)

coiM,(D. 4.) (D. 5.) OBac.Abr KffCtte, and the authorities there cited.

(E). Hex V, Beit, 8 Salk. 586. Rex v. (t) See, as to the proceedings upon

Elkins, 4 Burr. 8189. Anon. 8 Salk. this8taUite,Bradby on Distresses, 888.

586. Rex v. Minifv, 1 Str. 648. Hex et tequ. 6 Bac Abr. Rescue (C.)

r. Ely, 1 Lord Raym. 35. Anon. 1 (I) F. N. B» 108 G. 6 Com. Dig.

Salk. 586. I Lord Haym. 580. Artcoiif, (D. 3.)

(m) Cro. Circ. Comp. 409. 8 SUr- (u) Ante, 889.

2

364 Of Disobedience to Orders [book ii.

SECT. II.

Of Disobedience to Orders of Magistrates.

Diaobedience DisoBBBiBNCB to an order of the justices of the peace at their
to an order of sessions^ made by them in the due exercise of the powers of
fessioni. ^^-^ jurisdiction, is an indictable ofience. Thus, a party has

been hold^n to be guilty of an indictable offence, in disobeying an
order of sessions for the maintenance of his grandchildren, (w)
In this oase it was mored, in arrest of judgment, that, as the act
of parliament (43 Eliz. c. 2. s. 7*) had annexed a specific penalty,
ana a particular mode of proceeding, the course prescribed by the
act ought to have been adopted, and that there could be no pro-
c<eeding by indictment : butj after able argument, and great deli-
beration, the court were of opinion that the prosecutor was at
liberty to proceed at common law, or in the method prescribed by
the statute ; and that there could be no doubt but that an indict-
ment would lie at common law, for disobedience to an order of
sessions, (x)
Diaobedience Upon the same principle it was holden that, where an act of
to an order of parliament gave power to the king in council to make a certain
council. order, and did not annex any specific punishment to the disobey-

ing it, such disobedience was an indictable offence, punishable as
a misdemeanor at common law. (j/)
Disobedience Disobeying an order of one or more Justices, when duly made,
•wticci"*^*^^ is also a common law offence, and therefore punishable by indict-
^ meut. {z) Thus, it has been holden to be an indictable offence to

disobey an order of Justices directing a highway to be widened,

under the 13 Geo. 3. c. 7B. (a) And it seems that an indictment

will lie for disobedience to an order of Justices placing out an

apprentice (>ursuant to the statute, when such disobemence is

either by not receiving, turning off, or not providing fur such

apprentice. (A) So a power to remove a pauper being given to

two Justices, by the 13 & 14 Car. 2. c. 12., the not removing him

is a disobedience of that statute for which an indictment will

lie. (c) And, by Foster, J. ^^ In all cases where a Justice has

^ ^* power given him to make an order, and direct it to an inferior

^^ ministerial oflicer, and he disobeys it, if there be no particular

<< remedy prescribed, it is indictable." (d)

Erery perton Where such an order is made, any person mentioned in it, and

required by an required to act under it, should, upon its being duly served upon

order to do *. o ^ t

(w) Rex V. Robinsoo, 8 Barr. 799, v. Feamley, 1 T. R. 316.

800. («) Id. Und.

iff) Id. aid. See the principles upon {b) Reg. «. Gould, 1 Salk. 381. 2

which this decision proceeded anief Nol. c. S3, s. 3.

47, et $equ. (c) Rex v. Davis, 1 Bolt 338. Say.

(jf) Rex V. Harris, 4 T. R. 202. 2 163. 4 Bum. Just Po0r. Sect XIX.

Lmcb. 549. 2. i.

(%} Rex V, Balme, Cowp. 650. Rex {d) 4 Burn. Just

CHAP. XXXI. $ 8.] of Magistrates. ^ft

him, lend hU aid to cany it into efFect. Thus where, upon a iny act, should
complmnt made by an excluded member of a friendly society, cwry u iSto***
two persons, A. and B., the then stewards of the society, were effect,
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 holden, 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, (e) Lord 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 mem-
*^ bers of the society independentiy 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 in-
'^ deed, they might, with greater &cility, have enforced obe-
^^ dience to the order ; but each member had it in his power to
'^ lend some aid for the attainment of that object.'' And when in
the ensuing term a motion was made that a verdict might be en-
tered for the defendants, on the ground that, ha^ng ceased to be
stewards when the notice was served, they had not been guilty of
a criminal default ; the court said, that if tne defendants hs^ shewn
that they did every thing in their power to restore the party, in
obedience to the order, they might have given it in evidence by
way of excuse. (/)

There must be personal service of an order on aU persons who The order
are charged with a contempt of it : and it was held, upon demurrer, '^^^ ** ^*
to be a decisive objection to an indictment for a 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 rour of them, {g)

It appears to have been holden not to be necessary, in an in- Oftheindict-
dictment against a public officer for disobedience of orders, to aver ™«"*- -
that the orders have not been revoked; for the orders, being stated
to have been given by those who were empowered by certain sta-
tutes to give them, must be taken to remain in force until they
were revoked or contradicted. (A) But an indictment for disobey-
ing an order of justices must shew explicitly that an order was
made; and it is not sufficient to state the order by way of recital. (t)
It is said to be more safe to aver that the defendant was requested

{e) Rex V, Gash and another, 1 cided that the magistrates of .IfiVfiZ/^ffx

Starkie 441. had jurisdiction. See 99 Greo. 3. c. 54.

if) Id. 4bid, The motion was also and 49 Geo. 3. c. 185. s. 1.

made on another ground ; namely, a (g) Rex v. Kingston and others, 8

defect in the Jurisdiction of the ma- East. 41.

gistrates : two magistrates of the (A) Rex v. Holland, 6 T. R. 607.

county %A Jliiddle$€x^ where the meet- 684«, a case of an indictment against

ings of the society were held, having the defendant for malversations in

made the order, though the society office while he was one of the council

had been originally established in Lon' at Madra$.

don, and its rules enrolled at the ses- (i) Rex o. Crowhurst,? Lord Raym.

sions for ^ofidlM. Bnt the court de- 1363.

366 Cf Disobedience to Orders of Magistrates, [[book ii.

to comply with the terme of the order, (k) But if the statemedt
of the order having been served on all the defendants (which, as
has been before observed, is a necessary statement) be omitted,
the want of such an allegation will' not be supplied by averring
that they were all requested to perform the duties required by the
order, {f)
L«galit^of On a motion to arrest the judgment upon an indictment for dis-

cannot IST obejdng an order of justices for the payment of a fine upon a con-
inquired into viction, the court of King's Bench refused to hear any objections
on ^^^^ to the conviction which did not appear upon the face of it. (m)
jud^enL Before this subject is concluded, it may be proper, shortly, to

33 Geo. 3. Dotice the statute 33 Geo. 3. c. 55. s. 1. which gives power to jus-
e. 55. B*. r. tices of the peace assembled at any special or petty sessions, upon
gives a power complaint upon oath of any neglect of duty, or of any dii^obedience
apetty ^S- ^^ ^"7 lawful warrant, or order of any justice or justices of the
nons, to im- peace, by any constable, overseer of the poor, or other peace or
pose fines upon parish officer, (such constable, &c. having been duly summoned) to

constablesy&c. * '^ ... ' 1.1 n i- "^ m. j

for neglect of unpose, upon conviction, any reasonable fine or fines, not exceed-
duty»and dii- ing forty shillings; and, by warrant under the hands and seals of
o^dien^^ to j^y ^^ ^p jj^q^q ^f gm^t justices SO assembled, to direct the fines

tic^ ^ ^^''^ to be levied by distress and sale of the offender's goods. And it is
provided, that any person aggrieved by such fine, warrant, &c.
may appeal to the next quarter sessions ; giving, at least, ten days'
notice.

(k) 2 Chit. Crini. L. 879. note (g) gpive any opinion upon tlie point,

citing 1 T. R. 316. which is the case (/) Hex v. Kingston and others, 8

of Rex V. Feamley, where an object East. 41, 6S.

tion was taken to an indictment that it (m) Rex o. Mitton, S Bsp. R. 200.

did not contain such statement; but in the note,
the court did not find it necessary to

,\i ,.

367

-* ./

CHAPTER THE THIRTY-SECOND.

or ESCAPES.

An escape is, where one who is arrested gains his liberty before
he is delivered by the course of the law. (a) And it may be by
the party himself; either without force before he is put in hold, er
with force after he is restrained of his liberty ; or it may be by
others ', and this also either without force, by their .permission or
negligence, or with force, by the rescuing of the party from cus-
tody. Where the liberation of the party is effected either by him-
self or others, without force, it is more properly called an escape ;
where it is effected by the party himself, with force, it is called
prison-breaking; and where it is effected by others, with force, it
is commonly called a rescue.{b) In the present Chapter it is pro-
posed to consider of those acts without force, which more properly
come under the title of escape.

There is little worthy of remark in the books respecting an Of an escape
escape effected by the party himself, without force : but the ge- fe^/*"'^
neral principle appears to be, that, as all persons are bound to
submit themselves to the judgment of the law, and to be ready to
be justified by it, those who, declining to undergo a legal impri-
sonment when arrested on criminal process, free themselves from
it by any artifice, and elude the vigikmce of their keepers, before
they are put in hold, are guilty of an offence in the nature of a
high contempt, and punishable by fine and imprisonment, (c) And
it is also criminal in a prisoner to escape from lawful confinement,
though no force or artifice be used on his part to effect such pur-
pose. Thus, if a prisoner go out of his prison without any ob-
struotion, the doors being opened by the consent or negligence of
the gaoler, or if he escape in any other manner, without using any
kind of force or violence, he will be guilty of a misdemeanor; and
if his prison be broken by others, without his procurement or con-
sent, and he escape through the breach so made, he may be
indicted for the escape. (</)

It was decided, upon an indictment for an escape from the House Eridence.
of Correction, after conviction for a capital offence and conditional

(a) Termi de la ley, Blac. Com. 129.

{b) 1 Hate 590. 8Hawk.P.C.c. 17, (d) 1 Hale 611. 8 Inst. 589, 590.

18, 19, 20, 21. Surom. 108. Staund. P.C. 30, SI. S

(e) 2 Hawk. P. C. c. 17. s. 5. 4 Hawk. P. C. c. 18. 8. 9, 10.

368 Of Escapes. [book. u.

pardon^ that a certificate from the officer of the former conviction
was not evidence, as in the case of being at large after sentence of
transportation. The indictment was for an escape from the House
of Correction after a pardon, upon condition of being there for one
year ; the certificate of the clerk of assize was produced in evi-
dence : but, upon a case reserved, the Judges were of opinion that
the certificate was no evidence, there being no act which made it
evidence, and that the conviction was wrong. {%) But a late sta-
tute 4 Geo. 4. c. 64. s. 44. to the intent that prosecutions for
escapes, breaches of prison, and rescues, may be carried on with
as Uttle trouble and expense as possible, enacts (amongst other
things) that in case of any prosecution for any eiicape, attempt to
escape, breach of prison or rescue, either against the offender
escaping or attempting to escape, or having broken prison, or
having oeen rescued, or against any other person or persons con-
cerned therein, or aiding, abetting, or assisting the same, a certifi-
cate given by the clerk of assize, or other clerk of the court in
which such offender shall have been convicted, shaU, together with
due proof of the identity of the person, be sufficient evidence to
the court and jury of the nature and fiict of the conviction, and
of the species and period of confinement to which such person
was sentenced. With respect to the form of such a certificate, a
case decided upon a statute 56 Geo. 3. c. 27^ s. 8., now repealed,
may be mentioned, in which it* was decided that the certificate of
a former conviction, authorized by that statute, should set forth
the effect and substance of the conviction ; and that stating it to
have been for felony only was insufficient. The prisoner was in-
dicted for being at large after a sentence of transportation for
seven years : the indictment only stated'that he had been convicted
of felony, without specifying the nature of that felony ; and the
certificate to prove the former conviction was in the same form.
Upon the point being saved, the Judges thought this case decided
by a former case of Hex v. Sutcliffe, and the prisoner was remitted
to his original sentence, (y)
PenoDB e«- It may be here mentioned that, by a late statute, 44 Geo. 3. c.

Ora?^dtain ^' *• ^' offenders, against whom any warrant shall be issued, es-
to Ireland, or caping from Ireland into England or Scotland, may be appre-
fromlrdandto bended by an indorsed warrant, and conveyed to Ireland: and the
to'b^appre^' fourth section of the act makes the same provision as to ofienders
bended and escaping from England or Scotland into Ireland, being appre-
brought back bended and conveyed back again to England or Scotland, {e)
'*^' Escapes effected or, perhaps more properly, suflered by others

than the .party himself, without force, by permission or negligence,
may be either, I. by officers ; or, II. by private persons.

(z) Rex «. Smithy East. T. 1788. (e) And see as to the apprehension

MS. Bnvley, J. of persons escaping from England into

(y) Hex V. Watson, Mich. T. 1821. Scotland,and from Scotland into Bar-
MS. Bajley, J. and Ruas. and Ry. 408. land, 13 Geo. S. c. 31. And as to the
The statute 59 Geo. 8. c. 87. s. 3. an- admitting persons apprehended in Eng-
thorized a certificate containing the land, Scotland, and Ireland, respect-
effect and substance only , omitting the ively , to bail, for bailable offences, see
formal part, of etery indictment, con- 45 Qfio. 8. c. 92, and 54 Geo. 3. c. 18S.
viction, &c.

CHAP. XXXII. ^1-2 0/ Escapes suffered 6y Officers. 369

SECT. I.

Of Escapes suffered by Officers.

An escape of this kind must be from a justifiable imprisonment for
a criminal matter, after an actual arrest.

As there must be an cictual arrest, it has been holden, that if an The escape
officer, having a warrant to arrest a man, see him shut up in a "»Mt be after
house, and challenge him as his prisoner, but never actually have ^^^
him in his custody, and the party get free, the officer cannot be
charged with an escape. (/)

The arrest and imprisonment must be justifiable ; for, if a party And the arrest
be arrested for a supposed crime, where no such crime was com- "^ imprison-
mitted, and the party neither indicted nor appealed, or for such a justifiable,
slight suspicion of an actual crime and by such an irregular mitti-
mus as will neither justify the arrest nor imprisonment, the officer
is not guilty of an escape by suffering the prisoner to go at large, {g)
But it seems that if a warrant of commitment plainly and express-
ly charge the party with treason or felony, though it be not strictly
formal, the gaoler, suffering an escape, is punishable; and that
where commitments are good in substance, Uie gaoler is as much
bound to observe them as if they were made ever so exactly. (A)
It is stated as a sood general rule upon this subject that, 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, (t)

The imprisonment must not only be justifiable, but also for some The imprison-
criminal matter. But the escape of one committed for petit lar- ™«"* ™'>»f ^
ceny only is criminal ; and it seems most agreeable to the general matterTutd
reason of the law that the escape of a person committed for any continuing at
other crime whatsoever should dso be criminal. {J) The impri- *J« *"°® ^^
sonment must also be continuing at the time of the escape; and its ^ ^<^P^*
continuance must be grounded on that satisfaction which the pub*
lie justice demands for the crime committed. So that if a prisoner
be acquitted, and detained only for his fees, it will not be criminal
to suffer him to escape, though the judgment were that he should
be discharged, '^ paying his fees ;" he being in such case detained
only as a debtor : but if a person, convicted of a crime, be con-
demned to imprisonment for a certain time, and also ^^ until he
^* pays his fees,'' it is said that perhaps an escape of such per-,
son, after the time of his imprisonment is elapsed, without paying
his fees, may be criminal; as it was part of the punishment

(f ) 2 Hawk. P. C. c. 19. s. K 1 Lord Haym. 484.

(^) Id, ibid, 8. S. (0 Id. ibid. s. %. And see jMtf , Chap.

(k) t Hawk. P. C. c. 19. 8. Si. A xxziii.
conunitinenl to a friion^ and not to a O") 9 Hawk. P. C. c. 19. s. S. I

peraan, was held good in Rex v. Fell, Hale 592.

VOL. I. 2b'

370

Escapes may
be voluntary
or negligent.

Of voluntary
escapes.

Cf Escapes suffered by Officers, {ftooK ii.

that the imprisonment should be continued till the fees should be
paid, (k)

The next important inquiry upon this subject will be, whether
the escape be voluntary or negligent^ as the former is an ofience
of a much more serious nature than that which may have been
committed by negligence.

Whenever an oflBcer, 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 his trial or execu-
tion, such officer is guilty of a voluntary escape ; and thereby in-
volved in the guilt of the same crime of which the prisoner is
guilty, and for which he was in custody. (/) Hmvkins says, that it
seems to be the opinion of Sir Matthew Hale^ (m) that in some
cases an officer may be adjudged guilty of a voluntary escape who
had no such intent to save the prisoner, but meant only to give
him a liberty which, by law, he had no colour of right to give ; as
if a gaoler snould bail a prisoner who is not bailable : but he with-
holds his assent to that opinion, on the grounds that it is not suffi-
ciently supported by authorities, and does not seem to accord with
the purview of a statute 5 Edw. 3. c. 8. relating to the improper
bailing of persons by the marshals of the King's Bench, (n) He
says also, that it seems to be agreed that a person who has power
to bail is guilty only of a negligent escape, by bailing one who is
not bailable; and that there are some cases wherein an officer seems
to have been found to have knowingly given his prisoner more
liberty than he ought to have had, (as by allowing him to go out
of prison on a promise to return ; or to go amongst his friends, to
find some who would warrant goods to be his own which he is sus-
pected, to have stolen) and yet seems to have been only adjudged
guilty of a negligent escape, (o) And he concludes by saying, that
if, in these cases, the officer were only guilty of a negugent escape,
in suffering the prisoner to go out of the limits of the prison, with-
tmt any security for his return, he -could not have been guilty in a
higher degree if he had taken bail for his return ; and that from
thence it seems reasonable to infer that it cannot be, in all cases, a
general rule that an officer is guilty of a voluntarj' escape by bailing
his prisoner, whom he has no power to bail, but that the judgment
to be made of all offences of this kind must depend upon the cir-
cumstances of the case : such as the heinousness of the crime with
which the prisoner is charged, the notoriety of his guilt, the im-
(irobability of his returning to render himself to justice, the inten-
tion of the officer, and the motives on which he acted. \p)

(At) « Hawk. P. C. c. 19. s. 4. This
Seems to be a ^od reason i but Haw-
kios says that it is to be intended ottly
where the fees are due to others as
Well as to the gaoler ; for, otherwise,
the eaoler would be the only sufferer
by the escaj>e ; and that it would be
hard to punish him for suffering an in-
jury to niflMelf only in the non-pay-
ment of a debt in his power to release.

(/; Stauad. P. C. S3. 2 Hawk. P. C.
c. 19. s. 10. 4 Blac. Cora. 129.

(m) Sum. 119. I Hale 596, 697.

(fi) VotU 376.

(tf) Hawkins says, however, that it
must be confessed that, in these eases,
the prisoner was only accused of lar-
ceny, and that it does not appear whe-
ther he were bailable or not; and that,
generally, the old cases eoneeniiD|
this subject are so very briefly niported
that it is very difficult to make an ex-
act state of tne matter from them.

(|i) 2 Hawk. P. C. C.19. s. 10.

C0A9. qi^ii. § I.] Voluntary and N^ligenL ^1

It appeax^ to have been holdeny that it is an e^^pe in a con-
atable to discharge a person coip^nitted to his custody by a watchr
9ian as a loose and disorderly woman, ai)d a street* waller, although
no positive charge was made, (q)

A negligent escape is where the party arrested or imprisoned ^^ n«g:Hgcnt
escapes Against the will of him that arrests or imprisons him, and ^^"^^*
is not freshly pursqed and taken again before he has been lost
sight of. (r) And, from the instances of this offence mentioned in
the bodes, it seems that where a party so escapes the law will pre-
sume negligence in the officer. Thus, if a person in custody on a
charge of larceny suddenly, and without the assent of the con-
litable, kill, hang, or drown himself, this is considered as a negli-

Snt escape in the constable, {s) And if a prisoner charged with
ony break a gaol, it is ssid that this seems to be a negligent
escape ; because there wanted either the due strength in the gaol
that should have secured him, or the due vigilance in the gaoler pr
his officers that should have prevented it. {t) But it is submitted
tb^t it would be competent to a person charged with a negligent
escape uqder such circumstances to shew in bis defence that all
due vigilance was used, and that the g^l w^ .?o CQpi^tructed as to
have been considered by persons of competent judgment a place of
perfect security. Undoubtedly an escape happening from defects
m these particulars would come within the principle of guilty neg-
ligence in those concerned in the proper custody of the criminal ;
and neglect in npt keeping gaols in a proper state of repair, by
those who are liable to the burthen of repairing them, appears in
many instances to have been treated as an indictable offence, tend-
ing to the great hindrance and obstruction of justice, {u)

A person who has power to bail is guilty only of a negligent Negligent
escape by bailing one who is not bailable. Thus if a justice of ^JSJ^j^^ .^
peace bails a person not bailable by law, it excuses the gaoler, and baiT' '°^
is not felony in the justice ; but a negligent escape, for which he
is finable at common law, and by the justices of gaol delivery, {w)

(f ) Rex V. Booiie» % Burr. 864. tii remold pietaUque adhibUd judieia

(r) Dalt. c. 150. \ Barn. Just. Ei- debite esequantur. Flet. Lib. I. cap.

cape ly. 26. And the Mirror of Justices, Cn.

(») Dalt. c. 159. 5. s. 1. n. 54. says, that it is an abase

^ 1 Hale 600. where it is said that that prisoners should be charged with

'* tnerefore it is lawful for the gaoler irons, or put to any pain, before they

** to hamper them with irons, to pre- be attainted of felony : and Lord Coke^

** vent their escape.^^ But see the note in his comment on the statute of

(a) ibid, where it is said that this li- Westm. 2. ch. 11. is express, that by

iMrty can only he intended where the the common law it might not be done.

officer baa just neason to fear an es- 2 Inst. 881.

C9f«f as where the prisoner is unruly* (u) See the precedents of indictments

pr makes iinv attempt for that pur- for this offence, 4 Wentw. 363. Cro.

pose; but that otherwise, notwith- Circ. Comp. 318. Cro. Circ. Ass. 398.

standing the common practice of gao- 3 Chit. Crim. L. 668, 669.
ters, it scorns al together unwarrantable^ (to) At common law, according to

and contrary to the mildness and hi^- 25 Edw. 3. 89. (in the last edition of

iqanity of the laws of England^ b^ the year books mispaged 25 Bdw. 3.

which ^olers are forbid to put their 82. a.) and by the justices of ^ol de*

prisoners to any p^in or torment t Co. livery, by the statute 1 and 2 Ph. an4

P. C. 34, 35. CuBtodesgaolarumptenam M. c. 13. See 1 Hale 596. and as to

nbi cQmmittU non aftgeani^ nee eo$ escapes by admitting to bail or to im-

torqueani vei redimantj sed omni taivi- proper liberty, antCy 370.

2b2

372

Of retaking a
prisoner.—

After a volun-
tary escape.

After a negli-
gent escape.

Of Escapes suffered by Officers, [book if.

It is laid down as clear law, that whoever de facto occupies the
office of gaoler is liable to answer for a negligent escape, and that
it is iu no way material whether or not his title to the office be
legal, {x) But it seems that an indictment for a negligent escape
wQl only lie against those officers upon whom the law casts the
obligation of safe custody, and will not lie against the mere ser-
vants of such officer. Thus, where the indictment was against one
of the yeomen wardens of tlie Tower and the gentleman gaoler, for
permitting Colonel Parker, who was committed for high treason,
to escape, it appeared that the constable of the Tower had com-
mitted the colonel to their special care : but the court held that
the defendants were not such officers as the law took notice of, and
therefore could not be guilty of a negligent escape; and they were
acquitted, (y) And upon the same principle another wardour of
the Tower appears also to have been acquitted of a negligent
escape, {z) It appears, however, that a sheriff is as much liable
to answer for an escape suffered by his bailiff as if he had actually
suffered it himself; that the court may charge either the sheriff or
bailiff for such an escape ; and that, if a deputy gaoler be not suf-
ficient to answer a negligent escape, his principal must answer for
him. (a)

The difference between a voluntary and negligent escape will
also require to be attended to in considering the effect of the re-
taking of a prisoner after he has been suffered to escape.

When an officer has voluntarily suffered a prisoner to escape,
it is said that he can no more justify the re-taking him than if he
had never had him in custody before ; because, by his own free
consent, he hath admitted that he hath nothing to do with him :
but if the party return, and put himself again under the custody of
the officer, it seems that it may probably be argued that the officer
may lawfully detain him, and bring him before a justice in pur-
suance of the warrant, {b)

It seems to be clearly agreed by sdl the books that an officer
making fresh pursuit after a prisoner, who has escaped through his
negligence^ may retake him at any time afterwards, whether he find
him in the same, or a different county : and it is said generally in
some books, that an officer, who has negligently suffered a prisoner
to escape, may retake him, wherever he finds him, without men-
tioning any fresh pursuit; and, indeed, since the liberty gained by
the prisoner is wholly owing to his own wrong, there seems to be
no reason why he should have any manner of advantage from it(c)
If the officer pursue a prisoner, who flies from him, so closely as
to retake him without losing sight of him, the law regards the pri-
soner as being so much in his power all the time as not to adjudge

an escape : but if the officer once lose

such flight to amount to

(jt) « Hawk. P. C. c. 19. s. 28.

(y) Rex v. Hill and Dod, Old Bailey,
Jan, 1694* I Burn. Just Escape, III.
p. 930. (24 Ih ed.)

(z) Bex V. Rich, Old Bailey, Jan,
1694, MS. Bay ley, J.

(a) 2 Hawk. P. C. c. 19. 9. 29. and
Rex V. Fell, 1 Lord Raym. 424. 2
Salk.272. Hawkins says, '* But if the

** gaoler who suffers an escape have an
*' estate for life or years in the office,
" I do not find it agreed how far he in
" reversion is liable to be punished.'^

(b) 2 Hawk. P. C. c. 19. s. 12. c. IS.
s. 9. Dalt. G. 169. 1 Bum. Just
Etcape,

(c) 2 Hawk. P. C. c. 19. s. 12.

CHAP. XXXII. 5 1.] Proceedings. 373

sight of the prisoner, it seems to be the better opinion that he wilt
be guilty of a negligent escape^ though he should retake him im-
mediately afterwards. {(T) . And if he has been fined for the offence,
it is clear that he will ilot avoid the judgment of his fine by re-
taking the prisoner, (e) And it is also clear that he cannot excuse
himself by killing a prisoner in the pursuit, though he could not
possibly retake him ; but must, in such case, be content to submit
to such fine as his negligence shall appear to deserve. (/)

The proceedings against persons charged with having suffered Proceedings
escapes must in senerld be by presentment or indictment, or they ^y ?«»«•;'-

tv.r^«/\ ment or in-

may be by information, (g) dictment, or

But where persons present in a court of record are committed to by a more
prison by such court, the keeper of the gaol, as he is bound to have Bummary
them always ready to produce when called for, if he fail to pro- ^®"*"*'
duce them, will be adjudged guilty of an escape, without further
inquiry; unless he have some reasonable matter to allege in his
excuse ; as that the prison was set on fire, or broken open by ene-
mies, &c. for he will be concluded by the record of the commit-
ment from denying that the prisoners were in his custody. (A)
And some have holden, (t) that if a gaoler say nothing in excuse of
such an escape, it shall be adjudged voluntary : but it seems diffi-
cult to maintain that where it stands indifferent whether an escape
be negligent or voluntary, it ought to be adjudged a crime of so
high a nature, without a previous trial, {k) With respect to other
prisoners not committed in such' manner, but in the custody of a
gaoler or other person by any other means whatsoever, it seems to
be agreed that the person who had them in custody is in no case
punishable for an escape, until it be presented. (/) But it is laid
down as a rule that though, where an escape is fineable, the pre-
sentment of it is traversable ; yet that where the ofience is amer-
ciable only, there the presentment is of itself conclusive ; such
amerciaments being reckoned amongst those minima de quibus nan
curat lex: (m) and this distinction is said to be well warranted by
the old books, (n)

It should be observed that it is laid down in the books that a
person who has suffered another to escape cannot be arraigned for
such escape as for felony5 until the principal be attainted ; on the
ground that he is only punishable in this degree as an accessory
to the felony, and that the general rule is, that no accessory ought
to be tried until the principal be attainted ; (o) but that he may be

{d) Staundf. P. C. 3S. I Hale 608. (0 Staundf. P. C. 34. I Hale 599.

i Hawk. P. C. c. 19. «. 6, 13. 603.

(e) 8 Hawk. P. C. c. 19. s. 19, 13. {fc) S Hawk. P. C. c. 19. s. 15.

if) StauDdf. P. C. 33. 1 Hawk. P. (0 Id, ibid. s. 16.

C. c. 28. s. U, 12. 2 Hawk. P. C. c. (m) Staundf. P. C. c. 32. p. 36.

19. s. 6, IS. (n) 2 Hawk. P. C. c. 19. s. 21.. and

(g) Rex v.the Gaoler of Shrewsbury, see po$t^ 376. as to escapes fineable or

1 Str. 532. where the court refused to amerciable.

?^raut an attachment against the gaoler (o) See ante, 36. et teq. By the 1

or a voluntary escape of one in exe- Ann. st. 2. c. 9. an accessory may be

cution for obstructing an excise officer tried where the principal offender haa

in the execution of his office, but or- been convicted, 6sc. though not at"

dered him to shew cause why there tainted. Ante^ p. 38. In the Cro. Circ.

should not be an information. Ass. 338 is an indictment as for a mis-

(h) 2 Hawk. P. C. c. 19. s. 15. demeanor against a gaoler, for wilfu 11;

S74

Ortfaeindiot*
ment for an
escape.

Of the trial.

Of Escaped offered by Officers. [b6o11 n.

indicted and tried fo^ a misprision before any attainder of the prin-
cipal offender ; for, whether sudh offender were guilty or innocent,
k was a high contempt to suffer him to escape. If, however, the
coihmitment were for high treason, and the pe/son committed ac-
tually guilty 6i it, it is said that the escape is iHiniediately punish-
able as high treason also, whether the party escaping be ever con-
victed of such crime or not ^ and the reason ^ven is, that there
are no accessories in high treason, (o)

Every indit^tment for an escape, whether negligent or volun-
tary, must expressly shew that the party was actually m iiie de-
fendant's custody for some crime, or upon softie commitment upon
suspicion ; {p) and Judgment was arretted upon an indictment
^hich 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 teason of such charge, (cr)
But where a person was committed to the custody of a constable
by a watchman, as a loose jmd disorderiy woman and a street*
walker, it was holden^ upon an indictment agaibst tiie constable
for discharging her, that by an allegation of his being chained
wifli her, ^^oArfn^ such loose, &c/' it was sufficiently aveited
that he was charged with her ^' as such loose, &c. */' and it was also
holden not to be necessary to aver that the defend^t knew the
tvoman to be a street- walker, (r) And eveir indictment should
adso sfa^w that th^ prisoner went at large :(^) and also the time
when the <^ence was committed for trhich the party was m cus-
tody ; not only that it may appear that it was prior to the escape,
but also that it was subsequent to the last genetal pardon. (^) If
the indictment be for a voluntary escape, it must allege thnt the
defendant feloniously and voluntarily permitted the prisoner to go
at large ;(«) and must also shew the species of crime for which the
party was imprisoned ; for it will not be sofiicienl to say, in ge-
neral, that he Was in custody for felony, &c.(t£') But it is ques-
tionable whether such certainty, as to the nature of the crime, be
necessary in an indictment for a negligent escape ; as it is not in
such case material Whether the person who escaped were g^ty
or not. (jt)

By Hie statute Westminster 1. c. 3. the proceedings and trial
{<iT the o^nce of an escape were to be had before the justices in
eyre : but it Was adjudged that the jurisdiction of the Court of
lung's Bench was not restrained by that statute, that court being

permitting a prisoner to escape who
was under sentence of imfH'tsotinient
for the term of six raontte, ^er it cdn*
viction of grand Uirtenys blit it seems
ttf^t it ou^ht to have been laid as a
felony. See 8 Stark ie, Crim. Plead.
600. note (h) referring to Rex v. Bur-
ridge, S P. Wttls. 497.

<o) S Hawk. P. C. e. 19. 8. 26.

(p) lA.md. S.I4.

(«) Rex t). Fell, 1 Lord. H&jrfti. 4S4.
8 Salk. 872.

(r) Rex V. Bootie, 8 Bb¥r. 864.; and
see as tfafe suffldieaty of sudi aver*

ments. Rex 1). Boyall, 8 Borr. 9S8.

(i) 8 Hawk. P.O. e. 19. s. I4.,%here
it is mid thkt this is most properly ex-
pressed by the words esiM Bd ktrgmwu

(I) 8 Hawk. P. C. c. 19. s^ 14. But
\ip6n an indictment for an escape the
court will not intend a pardon ; it mast
be shewn by the defendaiit, by #ay of
excuse. Rex «. Fell, I Lord Rayiti.
484.

{u) FetmUeh et wdunteHe J. B. «i
Ittrguin ire petinUit.

(w) 8 Hawk. P. C/C. 19. s. 14.

(x) id. md.

cujut. xxxiL § 1.3 Puniskment. 375

itflelf the highest court of eyre.(y) The 31 Edw. 3. c. 14. enacts
that the escape of thieres and felons, and the chattels of felonf^
&c. from thenceforth to be judged before any of the Kir^sjusHceSj
shall be levied from time to time, &c. by which it seems to be
implied that other justices, as weU as those in eyre, may take cog-
nizance of escapes : and it is certain that justices of gaol delivery
■lay punish justices of peace for a negligent escape, in admitting
persons to bail who are not bailable. (z) The 1 ffich. 3. c. 3. en-
acts that justices of peace shall have authority to enquire in their
sessions of all numner of escapes of every person arrested anu
imprisoned for felony.

The enactment of the 4 Geo. 4. c. 64 s. 44., as to the evidence Eridence.
by the certificate of the clerk of assize, or clerk of the court in
which the offender was convicted, has been already mentioned. (/)

In considering of the punishment for this offence, it will be PnnislimeDt.^
necessary agiun to attend to the distinction between a voluntary
and negligent escape.

It seems to be generally agreed that a voluntaiy escape amounts J«* "■«■ ^^^^
to the same kind of crime as the offence of which the party was ^**n^®*^*P®-
guilty, and for which he was in custody; whether the person
escfqping were actually committed to some gaol, or under an arrest
only, and not committed ; and whether he were attainted, or only
accused of such crime, and neither indicted nor appealed, (a) But
the voluntary escape of a felon will be within the benefit of clergy,
though the felony for which the party was in custody be ousted. (A)
An escape suffered by one who wrongftdly takes upon him the
keeping of a gaol seems to be punishable in the same manner as
if he were rightfully entitied to the custody ; for the crime is in
both cases of the same ill consequence to the public, (c) But no
one is punishable in this degree for a voluntary escape but the
person who is actually guilty of it i therefore, the principal gaoler
is only fineable for a voluntary escape suffered bv his deputy, (d)
One voluntary escape is said to amount to a forfeiture of a gaoler's
office, (e)

No escape will amount to a capital offence unless the cause for
which the party was committed were actually such at the time of
the escape : its becoming a capital offence afterwards, as by the
death of^a party wounded at the time of the escape, but not then
dead, will not be sufficient. (/)

Whenever a person is found guilty upon an indictment or pre- Of thcpunieh-
aentment of a negligent escape of a criminal actually in his cus- of^negUMt *
tody, he ought to be condemned in a certain sum, to be paid to escapes.

(g) StanadC P. C. c. 3S. p. 36. Eq on an indictment of death, and only

qu€ it bamke le rey ««l un eir€, fif plus committed till the year and day should

ibatit q«e un eire, ear n le eire aea in be passed, to give the widow or heir

till tfoimly, ei le kanke le roy veigne to, an opportuaity of bringing their ap-

k eire cesser a, peal. Id. ibid.

(z) 2 Hawk. P. C. c. 19. s. 19. anie^ (b) 1 Hale 599.

371. (c) 2 Hawk. P. C. c. 19. s. 23.

(/) Ante, 308. {d) Rex v. Fell, 1 Lord BAym, 424.

(a) 2 llawk, P. C. c. 19. s. 22. And 2 Salk. 272. 1 Bale 597, 598.

it is said to be no excuse of such escape (e) 2 Hawk. P. C. c. 1 9. s.. SO.

that the prisoner had been acquitted (/) 2 Hawk. P. C. c. 19. s. 25.

376 Of Escapes by Officers. — Punishment, [book ii.

the King as ^Jlne,{g) And it seems that by the common law the
penalty for suffering the negligent escape of a person attainted
was of course a hundred pounds, and for suffering such escape of
a person indicted, and not attainted, five pounds ; and that if the
person escaping were neither attainted nor indicted, it was left to
the discretion of the court to assess such a reasonable forfeiture
as should seem proper. And it seems also, that if the party had
escaped twice, these penalties were of course to be doubled : but
that the 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. (A) It is the better opinion that
one negligent escape will not amount to a forfeiture oi a gaoler's
office ; yet if a gaoler suffer many negligent escapes, it is said
that he puts it in the power of the court to oust him of his office
at discretion, (t)
Punisliment of Some regulations by statutes respecting the punishment of neg-
capesby^u- ^g^^^ escapes should also be noticed.

totes. The 5 £d. 3. c. 8. recites, that persons indicted of felonies had

5 Ed. 3. c. 8. removed the indictments before the King, and there yielded them-
*h*r*'? ™"" selves, and had been incontinently let to bail by the marshak of
king's Bench. ^^ King's Bench ; and enacts, that such persons shall be safely
and surely kept in prison : and (after providing for the manner of
such confinement, &c.) further enacts, that if any such prisoner
be found wandering out of prison by bail or without bail, the mar-
shal being found guilty, shall have a year's imprisonment, and be
ransomed at the King's will.
56 G. 3.C. 63. The gtatute 66 Geo. 3. c. 63., which was passed for regulating
hayingthecus- ^® general Penitentiary for convicts at MiUbank, enacts that u
tody of con- any person having custody of any convict, or being employed by
victsmthege- fj^ person haviniT such custody, in the manner mentioned in the
tiarj. act, shall negligently permit any such convict to escape; such

Eerson so permitting shall be guUty of a misdemeanor; and being
iwfuUy convicted shall be liable to fine or imprisonment, or to
both, at the discretion of the court. (A)

It has been holden that a negligent escape may be pardoned by
the Ring before it happens, but that a voluntary one cannot be so
pardoned. (/) Upon an indictment for an escape the court will not
intend a pardon ; but it must be shewn by the defendant by way
of excuse, (m)

(g) S Hawk. P. C. c. 19. s. SI ., where {k) 56 Geo. 3. c. 63. t. 44. And by

the author says, ** it seems most pro- s. 45. in any prosecution against any

*' perly to be called a fine. But this person concerned in the escape, &c.

** does not clearly appear from the old or aiding, &c. a copy properly altered

** books ; for in some of them it seems of the order of commitmant to the

to be taken as a fine ^ in others as an Penitentiary is made evidence that the

amerciament ; and in others it. is person in question was so ordered to

spoken of general ly as the imposili on confinement, after proof that such per-

*' of a certain sum, and without any son is the same that was delivered with

*^ mention of either fine or amercia- the order.

*<ment" (0 S Hawk. P. C. c. 19. s. S«. and

(Jk) 8 Hawk. P. C. c. 19. s. 33. more fully Id. c. 37. s. 28.

(0 Id, and. s. SO. (m) Rexo. Fell, I Lord Raym. 4S4.

At

CHAP, xtxii. § 3.] Of Escapes!^ Prioate Persons. 377

SECT. II.

0/ Escapes suffered by Private Persons^

The law with respect to escapes suffered by private persons is in
general the same as in relation to those suffered by officers : it
will be sufficient, therefore, to mention shortly the circumstances
under which it is considered that a private person may be guilty
of an escape, and the punishment to which he will be Uable.

It seems to be a good general rule, that wherever any person In what cases
has another lawfully m his custody, whether upon an arrest made ■ ^"^^ijf '"
by himself or another, he is guilty of an escape if he suffer him to ^ty of an
go at large before he has discharged himseli, by delivering him escape,
over to some other who by law ought to have the custody of him.
And if a private person arrest anoti^er for suspicion of felony, and
deliver him into the custody of another private person, who re-
ceives 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 chai^^ed himself ivith
the custody of a prisoner, he ough^ at his peril, to have taken
care of him.(n)

But where a private person, having made an arrest for suspicion
of felony, delivers over his prisoner to the proper officer, as the
sheriff or bis bailiff, or a constable, from whose custody the pri-
soner escapes, he will not be chargeable. He cannot, however,
exclude himself from the escape by alleging that he delivered the
prisoner over to an officer, without shewing to whom, in particu-
lar, by name, he so delivered him, that the court may certainly
know who is answerable, (o)

If an escape suffered by a private person were voluntary, he is P«n5»lwncntof
punishable as an officer would be for the same offence ; (p) and if SJJJ^fo^^
it were negligent, he is punishable by fine and imprisonment, at capes,
the discretion of the court, {q)

(fi) S Hawk. P. C. c. SO. s. ], 2. 1 shall be bound to keep him till the

Hale. 595. Sum. 112. next gaol delivery : but be says, ** If

(a) S Hawk. P. C. c. 20. s. 3, 4. 1 *' such township refuse also to receive
Hale 594, 595. Staund. P. C. 34. Sum. ** him, 1 do not see how the person who
112, 114. Hawkins, id, s. 4. says, that *■ * made the arrest can discharge himself
if no officer will receive such prisoner " of him before the next gaol delivery ;
ioto his .custody, it seems to be the *' unless he can in the mean time pro-
safest way to deliver him into the cus- *' cure him to be bailed."
tody of the township where the person (p) Ante^ 375.
who arrested him lives, or perhapH of \q) 2 Hawk. P. C. c. 20. s. 6.
that where the arrest was made, which

37»

CHAPTER THE THIRTY-THIRD.

OV PBIflON-BRBAKING BY THB PARTY CONFINKJD.

. Offence «t Whbrb b party effects his own escape by force, the offence is
common lav. Qflxudiy ealled prison^breeLking ; and such breach of prison^ or even

tile conspiring to brefd& it, was fdony at the common law, far
whatever cause, criminal or civil, the party was lawfully imprison-
ed ; (a) an J whether he were actually witmn the walls of a prison,
or only in the stocks, or in the custody of any person who had
lawfully arrested him. (&) But the severity of the common law is
mitigated by the statute DefrangenWrns prisonam, 1 Ed. 2. stat. 2.,
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 require such a judgment, if he had been convict thereupon,
*' according to the law and custom of the reahn.'^ Thus, thoo^
to break prison and escape, when lawfully corandtted for any
treason or felony, remains still felony as at common law; to
break prison whcii lawfully conAned upon any other inferior charge,
is punishable only as a h%h misdemeanor, by fine and imprison-
m^tt. \C)
Constractionof It wffl bc proper to coBskler some of the points which hove
1 Ed. 2. St. 2. jj^en holden in the construction of this statute.
What U xpti^ Any place whatsoever wherein a person, under a lawfol arrest for
MnwithiatlM a supposed crime, is restrained of his liberty, whether in the
stataie. stocks, or the street, or in the common gaol, or the house of a

constable or private person, or the prison at the ordinary, is pro-
perly a prison within the meaning of the statute ; for imprison-
ment is nothing else but a restraint of liberty, (d) The statute^
therefore, extends as well to a prison in law as to a prison in
deed, (e)
or the regn- W^h respect to the regularity of the imprisonment, it is clear

larity of the that if a person be taken upon a capias, awarded on an indictment
impnsonmen ^^ appeal against him for a supposed treason or felony, he is

within the statute if he break the prison, wheth^ any such crime
were or were not committed by him or any other person : for there
is an accusation against him on record, which makes his commit-
ment la^vful, however he may be innocent, or the prosecution
groundless. And if an innocent person be committed by a lawful

(a) 4 Blac. Cora. 120. 1 Hale 607. (e) 4 Blac. Cora. 130.
Bract. 1. S. c. 9. 'i lust 588. {d) 8 Hawk. P. C. c. 18. s. 4.

(b) 8 Hawk. P. C. c. 18. s. 1. (e) 8 Inst. 589.

mUtmus^ on flOck a mis^idon of felony, actually done by sottie
other, as w3l justify his ttnprisonment, diough he be neither in*
dieted nor appealed, he is within the statute if he break the prison ;
for he wi^ legally \a custody, and ought to have submitted to k
imtil he had be^i diseharged by due course of Iaw« (/)

But if no Motjff at aU were done, and tbe party be neithet iu*
dieted nor appealed, no ndtUniMs for such a supposed crime will
make him guilty "irithin the statute, by breaking the prison ; Im
im^sonffient being unjustifiable. And though a felony were done,
yet, if there were no just cause of suspicion either to arrest or
eoniniit the party, his breiddng the prison will not be fdony if the
mtUbnUi be not in such form as tiie law requires ; because the
lawfulness of his imprisonment in such case depends wholly on
the mUHmm : but, tf the party were taken up for such strong
causes of suspicion ss will be a good justification of his arrest and
ccnmnilmetit, it seems that it will be felony in him to break the
prison, though be happen to have been eomxnitted by an informal
warrant* {g)

The next ^quiry wHl be as to the nature of the crime for which Of the nature
the par^ imist be imprisoned, in order to make his breaking the for^^hi^^'the
prison felony within the meaning of the statute. It is clear that puty ie im-
the offence for whidh the party was imprisoned must be a capital pnaoned.
one at the time of his breaking the prison, and not become such
by matler cmbsequent. (A) Hough an offender breaking prison,
while it is tzncertain idietber his offence will become capital, is
highly pnnishable for his contempt, by fine and imprisonment, (t)
But it h not material whether the offsnce for which the party was
imprlsoiied were capital at the time of the passing Of the statute,
or were made so by subsequent statutes ; for, since all breaches of
prison were felonies by the common law, which is restrained by
the statute only in respect of imprisonment for ofiences not d^ital,
when an offelice becomes capitid, it is «s much out of the benefit
oi the statute as if It liad always been so. {k)

If the crime for wfai^fa the patrty is arrested, and with which he
is charged in the mittimus, do not require judgment of life or
member, and llie offence be not in fact greater than the mittimus
supposes it to be, it is dear, fitom the express words of the sta-
tute, that his breakii^ the prison will not amount to felony. {I)
And thoU^ the offence for which the party is committed be sup-
posed in the mittimus to be of such a nature as requires a capital
judgment; yet if, in the event, it be found to be of an inferior nature,
and not to require such a judgment, it seems difficidt 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/'(iii)
And on Ae other hand, if the offence which was the cause of the
comhiitment be in truth of such a nature as requires a capital

(/) « fiswk. P. C c* 16. s. 6^ e. fk) y^nii, 371.

3 Inst d»0. Sara. l(>9. I H»le 610, (i> 2 Hawk. P. C. c. 18. 9. 14.

61 1. (k)2 Hawk. P. C. c. 18. ». 13.

{it) S Hawk. P. G< e, 18. «. 7, 1ft. (/) See the sUtute, ante, 370.

€« 1«. 6. 13. tt utm. S Itisl. 5S0, 30 1. (»fi) Ante, ibid.
^01.109. 1 HaieSIO, eu.

ing

380 Of Prison-breaking. [book ii.

ja^ment^ but be supposed in the mittimus to be of an inferior
degree^ it may probably be argued that the breaking of the prison
by the party is felony within the meaning of tiie statute ; for the
fact for which he was arrested and committed does, in truth, re-
quire judgment of life, though the nature of it be mistaken in the
mittimus, (n) It is not material whether the party who breaks his
prison were under an accusation only, or actually attainted of the
crime charged against him ; for persons attainted, breaking pri-
son, are as much within the exception of the statute as any
others, (o)

A person committed for high treason becomes guilty of felony
only, and not of high treason, by breaking the prison and escaping
singly, without letting out any other prisoner : but if other per-
sons, committed also for high treason, escape together with him,
and his intention in breaking the prison were to favour their es-
cape as well as his own, he seems to be guilty of high treason in
respect of their escape, because there are no accessaries in high
treason; and such assistance given to persons committed for
felony will make him who gives it an accessary to the felony,
and by the same reason a principal in the case of high
treason. ( p)
Of the nature The breach of the prison within the meaning of the statute
\l^ *'"*''" °*^8t be an actual breaking, and not such force and violence only

as may be implied by construction of law : therefore, if the party
go out of a prison without any 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, it
is said that he is guilty of a misdemeanor only, {q) But the
breaking need not be intentional ; as where a prisoner made his
escape m>m 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 unani-
mously of opinion that this was a prison-breach, (s) And such
breaking must be either by the prisoner himself, or by others
through his procurement, or at least with his privity ; for if the
prison be broken by others without his procurement or con-
sent, and he escape through the breach so made, it seems to be
the better opinion that he cannot be indicted for the breaking, but
only for the escape, (r) And the breaking must not be from the

(n) 2 Hawk. P. C. c. 18. s. 15. It inerick's case, Kel. 77.

should be observed, however, that (9) 1 Hale 611. . 8 Inst. 590. ^nie,

Hawkins, after giving his reasons for 368, 378.

these conclusions, says, that no express (z) Rex 0; Haswell, East. T. 1881.

resolution of the points appearing, and Russ. and Ry. 458. Richardson, J.

the authors who nave expounded the thought, that if this had beeo an e»-

statute, (see 2 Inst. 590, 591. Sum. cape only, it would not have been

109, 110. 1 Hale 609.) seeming rather felony. See anie^ 368. 378.

to incline to a different opinion, he (r) 8 Hawk. P. C. c. 18. s. 10. Polt

shall leave these matters to the judg- de Pac. 1476. PI. 8. where it is said,

' ment of the reader. ' that if a stranger breaks the priioa, in

(0) Staundf. P. C. 38. 8 Hawk. P. C. order to help a prisoner committed

c. 18. s. 16. for felony to escape, who does escane

(p) 8 Hawk: P. C* c. 18. s. 17. accordingly, this is felony; notooiy

Benstead*s case, Cro. Car. 583. Li- in the stranger that broke the priaoo.

CHAP. XXX111.3 Proceedings — Punishment. 381

necessity of an inevitable accident happening, idthout the con*

trivance or fiiult of the prisoner; as if the prison shonld be set on

lire by accident, and he should break it open to save his life, (.t)

It seems also that no breach of prison will amount to felony, miless Esc«pe of the

the prisoner escape, (t) P»rty.

A party may be arraigned for prison-breaking before he is con- Of the pro-
victed of the crime for which he was imprisoned, (the proceeding c««diiig8.
differing in this respect from cases of escape or rescue,) on the
ground that it is not material whether he be guilty of such crime
or not, and that he is punishable as a principal offender in respect
of the breach of prison itself, (u) But if the party has been in-
dicted and acquitted of the felony for which he was committed, he
is not to be indicted afterwards for the breach of prison; for
though, while the principal felony was untried, it was indifferent
whether he were guilty of it or not, or rather the breach of prison
was a presumption of the guilt of the principal offence, yet, upon
its being clear that he was not guilty of the felony, he is in law as
a person never conrnoiitted for felony ; and so his breach of prison
is no felony, (w)

The indictment for^a breach of prison, in order to bring the Of the iadict-
offender within the intention of the statute, must specially set inent.
forth his case in such manner that it may appear that he was law-
fully 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 felo-
" niously broke prison ;'' {x) as there must be an actual breaking
to constitute the offence, (y) So it is held in all the books to be
necessary that such breaking be stated in the indictment. (2)

By the 4 Geo. 4. c. 64. s. 44. the certificate of the clerk of assize, ErideDce.
or other clerk of the court in which the offender was convicted,
together with due proof of the identity of the person, is made
evidence of the nature and fact of the conviction ; and of the spe-
cies and period of confinement to which such person was sen-
tenced, (m)

The offence of prison-breaking and escape, by a party lawfully Of the poouh-
committed for any treason or felony, is, as we have seen, of the ment.
degree of felony, (a) and will of course be punishable as such : but
it should be observed, that it is a felony within clergy, though the
principal felony for which the party was committed were ousted of
clergy, as in case of robbery or murder. (A) And in this it differs
from the offence of a voluntary escape, which is punishable in the
same degree as the offence for which the parly suffered to escape
was in custody, (c) Where the prison-breaking is by a party law-

bat also io the prisoner that escapes priocipal felony, he may plead that

by means of this breaclf, as he con- acquittal of the principal felony, in

sents to the breach of the prison by bar to the indictment for the breach

taking advantage of it of prison.

(t) I Hale Gil. 8 Inst. 590. Summ. (s) 2 Hawk. P. C. c. 18. s. SO.

108. Cy) Ante, 380.

(I) 2 Hawk. P. C. c. 18. s. 18. («) Rex v, Burridge» SP. Wms.483.

(«) 9 Inst. 592. 1 Hale 611. 2 Staundf. 31. a. 8 Inst 589, f I ttff .

Hawk. P. C. c. 18. s. 18. (m) jinte, 309.

[w) 1 Hale 618. where the learned (a) Jnte, 378.

writer also says, that ifthepartT should (b) 1 Hale 618.

be first indicted for the breach of pri- (c) AnlCy 375.
son, and then be acquitted of the

800 Of Pti$(m^br^akms. [won. n.

fviOy QfiBfined upon my iaferior charge, it id punlsbable as a high
fiaisprision, l^ fine aud imprisonment, {d)

Ab priflon-breach is a common law felony, if the person breaking
prison is a convicted felon> it is punishable as such. The prisoner
was found guilty upon an indictment which charged, that he had
been tried and convicted of horsestealing, and sentenced to suffer
4eath ; and that his Majesty extended his mercy to him, on condi-
tion of being imprisoned and kept tq hard labour, in the House of
Correction at Bnxton-hiU, for two years : that he was committed
to, and lodged and confined in the said House of Correction ; and
that be being so convicted and committed, before the expiration
of tb^e two years, trie;, on the 4th Xlecember, 1820, at, &o. with
force wd arms did wilfully and feloniously break the said House of
Correction, and make his escape from and out of it, and go at
large, contrary to the statute, 8(c« and against the peace, &c. The
Judges, upon a case reserved, were unanimously of opinion, that
this was punishable as a common law felony bv imprisonment not
exceeding a year, to begin from the passing of the sentence ; and
that, if thought right, the prisoner might be whipped three times
ip addition to the imprisonment* («)
59Geo.3«&li. The sta^tute 59 Geo. 3. c. IL, being an act for the better regula-
^^^^^~ lion of the general penitentiary at Millbank, enacts, that anv con-
confined in the viot ordered to be confined in the said penitentiary, who anall at
penitentiary at aiQT time during the term of such confinement break prison, or
hnSl^gpii- ^^^P® ^™ ^ place of confinement, or in the conveyance
■on, or escap- to flueh place of confinement, or from the person or per-
ing,orattempt- sons having such convict in law&l custody, shall be punished bv
ing 10 to do. ^ fMldition, Bot exceeding three years, to the term for which sucn

qoiiviat at the time of the breach of prison or escape was subject
io be confined ; and if such convict so punished by Buch addition
to the term of confinement sht^l afterwards be convicted of a
seeond escape or breach of prison, then that such convict shall be
adjudged gmlty of felony, without benefit of clergy. And it fur*
iher enactsy that if any convict^ who shall be ordeied to be confined
in the said penitentiary, shall ^t any time during the term of such
confinement attempt to break prison, or escape from tiie place of
his or her confinement, or shall forcibly break out of his or her cell,
or shall make anv breach therein with intent to escime therefrom,
0uoh offender, bemg convicted thereof, shall be punished by an ad-
dition, not exceeding six calendar months, to the term for which
he or she at the time of committing any such offence waa ;9ubject
to be confined. *

Priion-brak- Before this Chapter is concluded it should be observed, that, by
inffybysutatei statutes which. relate only to particular crimes, the offence of pri-
^^roi^^ son-breaking is, in certain cases, made the subject of special enact-
ment, and, in some instanees, of capital punishment ; and will be
mentioned in the course of the "Work, m the order in wliich the
crimes are treated of to which those statutes relate.

(i) 2 Hawk. P. C. c. 18. s. 81. . alluded to as applicable to Ibis case.

{e) Rex V, Haswell, East. T. 1891. That statute, tiowever, (except s. 7.)

Ross, and Ry. 458. It does not ap- has been repealed by 4 Geo. 4. c. 64.
pear that tbe 31 Geo. 3. c. 46. was

38S

CHAPTER THE THIRTYFOURTH.

OF rimcuib; anb ov AcrrvRLT Aumra in an bboavb, oe

m AN ATTEMPT TO ESCAPR.

Rssctnfe, or the offence of forcibly and knowingly freeing another Of rescue,
from arrest or imprisonment^ is, in most instances, of the same
nature as the offence of prison-breaking, which has been treated «f
in the preceding Chapter.

Thus it is laid down, that whatever is such a prison tliait'titt Ofth&asitof
party himself would, by the common law, be guitey of "felony in JJ^JJ" 'j^..
brealdng from it, in every such case a straneer would be guilty of ranmenTand
as high a crime at least in rescuing him from it. Butthough^ upon breaking,
the principle that wherever the arrest of a felon is lawful the rescae
of him is a felony, it will not be material whether the party ar-
rested'for felony, or suspicion of felony, be in tiie custody of a
private person, or of an officer ; yet, if he be in the custody of a
private person, it seems that the rescuer should be shevm to have
knowledge of the party being under arrest for felony, (a) In cases
where the imprisonment is so &r groundless or irregular, or for
such a canse, or the breaking of it is occasioned by such a oeces^
sity, &c. that the party himself breaking the prison, is, either by
the common law, or by the statute 1 Edw. 9. st.2. De frangentibus
prisonam, saved from the penalty of a capital offender ; a stranger
who rescues him from sucn an imprisonment is, in like manner^
also excused, {b)

It has been stated in the preceding Chapter, that, where a person A lescner may
committed for high treason breaks the prison and escapes, letting ^ ^^ ^^
out other persons, committed also for hi^ treason, he seems to h« ^ trcawn.
guilty of high treason, in case his intention in breaking the prison
were to favour the escape of such other persons as well as his
own : (c) and it is clear that a stranger who rescues a person com-
mitted for, and guilty of, high treason, knowing him to be -so
committed, is, in all cases, guilty of high treason. (cQ It has been
hoUen also, that he will be thus guilty whether he knew that the
party rescued were committed for high treason or not : and that
he wou)d> in like manner, be guilty of felony by rescuing a

(■) I Hale 606. (e) Jmte, 980.

W 8 Hawk. P. C. c. 81.8. I,ii. S {d) 2 Hawk. P. C. c. SI. s. 7.

InataSQ. Staandf. P.C.80,81. .fnlff, Stauadf. P. C. 1 1 » 88. Sum. 109. 1

378. et geq. Hale 937.

384

Of Rescue.^^Pumshmenl.

[book If.

A breaking of
the priaoQ is
not felony,
unless a pri-
soner escape.

Of the pro-
ceedings in
cases of rescue.

Of tbe indict-
ment for a
rescue.

Of the punish-
ment for a
rescue.

fAoBf though he knew not that the party was impriaoDied for
felony, (e)

As the party himself seems not to be guilty of felony by break-
ing the prison, unless he actually go out of it; (/) so 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 get out of prison, (g)

The sheriff 's return of a rescue is not of itself sufficient to pat
the party to answer for it as a felony, without indictment or pre-
sentment. (A) And it is the better opinion that he who rescues
one imprisoned for felony cannot be arraigned for such offence as
a felony, until the principal offender be first attainted ; unless the
person rescued were imprisoned for high treason, in which case
the rescuer may be immediately arraigned -, all being principals in
high treason. But it is said that he may be immediately pro-
ceeded against for a misprision only if the king please : (i) and if
the principal be discharged, or foimd guilty only of an offence not
capital, such as petit larceny, &c. though the rescuer cannot be
charged with felony, yet he may be fined and imprisoned for a
misdemeanor. (/}

The indictment for a rescue, like that for an escape^ (/) or for
breaking prison, (m) must specially set forth the nature and cause
of the imprisonment, and the special circumstances of the fact in
question, (n) And the word rescussit, or something equivalent to
it, must be used to shew that it was forcible and against the will
of the officer who had the prisoner in his custody, (o)
* The rescue of one apprehended for treason is itself treason : and
the party rescuing one in custody for felony, or suspicion of
felony, will, as we have seen, be guilty of a crime of the same
kind ; though not in all cases punishable in the same degree ; for
the rescuer will be entitled to his clergy, though the crime of the

i>risoner rescued were not within clergy, (p) Accordingly, in a
ate case it was held, that rescuing a person under commitment
for burglary was not a transportable offsnce, but was punishable

(e) Rex V. Beostead* Cro. Car. 563.
where it is said that it was resoWed by
ten of tbe Judges, (bn a special com-
inissioD,) seriatim, that the breaking
of a prison where traitors are in dur-
ance* and causing them to escape, was
treason, although the parties did not
know that there were any traitors
there : and that, in like manner, to
break a prison whereby felons escape,
is felony, without knowledge of their
being imprisoned for such offence.
And see I Hale 606. But Hawkins,
(P. C. c. 21. s. 7.) says, that this opi-
nion is not proved by the authoritr of
the case, {l Hen. 6. 5.) on which it
seems to be grounded. It should be
mentioned I nowerer, that Benstead*s
case is spoken of in Rex v. Burridge,
8 P. Wms. 468. as having been cited
and allowed to be law at an assembly
of all the Judges of England, except

the Chief Justice of the Common Pleas,
^that place being at the time vacant,)
m Limerick*s case, Kel. 77.

(f) Ante, 381.

{g) 8flawk.P.C.c.l8.8.19.f €.91.

8. 8.

(A) 1 Hale 606.

(0 8 Hawk. P. C. c. 81. s. 8.

(Ar) I Hale, 598, 599.

(0 Ante, 874.

(vi) Ante, 881.

(n) 8 Hawk. P. C. c. 8 1 . s. 5. In Rex
V. Westbury, 8 Mod. 357. it washoldeo.
that an indictment for a rescue of
goods levied must set forth the Uri
faeitu at large ; and that setting forth
qudd cum virtuUbrevie t^e, deferife-
' cioi, and a warrant thereon he, levied,
&c, and that the defendant rescued
them, is not snflicient

(«) Rex V. Borridge, 8 F. Wntt. 483.

ip) 1 Hale 607.

CBAF. xxziT.] Of Aiding an Escape. SSb

tmlf as a felony, within clergy, at common law. (a) SubseqnentlVv

however, to this decision the statute 1 and 2 Geo. 4L c. 88. s. L l and 2 Geo. 4.

has enacted, *^ that if any person shall rescue, or aid and assist in c* 88.1. i.

^' 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 €on»-

**' victed of idony, and be entitled to the benefit of clergy, and be

^ liable to be imprisoned for any term not exceeding one year, it

<< shall be lawful tor 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 impiisoned as aforesaid, shall be transported beyond the seas

^* for seven 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 ex-

« ceeding three years." (A)

Where the party rescued was in custody for a misdemeanor
only, the rescuer \nll be punishable as for a misdemeuior ; for, as
those who break prison are punishable for a high misprision, by
fine and imprisonment, in those cases wherein they are saved from
judgment ot death by the statute 1 £dw. 2. stat. 2. De frangentibuH
prisonam; so also are those who rescue such prisoners, in the like
cases, punishable in the same manner, (q)

The rescue of a prisoner, in any of the superior courts, committed
by the justices, is a great misprision ; for which the party, and the
prisoner, (if assenting,) will be liable to be punished by imprison-
ment for life, forfeiture of lands for life, and forfeiture of goods and
chattels ; though no stroke or blow were given, (r)

The aiding and assisting a prisoner to escape out of prison, by Of aiding k
whatever means it may be effected, is an offence of a mischievous pr>*oner to
nature, and an obstruction to the course of justice: and the assist- eicape.
ing a felon in making an actual escape, is an offence of the degree
of felony. («) In a case which underwent elaborate discussion, the
court of King's Bench held, that where a person assisted a prisoner
who had been convicted of felony within clergy, and, having been
sentenced to be transported for seven years, was in custody under
such sentence, to escape out of prison, the person so assistmg was
an accessory to the felony after the fact, (t) The court proceeded
upon the ground that one so convicted of felony. Within the benefit
of clersy, and sentenced to be transported for seven years, conti-
nues a felon till actual transportation and service pursuant to the
sentence ; and that the assistance given in this case amounted, in
law, to a receiving, harbouring, or comforting, such felon. (t«) But

(s) Rexv.Stanley and others, Rufls. (q) 9 Havk. P. Q. c. SI. 8.6. 4

and Rt. Cr. Cas. 4SS. Blac. Com. ISO.

(*) The second section of this act (r) 1 East P. C. c. 8. s. S. p. 408»

subjects a party assaulting any con- 410. 6 Bac. Abr. Reicue^iC.) Sinst.

stable or other person, in order to pre- 141 . 22 Edw. 3. 13.

vent sn apprehiension on charge or («) Rex v. Til ley, 2 Leach 67 1 .

suqiicion of felony, to punishment by (I) Rex v, Burridge, 3 P. Wms 439.

hard labour. See ^tl. Book lU. Chap. (u) The assistance, as stated in tha

xi.s.t. Of JggTMPBM AwauUi. flpecial verdict in this case, was aoi

yoL, I. 2 c

386 Of Aiding an Escape. [bookii.

they held the indictmeQt to be defective, in not charing ihat the
.defendant knew that the principal was guilty^ or copyicted of
felpny. {w) The offence of aiding a prisoner to escape out of pri-
son appears also tu have be^i considered as an accessorial o£fence
in a case of piracy. On a retiuai to a habeas corptts, m the case of
one Scaddingy who had been committed to the Marshalsea by the
court of AdmiraltVi the cause appeared to be for aiding and abet-
ting one Mxon, who was indicted for piracy, to escape out of pri-
son; whereupon all the court held that, though tiie fact were
committed by Scaddmg, within the body of the county, yet, because
it depended upon the piracy committed by Mxon, of which the
temporal judges bad no cognizance, and was as it were an access
sorial offence to the first piracy, which was determinable by the
admiral, they must remand the prisoner, (s)

Aiding the esci^ of a clergyable felon, who has bad his clergy
and been burnt in the hand, but ordered under 18 Eliz. to be im-
prisoned, would not, it should seem^ have subjected the party to
•punishment as for aiding the escape of a felon. (t;)
sututeB re- Several statutes, some of which have been already mentioned,

specting the ^q^j others wUl be referred to in the course of the Work, espe-
80Dcra%r aid-" ci^Uy provide for the punishment of those who rescue or aid in
log them to the escape of persons apprehended or committed for the particular
escape. ofiSences enumerated in those acts. There are also some special

provisions by statutes, upon this subject, which may be noticed
shortly in this place.
9 Geo. 1. C.22. By the 9 Geo. 1. c. 22. (cqmmonly called the Black Act,) pcr-
Bons In^c^usSy <"**** forcibly rescuing any p^son being lawfully in custody of any
for offences officer, or Other person, for any of the offences mentioned in the
**^^S* '**"*?' statute, or by gift or promise of money or other reward, i^rocur-^
offedden."^^ ing any of his Majesty's subjects to join in any such unlai^l act,

were, upon conviction, to be adjudged guilty of felony, and to
4 Geo. 4. c. 54. suffer death without benefit of clergy. (p) But the 4 Geo. 4. c. 54.

s. 1., reciting that it was expedient that a less degree of punish-
ment should be provided for such ofiences, and that thie same
punishment should be extended to per^ns. accessory thereto, en-
acts, that so much of the 9 Geo. 1. c. 22. as excludes the benefit
of clergy in such cases, shall be repealed, and that every person
duly convicted of such felonies or apy of them, or of ptocuriog,

ptrlicnlarly flpeeified: the statsment to have been uader aentence of timos*
mat ^at the defendant, < who was con- portation ; and was> tried upon thi^se*
fined in the same gaol with the party cood iodirlment, convicted, a^pid fien-
whom he assisted to escape,) ^* diet wif- tenced to be transported, id, 499, SOS.
*' fully aid and assist the said W. P., so ' But such sentence was not warranted
** being in custody as aforesaid, to by law. See Rex v, Stanley, Ruts. &
" make his escape out of the said Ry. Cr. Ca. 438. Jnie^ p SS5.
^'gaol.** But any assistanoe given to <jr) Rex v. Scadding, Yelv. 134 1
one known to be a felon, in order to East. P. C. c. 17. s. 14. p. 810.
hinder his suffering the punishment to (o) See the j udgment of Treby, C. J.
which he ift condemned, is a sufficient In the Eurl or Warwick*8 case, IS' St
receipt to make a man an accessory Tr. 1018., as to the cpaaroftment no-
after the fact. Jnie, p. 34. der this statote being a colhiteral and

(m) 8 P. Wms. 40S. The prisoner new thing,

was charged upon a second indictment (jf) Sect. 1.
as an accesMry, knowing the principal*

CHAP« xxxiY.] Rescuing, ^.—Satutes. 3&7

counseUing, aiding, or abetting the commisaion thereof^ shall be
liable, at the discretion of the court, to be tnuuiported for seven
years, or to be imprisoned only, or to be imprisoned and kept to
hard labour in the common gaol or house oi correction for any
term not exceeding three years, (jb) By ss. 4. & 5. of the 9 Geo. 1.
c. 22. if any person, being charged with any of the offences against
this statute, and being required by order of the privy council to
surrender himself, neglects so to do for forty days, the person so
neglecting, and aU that knowingly conceal, aid, abet, or succour
him, are declared to be felons, without benefit of clergy.

By the 25 Geo. 2. c.SJ. s. 9., ^^ If any person or persons what- 25 Geo. 2. c.67.
" soever shall by force set at liberty, or rescue, or attempt to ■• ^- Rescuing
" rescue or set at liberty, any person, out of prison, who shall be tody'for mur-*"
^^ committed for or found guilty of murder, or rescue, or attempt der.
'^ to rescue, any person convicted of murder going to execution,
" or during execution, every person so ofi^ending shall be deemed,
" taken, and adjudged to be guilty of felony, and shall suffer death
" without benefit of clergy." And the tenth section of the statute sect 10.
enacts, that if any person, after execution, shall, by force, rescue, Rescuing the
or attempt to rescue, the body of such offender, out of the cus- ^^^^ ^ * ™"*^
tody of the sheriff or his officers, during its conveyance to any of cutlon.
the places directed by the act, or from the company of surgeons,
QT their servants, or irom the house of any surgeon where the same
shall have been deposited in pursuance of the act, such offender
shall be guilty of felony, and be liable to be transported for the
term of seven years.

The 6 Geo. 4. c. 5. s. 13. (Mutiny Actj) enacts that if any 55 G. 3. c. 108. '
offender, under sentence of death by a court martial, shall obtain ^'^^ ^^^ ^ ^^
a conditional pardon, (as mentioned in the act,) all the laws in offendera^Mn-
force touching the escape of felons under sentence of death shall tcoced by a
apply to such offender, and to all persons aiding, abetting, or ^Sd'^conditioli-
assisting in any escape, or intended escape, of any such offender, ally pardoned :
or contriving any such escape, from the time when an order shall and 6 Geo, a,
be made by a justice or baron, and during all the proceedings had to^hosc tcn^
for the purposes mentioned in the act. A provision nearly similar tenccd by a na-
ia contained in the 6 Geo. 4. c. 6. s. 14., an act for the regulating ▼«! court mar-
of the royal marine forces while on shore.

The 5^ Geo. 3. c. 156. provides against the aiding of the escape 52 G. 3. c. I5f>.
of prisoners of war ; and enacts, that " every person who shall Pewons aiding
" knowingly and wilfully aid or assist any alien enemy of his prisonera^o?
'^Majesty, being a prisoner of war in his Majesty's dominions, war made liable
" whether such prisoner shall be confined as a prisoner of war in t? traosporu-
" 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 confine-
'^ ment, or from his Majesty's dominions, if at large upon pa-
'* role," shall, upon conviction, be adjudged guilty of felony, and
be liable to be transported for life, or for fourteen or seven years.
The act also declares^ that every person who shall knowingly and

(z) And by tabsequent sections ing offenders ia other cases tbcfoitt
transportation for life and other pu- mentioned.
nishmeiitB are aathorized for rescu-

2g2

J88 Aiding Attempts to Escape. {[book ii;

wilfully idd or assist any such prisoner at large on parole in quit-
ting any part of his Majesty's donunions 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 within the act. (a) There
IS a further provision as to assisting such prisoners in their escape
after they have got upon the high seas. The third section of the
statute enacts, ^^ That 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, knowingly 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 aforesaid."
It is also provided that offences conmiitted upon the high seas, and
not within the body of any county, may be tried in any county
within the realm. (&) Previously to the passing of this act, upon
an indictment for a misdemeanor in unlawfully aiding and assist-
ing a prisoner at war to escape, where it appeared that such pri-
soner 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 m-
tended to escape : it was held that the offence was not complete,
and that a conviction for such offence was therefore wrong, (s)
l6Geo.2. C.31. The mere aiding an attempt of persons confined to maJce an
Aiding ^ pp~ escape, though no escape should ensue, is made highly penal by
Jf'tw^lTor the 16 Geo. 2. c. 31., which enacts, that ;< if any person shall, by
felony, or com- " any means whatsoever, be aiding or assisting to any prisoner to
nutt^ forthose t€ attempt to make his or her escape from any gaol, although no
Attempt to es- escape be actually made, m case such prisoner then was attainted
ciipe. •< or convicted of treason, or any felony, except petty larceny, or

'' lawfully committed to or detained in any gaol, for treason or

'^ any felony, except petty larceny, expressed in the warrant of

^^ commitment or detainer ;" every person so offending shall, on

conviction, be adjudged guilty of felony, and be transported for

Aiding, &c. a seven years. (/) And, ''in case such prisoner then was convicted

prisoner con- «4.or committed to or detained in any gaol for petty larceny, or

mith^ for ^TCt- " ^^¥ Other crime, not being treason or felony, expressed in the

tf larceny, &c. '^ warrant of his or her commitment or detainer as aforesaid, or

or confined np- tt ^jj^^ was in gaol upon any process whatsoever, for any debt,

uj d^uT&c! ^^ damages, costs, sum or sums of money, amounting in the whole

amonnting to* '' to the sum of Qpe hundred pounds ;" every person so offending,

^^^ and being convicted, shall be deemed guilty of '' a misdemeanor,

'' and be liable to a fine and imprisonment." (^)

(u) Sect. 2, under the act ; stad no person prosf-

(b) Sect. S. By sect 4. the act is not cuted ilnder the act is, for tbe.saroe

to prevent offenders from being ))rose- offence, to be otherwise prosecoted.

ci|ted, as they might have been if the {%) Rex v, Martin, Trin. T. 1811,

act had not been passed: but no per- Russ. & Ry. 195.

s^Q prosecul^ otherwise than under (/) 1 6 Geo. 2. c. .11. s. 1.

the provisions of the act is to be liable {g) Id*

to be prosecuted for the same offence

k.

it

iCHAF. xxxiT.] Statute 16 Geo. 2. c. 3L 389

The Btatate farther enacts, ^^That if any person shall convey, i60eo.2. c.31.
** or cause to be conveyed, into any gaol or prison, any vizor, or «-^- Conrcying
"•other disguise, or any instrument or arms proper to facilitate fnitranicntsin!^

the escape of prisoners, and the same shall deliver or cause to to any prisoD,
" be delivered to any prisoner in any such gaol, or to any other ^ facilitate the
" person there, for the use of any such prisoner, without the con- "nert,*con-'
*• sent or privity of the keeper or tmder -'keeper, of any such gaol Yicted of or
" or prison ; every snch person, although no escape or attempt to committed for
" escape be actually made, shall be deemed to have delivered such ^^^ ^
^^ vizor or other disguise, instrument or arms, with an intent to
** aid and assist such prisoner to escape, or attempt to escape ;
'^ and in case such prisoner then was attainted or convicted of
** treason, or any felony, except petty larceny, or lawfully com*
^ mitled to or detained in any such gaol for treason, or any felony

except petty larceny, expressed in the warrant of commitment

or detainer ;'* every person so oiFending, and being convicted,
shall, in like manner, be deemed guilty of felony, and be trans-
ported for seven years«(A) And it proceeds to enact, that, *' In Or to faciliuta
" case the prisoner to whom, or for whose use such vizor or dis- *^? escape of
"guise, instrument or arms, shall be so delivered, then was ?kted*orcom-
" convicted, committed, or detained for petty larceny, or any mitted for petty
*^ other crime not beinff treason or felony, expressed in the **""ceny, &c.;

u ^ c -^Tj^* J9 I or confined np-

•• warrant of commitment or detamer, or upon any process what- on any proceaa
" soever, for any debt, damages, costs, sum or sums of money, for auy debt,
" amounting in the whole to the sum of one hundred pounds ;" ^^''iooT""^^"*
every person so offending, and being convicted, shall be deemed
guilty of a misdemeanor, and be liable to a fine and imprison-
ment, (i)

It is further enacted by this statute, " That if any person shall l^^}^<^:f^''
^^ aid or assist any prisoner to attempt to make his or her escape ^ny pennn*"^
" from the custody of any constable, headborough, tithingman, or charged with
** other officer or person who shall then have the lawful charge of Jf^**^\^'^^f?®'
** such prisoner, in order to cany him or her to gaol, by virtue of tempt to escape
"a warrant of commitment for treason, or any felony, (except from a consta-
'" petty larceny,) expressed in such warrant; or if any person shall ^*®» *^'
" be aiding or assisting to any felon to attempt to make his escape boat™™c*cL-
*^from on board any boat, ship, or vessel, carrying felons for rylng felons for
" transportation, or from the contractor for the transportation of transporutioo*
*• such felons, his assigns or agents, or any other person to whom cont«wtor1or
" such felon shall have been lawfully delivered, in order for trans- their tnuuportr
*^ portation ;" every person so offending, and being convicted, ation*
shall be deemed guilty of felony, and be transported for seven
years. (A)

It is provided by this statute, that there shall be no prosecu- ^^^^j?J^nJ|J[
tion for any of these offences unless it be commenced within a
year after the offence committed. (/)

And it is also enacted that if any person, ordered for transporta- Persona* orfer-
tion in pursuance of this act, shall return from transportation, or ^oruaj^by
be at large in any part of Great Britain, without some lawf\il Sbis act, and
cause, before the expiration of the term for which such person returning, or

'^ ^ heing at iargs

(h) ia Geo. 2. c. 31. s. Sr (k) 16 Geo. 8. C.S1..8. 3.

{i) Id. (/) Sect. 4.

390 Aiding Attempts to Escape. [book il

before the ex- ahull havc becn ordered to be transported, «uch person shall be
Jentence?^'^^*' liable to the same punishment, and methods of prosecntion, trial,

and conviction, for so returning or being at large, as other felons
transported, or ordered to be transported, were liable by the laws
then in force. ^

i6GecI!?c.3L It.Bhould be observed, that the second section of this statute,
A commitment relating to the conveying of instruments^ &c. into any prison, in
on suspicion order to facilitate the escape of the prisoners, makes the offender
^Jticu ^* S^^Yf i" cases where the prisoner is committed to or detained in

any gaol for treason or felony expressed in the warrant of commit-
ment, (m) This has been holden to mean that the offence should
be '^ clearly and plainly earpressed ;" so that a case where the com-
mitment is €m suspicion only is not within the act: for there
are two kinds of commitments, which essentially difier from each
other; as a prisoner may be admitted to bail on a commitment
for suspicion only, but not on a commitment for treason or felony
clearly and plainly expressed in the warrant. (») . And this doc-
trine was recognized and acted upon in a subsequent case of an
indictment upon the third section of the statute, which relates to
the aiding a prisoner to escape from the custody of a constable
having charge of him by virtue of a warrant of commitment for
felony ^^ expressed'' in such warrant. The indictment stated that
the commitment was on ^' siisjncion** of burglary, and the war-
rant produced in evidence at the trial corresponded with this
statement : the point being reserved for the opinion of the Judges,
they were unanimously of opinion that a commitment on suspicion
was not within the statute, (o)
The statntc A majority of the Judges decided a point of great importance in

dbes not extend the construction of this statute, namely, that it docs not extend
an ^Bctutdvs-^ *^ cascs whcrc an actual escape is made, but must be confined to
cape i« made, cases of an attempt, without effecting the escape itself. They

said, '^ the statute purports to be made for the further punishing
^^ of those persons who shall aid and assist persons attempting to
'^ escape, and makes the offence felony ; it creates a new felony :
** but the offence of assisting a felon in making an actual escape
was felony before ; and therefore does not seem to fall within
the view or intention of the Legislature when they made this
An indictment *' Statute.'' (77) In this case it was also holden that an indictment
on the statute charsinir the defendant with aiding and assistins^ a prisoner to
th*t the party attempt to make an escape, need not state that the party aided
aided did at- did attempt to make the escape ; for he could not have aided if no
tempt to make such attempt had been made. (9) It has been decided that the
escape, delivering instruments to a prisoner, to facilitate his escape from
prison, is within this statute, though the prisoner have been par-
doned of the offence of which he was convicted, on condition of
transportation.)[a) And a party is within the act, tliough there be

(m) yfnie, 389. Leach 662. But see now 4 Geo. 4. c*

(n) Rex V. Walker, I I*each 97. 64. s. 43.

(o) Rex V. Greeniff, 1 Leach 363. ; {q) Id. {bid,

and Rex v. Gibbon, 1 Leach 98, note (a) Rex v, Shaw and others, Micb.

(«) S. P. T^ 1 823. Russ. & Rf . 52^.

(jij Rex r. Tilley and others, 8 1

CHAF. xxxnr.] SUUute 4 Geo. 4. e. 64. 391

no evidence that he knew of what specific ofibnce the peMcm he
assisted had been convicted. (6)

In die same case H was also decided that the record of the con*
viction of the prisoner, whose escape was to have been effected,
having been produced by the proper officer, no evidence was ad-*
missible to contradict what it stated ; or to shew that it had never
been filed among the records of th^ county ; notwithstanding the
indictment referred to it with d^prautpeU^t as remaiiMng amongfst
those records. (c)

The statute 4 Geo. 4. c. 64. s. 43., intituled ^' An act for the 4 Geo, 4. c. (U.
'^ consolidating and amending the laws relating to the building, f- *3- Convcy-
" repairing, and regulating, of certain gaols and houses of correc- gu^^^arma,
'^ tion in JSngland and Wales, enacts, that if any person shall &c. proper for

^^ and the same shall deliver or cause to be delivered to any pri-
soner in any such prison, or to any other person there for the
use of any such prisoner, without tne consent or privity of the
keeper oi such prison, every such person shall be deemed to
*^ have delivered such vizor or disguise, instrument or arms, with
'^ intent to aid and assist such prisoner to escape, or attempt to
^^ escape ; and if any person shall, by any means whatever, aid. Assisting any
** and assist any prisoner to escape, or in attempting to escape prisoner to cs-
" from any prison, every person so offending, whether an escape ^^^' felony.
" be actually made or not, shall be guilty of felony; and, being
^' convicted thereof, shall be transported beyond the seas for any
" term not exceeding fourteen years.'*

The same statute, (s. 44.) to the intent that prosecutions for Trial and evl-
escapes, breaches of prison, and rescues, may be carried on with ^'*^*'
as little trouble and expense as possible, enacts, '^ that any offender
*^ escaping, breaking prison, or being rescued therefrom, may be
^' tried either in the jurisdiction where the offence was committed,
" or in that where he or she shall be apprehended and retaken."
And it also enacts that a certificate of the clerk of assize, or other
clerk of the court in which the offender was convicted, together
with due proof of the identity of the person, shall be sufficient
evidence of the nature and fact of the conviction, and of the spe-
cies and period of confinement to which such person was sen-
tenced, (i)

The late statute, 5 Geo. 4. c. 84., which was passed for the 5 Geo. 4. c. 94.
purpose of revising and consolidating the laws for regulating the ■• ^\ Persons
transportation of offenders from Great Britain, and which wUl be aiding t^ces-
more particularly noticed in the next Chapter, provides that if any cape of offend-
person shall rescue or attempt to rescue, or assist in rescuing or ^^^^'"^i*?^
attempting to rescue, any offender sentenced or ordered to be from the custo-
transported or banished, from the custody of the superintendant dyoftheovcr-
or overseer, or of any sheriff or gaoler, or other person,, convey- JJ^ifa^i^jJ^

u such offemi''
(b) Hex V. Shaw and others, antCf 1801, MS. BsyleyrJ*
note (a). An indictment at commoa (c) Rex v. Shaw and others, anUr
law for aiding a prisoner*s escape note (a).

should state that the party knew of (t) See this provisicMi more at hrge
bis offence. Rex v. Young, Trin* T. anitf p. S6S.

393

en bad been
in the custody
ofashcriif or
gioler.

Aiding Atlempti to Escapes [Boo&n*

ing, removing^ &c. such offender, or shall convey or cause to be
conveyed any disguise, instrument for effecting escape, or arms^
to such offender, every such offence shall be punishal^le in the
same manner as if such offender had been confined in a gaol or
priton in the custody of the sheriff or gaoler, for the crime of
which such offender shall have been convicted, (m)

The two following sections, (23 & 24,) relate to the indictment
and the evidence, and will be foimd in the next Chapter.

(m) Sect 99.

393

CHAPTER THE THIRTYPIPTH.

Or RETURNING, OR BEING AT LARGB^ AFTER SENTENCE OF TRANS-*
PORTATION ; AND OF RESCUING OR AIDING THE ESCAPE OF A
PERSON UNDER SUCH SENTENCE.

As exile or trmuportaiian ie a species of pnniBhment unknown to pffenceB by
the common law of England, ana inflicted only under the sanction 2[^|"t^^ ^f^^
of enactments of the JLegislature, offences committed by not sub- ion seaiencecl
mitting to that punishment are principally dependent upon the ^ be trans-
provisions of particular statutes, (a) But as a party convicted of JJ^j^Jlws
felony within benefit of clergy, and sentenced to be transported for tbe party an
seven years, continues a felon, till actual transportation and ser- *5^*?'?'^ •^^
vice, pursuant to the sentence; and as it is felony at common law common'iaw.
to assist a felon to escape out of lawful custody; it has been
holden that, independently of any statutable enactments, a person
assisting such felon convict, being in custody under sentence of
transportation, to escape out of prison, is an accessory to the fe*
lony after the fact; provided it be such an assistance as in
law amounts to a receiving,- harbouring, or ^romforting such
felon. (A)

The statute 5 Geo. 4. c. 84. s. 1. recites that the several laws in 5 Geo. 4. c. 84.
force for regulating the transportation of offenders from Great By8.i.ailper-
Britain^ would expire at the end of the then present session of par- JJ'^^JJ^'f^
liament; and, that it was expedient that the laws relative to that transporution
subject should be revised, and consolidated into one act; and then are to be placed
enacts, that the act shall take effect on the last day of that present ^"?om of &u'
session of Parliament ; and that on and from that day, all things act.
remaining to be done, touching the punishment, imprisonment,
correction, removal, transportation, discipline, employment, diet,
and clothing of persons sentenced or ordered to transportation or
banishment from any part of Great Britain, under an v acts there-
tofore or then in force, or pardoned on condition of being trans-

(a) In 6 £v. Col. Stot Part V. CI. the privy conncil, or otherwise ad^

XXT. (G) p. 859, 853. the learned editor judged perpetually to the gallies of

says, that tbe earliest act which ira- this realm ; and any roe;ue so banished,

fKMed the punishment of transporta- and returning again mto the realm,

tion was 39 Bliz. c. 4. which enacted was to be gniltv of felony. And he

that ro|[oes, vagabonds, &c. might, by says that the earliest statute then sub-

the justices in sessions, be banished out sisliog which notices the power oC

of tbe realm, and conveyed at the transportation was 29 Car. 9. c. 6.,

charges of the county to such parts be- (b) Rex v. Burridge, M.^ T. 1735.

yonil tbe seas as should be assigned by 3 P. Wms. 439. UnU^ 385. '

dd4

S.2. Offenders
adjudged for
transportation
are to be trans-
ported under
the provisions
of this act.
And also of-
fenders receiv-
ing a condi-
tional pardon,
concerning
whom an a1»
lowance and
order may be
made by a
subsequent
court.

S. 3. Places of
transportation

0/ Return, Escape, %e after [book n.

ported under any such acts, shall be continued, done, and com'
pleted, under the provisions of that act ; and that all sentences and
orders for transportation, all orders in council and other orders,
warrants, instructions, directions, appointments, authorities, con^
tracts and securities, made, issued, or given under any of the said
acts, and in force at the time of the commencement of that act,
should continue in force under and by virtue of that act^ imless
and utitil they should be revoked or superseded.

The second section enacts, ^' that from and after the commence-
ment of this aet, every person convicted before any court of com-
petent jurisdiction in Great Britain, of any ofience for which he
'^ or she shall be liable to be transported or banished, shall be ad-
judged and ordered to be transported or banished beyond the
seas, for the term of life or years for which such offender shall
^^ be liable by any law to be transported or banished ; and every
** sentence of transportation or banishment passed or to be passed
^' on any offender, in any court of competent jurisdiction in Great
" Britain, and every order for transportation or banishment made
^^ or to be made in pursuance of the sentence of any such court or
*^ other competent authority, shall subject the offender to be con*
*^ veyed beyond the seas, under the provisions of this act; and
" whenever His Majesty shall be pleased to extend mercy to any
'^ offender convicted of any crime for which he or she is or shall be
^^ excluded from the benefit of clergy, upon condition of trans^
^^ portation beyond the seas, either for the term of life, or any
^^ number of years, and such intention of mercy shall be signified
*^ by one of his Majesty's principal secretaries of state to the court
*^ before which such offender hath been or shall be convicted, or
'^ any subsequent court with the like authority, such court ahall
** allow to such offender the benefit of a conditional pardon, and
*' make an order for the immediate transportation of such offender;
^^ and in case such intention of mercy shall be so signified to the
^^ judge or justice before whom such offender hath been or shall be
^' convicted, or to any judge of his Majesty's court of King's
'^ Bench or Common Pleas, or to any baron of the Exchequer of
^^ the degree of the coif in England, such judge, justice, or baron,
^' shall allow to such offender the benefit of a conditional pardon,
" and make an order for the immediate transportation of such
'^ offender, in the same manner as if such intention of mercy had
^' been signified to the court during the term or session in or at
^^ which such offender was convicted; and such allowance and
*^ order shall be considered as an allowance and order made by the
^^ court before which such offender was convicted, and shall be en-
^^ tered on the records of the same court by the proper officer
^^ thereof, and shall be as effectual to all intents and purposes, and
have the same consequences, as if such allowance and order had
been made by the same court during the contumance thereof;
^^ and every such order, and also every order made by the court of
Justiciary in Scotland for the triHisportation of any offender,
whose sentence of death shall be remitted by his Majesty, shall
subject the offender to be eoilveyed beyond the seas, under the
provisions of this act/'
The third section enacts, *^ that it. ahali be kwftiL for hitf Ma^

€4

CHAP. xxxT.] Sentence of Transportation. 895

" jesty, by and with the advice of hig privy council, from time td *<> be appoint-
" time, to appoint any place or places Ixeyond the seas, either with- f^i^Jtnd^M^
'^ in or without his Majesty's dominions, to which felons and cretary of state
" other offenders under sentence or order of transportation or ba- mayaathorizc
** nishment shall be conveyed j and that when any offenders shall m<J^ conu^cts
^' be about to be transported or banished from Great Britain, one for traosporta-
*^ of his Majesty's principal secretaries of state shall give orders ^^^^
" for their removal to the ship to be employed for their transport-
'^ ation, and shall authorise and empower some person to make a
*^ contract for their effectual transportation to some of the places
'' so appointed, and shall direct security to be given for their
" effectual transportation, in the manner hereinafter mentioned/'

Provision is then made for the delivery of offenders ordered to
be transporled to the contractors by the sheriff or gaoler, and for
the giving of proper security by the contractors for their effectual
transportation (except when such offenders are transported in King's
shipK). (a) Authority is then given to punish such offenders mis-
behaving themselves upon the voyage; (A) and a property in their
services during the term of transportation is vested in the governor
of the colony, &c. ai^d his assignees, (f)

The tenth s^ction enacts, " that it shall be lawful for his Majesty ^- ^®- W«c«»
" from time to time, by warrant under his royal sign manual, to ap- mennB*!&w-
** point places of confinement within England or Wales, either at iand may be
" land, or on board vessels to be provided by his Majesty in the f?P?|°f*** ^^
** river Thames, or some other river, or within the limits of some " "^** ^'
'* port or harbour of England or Wales, for the confinement of
male offenders under sentence or order of transportation, which
shall be under the management of a superintendant and overseer,
to be appointed by his Majesty ; and that it shall be lawful for
^* one of his Majesty's principal secretaries of state to direct the
" removal, of any male offender who shall be under sentence
" of death, but who shall be reprieved, or whose sentence shall be
" respited during his Majesty's pleasure, or who shall be under
" sentence or order of transportation, and who, having been exa-
" mined by an experienced surgeon or apothecary, shall appear to
" be free from any putrid or infectious distemper, and fit to be re-
'^ moved from the gaol or prison in which such offender shall
^' be confined, to any of the places of confinement so appointed ;
^^ and every offender who shall be so removed shall continue in tlie
^^ said place of confinement, or be removed to and confined in some
^^ other such place or places as aforesaid, as one of His Majesty's
^ principal secretaries of state shall from time to time direct, until
^^ such offender shall be transported according to law, or shall be-
" come entitled to his liberty, or until one of His Majesty's prin-
^^ cipal secretaries of state shall direct the return of such offender
" to the gaol or prison from which he shall have been removed ;
" and the sheriff or gaoler having the custody of any offender whose
^ removal shall be ordered in manner aforesaid, shall with aU con-
" venient speed, after the receipt of any such order, convey or
^ cause to be conveyed every such offender to the place appointed,

(a) S. 4, 5, T. (c) S. 8.

W S. 6.

ic
u

396 Of Return, Escape, ^c. after [book if*

'^ and' there deliver hiin to such superintendant Or overseer, toge^
'^ ther with a true copy^ attested by such sheriff or gaoler, of the
'^ caption and order of the court by which such offender was sen**
^ tenced or ordered for transportation, containing the sentence or
'^' order of transportation of each such offender, by \drtue whereof
^ he shall be in the custody of such sheriff or gaoler ; and also a
'^ certificate, specifying concisely the description of his crime, his
'^ age, whether married or unmarried, his trade or profession, and
.'' an account of his behaviour in prison before and after his trial,
'^ and the gaoler's observations on his temper and disposition, and
^^ such information concerning his connexions and former course
*^ of life as may have come to the gaoler's knowledge; and such
'^ superintendant or overseer ;hall give a receipt in writing to the
^ sheriff or gaoler for the discharge of such sheriff or gaoler/'

The act then authorizes his IVfajesty to appoint a superintend*

ant, an assistant to the superintendant, and an overseer for such

places of confinement; specifies the duties of the superintendant;

and contains regulations for the cleansing, purifying, and clothings

the offenders brought to such places. (d)

8. 13. His Ma- 1^^ thirteenth section enacts ^^ that it shall be lawful for his

Jeitylii conn- ^^ Miajesty, by any order or orders in council, to declare his royal

^n^te^teTbe ** ^^ ^^ pleasure, that male offenders convicted in Great Britain,

employed in ^ &nd being under sentence or order of transportation, shall be

any put of hit << kept to labour in any part of his Majesty's dominions out of

of jb"*^/"* *^ England, to be named in such order or orders in council ; and

unde?the ma- ^ that whenever his Majesty's will and pleasure shall be so de-

nagement of a << clared in council, it shall be^ lawful for one of his Majesty's

Mt" ftc***^" *^ principal secretaries of state to direct the removal and confine*

' ' '^ ment of any such male offender, either at land or on board any

<' vessel to be provided by his Majesty, within the limits of any

^^ port or harbour in that part of lus Majesty's- dominions which

" shall be named in such order in council, under the management

^^ of the said superintendant, and of an overseer to be appointed

'^ by his Majesty for each such vessel or other place of confine-

<' ment; and that every offender who shall be so removed shall

'' continue on board the vessel or other place of confinement to be

'^ so provided, or any similar vessel or other place of confinement

^' to be from time to time provided by his Majesty, until his Ma*

*^ jesty ifhaU otherwise direct, or until the offender shall be entitled

« to his liberty."

S. 15. Declares The fifteenth section enacts '* that, after the removal of any

the power and « offender under this act, the superintendant and overseer, who

anpoiiitendant ' " ^^^ ^^^^ ^® custody of him, shall, during the term of such
andorerseer. ** custody, have the same powers over him as are incident to the

^ office of a sheriff or gaoler, and shall in like manner be answer-
*' able for any escape of such offender; and if any offender shall
^' during such custodv be guilty of any misbehaviour or disorderly
^^ conduct, the superintendant or overseer shall be authorized to
^ inflict or cause to be inflicted on him such moderate punishment
^ or correction as shall be allowed by one of his Majesty's princi-
*^pal secretaries of state; and such superintendant or overseer
'' shall also, during such custody, see every o&nder fed aod

CHAP. XXXV.] SefUence of TVan$portatum. S8f

*^ clothed according to a scale of diet and clothing to be fixed on
^' and notified in writing by one of his majesty's principal secreta-
^ ries of state to the superintendant^ and shall keep such offender
^' to labour at such places, and under such regulations, directions,
'^ limitations^ and restrictions, as by such secretary of state shall
^ from time to time be prescribed; and in case of the absence of
^ any such superintendant or overseer, or of the vacancy of his
^^ office, his duties or powers shall be discharged and exercised in
^' all respects by the officer or person on whom the command of
*' the place of confinement shall devolve." The superintendant is
also empowered to act as a justice of the peace, (e)

The seventeenth section enacts ** that whenever any convict ad- f. 17. Convict*,
*' judged to transportation by any court or judge, in any part of coStf wit of
^' his majesty's dominions not withm the united kingdom, or any the united
^ convict adjudged to suffer death by aoy such court or judge, and ^ing<lom to
^ pardoned on condition of transportation, has been or shall be and^onWcu '''
** brought to £ngland in order to be transported, it shall and may pardoned on
** be lawful to imprison any such offender in any place of confine- condition of
'^ ment provided under the authority of this act, until such convict may^^bcn'°°*
^* shall be transported, or shall become entitied to his liberty; and brougbt to
** that so soon as every such convict shall be so imprisoned, all the }^ England, be
" provisions, rules, regulations, clauses, authorities, powers, pe- Lnd^utmsport-
^* nalties, matters and things aibresaid, concerning the safe cus- ed.
*^ tody, confinement, treatment, and transportation, of any offender
^ convicted in Great Britain, shall extend and be construed to ex-
** tend to every convict who may have been or may be hereafter
'^ adjudged to transportation, by any court or judge in any part of
'^ his Majesty's dominions not witiim the united kingdom, and to
^* every convict adjudged by any such court or judge to suffer
'^ deaths and pardoned on condition of transportation, and brought
^ to England in order to be transported, as fully and effectually to
'^ all intents and purposes, as if such convict had been convicted
'^ and sentenced at any session of gaol delivery holden for any
^^ county within England.''

It is then provided, that it shall be lawful to keep to hard labour
every offender under sentence or order of transportation, while he
or she shall remain in the common gaol, if his or her health will
permit * and if one or more of the visiting justices shall give a writ-
ten order to that effect ; and that it shall be lawful for one of his
majesty's principal secretaries of state, if he shall think fit, to
order that any such offender be removed from the common gaol to
the house of correction, and there kept to hard labour. (/) And
tiie time during which any offender shall continue in any gaol or
house of correction, or in any such place of confinement as afore-
saidy under sentence or order of transportation, is to be reckoned
in discharge or part discharge of the term of transportation or ba-
nishment. (^) Provision is then made for the secure removal of
ofifenders through any county to the seaports or places of confine-
ment, and for the payment of the expenses of removal by the
county in which the conviction took place. (A)

Tlie twentyi-secQnd section enacts ^'that if any offender who s.22.0flrenden

ordered to be
(e) S. 16. {g) S. 19.

(/) S. 18. (ft) S. 80, 81.

398

transported,
&c. and being
afterwards at
large, without
lawful cause,
made liable to
capital punish •
ment.

An^ may be
tried where ap-
prehended, or
where they
were ordered
to be trans-
ported.

Persons rescu-
ing or attempt-
ing to rescue,
&c., such of-
fenders pu-
nishable as if
such offenders
bad been con-
fined in a gaol
or prison.

Reward upon
conviction of
offenders
found at large.

6.23. Form
of indictment
against of-
fenders found
at large, and
against per-
sons rescuing,
&c.

S.24. Evidence
by certificate
of tbe clerk of
the court, &c
of the convic-
tion and sen-
tence.

S€

Of Return, Escape, ^c. after [book u.

'^ ahall have been or shall be so sentenced or ordered to be trans-
" ported or banished, or who shall have agreed or shall agree to
'^ transport or banish himself or herself on certain conditioDs,
either for life or any number of years, under the provisions of
this or any former act, shall be afterwards at large within any
part of his majesty's dominions, without some lawful cause, be-
'' lore the expiration of the term for which such offender ^all
^^ have been sentenced or ordered to be transported or banished,
or shall hav« so agreed to transport or banish himself or herself,
every such offender so being at large, being thereof lawfully con-
*^ victed, shall suffer death, as in cases of felony, without the bene-
*^ fit of clergy ; 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 ordeVed to be transported or banished ;
^^ and if any person shall rescue, or attempt to rescue, or assist in
rescuing or attempting to rescue, any such offender from the
custody of such superintendant or overseer, or of any sheriff or
gaoler, or other person conveying, removing, transporting or
reconveying him or her, or shall convey, or cause to be conveyed
any disguise, instrument for effecting escape, or arms, to such
'^ offender, every such offence shall be punishable in the same
" manner as if such offender had been confined in a gaol or prison,
^' in the custody of the sheriff or gaoler, for the crime of which
^^ iSuch 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 oflender so convicted.'^
The 23d section enacts, '^ that 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 frcmi
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 hereafter 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-mar*
'^ tial, 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, jadgment,
^' or sentence, or any pardon or intention of mercy, or significa-
'^ tion therecrf*, of or against, or in any manner relating to such
« offender.'*

The 24th section enacts, '^ that the clerk of the court or other
" officer having the custody of the records of the court 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 (a)
(omitting the formal part) of every indictment and conviction of

«

€f

u

(a) See Rex v, Watson, antCy 368,

CHAF. x^xv.] Sentence of Transportation. 399

'^ such ofiender, and of the sentence or order for bis or her trans*
'' portation or hanifihment, (not taking for the same more than
^^ six shillings and eightpence), which certiiicate shall be sufficient
^^ evidence of the conviction and sentence, or order for the trans-
'^ portation or banishment of such offender ; and every such certi-
^^ ficate, if made by the clerk or officer of any court in Great Bri-
^ tain, shall be received in evidence, upon proof of the signature
^^ and official character of the person signing the same ; and every
^^ such certificate, if made by the clerk or officer of any court 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."

The 25th section enacts, ^' that nothing in this act contained S. 25. The act
** respecting offenders under sentence or order of banishment, {o°°\.^**'*''***
^^ shall i4>ply to persons adjudged to be banished, under and by bamsh^'under
^^ virtue of an act passed in the sixtieth year of his late majesty's 60 G. 3. and i
" reign, intituled, * An act for the more effectual prevention and ^' ^' ^' *'
'^ punishment of blasphemous and seditious libels.' "

The 56 G. 3. c. 63., and the 59 G. 3. c. 136. were passed for &« G. 3. c. 63.
the purpose of regulating the general Pe^iitentiary for convicts, 135.^^ ^ con-
erected {n) at Millbanky in the county of MiddleseXy and authorize vicu sentenced
the confinement of certain convicts sentenced to transportation in *? transporta-
that place ; and contain certain provisions respecting such convicts gngj 'ntiwge-
breaking prison or escaping, or attempting to break prison, &c., and nigral Pcniten-
respecting persons rescuing, or attempting to resc\ie them, or JiwyatA/i^
supplying means 6f espape. *"* '

The latter statute repealing s.' 43 of the 56 G. 8. c. 63. enacts, 59 6. 3. c. 113.
** that if any convict, who shall be ordered to be confined in the ■• ^^. Convict*
said Peniientiaty, i^all, at any time during the term of such Penitentiary^*
confinement, break prison, or escape from the place of his or her breaking pri-
confinement, or in bia or her conveyance to such place of con- ?°° °^ cscap-
finement, or firom the person or persons having the lawful cus- pl^'isbed by an
tody of such convict, he or she so breaking prison or escaping addition to the
shall be punished by an addition not exceeding three years to ^"5 ^^ ^^^\
the term for which he or she, at the time of his or her breach and, upon a se-
of prison or escape, was subject to be confined ; and if such cond breach of
convict so punished by such addition to the term of confinement P"8on or es-
shall afterwwrds be convicted of a second escape or breach of guilty of felony
prison, he or she shall be adjudged guilty of felony, without be- without clergy,
nefit of clergy." And it further enacts, ** that if any convict And convicts
who shall ^ ordered to be confined in the said Penitentiary, «''<^;»'«'«5^. &c.

•Lif •1*1 ft/* ^^^ to be pu-

shall at any time during the term of such confinement attempt nished by ad-
to break prison, or escape from the place of his or her confine- ditional impri-
men^ or shall forcibly break out of his or her cell, or shaU make ■°*™*"**
any breach therein, with intent to escape therefrom ; he or she,
so offending, being convicted thereof, shall be punished by an
addition not exceeding six calendar months to the term for which

' he or she at the time of committing any such offence was sub-

^ject to be confined."
The 66 Geo. 3. c, 63. s. 44. enacts, '' that if any person shall f^]^'^^^;^

(») It ms erected aoder the provisions of the 52 Geo. 3. c. 44.

400

resculog con*
TicU ordered
to be confiaed
in the Peniten-
tiacy, or aiding
in inch rescue,
to be guilty of
felony, and
confined in the
Penitentiary.
And persons
baring the cus-
tody of such
conncts, and
Toluntarily
permitting an
escape, and
other persons
aiding or at-
tempting any
escape or
rescue, to be
ffuilty of fe-
lony. And any
person having
such custody,
and negligently
permitting an *
escape, to be
guilty of a mis-
demeanor.

CfBOum, Escape, ^: ajkr ' f lioik If.

^* rescue any convict who flball be ordered to be cotifinied''^Qir&
^^ the said Penitentiary^, either during ^e time of his or het'cbn^
*^ veyance to the saiid Penitentiary, or whikt such couytct 'shall l)^
^' in the custody of the person or persons under wh'oi^e care an4
'* charge he or she shall be so confined ; or it any person isluUl'b^
^ aiding or ^assisting in any such' rescue, every ^ch peijso^' so
^ rescuing, aiding, or assisting, shall be guilty of felony, and faiay
^' be ordered to be confined in the said Penitentiary, for kny tena
*' not less than one year, nor exceeding five years ; and if any pe^r
^' son having the custody of any such contict as' aforesaidji' or
^ being employed by the person having such custody as sk keeper,
^' under-keeper, turnkey, assistant, or guard, shall voluMarily per-
'* niit such convict to escape ; or if any person .whatsoeVer shall,
*^ by supplying arms, tools, or instruments of disguise, or dthelr-
^^ wise be in any manner aiding and assisting to any such convict
^' in any escape, or in any attempt to make an escape, though no
'^ escape be actually made, or shall attempt to rescue any such
^^ convict, or be aiding and assisting in any such attempt, though
^ no rescue be actually made, every such person so pt^iiooihtlh^
^' attempting, aiding, or assisting, shall be guilty of felot]rx^;^^)im
^ if any person having such custcxiy, or being so etbplor^iea wthb^
^' person having such custody as aforesaid, shall hegKgientiy jd^r-
^^ mit any such convict to escape, such person so permlttitig jiaT
'* be guilty of a misdemeanor; and, being lawfully cOnviS^'^i
^^ the same, shall be liable to fine or imprisonment, or to 1>o(h^'Wt
« the discretion of the court." ' '^'"'-' "i

56 O. 3. c. 63.
8. 45. Trial for
such offences.

Endence of
the order of
commitment
to ffuch Peni-
tentiaiy.

S 0. 4. c. S.
Mutiny Act-*
provides for
the punish-
ment of per-
sona returning
from trans-
portation after
sentence by a
court-marUaL

The 45th section of the same statute relates to tiie tnd^^fead^
and efiiectual trial and conviction of persons committing dfl^y:^
within the act ; and provides that any convict so escapln^,^ 1;>i^e9ik-
ing prison, or being rescued, may be tried either in tbe* dtmxtf
where he shall be apprehended and retaken, or in the cbui^^m
which the said offence shall have been committed; and 'tM^ in
case of any prosecution for such escape, attempt to escape, luMdh
of prison, or rescue, either against the convict escaping, or at^
tempting to escape, or having broken prison, or being rescncQ,' of
against any other person or persons concerned therein, or-a^ffin^,
abetting, or assisting the same, a copy properiy attested, -of the
order of commitment to such Penitentiary, shall, (aftef * t^tbof
made that the person then in question before the court is* tlie ^^^
that was delivered with such order,) be sufficient evidencie to^the
court and jury that the person then in question was so 'orderM'^}
such confinement. '* -lyliia

The mutiny acts also make provision for the puni|rt)ttkleiiV^tff
persons returning from transportation after sentence tiyaboUV^
martial. By the last of these acts, 6 Greo. 4. c. 6., whert^a ^ti^
commissioned officer or soldier is convicted of desertion, aiitf \!M
court-martial shall not think the offence deserting of^s
punishment, they may, instead of a corporal punishmei^t,^iLdj
the offender to be transported for life, or a term of years ; and in
all cases wherein a capital punishment shall have been awMft^by
a court-martial, the king may order the o&nder to be tfj^i^^'^^^^^
as a felon, for life, or for a texm of yearSf •. Ao4 i$ iwk

\t *

'«"•»"<** .-i'

CHAP. XXXV.] Sentence (^ TransipoTtatiim. 4(itt

DM^riooed officer or soldier, or any person so transported in
pursuance of such order &om the king, '^ shall afterwards,
^^ (without leave from his majesty, or from the governor or
^ commanding officer of the place to which he shall have been
^^ transported^ return into, or be found at large, without leave
^< as aforesaid, or other lawful cause, within any part of Great
'^ Britain or Ireland, or in any of his majesty's possessions
'^ abroad, other than the place to which he shall have been
'' transported, before the expiration of the term limited by such
^ sentence or order, and shall be convicted thereof in the or-
'^ dinary course of law, he shall suffer death as a felon, without
'^ benefit of clergy." (q) By the ninth section of the statute upon
the sentence of transportation being notified in writing by the com-
mander in' chief, or, in his absence, by the adjutant*general, to any
justice of the King's Bench or Common Pleas, or baron of the Ex-
chequer in England or Ireland^ such justice or baron is to make an ,
order for the transportation of the offender, upon the terms and for
the time which shsdl be specified in such notification ; (r) and shall
also make such other orders, and do such other acts consequent
upon the same, as any such justice or baron is authorized to make
or do by any act or acts in force, at the time of making any such
orders, in relation to the transportation of offenders ; and such
order and orders so to be made, and all such acts as shall be so
done as aforesaid, shall be obeyed and done by such person, in
whose custody such offender snail at that time be, and all other
persons whom it may concern, and shall be as effectual, and have
the same consequences as any order made under the authority of
the said act with respect to an offender in the said act mentioned ;
and every sheriff, &c. and all constables and other persons, shall be
bound to obey the ssud orders, be assistant in the execution thereof^
and liable to the same punishment for disobedience, or interrupt-
ing the execution of the same, as they would be if the same had
been made under the authority of the said act ; and every person
so ordered to be transported as aforesaid shall be subject respect-
tively to all the provisions made by law and now in force, con-
cenung persons convicted of any crime, and sentenced to be transr
ported, or receiving his majesty's pardon on condition of trans*
portation. (a) By a subsequent section, if any offender imder sen-
tence of death by a court-martial shall obtain a conditional pardon,
all the laws then in force touching the escape of felons under sen-
tence of death shall apply to such offender, and to all persons
aiding, &c. such escape from the time when such order shall be
made by such justice or baron, and during the several proceed*,
logs had for tiie said purposes. (6) And a provision is made in
some of the mutiny acts that an order, made under any act
or acts of parliament, in force at the time of making such
order, in relation to the transportation of offenders, and every act
consequent upon such order, shall be as dfectual, and have all

(f) SwU 4t 6. deliver a certi6cate of conviction, Arc.

(f) S9Ct. S. S. 18. relates to the notification, &c.

(■) t (Gko. 4. c. 6. 8. 9. The notifi- of sentences of transportation in Indi^

cstfoBs, ht. are to be filed in the office &c.

of the clerk of the CrowD» who is to (b) 6 Geo, 4. c. 5. s. 1S«

vol., 1, 2d

40i Of Return, Escape, ^. after - [book ii.

the same consequences as any ord^r made, or act' done, under tiie
authority of any act or acts of parliament in force at the time, in
relation to the transportation of offetaders, with req^ct to any
offender in any such act or acts of parliament mentioned. ($)

Provisions of a nature nearly similar are usually contained in
the acts relating to the regulating of the royal marine forces while
on shore. (/)

By the 80 G. 3* c. 47. his majesty may authorize the governor
of New South Wales, &c. by writing under the seal of tiiat go-
vernment to remit, either absolutely or conditionally, the whole or
any pait of the term of transportation : and such instrument is to
be of the same force and effect as a signification of the royal ttiercy
under a sign manual. The 6 G. 4. c. 69. regulates the punish-
ment of offences committed by transports sent to labour in the
colonies.
Foinu decided It may be useful to mention some of the points decided upon
upon former the Statutes which formerly related to the offences treated of in this
BUtutee. Chapter.

Indictment Where a capital convict had a conditional pardon and escaped,

of formc*^^*^ and the indictment against him stated, that the king's pleasure
viction. ' ^^ notified to the court, and the court thereupon ordered, &c.
according to the terms of the pardon, arid it appeared that the
notification was to the Judge after the assizes were over, and that
he made the order ; the Judges, upon a case reserved, were unani-
mous that the notification to the Judge, and the order by him, was
not a notification to the cburt, or any order by the court, and that
the indictment was not proved, {a) But the late statute 5 G. 4. c.
B4. enacts, that it shall be sufficient to allege in the indictment the
order for transportation, without aHe^ng any indictment, trial, &c.
or any pardon or intention of mercy, or significaticm thereof. (£}
The late statute however Requires, that the certificate to be given
in evidence shall contain the effect and substance of the indictment
and conviction ; and in a case which arose upon a former statute,
^6 G. 1. c. 23.) which required that the certificate should contain
the effect and tenor of the indictment and conviction, and of the
drder and contract for transportation, and also upon another sta-
tute (24 G. 3. c. 56. s. 5.) which required a certificate (50ntaining
Ihe effect and substance only, omitting the formal part of the in-
iflidtment and conviction, the indictment stated, that the pri-
soner was convicted of grand larceny within benefit of clergy,
and the certificate was in the same form ; and the Judges, upon
the point being reserved, held that both were insufficient, (c) So
"also in another case, upon £i 'statute 56 G. 3. c. 27* s. 8., which re-

?[uired the certificate to contain the effect and substance onlv
omitting the formal part) of the indictment and conviction, imd
order for transportation, it was held, that an indictment Which
stated that the prisoner \aA been convicted of felony, \dthout
i3tating the nature of Aat felony, and a certificate wmch stated

■

(f) See 56 Crco. S. c. 119. 6. 3. c. 74. s. 28.

(0 See the last act 6 Geo. %. c. 6. s. {b) S. 23. an/r, S98., and see also s.

' 7j 8, et uqu, 2. aiite^ 394.

(a) Rex V. Treadweli, Micb. Terni, {c) Rex v. Sotdifl^, !Ea^ T. 1788.

1781. MS. Bayley, J. Tbe statute MS. Ba>fley, J. RIdss. Wd ]ly.'46d,

then in force upon the subject was 19 470.

cHAt. XKlLY.] Sentence of Transportation. 403

only tlMit the prisoner had been convicted of felony, were insiiffi-
eient ; ttnd the prisoner was remitted to bis former sentence, (cf)

Where an indictment stated the condition upon which the royal
mercy was extended to have been general, whereas it appeared
not to hare been general but spe^c, viz., that the prisoner
should be transported to places specified, the variance was held to
be fatal, (e)

Where the prisoner had received a pardon on condition of trans- Evidence of
porting himself beyond the seas, within fourteen days from the p^ncr^s dis-
day of his discharge, and it was incumbent on the prosecutor to charge.
prove the precise day on which the prisoner was discharged, it
was holden that the daily book of the prison, containing entries of
the names of the criminals brought to the prison, and the times
when they were discharged, though generally made from the in-
formation of the turnkeys, or from their endorsements on the
backs of the warrants, was good evidence to prove the time of the
prisoner's discharge, {w) And it was held, that though, if a con-
vict on his trial for returning from transportation before his time
was expired should confess the fact, and acknowledge that he is
the man, the court would record such confession ; yet, no such
confession being made, it was necessary to produce the record of
conviction, and give evidence of the prisoner's identity, (x)

When a convict was sentenced to transportation for seven Eridenceofa
years, and received a sign matmal, promising him a pardon, " on wff» manual.
'' condition of his giving a security to transport himself for that
** period within fourteen days," and upon his giving such se-
curity was discharged from prison, but neglected to transport him-
self within the fourteen days : it was holden that he could not be
iii^cted for being unlawmlly found at large before the term fot
which he had received sentence of transportation had expired, on*
the ground that such sign manual, and the recognizance entered
into in consequence of it, were good evidence that he was lawfully
^t larger although he had not substantially performed the condi-
tion on which the promise of pardon was granted, (y)

(4^ 'Rex V, Watson, Mich. T. 1891. and that though the Icing might re-

fluss.'aad Ry. 468. voke his intended grace on account

ije) Hex V, Fiizpatrick, Rass. and of this apparent f rand ;. jet, as he had

Ry. 519. not in fact revoked it, and as the

'(ir) Aickle*s case, 1 Leich S91, 398. prisoner had lUerally complied with

(jr) 1 Hawk. P. C. c. 47. Return the condition, he ought not to haY6

from Tritntporiaiian^ s. 91. The late been convicted upon iin indictment

slatole, 5 Geo. 4. c. 84. s. 94. makes a for being fonnd at large, without any

certificate of the conviction, &c. suflU- lawful cauf^, 'before the expiration of

cteot evidence, j/nte, 398. his term. With respect, however, to

(y) Miller*s rase, 1 Hawk. P. C. c. a condition being considered pr^c^^feiil

47. Heinrnfrom Tnmportat£an,s.22. or $ubteqaentj it has been holden that

C«9. C. L. 69. 1 Leach 74. 9 Blac. no precise technical words are requi-

It. 797. ,lt appears that the Judges site for that purpose ; that it does not

consideriSd, that the sign manuni was depend upon its being prior or poste-

trnpropeHv worded by mistake of Ihe rior in the deed, but that it depends

officer : that it should have been, upon the nature of the contract, and

upoo condition of the said Miller the acts to be performed by the par-

-traasporting'htmsdlf, &c. and of his ties. Robinson v. Cumyns, Cas. temp.

ftviog security to the satisfaction, Talb. 166. Hotham v. the East India

EC.!* and not merdy ** upon condi- Company, 1 T. E. 045.
*• lion of his giving semrity, ^c.** '

2d2

41
•A

404 Of Return^ Esdfpe, 8gc. aJUr [bochlh.

fcndcr*b^in^" In the last case, the prisoner was referred to bis original scb-
referred to ^is ^"^^ ^f transportation, as not having performed the ooiiditi<m
original sen- upon which his pardon was to be granted ; that is, he was par-
portatioiu*"*' ^^^^ °^ condition of transporting himself within fourteen
^^ days, (s) And in another case it was holden, that a prisoner con-
victed of a capital crime, whose sentence was respited during the
king's pleasure, and who, having received a pardon on condition
of transportation for life, was afterwards found at large in Great
Britain without lawful cause, should be referred to his original
sentence, (a) In a subsequent case, where the prisoner, having
been convicted of simple grand larceny, had received judgment of
transportation to America for seven years, but had afterwards
been pardoned, ^^ op condition of transporting himself beytmd the
^' seas for the same term of years, within fourteen days from the
" day of his discharge, and of giving security so to do," and, upon
giving the security required, had been discharged, but had not
complied with the other part of the condition, by transporting
himself, it was doubted whether he could be convicted of a eapitai
felony in being found at large, without arty lawful cause^ before
the expiration of the term, or whether he ought to be remitted to
his former sentence. The former cases were cited as authorities
that the prisoner's discharge was a lawful cause for his being at
large, notwithstanding he had forfeited the recognizance of him-
self and his bail, by breaking the other part of the condition, in
not transporting himself within the fourteen days : but one of the
Judges thought that, as the prisoner had not complied with the
terms on which he was pardoned, he must be considered as having
been at large without lawful authority, as soon as the fourteen
days had expired. Another Judge considered it as a doubtful
question whether the non-performance of the condition had not
rendered the whole pardon null and void : and he also thought
that the offence with which the prisoner was charged was not
within one of the statutes then relied upon, namely, the 16 G. 2.
c. 15., because he had not agreed to transport himself to America;

{%) Miller's caw, 1 Leach 76.

(a) Madan*j» case, Old Bailey, 1780.
I Leach 89S. In 1 Hawk. P. C. c. 47.
Reiumfrom Trmniporlation^ s. 23 (re-
ferriDg to Cas. C. L. 197 ) tbis xase is
cited as having decided that the pri-
soner was so referred back to his ori-
ginal sentence, on his being indicted
■for retumine from transportation,
and acquitted. But in tne xeport
in Leach, it is said that no indictment
was ever preferred against the pri-
soner for the new felony; but that,
being in custody, a notice was served
upon him to shew cause why execu-
tion should not be awarded against
him on his former sentence : that af-
ter this notice he was put to the bar,
and his identity and the record of his
former conviction proved ; and he not
heinf^ prepared to prove the truth of
citr^in fiKti aMeged in his defence,

the court gave their opinion that, as
he had broken the condition of the
pardon, he remained in the same state
m which he was at the time the par-
don was granted, viz. under sentence
of death, with a respite of that sen-
tence durino^ his majesty*8 pleasure.
The report further states, that after*
wards it was submitted to the Judges,
whether the prisoner would not have
been liable to suffer death without be-
nefit of clergy, if he had been indicted
and convicted under a statute then
existing, namely, the 8 G. S. c 15., or
whether he had been properly referred
to his original sentence. No opinion
of the Judges is stated : but it ap-
pears, that at the Old Bailey, April
Sess. 1788, the prisoner was informed
bv the court that it was hb ni^esty*s
pleasure that he shquld be transported
to Africa for life.

OMirP. XXXV.] Sentence of fTransportation. 405

ami that it was not within another statute, namely, 19 G. 3. c. 7^-
because that act related only to pardons granted to offenders who
had. been convicted of felonies by which they were excluded from
clergy, (rf)

In the last mentioned case, one point was clearly a^eed upon, ??T*'^7.*°**
namely, that as the prisoner had, at the time of his discharge^ a amount^ to a
real intention to quit the kingdom within the time, but had been lawful ezcuee
prevented firom carrying it into execution by the distress of '*"".JJ^ ^'^°'
poverty and ill health,*these impediments amounted to dk lawful kingdom. ^
excuse, {e).

(jti Aickles*8 case. Old Bailey, 1785. ed beyond the iea$. Bat he thought,

cor. Gould, J., Hotliaiii,B.,and Adair, that when the condition of the king*s

Recorder, llie Kecorder thought, pardon was broken, the pardon was

that the indictment was perfectly sup- ^one. There being, however, adif-

ported under the clause of the 16 G. ference of opinion, it was intended to

2. c. 15. adopted by 19 G. 3. c. 74. have submitted the case to the opinion

which made jt a capital felony to be of the twelve Judges, if the prisoner •

•found at large in Great Britain within had been found guuty.

the term for which a convict, who was (e) Aickles^s case, 1 Leach S96. ; and

liable to be transported to America^ see Thorpe*s case, id. itid. note («)•
had received sentence to be traosport-

. /

.»

r I*'

I ' • •• »• If

**• « • ' • . ■ 1

406

CHAPTER THE THIRTY-SIXTH,

OF GAMING.

Playing at
cards, &c. as
a recreation,
and for mode-
rate SUDDS, is
not any of-
fence. But
otherwise as
to gaming.

9 Ann. c. 14.
8. 6. Persons
losing 10/. at
a sitting may
sue for it a-
gun; and if
the loser does
not sue, any
other penfon
may recover
the same, and
treble the va-
lue.

It seems that by the common law^ the playing at cards, dice, &c«^
Mrhen practised innocently and as a recreation, the better to fit a
person for business, is not at all unlawful, nor punishable as any
sort of offence : but a person guilty of cheating, as by playing trith
false cards, dice, &c. may be indicted for it at common law, and
fined and imprisoned according to the circumstances of the case,
and heinousness of the offence, {a) We have seen that common
gaming-houses are considered as nuisances in the eye of the
law ; (2) and that lotteries have been declared to be public nui-
sances, except as they may have been authorized by parliament, (c)
And when the playing is, from the magnitude of the stake, exces-
sive, and such as is now commonly understood by the term
gaming, it is considered by the law as an offence, being in its
consequences most mischievous to society. In most cases, how-
ever, the party is subjected only to pecuniary penalties, recover-
able by information, or by summary or civil procee^ngs : but
some offences may be mentioned, which, by statutable enact-
ments, may be prosecuted by indictment, (c/)

The statute 9 Ann. c. 14. s. 5. enacts, that any person who shall
at any time or sitting, by playing at cards, dice, tables, or other'
game or games whatsoever, or by betting on the sides or hands of
such as do play at any of these games, lose to any one or more
person or persons so playing or betting in the whole the sum or
value of ten pounds, and shall pay the same, or any part thereof,
he may sue for it again within three months, and recover it, with
costs, by action of debt; and in case the loser shall not bond fide
sue, any other person may sue for and recover the same, and treble
the value thereof, with costs of suit, against the winner, {e) The

(a) 3 Bac. Abr. Gaming (A) 8 Roll.
Abr. 78.

{b) Jnte, S90.

(r) jinte, 304. And a late statute
42 Geo. 3. c. 119. declares all games
or lotteries, called Little Goe»^ to be
public nuisances, and provides for
tbeir suppression; and also imposes
heavy penalties upon persons keeping
offices, &c. not authorized by parlia-
ment.

(if) As to the penalties imposed opon
persons gaming, or keeping j^ming
nouses, &c. and the proceedings for
the recovery of them, sec I Hawk P.C
c. 92. 3 Bac. Abr. Gaming. 2 Bom.
Just. Gaming. 4 Blac. Com. 172, 173,
174, and the notes (10) (II), and the
statutes 2 Geo. 2. c. 28. 12 Geo. 2.
c. 28. 95 Geo. 2. c. 36. s. 5. and 16
Car. 2. c. 7.

(e) S. 2.

CHAP. xxxvi.J Cf Gaming. 407

statute then further enacts^ that " if any persan or persons what- Any perron by
" soever do or shall^ by any fraud or shift, cousenage, circumven- ^^^n'nJany
^^ tion, deceit, or unlawful device, or ill practice whatsoever, in monies, &c.
*' playing at or with cards, dice, or any the games aforesaid, or in o*" »' any one
*^ or by bearing a share or part in the stakes, wages, or adven- n^^*"above"
^^ tures, or in or by betting on the sides or hands of such as do or lo/. shall for*
** shall play as aforesaid, win, obtain, or acquire to him or them- *"«'»' fi^c times
" selves, or to any other or others, any sum or sumjs of money, or jn^case^of such
'^ other valuable thing or things whatsoever, or shall at any one m practice be
** time or sitting win of any one or more person or persons what- deemed infa-
" soever, above the sum or vaJue of ten pounds, tliat then every ^^''the pu-

person or persons so winning by such ill practice, as aforesaic^ nishment of

or winning at any one time or sitting above the said sum or perjury.
'^ value of ten pounds, and being convicted of any of the said
^' offences, upon an indictment or information to be exhibited
'^ against him or them for that purpose, shall forfeit five times th^
" value of the sum or sums of money, or other thing so won as
'^ aforesaid; and in case of such ill practice as aforesaid, shall be
'^ deemed infamous, and suffer such corporal punishment as in
*' cases of wilful perjury ; and such penalty to be recovered by
^' such person or persons as shall sue for the same by such action
" as aforesaid/'

By the 18 Geo. 2. c. 34. s. 8. ^^ If any person shall win or lose is Gto, 2. r.
" at play, or by betting, at any one time, the sum or value of ten 34. s. 8. Any
" pounds^ or within the space of twenty-four hours, the sum or Sin^or™ing
^^ value of twenty pounds, such person shall be liable to be at any one
"indicted for such offence within six months after it is com» ^™®^^'»*''
** mitted, either before the justices of the King's Bench, assize, hoaT«"20/:,
** gaol delivery, or great sessions ; and being thereof legally con- may be in-
" victed, shall be fined five times the value of the sura so won or f*^ j*L"^
" lost ; which fine (after such charges as the court shall judge ts^e» the va-
'' reasonable allowed to the prosecutors and evidence out of th^ lue.
** same) shall go to the poor of the parish, or place where such
*^ offence shall be coran)itted." There is then a provision, that if Offender di»-
any person so offending shall discover any other person so offend- otheroffcndcr
ing, so that such person be thereupon convicted, the person so tobedis-
discovering shall be discharged and indemnified from all penalties, charged*,
if such person so discovering has not been before convicted thereof,,
and shall be admitted as an evidence to prove the same.(/)

It has been decided that Vifoot race^ whether the race be upon a Cases upoir
given distance, or against a certain time, is a game prohibited by tj»« constmc-
9 Ann. c. 14. (g) And a wager that a person did not find within Jj^jjj^ ^^%
6uch a time a man who should carry on foot twenty-four stone Anne, c. 14.
weight ten miles in fifteen hours has been holden to be within the
same principle.(A) But where A. betted B. that one C. would not
run four miles in twenty-one minutes, it was adjudged not to be
within the statute, because as C. was not playing at such game,
there could be no betting on his side within the statute; ifor C,
might be, rupning for his amusement, and not to^ wiiv any bet. (t)

(/) 18 Geo. S. c. S4. 8. 9; And by S6.
>• 10. the act i» not to repeal or laYOr (h) Browner; Beckley, Gowp. 888.
Iidatethe9 Ann. c. 14. (i) Lynall v, Longboiham, 8 Wils.

\g) Ljnall 0. Longbotham, 8 Wils. 3&.

■' I.;r

1 >^

408 Of Gaming. [hook if.

It lias, however^ been holden, that laying above ten ponnds on a
horse race is an illegal bet within the statute of Anne, on the
ground that the statute ought to be extended to all sports as well
as games, in order to prevent excessive betting (Ar) And it has
been determined, that a wager of ten ponnds to five pounds upon
a horse race is within this statute) although the race was for a
legal plate. (/) Cricket also, it seems, is an unlawful game within
this statute, (m) It has been determined also, that if two persons
play at cards from 3fonday evening to Tuesday evening, without
any interhiptibn, except for an hour or two at* dinner, and one of
them win a balance of seventeen guineas, this is won at one sitting
within the statnte.C^i)

It seems that if a loser prefer an indictment against a winner
on this statute of Anne, and the grand jury find the bill, the court
will not permit an information to be filed against the defendant,
althoii^h the indictment was quashed, and, of course, the defend-
ant never tried upon it; for the grand jury may find another bill
for the same offence, (o)

It is also settled, that if a defendant be convicted on an inform-
ation on this statute, the court can only give judgment quod
caiivictus estf and cannot set a fine on the offender of five times
the value, but that an action must be brought on the judgnient to
recover the penalty. (/?) Upon the ground that the judgmeat of
the coutt is only quod cwivictus esiy and is to be the fonndtttloa of
an. action to recover the penalty, it was ur^ed in nK^centf icBaey
that it is necessary to prove the sum precisely as laid in the in-
dictment: but Lord Ellenborough, C.J. was of opinion ibfit al-
though,, if the prosecutor had averred in the indictment jthftt the
defendants had won any bills of exchange of a specified amount,
the allegation must have been proved as laid; yet that aince the
sum, only was averred, and that under a videlicet , the prosecutor
was entitled to prove the winning of a smaller sum«(f )

(ArV 1 Hawk. P.C. c. 92. s. 59. Good- or 18 Geo. 2. c. 34. -which relate to

burn V. Mariey, 2 Str. 1159. Blaxton ftona jSi/r horse-racing only. Wlwlej

V. Pye, 2 Wils. S09. And it has been v. Pajot, 2 Bos. and Pal. 51. And it

holcfea, that a wager on a horse race was ruled that no action can be oi^in-

for less than 50/. cannot be recovered tained on a waeer on a cock-Jifki,

in an action: the 13 Geo. 2. c. 19. s.2. Squires v. Whinken, 3 Campb. 140.

hnving prohibited such races. John- And see as to the offence of keeping

son V. Bann, 4 T. R. 1. and see Bid- a cock-pit, ante^ 300.

nuead «>. Gale, 4 Burr. 24S2. And that (/) Clayton v. Jennings, 8 Blac« R.

a wager, though for more than 50/. 706.

that the plaintiff* could perform a cer- (m) Jeffreys v. Walter, I Wils. 220.

tain Journey in a post-chaise and pair (n) Bones v. Booth, 2 Blac.R. I2i6.

of horses in a given time, cannot be (o) I Hawk. P. C. c. 92*. s. 56. Anoo.

sb recovered. Ximenes r. Jaques, 6 8 Mod. 1S7.

T. R. 499. Nor a like wager, that a (p) Rex v. Lookap, 8 Sir. 1048.

siogle Vrse should go from A. to B. The defendant was ace4irdrnglr dis*

on the high road sooner than one of charged without any fine or costs,

two other horses to be placed at any (q) Hex v. Hill, Dariey and others,

distance* tlieir owrer tiioold please; 1 Strirkie R. 359. And see Rex v.

Utese being transactions proMhtied by Gilham, 6 T. R. 865. Hex v'. Btttddlft,

ll^'Car. I.e. 7. a.. 8. and 9 Asme, c. 14. 1 Ld. Raym. 149. mie^ 146. Rex «l

and net fttgaliced by IS Goo. 8.< c f 9. Baylies, 8 Ld* Raym. 18i& i .

r •• I

I W'<»a

109

'I:

■i t ) It-

■ I

■ 1

I ' • .

1 • . >

CHAPTER THE THIRTY-SEVENTH.

OF USUaV AND ILLEGAL BROKEIIAGB.

It was anciently holden that the taking of any kind of considera^ Usnryacoo-
tion for the loan or forbearance of money was an offence of eccle- ^^Si^^^i^'
siastical cognizance, punishable by severe censures anH forfei- terestfortbe '
tuVea x{a) but thi^ notion, which appears to have proceeded from a i»e of money,
midtiakto construction of some passages in the Mosaical law, {b)
ha5?'lbng giten way to the more reasonable doctrine that there is
YKStAing improper in taking a moderate interest for the use of
moMy. Any large and inunoderate consideration for such use
ias, " hbwever, been justly deemed prejudicial to the welfare of
society '5 and the contract to receive any such exorbitant increase
isrthttt' which is now generally understood by the odious appella-
tion (df usurp.

»^lt se^s that, at common law, no indictment for usury could be Offence at
stipported, unless it were of such an exorbitant kind as that taken ^"™<'"***^'
by the Jews. Accordingly, it is laid down in the books, that
tistiry, Buch as the Jews took, namely, forty per cent, per annum,
or more, was an offence at common law ; and that, upon convic-
tion, the usurer forfeited his goods to the king, and his lands
to the lord of the fee, but that no other usury was so pro-
hibited, (c)

Different rates of interest have been established by different Offence by
nations. In this country also they hare been regulated by the. •*»'"*«»•
Legislature; and have varied and decreased for two hundred years
past, according as the quantity of specie in the kingdom has in-
creased by accessions of trade, the introduction of paper credit,
and other circumstances. By the statute 37 Hen. 8. c. 9. the rate
of interest was fixed at 10/. per cent, per annum, which the statute
13 Eliz. c. 8. confirmed ; and ordained that all brokers should be
guilty of a prcmnnire who transacted any contracts for more, and
that thfe securities themselves should be void. The statute 21
Jac. 1. c. 17- reduced interest to eight per cent.; and it having

(a) 1 Hawk. P. C. c. 88. s. 4. 410. It is hoverer stated that a very

•(ft)-Exod. c. 9S. -v^ 85. Levi t. c. 85. eminent barrister, in the year 1814,

V. Sftr 37. Deuter. c. 83. v. 19, 80.; advised tbat, in a case of clear and

audfiee lHawk.P.C.c.68.8.7.8Blao. palpable usury, a parly may be in-

Coni. 455. dieted at common law. 8 Chit. Grim*

(c) 8 Roll. 800. 3 Inst. 151, 158. 0 L. 549, note (/)
Com. Dig. Ttttry, (A,) Anon, tiardr.

410

Of Usury.

[bpok.ik.

12 \Qn. St. 2.
c. 16. s. 1.
enacts that no
person shall
take above 5/.
per cent, in-
terest.

And that all
bonds, &c. for
a greater in-
tecost shall be
void.

And that per-
sons taking
above 5/. for
the forbear-
ance of 100/.
for a ^ear shall
forfeit treble
the value of
the monies,
&c.

^,% enacts
that no scri-
vener, &c.
shall take
above ha, for
100/. for a
year for brok-
87e, &c. ; nor
above 12^
besides stamp
duties for
making or re-
newing any
bond, &c. ; on
penalty of 20/.
and costs and
imprisonment
for 6 months.

As to an in-
dictment be-
ing sustain-
able upon
this statute.

been lowered in 1650> during the usurpation, to six per oemt^yithe
same reduction was re-enacted after the restoration^ .by ,tl;i|e,.}2
Car. 2. c. 13.; and now, by the statute 12 Ann. st.2. c. 16. it is
reduced to &ve per cent. A contract, therefore, to take more thfui.
five per cent, is at this time usurious, and by the statute of Anne
totally void ; besides which, the lender is made liable to the for-
feiture of treble the money borrowed.

This statute of Anne enacts, " That no parson or persons what-
** soever, upon any contract, take, directly or indirectly, for loan
^' of any monies, wares, merchandize, or other commodities what*
^' soever, above the value of five pounds for the forbearance of one
'^ hundred pounds for a year, and so after that rate for a greater
^^ or lesser sum^ or for a longer or shorter time;'' and that all
bonds, contracts, &c. whereby there shall be reserved or takea
above the rate of five pounds in the hundred, as aforesaid, shall be
utterly void ; *^ and that all and every person or persons what-
^' soever, which shall, upon any contract, take, accept, and re-
" ceive, by way or means of any corrupt bargain, loan, excbaoge^
'^ chevizance, shift, or interest of any wares, merchandizes, or
'^ other thing or things whatsoever, or by any deceitful way or
" means, or by any covin, engine, or deceitful conveyance^ for the
" forbearing or giving day of payment for one whole year, of and
" for their money or other thing, above the sum of five pounds
^^ for the forbearing of one hundred pounds for a year, and so after
^^ that rate for a greater or lesser sum, or for a longer or shorter
'^ term, shall forfeit and lose for every such offence the treble
'^ value of the monies, wares, merchandizes, and other things so
^^ lent, bargained, exchanged, or shifted."

The second section of tiiis statute further enacts, ^^ that all and
*^ every scrivener and scriveners, broker and brokers, solicitor and
^^ solictors, driver and drivers of bargains and contracts, who shall
" take or receive, directly or indirectly, any sum or sums of
^^ money, or other reward or thing for brokage, soliciting, driving,
^* or procuring the loan, or forbearing of any sum or sums of
^' money, over and above the rate or v^ue of five shillings for the
^^ loan or forbearing of one hundred pounds for a year, and so
'^ rateably, or above twel/e pence, over and above the stamp
*^ duties, for making or renewing of the bond or bill for loan, or
^* forbearing thereof, or for any counterbond or bill concerning
^^ the same, shall forfeit for every such offence twenty pounds,
'' with costs of suit, and suffer imprisonment for half a year ; the
^^ one moiety of all which forfeitures to be to the queen's most ex-
'^ cellent majesty, her heirs and successors, and the other moiety
*' to him or them that will sue for the same in the same c6unty
** where the several offences are committed, and not elsewhe^, by
'* action of debt, bUl, plaint, or information, in whkh oo essoign,
^* wager of law, or protection, shall be allowed."

The provisions of the 12 Car. 2. c. 13. werte similar to those of
tiie statute of Anne, which have been jii^t cited^ except th^ the
rate of interest was fixf^d by them at 31X per cent; auditiisiBAr
ported to have been decided that no indMstmeotrwoi^ 4ie lipoa
the statute of Car. 2., and that it was necet^aiy for' the' party pro-
secuting to sue for the penalties in a penal action } 9f^ b^ing the

ciiAi^. xxxYii.] Construction of the StaltUes. 411

method of proceeding prescribed bv the statute, (d) But upon the
principlea which have been stated m a former part of this Work, as
to an indictment being sustainable where there is a general pro-
hibitory clause in a statute, though there be afterwards a par-
ticular provision and a particular remedy given, it should seem
that an indictment will lie upon the statute where an usuriota
transaction has been carried into effect, (e) An indictment for
usury has not, however, been a frequent mode of proceeding, as
the party prosecuting has, in general, been contented to sue for
the ncavy penalties given by the statute : and it is clear that an
indictment cannot be maintained for a corrupt agreement only; as
where such an agreement was stated in an indictment for usury,
without any loan, or taking excessive interest in pursuance of it.
Judgment was arrested. (/)

It was holden, that justices of the peace at their quarter ses- Justices of
sions had no jurisdiction upon an indictment on the statute of 12 peace hare no
Car, 2. (g) And with respect to an information on the statute of inan hSSct-
12 Anne, it has been holden that the court of King's Bench will ment for
not grant it after the time has elapsed within which the common "■">7«
informer should institute his proceedings; on the ground that As to an io-
where a penalty has vested in the crown only, the court have no tSTco'^J?^
power to grant an information, but must leave it to the attorney- K.B.
general to file one if he shall think proper. (A)

It is said that an indictment for usury, (supposing it to be sua- Form of in-
tainable,) must contain all the requisites of a declaration for ^ct™cnt,
usnry.(/)

If the transaction were effected by means of some device, or Evidence,
colourable pretence, it must be left to the jury to say whether the
sum taken, though ostensibly for another purpose, was not in rea-
lity taken as usurious interest. (A)

The statute 53 Geo. 3. c. 141. repeals the 17 Geo. 3. c. 26. 53 Geo. 3. c.
except as to annuities or rent charges granted before the passing Hi. Endea-
of the act; and after providing for the due enrolment of the deeds, 5^ce3mtt'

(tf) Reg. V. Dye, (7 Anne,) 1 1 Mod. In an action for usury, the avermeiit

174. The case is very sl^ortly reported, of the quantum of the excc« taken is

and docs not state upon which section material. But some of the reasons

of the statute the Question was raised : for that accuracy, naroely, that the

hut the editor of the Reports, {cd. penalty is apportioned to the value,

170S«) has cited many authorities in and that the judgment depends upon

support of the decision, as to tho ap- the quantum taken, do not apply io

plicability of some of which ^ti. Reg. the proceeding bv indictment. It may,

r. Dye is however cited as law in 7 however, be said, on the other hand,

Bac. Ainr. Utnry, (I). that, as the contract must be set forth

(e) Jnte, 47.ri m^ii. And see 2 Chit, in thi^ indictment, the general rule of

Crim. L. 549, note (/). pleading will apply; naroely, that in

if) Re^ r. Upton, 8 Str. 610. setting forth a contract it is necessary

ig) Reg. V, Smith, (4 Anne,) 2 Salk. to set it forth correctly, and prove it

«8a 8 Ld. Raym. 11 44. S. C. as set forth.

{h) Rex ff. Hendricks, 8 Str. 1834. (k) Per Qrose, J. in Rex 0. Gillham,

By the ai Etiz. c. 5. 8. 5. the common 6 T. R. 268. See further as to 4ho

Joforuier is limited to a vear after, the points decided concerning usury, and

offence committed; and, if no such the proceedings for the recovery of

suit is br(night within a year, then the the penalties, 1 Hawk. ?. C. c. 88.

crown mdy gn« at any time within 5 Com. Dig. Utury. 7 Bac. Abr.i^fttiy.

^^o yean afbr <he end of the first 9 Blac Com. 455. ei iequ. 4 filac

y^l Com. 156, 157.

(0« Chit drim. L. 549. note (/T.
1

414

CHAPTER THE THIRTY-EIGHTH,

OF OFFBNCES RBLATIXG TO DEAD BODIBS.

Ticking vp
dead bodies,
even for the
piRpoaeBof
dissection, is
an indictable
offence.

It has been holden that it is an indictable o£Eenee to take iip a
dead body, even for the purpose of dissection. Upon an indict^
ment for this offence it was moved, in arrest of judgment, that if
it were any crime, it was one of ecclesiastical cognizance only;
that it was not made penal by any statute ; and that the giknce of
Stamford^ HeUe, and Hawkins, upon this subject, affi>rded a very
strong argument to shew that there was no such offence c:ognizaUe
in the criniinal courts. But the Court said, ^^ that comtnon de-
'^ cency required that the practice should be put a stop to : Ihat
<^ the offence was cognizable in a criminal court, as being highly
'^ indecent, and contra bonos mores ; at the bare idea aloae <n
<^ which nature revolted. That the purpose of taking up the body
'^ for dissection did not make it less an indictable ownce : and
^^ that, as it had been the regular practice of the Old JBaUeyy in
'^ modem times, to try charges of this nature, many of which had
^' induced punishment, the circumstance of no writ of error hav-
'' ing been brought to reverse any of these judgments was a strong
^^ proof of the universal opinion of the profession upon this sub-
" ject ; and they, therefore, refused even to grant a rule to shew
'^ cause, lest that alone should convey to the public an idea that
<' they entertained a doubt respecting the crime alleged." (a)

It is an offence against decency to take a person's dead body,
with intent to sell or dispose of it for ^ain and profit. An indict-
ment charged (inter cUiaJ that the prisoner a certain dead body
of a person unknown lately before deceased, wilfully, unlawfully,
and indecently, did take and carry away, with intent to sell and
dispose of the same for gain and profit : and it being evident that
the prisoner had taken the body from some burial ground, though
from what particular place was uncertain, he was found guilty upon

(a) Rex V. Lynn, S T. Hep. 733. I
Leach, 497. 2 East P. C. c. 16. s. 89.
p. 652. The defendant was only fined
five marks, on the ground that he
might possihly have committed the
crime merely from ignorance, as no
person had been before punished for
the offence in that court. In 4 Bla.
Com. 836, 237, stealing a corpse is
mentioned as a matter of great inde-

cency ; and the law of the Franks is
mentioned, (a^in Monlesqu. Sp. L. b.
SO. ch. 19.) which directed, that a per-
son who had dug a corpse out of the
ground, in order to strip it, should be
anished from society, and no one suf-
fered to relieve his wants till the rela-
tions of the deceased consented to his
re-admiasion.

CHAP. x5cxvin.3 Of Offences relating to Dead Bodies. 416

this count. And it was considered that this was so clearly an
indictable offence, that no case was reserved, (a)

The refusal or neglect to bury dead bodies by those whose duty The refuBal or
it is to perform the office, appears also to have been considered SeacTbodics" u
as a misdemeanor. Thus, Ahney, J., in delivering the opinion of a miademean-
the Court of Common Pleas, said, "The burial of the dead is, (as OJ*-
" I apprehend,) the duty of every' parochial priest and minister ;
^ and if he neglect or refuse to perform the office, he may, by the
** express Words of Canon LXXaVI. be suspended by the ordinary
** for three months. And if any temporal inconvenience arise, as
^ a nuisance, from the neglect of the interment of the dead corpse,
^' he is punishable also by the temporal courts, by indictment or
** information."(fi)

Provision has aJso been made by statute for the suitable inter- 48 G. 3. c. 75.
ment of such dead bodies as may be cast on shore from the sea. fhcVaSiMe
The 48 Geo. 3. c. 75. enacts, that the churchwardens and over- interment of
seers of parishes in Englandy in which any dead body shjdl be ««ch dead bo-
found thrown in, or cast on shore from the sea, shall, upon notice ^^J onXore^
of the body lying within their parishes, cau^e the same to be from the seil.
forthwith removed to some convenient place ; and with all conve-
nient speed to be decently interred in the churchyard or burial
ground of such parishes : and if the body be thrown in, or cast on
shore "hi any extra-parochial place, where there is no churchwar-
den or overseer, a similar duty is imposed upon the constable or
beadborou^h of such place, (r)

It is further enacted, that every minister, parish-clerk, and sex-
ton, of the respective parishes, shall perform their duties as is
customary in other funerals, and admit of such dead body heing
interred, wiAout any improper loss of time ; receiving such sums
as in cases of burials made at the expense of the parishes. (eQ The
staWte pi*ovides ateo as to the expenses of such burials, and the
raising of money to defray them ; gives a reward of five shillings
to the persons first giving notice to the parish officers, or to ihe
constable or hcadborough of an extra parochial place, of any dead
body being cast on shore ; and imposes a penalty of five pounds
on persons finding dead bodies and not giving notice, and of parish
officers neglecting to execute the act. {e) An appeal to the quar-
ter sessions is also given to any person thinking himself aggrieved
by any thing done in pursuance of the act.(/)

The preventing a dead body from being interred has also been The prevent -
considered as an indictable offence. Thus, the master of a work- j^dy f^i^be-
house, a surgeon, and another person, were indicted for a con- ing interred ia
spiracy to prevent the burial of a person who had died in a work- "iso »» indict-
hQQAe.(g) And though Hyde, C. J., upon a question how far the »We offence.

(a) Rex r. Gilles, cor. Bayley, J. a poor parishioner who died in that
^orihum^rland Syr. Ass. 1820. MS. parish.

Bavley, J. Russ. & Ry. 366, note (b). (r) 48 Geo. 3. c. 75. s. 1.

(b) Andrews v. Cawthome, Willfs (d) Id. ibid. s. 2.

537, note (a). Abney, J., cited a case (e) Ibid. ss. 1, 3, 4, 5, 6, 7, 8, 12, 13,

H. 7 G. 1. B. R. where that court 14. ^

made a rule upon the rector of Da- (f) Id. sect. 10.

veutiy, in Norihamptanthire, to shew (g) Rex v. Young and others, cited

cause wb? an information should not in Rex v. Lynn, 2 T. R. 734.

be filed, because be neglected to bury

416 Of Offences relating to Dead Bodies, [book ii^

forbearance to sue one who fears to be sued, is a good considera-
tion for a promise, (A) cited a case where a woman, who feared
that the dead body of her son would be arrested for debt, was
holden liable, upon a promise to pay in consideration of forbear-
ance, though she was neither executrix nor administratrix ;(») yet
the other Judges are said to have doubted of this: (A:) and in a
recent case, Lord Ellenborough, C. J., said it would be impossible
to contend that such a forbearance could be a good consideration
for an assumpsit. (/) Lord Ellenborough, C. J., continued, *'to
*^ seize a dead body upon any such pretence would be contra bonos
^^ moresj and an extortion upon the relatives." And in a subse-
quent part of the case, his Lordship said, ^^ As to the case cited
" by Hyde, C. J., of a mother who promised to pay on forbear-
^^ ance of the plaintiff to arrest the dead body of her son, which
'' she feared he was about to do, it is contrary to every principle
** of law and moral feeling : such an act is revolting to humanity,
« and illegal."
'JrtifSd^'^f Th®>^® ^8 o^® c^^ ^^ which the too speedy interment of a dead
a penoB wlbo body may be an indictable offence ; namely, where it is the body
basdiedATkH of a person who has died of a violent death. In such case, by
f*"* tiS*** m^ HoH, C. J., the coroner need not go ex officio to take the inquest,
ner it wBt for but ouffht to be sent for, and that when the body is firesh ; and to
is a mUde- bury Uie body before he is sent for, or without sending for him,
is a misdemeanor, (m) It is also laid down that if a dead body in

Erison, or other place, whereupon an inquest ought to be taken,
e interred or suffered to lie so long that it putrefy before the
coroner has viewed it, the gaoler or township shall be amerced, (n)

{k) Quick «. Coppleton, 1 Tent. 161. (m) Regina v. Clark, 1 Salk. 377.

(0 The name or the case is not men- Anon. 7 Mod. 10. 8 Hawk. P.C. c9.

Honed; hat it is said that Hyde, C. J., 8. 83, note (4).

cited it as a case that occurred in the (ii) 8 Hawk. P. C. c. 9. s. 93. And

Court of Common Fleas when he sat see an indictment ajgainst a township

tiiere. for a misdemeanjiir, m huryiog a body

(k) Quick v. Coppleton, 1 Vent 161. without notice to tiie coroner, 8 Chit

(/) Jones V. Ashoumham, 4 East 460. Cr. L. 866.

meanor.

CHAPTER THE THIRTY-NINTH.

OV GWKC^ ARHBD IN THB NIGHT-TIHB, FOR THK DBSTaDCTIOK 09
CAHB.

Thb statute, 57 Geo. 3. c. 90., reciting - sSO.^j ac9it.

ot^erly persons go frequently armed in the e. LiiJ^^Sw-

p^r^io^^ of protecting themselves, and aiding cl| tatKitacri <. •

isiftipg each other, )n the illegal degtructior '; wifliin uiff^i

atjd, ^t. avich praqtices were found by experi ej [^Jj^^ SJ^

c^m^^iBdidh of felonies and murders; for th - stray, aoj-

p^fs^jon thereof enacte, " That if any perso j' 8«m», and

" eptetpd.jfitp euy forest, chase, park, wood, r] S!!"^" ^(„

" ,otl^ppa;t 0^ inclosed ground, with the u - oUmiide-

" Btroy, take, or kill, game or rabbits, or w , mesnor,

" abet, mid assist, any pemon or persons illegally to destroy, take,
" or kin, game or rabbits, shall he found at night, that i« to say,
" between the hours of six in the evening and seven in the mom-
" '"&( from the first day of October to the first day of February j
" between seven in the evening and five in the morning from tJie
"first day of February to the first day of April ; and between nine
" in the evening and four in the morning for the remainder of the
" year ; armed with any gun, cross-bow, fire arms, bludgeon, or
" any other oSensive weapon, every such person so offending,
" bemg thereof lawfully convicted, shall be adjudged guilty of a
" misdemeanor, and shall be sentenced to transportation for seven "^ maybe
" years, or shall receive such other punishment as may by law be ^2^^ „'
" inflicted on persons guilty of misdemeanor, and as the court receive other
" before which such offenders may be tried and convicted shall puni«iunent.
" adjudge ; and if any such ofiender or ofi^nders shall return into And offenders
" Great Britain before the expiration of the term for which he or ^nJ^J^'^,^
" they shall be so traoBported, contrary to the intent and mean- iretobetruii-
" iug hereof, he or they so returning, and being thereof duly con- ported for life.
" victed, shall be adjudged guilty of felony, and shall be sentenced
" to transportation for the term or terms of his or their natural life
" or Uves.

If several a^e together, and any one of them is armed, the others Canatmction
are liable to be convicted under this act. O'Flannagan and two "^ "** •''*•
others were in a park at night, and two of them bad guns. O'Flan-
nagan had one ; bnt which of the other two persona had the other

VOL. I. 2 b

430

Of Destroying Game in the Night, [book ii.

piers, of any Bach forest, &e. or other open or inclosed ground, and
also their keepers, servants, tod any other persons, may seize and
apprehend, or assist in seizing and apprehending such offenders,
and convey and deliver them into the custody of a peace officer,
who is to convey such offenders before a justice of the peace for
the county or place where the offence shall be alleged to have been
committed, to be dealt with according to law. (g).

(g) 57 Geo. 3. c. 90. s. S. For the snch offenders, see 8 Boro. Jost. tit.
different modes of proceeding against Game.

BOOK THE THIRD,

ov
OFFENCES AGAINST 'tHE PERSONS OF INDIVIDUALS.

CHAPTER THE FIRST

OF MURDEB, ^

MuRDBR is the killing any person under the King's peace, with DefiDitionof
nialice prepense or aforethought, either express or implied by law. (a) 2S«/tewI«co-
Of this description the nialice prepense, maiitia pracogitcUa^ is the gitaiay or mar-
chief characteristic, the grand cnterion by which murder is to be Uce prepense,
distinguished from any other species of homicide ; (6) and it will
therefore be necessary to inquire coaceming the cases in which
such malice has been held to exist. It should, however, be ob-
served, that when the law makes use of the term malice afore-
thought as descriptive of the crime of murder, it is not to be
understood merely in the sense of a principle of malevolence to
particulars, but as meaning 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, (c) And in general any
formed design of doing mischief may be called malice ; and there-
fore not such killing only as proceeds from premeditated hatred or
revenge against the person Killed ; but also, in many other cases,
such killing as i3 accompanied with circmnstances that shew the
heart to be perversely wicked, is adjudged to be of malice prepense,
and consequently murder, (d)

Malice may be either espress or implied by law. Express Malice may be
malice is, when one person kills another with a sedate deliberate «*^^ SSl*"
mind and formed design : such formed design being evidenced by ^' ^v*^^^
extemid circumstances, discovering the inward intention ; as lying

(«) 8 Inst 47, bU 1 Hmle 484, 448, (») 4 Blac. Com. 198. Gasttneaux's

449. I Hawk. P. C. c. 81. s. 3. Kely. case, I Leach 417.
187. f 08t 856. 8 Lord Rajm. 1487. {e) Post. 866, 868.
4 Blac. Com. 196. 1 East. P. C. c 5. (if) I Hawk. P. C. c. 31. s. 18. Post.

B. 8. p. 814. 867. 1 Hale 461 to 464.

4»l

The party
kUled.

Children in
the mother's
womb.

Bastard child-
ren.

Of Murder. — Party. Killed. [book ill.

Himself^ the adviser is guilty of murder ; and if the party takes
poison himself by the persuasion of another, in the absence of the
persuader, yet it is a killing by the persuader ; and he is principal
in it, though absent at the taking of the poison, {t) And he who
kUls another upon his desire or command is, in the judgment of the
law, as much a murderer as if he had done it merely of his own
head, (u)

Murder may be committed upon any person within the King's
peace. Therefore, to kill an alien enemy within the kingdom,
imless it be in the heat and actual exercise of war, {w) or to kill
a Jew, an outlaw, one attainted of felony, or one in a praemu-
nirey {x) is as much murder as to kill the most regular bom Eng-
lishman, {y)

An infant in its mother's womb, not being in rerum natura^ is
not considered as a person who can be killed within the descrip-
tion of murder; ana therefore if a woman, being quick or great
with child, take any potion to cause an abortion, or if another
give her any such potion, or if a person strike her, whereby the
child within her is killed, it is not murder or manslaughter, (z)
But by a recent statute any person wilfully and maliciously ad-
ministering poison, to cause or procure the miscarriage of any
woman, then being quick with child, is guilty of a capitsd offence;
and any person administering medicines to women not quick with
child, with intent to procure miscarriage, is guilty of felony, (a)
Where a child, having been bom alive, afterwards died by reason
of any potions or bruises it received in the womb, it seems always
to have been the better opinion that it was murder in such as ad«
ministered or gave them, (b)

The murder of bastard children by the mother was considered
as a crime so difficult to be proved, that a special legislative pro-
vision was made for its detection by the statute 21 Jac. L c. 2/.
which required that any such mother endeavouring to conceal the
death of the child, should prove, by one witness at least, that the
child was actually bom desid. But this law, which made the con-
cealment of the death almost conclusive evidence of the child's
being murdered by the mother, was accounted to savour strongly
of severity, and always construed most favourably for the unfor-
tunate object of accusation; and at length it was repealed, toge-
ther with an Irbh act upon the same subject, by a late statute, (c)

' (01 Hale 431. Vaux's case, 4 Rep.
44 b.

(u) 1 Hawk. P. C. c. 27. 8. 6. Saw-
yer's case. Did Bailey, May 1815. MS.

5. P. And see Rex v. DysoD, potl, 430.
(w) 1 Hale 433.

(x) Id. ibid. Formerly to kill one
attaint in a ^nemunire was held not
homicide, 24 Hen. 8. B. Coron. 197. :
but thestat. 5 Eliz. c. 1. declared it
to be unlawful.

(if) 4 Blac. Com. 198.

(s) 1 Hale 433.

(a) 43 Geo. 3. c. 58.

{b) 3 Inst. 50. I Hawk. P. C. c. 31.

6. 16. 4 Blac. Com. 198. I East. P. C.

c. 6. s. 14. p. 828. eofUra I Hale 488.
and Staundf. 21. but the reason on
which the opinions of the two last
writers seem to be founded, namely,
the difficulty of ascertaining the fact,
cannot be considered as salislactory,
unless it be supposed that such fact
neyer can be clearly established.

(e) 43 Geo. 3. c. 58. s. S. The Irish
act was one of the 6 Ann. The 49
Geo. 8. c 14. repeab an act of the
parliament of ScoUoiuf, sess. 2. pari. 1.
Guil. and Mar. by whicli a wobhui
concealing her being wtth child during
the whole space, and not calling for
and making use of asslstaace in the

CHAP. I.] Means of Killing. 4&S

which provides ^' that the trials in England and Ireland respect-
" ively^ ot women charged with the murder of any issue of their
'^ bodies, nude or female, which being bom alive would by law
^^ be bastard, shall proceed and be governed by such and the like
^^ rules of evidence, and of presumption, as are by law used dnd
*' allowed to take place in respect to other trials for murder, and
^' as if the said two several acts had never been made/' (d)

The killing may be effected by poisoning, strikii^, starving. Of the meftot
drowning, and a thousand other forms of d^th by which human ^^ 1^>>V«
nature maybe overcome, (e) But there must be some external
violence, or corporal damage, to the party ; and therefore where
a person, either by working upon the feuicy of another, or by
harsh and unkind usage, puts him into such passion of grief or
fear that he dies suddenly, or contracts some disease which causes
his death, the killing is not such as the law can notice. (/) If a
man however does an act, the probable consequence of which may
be, and eventually is, death, such killing may be murder; although
no stroke be struck by himself, and no killing may have been pri*
marily intended : {g) as where a person carried his sick fatner,
against his will, in a severe season, from one town to another, by
reason whereof he died ; (h) or where a harlot, being delivered of ^
a child, left it in an orchard covered only with leaves, in which
condition it was killed by a kite ; (t) or where a child was placed
in a hogstye, where it was devoured, {k) In these cases, and also
where a child was shifted by parish officers from parish to parish^
till it died for want of care and sustenance, (/) it was considered
that the acts so done, wilfully and deliberately, were, of malice
prepense.

Forcing a person to do an act which is likely to produce his
death, and which does produce it, is murder ; and threats may
constitute such force. The indictment charged first, that the
prisoner killed his wife by beating ; secondly, by throwing her
out of the window ; and, thirdly and fourthly, 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, J. Gibbs, J. and Bayley, J. were of opinion that if her
death was occasioned partly by the blows and partly by the fall,
yet if she was constrained by her husband's threats of further vio-

birth, was to be reputed the murderer (e) 4 Blac. Com. 196. moriendi mille

of the child, if it was found dead or Jlgurte, 1 Hale 431. 1 Hawk. P. C.

missing. c. SI. s. 4.

(if ) The statute further provides, that (f) 1 Hale 487, 429. 1 Bast. P. C.

the jury, if they acquit the prisoner c. 5. s. 13. p. 883.

of murder, may find that she was de« {g) 4 Blac. Com. 197.

livered of a bastard child, and endea- (A) 1 Hawk. P. C. c. 31, s. 6. 1 Hale

Toured to conceal the birth, where- 431 , 482«

upon the court may adjudge her to be (i) 1 Hale 431. 1 Hawk. P. C. c. 31.

committed, for any time not exceed- s. 6.

ing two years. See poH, S. a. of this (^) I Bast P. C. c. 5. 8. 13. p. $86.

Cliapter. (0 Palm. 545.

♦28 Of Murder*'^-- Treatment of Wounds. Lboqc ui,

Bymedidnei* If a physician or surgeon give his patient a potion or plaister,
intending to do him good, and^ contrary to the expectation of sudb
physician or surgeon, it kills him, this is neither murder nor man-
'Slaughter, but misadventure. (t<;) It has however been holden,
that if the medicine were administered, or the operation performed,
by a person not being a regular physician or surgeon, the killing
would be manslaughter at the least i{x) but the law of this deter-
mination has been questioned by very high authority^ upon the
g^und that physic and salves were in use before licensed physic
cians and surgeons existed, (y)

By infecdon. A question is put by Lord Hale, whether if a person - infected
with the plague should go abroad with the intention oi infecting
another, and another should thereby be infected and die, this
woidd not be murder : but it is admitted that, if no such intention
should evidently appear, it would not be felony, though a great
misdemeanor. (2;) It may be observed, that an c^ence of this sort
in breach of quarantine is punishable by the provisions of a recent
statute, (a)

By rape. A question has been ndsed, whether an indictment for murder

could be maintained for killing a female infant by ravisking her :
but the point was not decided, (i)

Time of death. It is agreed that no person .shall be adjudged by any act what-
ever to kill another, who does not die thereof within a year and a
day after the stroke received, or cause of death adnunistered, in
the computation of which the whole day upon which the hurt was
done is to be reckoned the first, (c)

*''^*S^'^' Questions may occasionally arise as to the treatment of the

^^"* * wound or hurt received by the party killed. Upon this subject it

has been ruled, that if a man give another a stroke not in itself so
mortal but that with good care he might be cured, yet if the party
die of this wound witnin the year and day, it is murder, or other
species of homicide, as the case may be : though if the wound or
hurt be not mortal, and it. shall be made clearly and certainly to
appear that the death of the party was caused by ill applications
bv himself or those about him, of unwholesome salves or medi-
cmes, and not by the wound or hurt, it seems that this is no
species of homicide. But when a wound not in itself mortal, for
want of proper applications, or from neglect, turns to a gangrene
or a fever, and that gangrene or fever is the immediate cause of
the death of the party wounded, the party by whom the wound is
^ven is guilty of murder, or manslaughter, according to the cir-
cumstances. For though the fever or gangrene, and not the
wound, be the immediate cause of the death, yet the wound being
the cause of the gangrene or fever,- is the immediate cause of the
death, causa cau8ati.{d) Thus, it was resolved that if one ^ves

(w) 4 Bla. Com. 197. 1 Hale 429. the point, as the indictmeot was bolden

is) Brit. c. 5. 4 Inst. 951. to be defective, in not having slated

(y) I Hale 429. that the prisoner gave the deceased a

(s) 1 Hale 432. mortal wound,

(a) 6Geo.4. c. 78. s. 8,21. Jnie^ (c) 1 HawK. P.C.c^Sl. 9.9. 4Bia.

Ill, el Beq, Com. 197. 1 East P.C. c. 6. s. 112.

{b)' Rex V. Ladd, 1 Leach 96. 1 East p. 345, 344.

P. C. 226. The Judg^ to whom the (d) 1 Hale 488.

case was referred gave no opinion upon

CHAP. I.] PoiBonmgs %€. — Fdo de sel 4Sd

wounds to another, who neglects* the cure of them^ or is disorderly
and doth not keep that role which a person wounded should do^
yet if he die it is murder or manslaughter, according to the cir-
cumstances ; because if the wounds had not been, the man had not
died : and, therefore, neglect or disorder in the person who re«
ceived the wounds shall not excuse the person who gave them.(cQ

If a man be sick of some disease, which, by the course of nature, KQliag a per-
might possibly end his life in half a year, and another gives him a ■**'i^^JJ^*
wound or hurt which hastens his death, by irritating and provok- ^^ '^
ing the disease to operate more violently or speedily, this is mur-
der or other homicide according to the circumstances, in the
party by whom such wound or hurt was given. For the person
wounded does not die simply ex visitaiiane Dei, but his death is
hastened by the hurt which he received ; and it shall not be per-
mitted to the offender to apportion his own wrong, (e)

It will not be necessary to specify the particular instances of GroM caaes of
the more gross lands of wilfiil murder in wliich the malignity of m«»dcr>^^ip^
the heart, the malice prepense which has been aheady described, ^^^*^'
is apparent. It may, however, be remarked, that of all species of
deatlis, that by poison has been considered as the most detestable,
because it can, of all others, be least ptevented by manhood or
forethought. It is a deliberate act, necessarily implying malice,
however great the provocation may have been ;(/) ana on account
of its singular enormity was made treason by the stat. 22 Hen. 8.
e.9., and punishable by a lingering kind of death: but this sta-
tute was repealed bv stat. 1 Edw. 6. c. 12. ss. 10. & 13., which
agidn niakes t^e oflence wilful murder, and takes away clergyw(g)
By a late statute,(A) administering poison with intent to murder,
though no death should ensue, is made a capital offence, which
will be more particularly mentioned in its proper place, (i)

Self-murder may be mentioned as a peculiar instance of malice p^o A te.
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. (At) It has been already stated, that a person killing ano-
ther, upon his desire or command, is guilty of murder :({) but in
this case the person killed is not looked upon as a/e/o de se^ inas-
much as his assent, being against the laws of God and man, was \
void.(m) But where two persons agree to die together, and one of

M Row's case, Kel. 96. . the statute to be not in aflGutnaoce of

(e) 1 Hale 498. Lord Hale says, the comnion law, but by way of r^

that thus he had heard that lesroed viva/ of it: to this solution oithedif-

and wise Judge, Justice Rolle, fre- ficulty Mr. BarringUm has made some

queotly direct. objections, (Obs. on the Stat. 594.)

<f) I East. P. C. c. 5. s. 19, p. 995. which have been observed upon by the

s. SO. p.95U 4B1. Com. 900. 1 Hale 455. editor of Mr. Just. Foster's work, in

ig) The true gronnds of this statute his Preface to the second edition,

of Bdw. 6. have been much discussed, (h) 43 Geo. 3. c. 58. s. 1.

and different opinions have been ex- {i) Poif , Chap. z.

i»res8ed on the subject by many great (k) 4 Bla. Com. 189. The late sta-

awyers. See the opinions of L&rd tute, 4 Geo. 4. c. 59. regulates, as to

^<»fce, 1 1 Co. 39 a. ; ielyngt C. J. Kel. the interment of the remains of a per-

S9.t Zortf fftflf, Kel. 195.) and Mr. son found feio de ie.

^M. Fciter, Post. 68, 69. Mr. Justice (i) Jnie, 494.

foster considered the enactments of (m) 1 Hawk. P. C. c. 97. s. 6.

4S6 Of Murder. {[book m.

lence, and from a well grounded apprehemnon of bis 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 influ-
ence of the threats, (a)
By negllMiice Upon the same, principles, where there is found to be actual
uMgetowards i^^i^e, or a wilful disposition to injure another, or an obstinate
an apprentice, perseverance in doing an act necessarily attended with danger,
without regard to the consequences, as if a master by premedi-
tated negligence, or harsh usage, cause the death of his appren-
tice, it wiU be murder. Thus, where the prisoner, upon his
apprentice returning to him from Bridewell, whither he had been
sent for misbehaviour, in a lousy and distempered condition, did
not take that care of him which his situation required, and which
he might have done ) not having suffered him to be in a bed on
account of the vermin, but having made him lie on the boards for
some time without covering, and without common medical care ;
and the death of the apprentice, in the opinion of the medical
persons who were examined, was most probably occasioned by his
ill treatment in Bridewell, and the want of care when he went
home ; and the medical persons inclined to think that, if he had
been properly treated when he came home, he might have reco-
vered ; the court under these circumstances, and others in favour
of the prisoner, left it to the jury to consider, whether the death
of the apprentice was occasioned by the ill treatment he received
from his master after returning from Bridewell, and whether that
ill treatment amounted to evidence of malice ; in which case they
were to find him guilty of murder, (m) And in a more modem
case a prisoner was found guilty of murder in causing the death
of his apprentice, by not providing him with sufficient food and
nourishment. The prisoner Charles Squire, and his wife^ were
both indicted for the miurder of a boy who was bound as a parish
apprentice to the prisoner Charles ; and it appeared upon the trial
that 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 de-
posed that in his judgment the boy died from debility, and for
want of proper food and nourishment, and not from the wounds,
&c. which he had received. Lawrence, J., upon this evidence,
was of opinion that the case was 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, (n)

(a) Rex r. Evans, O. B. Sept. 181S. to the principles upon which the wife

MS. Bay ley, J. was acquitted, see the case more

(m) Self's case, 1 East. P. C. c. 5. s. fully staked, anie^ 16. After dw snr-

IS. p. 826, 7. 1 Leach 1S7., and see seon had deposed that the boy died

the case more fully stated in the Chap- from debility, and for want of pMper

ter on Mantitaughter, food and nourishment, and not from

(n) Rf X V. Squire and his wife, SU^- the wounds, ~&c. which be had re-

ford Lent Assizes, 1799, MS.; and as ceived, the learned judge wis proceed-

CHAP. I.] Means of Kitting 4S7

By the ancient common law, a species of killing was held to be By ^uy.
murder, concerning which much doubt has been entertained in
more modem times, namely, the bearing false witness against
another with an express premeditated design to take away his life,
so as the innocent person be condemned and executed, (o) But a
very long period has elapsed since this offence has been holden to
be murder ; and in the last instance of a prosecution for it, 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, (p) The then attorney general,
however, declining to argue the point, the prisoners were dis-
charged of that indictment : but it should seem that there are
good grounds for supposing that the attorney general declined to
argue this point from prudential reasons, and principally lest wit-
nesses might be deterred from giving evidence upon capital pro-
secutions if it must be at the penl of their own lives, but not from
any apprehension that the point of law was not maintainable, (q)
In foro conscientice this offence is, beyond doubt, of the deepest
malignity.

If a man has a beast that is used to do mischief, and he, know- By savBgeani-
ing it, suffers it to go abroad, and it kills a man, this has been .°'^-
considered by some as manslaughter in the owner ; (r) and it is
agreed by all that such a person is guilty of a very gross misde-
meanor : {s) and if a man purposely turn such an animal loose,
knowing its nature, it is with us (as in the Jewish law) {t) as
much murder, 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, {u)

in? to enqaire of bim, whether, in his trial took place in 1766. The pri-

judgment, the series of cruel usage soners were indicted for murder upon

the boy had received, and in which a conspiracy oftjiekind mentionea in

the wife had been as active as her bus- the text against one Kidden, who had

band, might not have so far broken been convicted and executed for a

his constitution as to promote the de- rohbory upon the highway, upon the

bility, and co-operate along with the evidence of Berry and Jones,

want of proper food and nourishment (q) 4 Blac. Com. 196. note (^), where

to bring on his death, when thesur'- Mr. J. Blackstone says, that he had

geon was seized with a fainting fit, good grounds for such an opinion,

and, being taken out of court, did and that nothing should be concluded

not recover sufficiently to attend again from the waiving of that prosecution ;

upon the trial. Thejud^e, after oh- and in 1 East. P. C. c.5. s. 94. p. :ISS.

serving, that upon the evidence, as it note (a), the author states that he had

then stood) he could not leave it to heard Lord Mansfield, C.J. make the

Ihe jury to cousider, whether the same observation, and say, that the

wounds, &c. inflicted on the boy, had opinions of several of the judges at

contributed to cause his death, said, that time, and his own, were strongly

that if any physician or surgeon were in support of the indictment,

present who had heard the trial, he (r) 4 Blac. Com. 197.

might be examined as to the point in- (s) 1 Hawk. P. C. c. 31. s. 8.

tended to be enquired into ; but no (I) Exod. c. xxi. v. 29.

sHich person being present, he deli- (u) 4 Blac. Com. 197. and see 1

yered his opinion to the jury, as stated Hale, 430. where the author says, that

in the text. he had heard that it had been ruled to

(o) Mirror, e.-ir s. 9. Brit. c. 58. be murder, at the Assizes held zXSt,

Bnct lib. 8. c. 4. 1 Hawk. P. C. c. Albaiu^ for Berffordthire, and the

31. s» 7. S Inst 91. 4 Blac. Com. 196. owner banged for it $ but that it was

ip) Rex V. Macdaatel, Berry, and but an hearsay,
^ones^ Fost 138. 1 Leach 44. This

4S^ Of Murder. [book hi.

E resent uding and abetting him in the murder, is good : for (by
[olt, C. J.) ^' 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 mur-
^ aer/'(ir) And though anciently the person who gave the fatal
fitroke was considered as the principal, and those who were pre-
sent aiding and assisting, only as accessories ; yet it has long
been settled that 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, (jr)
So that if A. be indicted for murder, or manslaugter, and C. and
D. for being present aiding and assisting A., and A. appears not,
but C. and D. appear, they shall be arraigned; and if convicted
shall receive judgment, though A. neither appear nor be out*
lawed. (y) And if A. be inmcted as having j^ven 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. ana C.
were only aiding and assisting, it maintains the indictment, and
judgment shall be given against them all ; for it is only a circum^
stantial variance, and in law it is the stroke of all that were pre-
sent aiding and abetting, {z)
Of accessories He that counsels, commands, or directs, the killing of any per-
beforethefut. g^Q^ ^j^^ jg himself absent at tlie time of the &ct being done, is
an accessory to murder before the fact, (a) And though the crime
be done by the intervention of a third person, he that procures it
to be committed is an accessory before the fact : so that if A. bid
his servant hire somebody, no matter whom, to murder B., and
furnish him with money for that purpose, and the servant procure
C, a person whom A. never saw or heard of, to do it, A. is an
accessory before the fact. (6)

If A. advise B. to kill another, and B. does it in the absence of
A., in such case B. is principal, and A. is accessory in the mur-
der. And this holds, even though the party killed be not in rerum
naiura at the time of the advice given : so that if a man advise a
woman to kill her child as soon as it shall be bom, and she kills it
when bom in pursuance of such advice, he is an accessory to the
murder, (c)
Cases where It is a rule, that he who in any wise commands or counsels
^ d^Mt and >^^^®' ^ commit an unlawful act, is accessary to all that ensues
immtiii^t^ ef- upon that unlawful act. Thus, if A. commands B. to beat C,
lectof the and B. beat him so that he dies, A. being absent, B. is guilty of
^^^^22i^f^^ murder as principal, and A. as accessory ; the crime having been

accessory.

(w) Eex r. Wallis and others, Salk. (jr) 1 Hale 437. Plow. Com. 100 a.

834. This point was doubted of by (^)lHale4S7. Plow. Com. 97, 100.

some of the Judges in Taylor and Gythin's case.

Shaw*s case, 1 Leach 360. 1 East. P. C. (s) 1 Hale 438. Plow. Com. 98 a.

r. 6. 9. IS I. p. 351. ; but a majority of 9 Co. 67 b. Rex v. Mackally, 1 East,

them thou gilt the conyiction proper. P. C. c 6. s. 121. p. 350.

No express determination, however, (c) 1 Hale 435.

was made in the last case, as it was [b) Post. 125.

thought by the Judge who tried the (c) 1 Hale 617. 8 Hawk. P. C. c.28.

prisoner a proper case for a pardoa on s. 18. 4 Bla. Com. 37. Dy. 1S5.
the special circumstances.

CHAP. I.] Aceeuories. 438

committed in the execution of a command which natdrally tend<^
to endanger the life of another, (d) And a farthrij therefore^ if
a man conmiand another to rob any person, and he in robbing
him kSl him, the person giving such command is as mudi an ac-
cessory to the murder, as to the robbery which was directly com-
manded: and it is also said, that if one command a man to rob
another, and he kill him in the attempt but do not rob him, the
person giving such command is guilty of the murder, because it
was die direct and immediate effect of an act done in execution of
a command to commit a felony, (e)

But if the crime committed be not the direct and immediate Cases wbere
effect of the act done in pursuance of the command, or if the act ^^« cnme is
done varies in substance from that which was commanded, the andLm^ate
party giving the command cannot be deemed an accessory to the effect of the
crime. Thus, if A. persuade B. to poison C, and B. accordingly commwid or
give poison to C, who eats part of it, and gives the rest to D., ^^"IJc^u^
who is killed by it, A. is guilty of a great misdemeanor only in as accessory,
respect of D., but is not an accessory to his murder ; because it
was not the direct and immediate effect of the act done in pur-
suance of the command. (/) And if A. counsel or command B.
to beat C. with a small wand or rod, which would not in all
human reason cause death, and B. beat C. with a great club, or
wound him with a sword, whereof he dies, it seems that A is not
accessory; because there was no command of death, nor of any
thing that could probably cause death ; and B. departed from the
command in substance, and not in circumstance, (g) But if the
crime conunitted be tiie same in substance with that which was
commanded, and vary only in some circumstantial matters ; as
where a man advises another to kill a person in the night, and he
kills 4iim in the day ; or to kill him in the fields, and be kills him
in the town ; or to poison him, and he stabs or shoots him ; the
person giving such command is still accessory to the murder : for
the substance of the thing commanded was the death of the party
killed, and the manner of its execution is a mere collateral cir-
cumstance. (A)

An accessory after the facty in murder^ as in any other felony, of accessories
may be where a person, knowing a murder to have been com- after the fact,
mitted, receives, relieves, comforts, or assists the offender ; as to
whieh kind of accessory some points are noticed in a former Chap-
ter, (t*) It may be here observed, howerer, that if one wounds
another mortally, and after the wound given, but before death en-
sues, a person assists or receives the delinquent, this does not
make such person accessory to the homicide ; for till death ensues
there is no felony committed, {j)

Clergy is taken away in all cases of murder and petit treason cier^.
from accessories before, as well as principals, and lands and goods
are forfeited; the forfeiture in such case relating back to the

f
W 1 Hale 435. S Hawk. P. C. c (h) 2 Hawk. P. C. c. 29. s, 20. 4
29. 8. 18. 4 Blac. Com. S7. Blac. Com. 37.

(e) 2 Hawk. P. C. c. 99. s. 18. (i) Anie, 36.

(/) Id. iHd. (J) 4 Blac. Com. 38. 2 Qawk. P. C.

ig) I Hale 436. c. 29. s. 35.

VOL, I. 2 F

434 Of Murder. • [bookiii.

stroke or other cause of death i {k) but accessories alter the fiurt^
^ther in petit treason or murder, are in no instance ousted of
clergy. (/)

It has been before submitted, that a statement of the several
instances of gross and direct wilful murder cannot be thought
necessary. But there are a variety of cases of a less decided cha-
racter, and some upon which doubts have arisen, which may
properly be here considered. An apt arrangement of them is a
matter of some difficulty ; but the following order seems to be
appropriate : I. Cases ot provocation. II. Cases of mutual com-
bat. III. Cases of resistance to officers of justice, to persons
acting in their aid, and to private persons .lawfully intecfering to
apprehend felons, or to prevent a breach of the peace. IV. Cases
where the killing takes place in the prosecution of some other
criminal, unlawf^, or wanton act. V. Cases where the killing
takes place in consequence of some lawful act being criminally or
improperly performed, or of some act performed without lawfiil
authority.^

. SECT. I.

Cases of Provocation.

As the indulgence which is shewn by the law in some oases to
Hie first transport of passion is a condescension to the firaiky of
the human frame, to the furor brevisj which, while the frenzy
lasts, renders a man deaf to the voice of reason ; so the provoca-
tion which is allowed to extenuate in the case of homicide most
be something which a man is conscious of, which he feels and
resents at the instant the fact which he would extenuate is com-
mitted, (m) . All the circumstances of the case must lead to the
conclusion, that the act done, though intentional of death or grei^
bodily harm, was not the result of a cool deliberate judgment and
previous midignity of heart, but solely imputable to human infir-
mity, (n) For there are many trivial, and some considerable,
provocations, 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, gea- No breach of a man's word or promise ; no tr^spass^ either to

toresy &c lands or goods ; no afiront by bare words or gestures^ however

(Xc) Fo9t 304, et sequ. 1 T!ale 426. both before and after, in petit treason*

8 Hale 374. 1 East. P. C. SI 5. 23 E. are debarred of clergy by 4 and B

8. €.1. 85 H. 8. c. 3. 1 £dw. 6. c. Phil, and Mary, c. 4. But qutere^

18. And as to accessories before, 4 wbetber that statute applies to acces-

& ft Phil. & M. c. 4. sories tffter the fact.

(/) 8 Hale 348« 4. 1 East P. C. (m) Post. 3)6.

c. 5. s. 3. p. 818."^ In 1 Hawk. P. C. (ii) 1 East. P. C. c. 5. s. 19. p. 838.
c. 38.- 8. U. it is said, that accessories,

CHAP. I. $ 1.] Provocaium. 4S5

hhe and malicious, and aggravated with the most provoking cir-
cumstances, will free the party killing from the guilt of mur-
der, (o) And it is conceived that this rule will govern every case
where the party killing upon such provocation makes use of a
deadly we^x>n, or otherwise manifests an intention to kill, or to
do some great bodily harm, (p)

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
provocation as would abate the presumption of malice in the party
killing, (g)

If A. DC passing along the street, and B. meeting him (there
being a convenient distance between A. and the wall) take the
wall of him, and thereupon A. kill B., this is murder : but if B.
had justled A., this justling had been a provocation, and would
have made it manslaughter, (r)

If there be a chiding between husband and wife, and the lius-
band strike his wife thereupon with a pestle, so that she dies pre-
sently, it is murder ; and the chiding will not be a provocation to
extenuate it to manslaughter, (s)

A woman called a man, who was sitting drinking in an ale-
house, *' a son of a whorCf" 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 man-
slaughter. 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. Admitting that
they would not, in case there had been a striking with such an
instrument as necessarily would have caused death, as stabbing
with a sword or shooting with a pistol ; yet whether this strUdng,
so improbable to cause death, would not alter the case. The
Judges were not unanimous upon this case ; and, as the conse-
quence of a resolution on either side was great, it was advised
that the king should be moved to pardon the offender ; which was
accordingly done, (t)

In a case where it was decided that if A. give slighting words
to B., and B. thereupon immediately kill him, such killing would
be murder in B., it is also stated to have been holden, that words
of menace or bodily harm would amount to such a provocation as
would reduce the offence of killing to manslaughter, (ti) But it
should be observed, that in another report of the same case this
latter position is not to be found, {w) And it seems that such
words ought at least to be accompanied by some act, denoting an
immediate intention of following them up by an actual assault, (x)

Though an assauk made with violence or circumstances of in- Assimlt.
dignity upon a man's person, and resented immediately by the
party acting in the heat of blood upon that provocation, and kill-

(o) Fost. S90. 1 Hawk. P. C. c. 31. and insult in the justling.
8. SS. 1 Hale 455. («) Crompt. fol. 120 a. See also

ip) Fost. «90, 291. Kel. 64. 1 Hale 466.

(g) Brain*s case. Hale 455. Cro. (I) 1 Hale 455, 456.
EKz. 778. Kel. ISl. («) Lord Morleys case, 1 Hale 455.

(r) 1 Hale 455. But this case pro- (w) Kel. 55.
bably supposes considerable violence (x) 1 East, F. C. c, 5. s. 20. p. 2S3.

2f2

436

Of Murder.

[book III.

Stedman's
case.

Tranter and
Reason's case.

ing the a^ressor^ will reduce the crime to manslaughter^ yet it
must by no means be understood that the crime will be so ex-
tenuated by any trivial provocation which in point of law may
amount to an assault; nor in all cases even by a blow. Violent
acts of resentment, bearing no proportion to the provocation or
insult, are barbarous, proceeding rather from brutal malignity
than human frailty : and barbarity will often make malice, (y)

There being an affray in the street, one Stedman, a foot soldier,
ran hastily towards the combatants. A woman, seeing him run
in that manner, cried out, ^' You will not murder the man, will
you?'' Stedman replied, ^' What is that to you, you bitch?"
Tlie woman thereupon gave him a box on the ear, and Stedman
struck her on the breast with the pommel of his sword. The
woman then fled ; and Stedman, pursuing her, stabbed her in the
back. It seemed to Holt, C. J. that this was murder^ a single box
on the ear from a woman not being a sufficient provocation to kill
in such a manner, after Stedman had given hei* a blow in return
for the box on the ear ; and it was proposed to have the matter
found specially : but it afterwards appearing, in the progress of
the trial, that the woman struck the soldier in the face with an
iron patten, and drew a great deal of blood, it was holden clearly
to be no more than manslaughter, {z) The smart of the man's
wound, and the effusion df blood, might possibly hare kept his
indignation boiling to the moment of the fact, {a)

The following case is reported. Mr. Lutterel, being arrested
for a small debt^ prevailed on one of the oflBcers to go with him
to his lodgings, wnile the other was sent to fetch the attorney's
bill, in order, as Lutterel pretended, to have the debt and costs

{aid. Words arose at the lodgings about civility money, which
lUtterel refused to give ; and he went up stairs, pretending to
fetch money for the payment of the dtbt and costs, leaving the
officer below. He soon returned with a brace of loaded pistols in
his bosom; which, at the importunity of his servant, he laid down
upon the table, saying, ^^ He did not intend to hurt the officers :
but he would not be ill used." The officer, who had been sent
for the attorney's bill^ soon returned to his companion at the
lodgings ; and words of anger arising, Lutterel struck one of the
officers on the face with a walking cane, and drew a litde 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 or them fired one of the pistols
at him while on the ground, and gave him his death wound. And
this b reported to have been holden manslaughter by reason of
the first assault toith the cane, (b) ^* This (says Mr. Justice Fos-
'^ ter) is the case as reported by Sir John Strange ; and an ex-
^' traordinary case it is ; that all these circumstances of aggrava-
'^ tion, two to one, hie helpless and on the ground, begging for
'^ mercv, stabbed in nine places, and then dispatched with a
^ pistol ; that all these circumstances, plain indications of a deadly

(y) Per Lord Holt in Keate's case, c. 5. s. 81. p. 234.

Comb. 408. (a) Fost. S9d.

(z) Stedmao's case, Post. 999, MSS. (b) Rex v. Tranter and Reason, 1

Tiacj and Denton 57. l East. P. C. Stra. 499.

CHAP. I. M.3 Provocation. 437

^ '* revenge or diabolical fury, should not outweigh a slight stroke
" with a cane." (c)

As an assault, thouirh illegal, wiU not reduce the crime of the Pmonal re-

coercion.

party killing the person assaulting him to manslaughter, where the '^'^"^ *^
revenge is disproportionate and barbarous, much less will such
personal restraint and coercion as one man may lawfully use to-
wards another form any ground of extenuation. Two soldiers came
at eleven o'clock at night to a publican's, and demanded beer,
which he refused, alleging the unseasonableness of the hour, and
advised them to go to their quarters ; whereupon they went away,
uttering imprecations. In an hour and a half afterwards, when
the door was opened to let out some company, who had been de-
tained there on business, one of them rushed in, the other remain-
ing without, and renewed his demand for beer ; to which the land-*
lord returned the same answers and on his refusing to depart, and
persisting to have some beer, and offering to lay hold of the land-
lord, the latter at the same instant collared him ; the one pushing
and the other pulling each other towards the outer door ; where
when the landlord came he received a violent blow on the head
with some sharp instrument from the other soldier, who had re-
mained without, which occasioned his death a few days afterwards.
BuUer, 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 i^ter the warning he had
given him, than he lawfully might ; which was no provocation for
the cruel revenge taken : nlore especially as there was reasonable
evidence of .the prisoners having come the second time with a de-
liberate intention to use personal violence, in case their demand
for beer was not complied with, (d)

If A. stands with an offensive weapon in the doorway of a room
wrongfully to prevent J. S. from leaving it, and others from en-
tering, and C. who has right in the room struggles with hini to
get his weapon from him ; upon which D., a comrade of A.^s,
stabs C, it will be murder in D. if C. dies. A drummer and a
private soldier stopped at an inn with a deserter, and were pressed
by one Martin to enlist him ; and they gave him a shilling for that
purpose, but they had no authority to enlist any body. Martin
wanted afterwards to go away : but they would not let him, and a
crowd collected. The drummer 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 strug^ing with Martin, came behind the son, and
stabbed him in the back. He was indicted upon the statute 43 G.

(c) Post. 893. where Mr. J. Foster told them it could be no more than

statai roaoy circumstances of the case manslaaghter. See this case more fully

which the reporter had omitted $ and stated posiy Chan. On Manilaughier.
also the direction to the jury, in which {d) Rex v. Willoughhy and another,

the Chief Justice, upon other grounds Bcdmin Sum. Ass. 1791. MS. 1 £ast.

than the first aisaoU with the <;|ane, P. C. c. 6. s. 66. p. 888.

438 0/ Murder. [book m.

3. ; and it was urged for the prisoner, that the Boldiers had a right
to enlist Martin, 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 ; and the convic*
tion was held right, {y)
ProTocation of In cases of provocation of a slighter kind, not amounting to an
a slighter kind assault, as the ground of extenuation would be that the act of re
seS^n^^'*" sentment, which has unhappily proved fatal, did not proceed from
and nature of malice, or a spirit of revenge, but 'was intended merely for correc-
the instru- tion } SO the material inquiry will be, whether malice must be in-
menu nied. ferred from the sort of punishment inflicted, from the nature of
the instrument used, and from the manner of the chastisement, {e)
For if on any sudden provocation of a slight nature one person
beat 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. (/)

Thus* the case which has been before mentioned where, upon a
chiding between husband and wife, the husband struck his wife
with a pestle, (g) proceeded upon the ground of the pestle being
an instrument liKely to endanger life. (A) And it is probable that
the doubt which was felt by some of the Judges in a case where a
man, upon being called by a woman a son oi a whore, took up a
broom staff and threw it at her, and killed her, (t) arose from the
consideration that the instrument was not such as was likely, when
thrown from the given distance, to have occasioned death, or great
bodily harm, {k)

And in order to negative malice, in a case where death has
ensued frt)m a blow not likely to have produced death, or mortal
disease, all circumstances of aggravation, (though not suflicient to
warrant giving a deadly blow) will be material. One Freeman, a
aoldier, was in a public-house drinking, and asked a girl who was
sitting there to drink with him: upon which one Ann Simpson,
with whom he had cohabited, seized his pot, abused him very
much, and threw down his beer. Freeman then caught the pot
from her, and struck her twice on the head with it : the blood
gushed out, and she was taken to an hospital, where the wound
was examined^ and did not appear dangerous, being about a
quarter of an inch deep ; but it produced aa erisypelas, 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. told the
jury, that if the msease which caused the death originated from
the wound, i£ was the same as if the wound had caused the death;
that the primary cause was to be considered ; that the aggrava-
tion, though not constituting a provocation which would extenuate
the givine a deadly blow, woidd palliate the giving a moderate
blow } ana he left it to the jury whether those blows were such as

(jf) lUx V. Longden, East T. 1819. (/) 4 Blac. Com. 199.

.MS. Bayley, J., and Rusb. and Rj. {g) Ante^ 435.

8S8. (A) I East. P. C. c. 5. s. 2S. p. 935.

(r) 1 East. p. C. c. 5. 8. 29. p. 935. (i) Ante^ 435.

and 8. S3, p. 998, 9. . (k) \ East. P. C. C. 5. s. 99. p. 936.

CHAP. I. $ 1.] Provocation. 439

likely to be followed by death, or by a disease likely to ter*
minate in deat^. The jury thought that the blowswere not of
this kind, and the prisoner was found guilty of manslaughter
only, (o)

The nature of the instrument used has been much considered in Rowley's case.
the following case. The prisoner's son fought with another boy,
and was beaten ; he ran home to his father all bloody ; who pre-
sently took a cudgel, ran three quarters of a mile, and struck the
other boy upon the head, upon which he died.(/) This was ruled
manslaughter, because done in sudden heat and passion : but upon
this case Mr. Justice Foster makes the following remarks, {m)
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 hh strength against the child, had
^' dispatched him Ivith a hedge stake, or any other deadly weapon,
<< or by repeated blows with his cudgel, it must, in my opmion,
''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 (n) setteth the
'^ case in a much clearer light, and at the same time leadeth his
" readers into the true grounds of the judgment. His words are,
'^ ^ Rowley struck the child with a small cudgel^ of which stroke
'^ he aftenvards died.' I think it may be fairly collected from
*^ Croke* s manner of speaking, and Oodbolt's report, (o) that the
^^ accident happened by a single stroke with a citdgel not likely to
^^ destroy i and that death did not immediately ensue. The stroke
'' was given in heat of blood, and not with any of th<e circum-
'' stances which import malice, ^and therefore manslaughter. I
'^ observe, that Lord Raymond layeth great stress on this cir-
'^ cumstance : that the stroke was with a cudgel, not likely ta
" kilir {p)

In a case where upon a special verdict it was found that the Hazers
prisoner, having employed her daughter-in-law, a child of ten
years old, to reel some yam, and finding some of the skains'
knotted, threw at the child a four-legged stool, which struck her
on the right side of the head on the temple, and caused her death
soon after the blow so given ; and it was also found that the stool
was of sufficient siz^ and weight to give a mortal blow, but that
the prisoner did not intend, at the time she threw the stool, to kill-
the child ; the matter was considered as of great difficulty^ and no
opinion was ever delivered by the Judges, {q) The doubt appears-
to have been principally upon the question^ whether the instru-

(a) Rex V. Fryman, 0. B. Jan. 1814. ** beatiog.'* Fost 294..
MS. BaylcT, J. (m) Fost 894.

(0 Rowley's case, 18 Rep. 87. S. C. (n) Cra. Jac. 896.
\ Hal^ 453., in which report the (o) 6odb. 188. It is there said t(r

words are, ''and strikes C. that he have been *' a rod," meaning probably

dies.** Mr. Justice Foster, in citiog a small wand.

the case, says, that the father, after (p) 8 LordHaymond, 1498. .AntCy.

runniog three quarters of a mile, beats note (/).
the other boy, »• who dieth of thb (9) Hkzers case, 1 Leach 308.

440 Of Murder. [book m.

ment was such as would probably, at the given diataace^ hare
casioQed death or great bodily harm, (r)
Where A. finding a trespasser upon his land^ in the first trans*

Eort of his passion, beat him and killed him, and it was holden to
e manslaughter, (s) it must be understood diat he beat the tres-
passer, not with a mischievous intention, but merely to chaslue
him, and to deter him from a future commission of su^ a 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 ; these circumstances being some of the genuine symp-
toms of the maia tnenSf the heart bent upon mischief, which
enter into the true notion of malice in the legal sense of the
word, {f)
Rcsnlt of the It seems, therefore, that it may be laid down, that, in all cases
sobjecL^" ' (j/* slight provocation^ if it may be reasonably collected from the
weapon made use ofj or from any other circumstance, that the
party intended to killy or to do some great bodily harm, such homi-
cide 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 was 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 ex-
cessive, and savoured of cruelty, {u)
Provocation It should be further remembered, upon the grounds which
Siiere exm-css ^^^ h^^vi before mentioned, {w) that the plea of provocation
malice. will not avail where there is evidence of express malice. In

such case not even previous blows or struggling will extenuate
homicide.
Mason's case. Richard Mason was indicted for the wilful murder of William
^*^*^*^Sa*r"^ Mason his brother, and convicted : but execution was respited, to
^^^' take the opinion of the Judges upon a doubt, whether, upon the
circumstances given in evidence, the crime amounted to murder or
manslaughter. The prisoner^ with the deceased and another
brother, and some neighbours, was drinking in a friendly manner
at a public house ; till growing warm in liquor, but not intoxicated,
the prisoner and the deceased began in idle sport to pull aud push
each other about the room. They then wrestled ; one fell, and
soon afterwards they played at cudgels by agreement. AU this
lime no token of anger appeared on either side, till 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, was beard to say, '^ Damnation seize me if
I do not fetch something and stick him.'' And being reproved
for using such expressions, he answered, ^^ I'll be damned to all

(r) 1 EuL P. C. c. 5. s. 22. p. 236. Palm. 545. 1 Hawk. P.O. c S9. s. 42.

(t) I Hale 473. W. Jones 198. I Haje 453. Kel. 127.

(0 Post. 291. 1 Bast P. C. c. 5. s. 22. p. 23i.

(ii) Hallo wa^*s case, Cro. Car. 131. (w) AnU, 423.

CHiAP. f . $ 1.3 Ptovoeati&tt. 441

eternity if I do not fetch oomething, and ran him through the
body." The deceased and the rest of the company continued in
the room where the affray happened ; and in about half an hour the
prisoner returned^ havinff put off a tiiin slight coat he had on wh^i
he quitted the room^ and put on one of a coarse thick cloth. 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, locking in upon the company, but not speak*
ing a word. The deceased seeing him in that posture, invited him
into the company : but the prisoner answered, *^ I will not come
in." " Why will you not ?" said the deceased. The prisoner re-
plied, ** Perhaps you will fall on me and beat me." The deceased
assured him he would not ; and added, *^ besides, you think your-
self 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 de-
ceased 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, *^ Danm you stand off, or
ru 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 thereupon 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 met in Michaelmas vacation at Ztord Mans/iekFs.
chambers, in conference upon this case ; and 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 Atm, to run him through the body. Whom did
he mean by- him ? Every circumstance in the ca«e shewed that he
meant his brother. He returned to the company, 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 conceal-
ing the weapon. He stood at the door, refusing to come nearer,
but artfully drew on the discourse of Uie 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 fir^t 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 pro-
duced, which probably occasioned the doubts did not alter the
case, nor did the precedent quarrel; because, aU circumstances*
considered, he appeared to have returned with a deliberate resolu-
tion to take a deadly revenge for what had passed ; and the blows
were plainly a provocation sought on his part, that he naght exe-

448

O/Mufder.

{jBOiOi iir«

Prarocntxm
sought bv the
party killiog.

ProTOcation
will not aYul,
if there is
cooling^ time.

cute the wicked purpose of his heart with some colour of ex-
cuse, (x) ^

In the foregoing case 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
it should be observed, that 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 be of
any avail, (y) Thus where A. and B. having fellen 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. (2) 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 occa-
sion to strike or wound B. : B. accordingly took out the pin, and
A. struck him and killed him; and this was ruled nnurder; 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 j by which to take occasion to kill B.(a)

It must be further observed also, that in every case of homicide
upon provocation, how great soever that provocation may have
been, if there be sufficient time for passion to subside and reason-
to interpose, such homicide will be murder. (A) Therefore, in the
case of the most grievous provocation to which a man can be es'
posed, that of finding another in the act of adultery with his wife^
though it would be but manslaughter if he should kill the adul-
terer in the first transport of passion, yet if he kill him delibe-
rately, and upon revenge after the fact and sufficient cooling time,
it would undoubtedly be murder, (c) " 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 resorts but be they of what nature soever,
'' he ought to bear his lot with patience, and remember that yen-
^' geance belongeth only to the Most High."((/) With respect to
the interval of time which shall be allowed for passion to irabside,
it has been observed that it is much more easy to lay down rules
for determining what cases are without the limits, than how far
exactly those limits extend. (<r) In cases of this kind the imme-
diate object of inquiry is, whether the suspension of reason arising
from sudden passion continued from the time of the provocation
received to the very instant of the mortal stroke given; for if from
any circumstances whatever it appear that the party reflected, de-
liberated, or cooled any time before the fatal stroke given ; or
if in legaJ presumption there was time or opportunity for cooling;
the killing will amount to murder ; as being attributable to malice
and revenge, rather than to human frailty. (/} And, firom the

(x) Mason's case, Post 139. 1 East.
P. C. c. 5. 8. 98. p. 839.
(if) 1 East P. C. c. 5. 8. 83. p. 839.
(») 1 Hawk. P. C. c. 31. 8. 84.

(a) 1 Hale 456.

(b) F06I. 896.

1

(c) Post 896. 1 East P. C. c. 6.
s. 80. p. 834. and 8. 30. p. 851.

(i) Post 896. Rom. chap. zii. v. 19.

(e) 1 East P. C. c. 5. s. 30. p. 851.

(/) Oneby's case, 8 Lord JUjm*
1496.

CHAP. 1. 4 2.] Mutual Combat. 443

cases wbicli have been stated in the fomier part of this section, it
appears that malice will be presumed, even though the act be per-
petrated 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, (y)

SECT. II.

Cases of Mutual Combat,

Whbrs words of reproach or other sudden provocations have led
to blows and mutual combat, and death has ensued, the important
enquiry will be, whether the occasion was altogether sudden, and
not the result of pre-conceived anger or malice : for in no case will
the killing, though in mutual combat, admit of alleviation, if the
fighting were upon malice. (A)

Thus a party killing another in a deliberate duel is guilty of Deiibente
murder: for wherever two persons in cold blood meet and fight on duel,
a precedent quarrel, and one of them is killed, the other is guilty
of murder, and cannot help himself by alleging that he was first
struck by the deceased; or that he had often declined to meet him,
and was prevfdled upon to do it by his importunity ; or that it
was his intent only to vindicate his reputation ;(f) or that he
meant not to kill, but only to disarm his adversary. (A:) He has
deliberately engaged in an act, highly unlawful, in defiance of the
laws, and he must at his peril abide the consequences : and upon
this principle, wherever two persons quarrel over night and ap-
point to fight the next day, or quarrel in the morning and agree
to fight in the afternoon, or at any time afterwards so consider-
able that in common intendment it must be peesumed that the
blood was cooled, the person killing will be guilty of murder. (/)
And in a case where, upon a quarrel happening at a tavern. Lord
Morley objected to fighting at that time, on account of the dis-
advantage he should have by reason of the height of his shoes,
and presently afterwards went into afield and fought; the cir-
cumstance was relied on as shewing that he did not fight in the
first passion,(97i) So wherever there is an act of deliberation, and
ft meeting by compact, such mutual combat will not excuse the

ig) 1 East. P. C. c. 6. 8. 90. p. f U. (0 1 Hawk. P. C. c. 31 . s. SS. I Hale

{h) 1 East P. C. c. 5. 8. 24. p. 241. 45S.

(i) As where he had heen threat- (m) Bromwick's case, 1 Lev. 180.

caed that he should be posted for a 1 Sid. 277. 7 St Tr. 42.. Bromwick

coward. I Hale 452. and see Rex v. .was indicted for aiding and abetting

Rice, S Bast R. 581. Lord Moriey in the murder of Hasi- •

W 1 Hawk. P. C. c. 31. s. 21. ings.

444 • Of Murder. [BOo&in«

party killing-from the guilt of murder; as where B. challenged A.,
and A. refused to meet hun, but in order to evade the lawj 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 conclusion
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'fig^hting,(fi) Upon the same
principle, if A. and B. meet deliberately to fight, and A. strike B.,
and pursue B. so closely that B., in safeguard of his own life, lulls
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.(o)

And the law so far abhors all duelling in cold blood, that not
only the principal who actually kills the other, but also his second,
is guilty of murder ;(p} and it has been held that the second also
of the person killed is equally guilty by reason of the countenance
given to the principal, and of the compact : but this has been con-
sidered as a severe construction by Lord Hale, who thinks that
the law in that case was too far 8tramed.(^)
Combat upon Where the combat is not an act of deliberation, but the imme-
sodden quar- ^^ consequence of sudden quarrel, it does not of course fell
within the foregoing doctrine : yet in cases of this kind the law
may come to the conclusion of malice, if the party kilEng began
ilndiiB advaii- the attack with circumstances ' of undue advantage, (r) For in
^*' order to save the party making the first assault, upon an insuffi-

cient legal provocation, from the guilt of murder, the occadon
must not only be sudden, but the party assaulted must be put on
an equal footing in point of defence 3 at least at the onset : and

(n) 1 Hawk. P. C. cSl.s. 25. decliniDg to fight, proceeds thos:

. (0) 1 Hale 452. 480. who says, *<Thas *' Yet still it may be doubtful whe-

*' is Mr. DaltoD, cap. 93. p. 241. (new *' ther, admitting the full force of

*' edit. c. 145. p. 471.) to be under- *' this reasoning, the ofibace on be

*' stood.*' But » qu, is added in 1 ** less than manslaughter, or whether

Hale 452. whether, if B. had really " in such case the party can alto-

a.nd truW declined the fisht, ran away " gether excuse himself upon the foot

as far as ne could, and oflfered to yield, *^ of n^cessit^ in self-defeoce, becanse

and yet A. refusing to declino it had ** the necessity which was indoce4

attempted his death, and B. after this *^ from his own faulty and illml act,

had killed A. in his own defence, it '* namely, the agreement to fiffht,was

would excuse him from the guilt of *' in the irst instance delibenUelj

murder; admitting clearly that if the ** foreseen and resoWed upon, in de-

ninnin^ away were only a pretence to ** fiance of the law.'' 1 Bast P- C.

sa^e his own life, but was really de- a 5. s. 54. p. 285.

signed to draw out A. ta kill him, it (p) 1 Hale 442. 452. 1 Hawk. P. C.

would be murder. This qu<sre of Lord c. SI. s. SI.

Hale's is discussed in 1 East. P. C. c. 5. (9) 1 Hale 442. where he says, that

s. 54. p. 23S. et sequ. and it is ob- the book of 22 B. S. Coroo. 262. was

served that Mr. J. Blackstone (4 Blac. relied upon t but, aa he thinks, the law

Com. 185.) expressly puts the same was too far strained in that case; and

case.ofa duel as Lord Hale, but with- in page 452, he says, ** some have

out subjoining the same doubt; and '* thought it to be murder also in the

that it was considered as settled law ** second of the party killed, because

br the chief Justice, in Oneby's case* ** done by compact and agreement.

(Lord Raym. 1489). Mr. Bast, after '< 22 E. S. 262. Sed qu. 4t hoc."'

reasoning in favour of the extenua- (r) Fost. 295.
tion of uie crime of the duellist so

CHAP. I. § 2.] Mutual Combat 445

this more particularly where the attack is made with deadly or
dangerous weapons, (s)

'Uius if B. oraw his sword and make a pass at A., the sword of
A. being then undrawn, 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 adyersar/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 fi. (t)

In Mawgridge*s case, words of anger happening, Mawgridge Mawgridge't
threw a bottle with great force at the head of Mr. Copey and im- ^^*^*
mediately drew his sword. Mr. Cope returned a bottle at the
head of Mawgridge^ and wounded him : whereupon Mawgridge
stabbed Mr. Cope. This was ruled to be murder ; for Mawgridge,
in throwing the bottle, shewed an intention to do some great mis-
chief: and his drawing immediately shewed that he intended to
follow his blow ; and it was lawful for Mr. Cope, being so assaulted,
to return the bottle, (u)

Even if the parties are upon an equal footing when the combat Violent con-
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 mani"
fest deliberation ; as in the following case of Major Oneby : —

Major Oneby was indicted for the murder of Mr. Gower; and Oneby'scate.
a special verdict was found, containing the following statement.
The prisoner being in company with the deceased and three other
persons at a tavern, in a fnenoly manner, after some time, began
playing at hazard ; when Rich, one of the company, asked if any
one would set him three half crowns : whereupon the deceased, in
a jocular manner, laid down three halfpence, telling Rich he had
set him three pieces ; and the prisoner at the same time set Rich
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 halfjpence, and that he was an
impertinent puppy for so doing ; to which the deceased answered,
whoever called nim 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 can-
dlestick or bottle at the prisoner, which missed him ; upon which
they both rose up to fetch their swords, which then hung up in
the room, and the deceased drew his sword ; but the prisoner was
prevented from drawing his by the comply. The deceased
thereupon threw away his sword ; and the company interposing,
they sat down again for the space 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 think we may pass it
^ over :'' and at the same time offered his hand to the prisoner,
who made answer, "No, danm you; I will have your blood.**

(«) 1 East. P. C. G. 5. s. 95. p. S46. Is said that the Jadgment in this case

(t) Post 896. 1 Hawk. P. C. c.*Sl. was holdea to be good law bj all tht

s* 87. Judges of EnglarUlf at a conference in

(v) Rex e. Maw^idge, Kel. 128, the case of Major Oim^^« 9 Lord Baym.

129. cited in Post 295, S96. where it 1485. S Stra. TTl.

446 Of Murder. [looKia

After which^ the reckoning being paid, all the compuqf,acei(t&e
prisoner, went out of the room to go home ; and he called to the
deceased, saying, *^ Yomig man, come back; I have MQeduii; to
'^ say to you;'' whereupon the deceased returned intotbeioaiD,
and the aoor was closed, and the rest of .the company excbied;
but they heard a clashing of swords, and the prisoner gvre the
deceased the mortal wound. It was also found, that at the break-
uig up of the company the prisoner had his great coat thrawn over
. his shoulders, and that he received three slight wouuk in the
fight ; and that the deceased, being asked, upon his deathbed,
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 betveo
the prisoner and the deceased. Upon these facts all the Judga
were of opinion that the prisoner was guilty of murder ; hehaviiig
acted upon malice and deliberation, and not from sudden pssaoo.
It should probably be taken, upon the facts found in the ?a£cl
and the argument of the Chief Justice, that, after the door had
been shut, the parties were upon an equal footing in pcHnt of pre-
paration before the fight began in which the mortal wound wis
given. The main point then on which the judgment turned, and
so declared to be, was the evidence of express malice, after the
interposition of the company^, and the parties had all sat dowa
again for an hour. Under those circumstances the court were of
opinion that the prisoner had had reasonable time forcoolir^:
after which, upon an offer of reconciliation finom the deceased, he
had made use of that bitter and deliberate expression, that he
would have his blood. And again, the prisoner renuuning in the
room after the rest of the company retired, and calling back the
deceased by the contemptuous appellation of young man, on pre-
tence of having something to say to him, altogether shewed sodi
strong proof of deliberation and coolness as precluded the pre-
sumption of passion having continued down to the time of the
mortal stroke. Though even that would not have availed the pri-
soner 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 part of Mr. Grower,
made a deamy assault upon nim. (w)
Uieof a dead- If^ after an interchange of blows on equal terms, one of the par-
iiiA**reWonf ^^^' ^^ * sudden, and without any such intention at the <!om-
intention. mencement of the afifray, 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 be-
ginning 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 prepares a deadly weapon, so as
to have th^ power of using it in some part of the contest, and uses
it accordingly in the course of the combat, and kUls the other
party with the weapon ; th^ kUling in both these cases will be
murder. The prisoner and Levy quarrelled and went out to fi^ht*

(») Rex V. Onebj, 2 Str. 766. S Lord Raym. 1489.

* GBAP. I. 5 S.Q Resisting Officers and Others. jAU

!^^*- After two rounds, which occupied little more than two minutes,
' ^ -'- Jjevy was found to be stabbed in a great many places ; and of one
""^ '- of those stabs he almost instantly died. It appeared that nobody
^<^- '• could have stabbed him but the prisoner ; who had a clasped knire
^' ' - before the affiray. Bayley, 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
^ ^'T' affray, and used it accordingly, it was murder : but that if he took
:^'^ . to the knife after the fight began, and without having placed it to
1^. be ready during the affray, it was only manslaughter. The jury
. - . found the prisoner guilty of murder, (a)

i: ..: Though, where there has been an old quarrel between A. and B., PretenM or
? - ■ and a reconciliation between them, and afterwards, upon a new countcrfoit re-
and sudden falling out, A. kills B., this is not murder ; yet if upon
the circiunstances it appears that the reconciliation was but pre-
tended or counterfeit, and that the hurt done was upon the score
of the old malice, it is murder, (or)

:-v-

SECT. in.

Cases of Resistance to Officers of Justice^ to Persons acting in
their aidj and to private Persons lawfully interfering to appre^
hend Felons, or prevent a Breach of the Peace.

MiNisTKRs of justice, as bailiffs, constables, watehmen, &c. (y) ResistiDg and
while in the execution of their offices, are under the peculiar pro- k»W>nso»c«"«
tection of the law ; a protection founded in wisdom and equity,
and in every principle of political justice ; for without it the public
tranquillity cannot possibly be maintained, or private property se-
cured ; nor in the ordinary course of things will offenders of any
kind be amenable to justice. For these reasons the killing of offi-
cers BO employed has been deemed murder of malice prepense, as
being an outrage wilfully committed in defiance of the justice of
the kingdom. If, therefore, upon an affray, the constable, and
others ip his assistance, come to suppress the affray and preserve the
peace, and in executing their office the constable or any of his
assistants, is killed, it is murder in law, although the murderer
knew not the party that was killed, and although the affray was
sudden, because the constable and his assistants came by authority
of law to keep the peace, and prevent the danger which might
ensue by the breach of it; and, therefore, the law will adjudge it
murder, and that the murderer had malice prepense, because he
set himself against the justice of the realm : so if the sheriff, or any
of his bailiffs, or other officers, is killed in e;xecuting the process
of the law, or in doing their duty, it is murder ; the same is the law

(a) Rex V. Anderson, 0. B. Decern' MS. Bayley, J.
ber^ 1816. Richards, B. and the Re- (x) 1 Hale 451.
corder, thought the direction right. (y) 1 Hale 456, 460. 4 Co. 40.

448 Of Murder. [book mi

lui to a watchman who is killed in the execution of hk office, (g)
Tliis rule ib not confined to the instant the officer is upcm the spot^
and at the scene of action^ engaged in the business that brought
him thither ; for he is under the same protection of the law eutuio^
morando, et redeundo: and therefore if he come to do his office^
and meeting with great opposition^ retire^ and be killed 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 ne*
cessary in order to avoid the danger by which he was threatened.
And, upon the same principle, if he meet with opposition by the
way, and be killed before he come to the place, such opposition
being intended to prevent his doing his duty, (which is a fact to
be collected from circumstances appearing in evidence,) this like-
wise will amount to murder, {z)
Penoni acting The protection which the law affords to such ministers of jus-
in their aid. ^ice is not, as we have seen, confined to their own persons. Every
one coming to their aid, and lending his assistance for the keeping
of the peace, or attending for that purpose, whether commanded
or not, is under the same protection as liie officer himself, (a)
Nor is the protection which the law affords in these cases confined
to the ordinary ministers of justice, or their assistants. It extends,
under certain limitations, to the cases of private persons inter-
posing for preventing mischief from an affray, or using their en-
deavours to apprehend felons, or those who have given a dangerous
wound, and to bring them to justice ; such persons being likewise
in the discharge of a duty required of them by the law. The law
is th^r warrant, and they may not improperly be considered as
persons engaged in the public service, and for the advancement of
justice, though without any special appointment; and being so
considered, they are under the same protection as the ordinary
ministers of justice, {b)
Prirate per* But with respect to private persons using their endeavours to
■oni. bring felons to justice, it should be observed, by way of caution,

that they must be careful to ascertain, in the first instance, that a
felony has actually been committed, and that it has been committed
by the person whom they would pursue and arrest. For if no
felony has been committed, no suspicion, however well founded,
will bring the person so interposing within this especial pi^otection
of the law : (c) nor will it be extended to those who, where a felony
has actually been committed, upon suspicion, possibly weU founded,
pursue or arrest the wrong person, (d) But the law is otherwise
in the case of an officer actmg in pursuance of a warrant. For if
A.^ being a peace-officer, has a warrant from a proper magistrate
for the apprehending of B. by name, upon a charge of felony ; or
if B. stands indicted for felony ; or if the hue and cry is levied
i^inst B. by name; in these cases if B., though innocent, fly, or
turn and resist, and in the struggle or pursuit is killed by A., or
any person joining in the hue and cry, the person so killing wiB

(g) Cnsta of Appeals and lodiet- (s) Post. SOS, 909.
ments, 4 Co. 40. As to the authority (a) 1 Hale 462, 463. Fost. SOO.

for acting, and the exercise of that ' (b) Fost. 309v ^

aathority in a proper inanoer, see (c) Cro. Jac. 194. 2 InM. $i^ 179.
poitj Chap. lit. s. 4. \d) 1 Hale 490. Fost-SlS.'

cffAP. I. § 3.] Of Resisting Officers and Others. 449

be indemnified ; and, on the other hand, if A., or any person join-
ing HI the hue and cry, is killed by B., or any of his accomplices
joining in that outrage, such killing will be murder : for A. and
those joining with him were in this instance in the discharge of a
duty required from them by the law ; and, in case of their wilful
neglect of it, subject to punishment, (e)

Upon these principles it may be lidd down as a general rule, that Genenl rale.
where persons naving authority to arrest or imprison^ using the
proper means for that purpose, are resisted in so doing, and killed,
it will be murder in all who take a part in such resistance; for it
is homicide committed in despite of the justice of the kingdom.
This rule is laid down upon the flupposition that resistance be
made ; and, upon that supposition, it is conceived that it will hold
in all cpses, whether civil or criminal; for under circumstances of
resistance, in either case, the persons having authority to arrest or
imprison may repel force by force, and will be justified if death
should ensue in the struggle ; while^ on the other hand, the persons
resisting wiU be guilty of murder. (/) And it has been decided,
that if in any quarrel, sudden or premeditated, a justice of peace,
constable, or watchman, or even a private person, be slain in endea-
vouring to keep the peace and suppress the affray, he who kills him
will be guilty of murder, (g) But in such case the person slain
must have given notice of the purpose for which he came, by com-
manding the parties in the King's name to keep the peace, or by
otherwise shewing that it was not his intention to take part in the
quarrel, but to appease it ; (A) unless, indeed, he were an officer
within his proper district, and known, or generally acknowledged,
to bear the office he had assumed, (t) As if A., JB., and C, be in
a tumult together, and D. the constable come to appease the affray,
and A. knowing him to be the constable kill him, and B. and C.
not knowing him to be the constable, come in, and finding A. and
D. struggling, assist and abet A. in killing the constable, this is
murder in A., but manslaughter in B. and C. {k) Where a con-
stable interferes in an affray to keep the peace, and is killed, such
of the persons concerned in killing him as knew him to be a con-
stable are guilty of murder ; and such as did not know it of man-
slaughter only, (a)

But it must hh well remembered, that this protection of the law Questions as
is extended only to persons who have authority to arrest or im- j° !^''*°"^.
prison, and who use such authority in a proper manner ; and that lul^, &^^
questions of much nicety and difficulty will often arise upon the
points of authority, legality of process, notice, and regularity of
proceeding. The consideration of these points will be attempted
in a subsequent part of the Work ; for as the consequences of de-
fects in any of these particulars will generally be to extenuate the
crime of killing, and reduce it to manslaughter, the discussion of
them will perhaps be better introduced in the Chapter relating to
that species of homicide. (/)

(e) Post. 318. (0 I Hawk. P. C. c. 31. s. 49, 50.

(/) Post. 270, 271. 1 Hale 494. 8 {k) 1 Hale 438.
Inst. 56. 2 Hale 117, 118. (a) 1 Hale 446.

(g) 1 Hawk. P. C. c. 31, 9. 48, 54. (I) iV«f, Cbap. iii. s. 4.

(fc) Post. 272.
VOL. I. 2 G

450 Of Murder. [book m.

Ab to penonfl With reipect to the persons who shall be considered as taking

Se^rraSunce ^ f^^^ ^^ ^^'^ resistance, it may be observed, that if the party wto
is arrested yield himself and make no resistance, but others en-
deavour to rescue him, and he do no act to declare his joining
with them, if those who come to rescue him kill any of the baili£k,
this is murder in them but not in the party arrested : but not so
if he do any act to countenance the violence of the rescuers, (tw)
And where Jackson and four others, having committed a robbery,
were pursued by the country upon hue and cry, and Jackson
turned upon his pursuers, (others of the robbers being in the same
field, and having often resisted the pursuers,) and refusing to
yield, killed one of the pursuers ; it was held, that inasmuch as all
the robbers were of a company and made a common resistance^
and so one animated the other, all those of the company of the
robbers that were in the same field, though at a distance from
Jackson, were principals, viz. present, aiding and abetting : and
it was also held, that one of the malefactors who was apprehended
a little before the party was hurt, being in custody when the
stroke was given, was not guilty, unless it could be proved that
after he was apprehended he had animated Jackson to kill the
. party. («)

If a man be arrested, and he and his company endeavour a
rescue, and, while they are fighting, one who knows nothing of the
arrest coming by act in aid of the party arrested, and one of the
bailiiis be killed, the person so acting in aid is guilty of murder ;
for a man must take the consequences of joining in any unlawful
act, such as fighting; and his ignorance will not excuse him
where the fact is made murder by the law without any actual pre-
cedent malice, as in the case of killing an officer in the due exe-
cution of his office, (o) But it should be observed, that, in another
report of the same case, it is said to have been resolved, that if a
person, not knowing the cause of the struggle, had interposed be-
tween the bailiff 'and the party arrested, with intent to prevent
mischief f it would not have been murder in such person, though
the bailiff's assistant were killed by one of the rescuers ; (p) and it
should seem that, in a case of this kind, the material enquiry
would be, whether the stranger interfered with the intention of
preserving the peace and preventing mischief ; for if he interposed
for the express purpose of aiding one party against the other, he
must abide the consequences at his peril, (q)

A. beat B., a constable who was ih the execution of his office,
and they were parted ; and then C, a friend of A., rushed suddenly
in, took up the quarrel, fell upon the constable, and killed him in
the struggle ; but A. was not engaged in this after he was parted
from B. And it was holden by two Judges, that this was murder
only in C. ; and A. was acquitted, because it was a sudden quarrel,
and it did not appear that A. and C. came upon any des^n to
abuse the constable, (r) But if a man. begin a riot, and the

(m) Sir Charles Stanley's case, Kel. Aodrews, 1 Sid, 160. MS. Biiraet

87. cord, as cited 1 East. P. C. c. 5. s. es.

(fi) Jackson's case, 1 Hale 464* 465. p. 896.

(0) Sir Charles Stanley's case, Keh 87. (q) 1 East. P. C. c. h. %. 83. p. 31 9.
(ji) Rex ff. Sir Charles Stanslie and (r) By Holt, C. J., and Rookabj, at

CHIP. I. i 3.] Resisting Officers and Others. f 51

riot continue, and an officer be killed, he that began the riot
would, if be remained present at it, be a principal murderer^
though he did not commit the feet, (s)

A great number of persons, assembled in a house called Sissing* SisBlnghnnt-
hurst, in Kent, issued out and committed a great riot and battery ^^^^ ^^*'^*
upon the possessors of a wood adjacent. One of their names, viz.
A., was known, the rest were not Ipiown ; and a warrant was ob«
tained from a justice of peace to apprehend the said A., and divers
other persons unknown, who were altogether in Sissinghurst^
house. The constable, with about sixteen or twenty called to his
assistance, came with the warrant to the house, and demanded en-
trance, and acquainted some of the persons witiiin 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 ; and
one of the persons within came, and read the warrant, but denied
admission to the constable, or to deliver A. or any of the male*
factors ; but^ goii^ in, commanded the rest of the company to stand
to their staves. The constable and his assistants, fearing mis*
chief, went away ; and being about five rod from the door, B., C,
D., £., 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 con*
stable, and wounded others, and then retired into the house to the
rest of their company which w«re in the house, whereof the said
A. and one G. that read the warrant were two. For this A., B.,
C, D., £., F.,G., and divers others, were indicted of murder, and
tried at the King's Bench bar, when these points were unani*
mously determined :

L That although the indictment were, that B. gave the stroke,
and the rest were present aiding and assisting, though in truth C.
gave the atroke, or that it did not appear upon th^ evidence which
of them gave the stroke, but only that it was given by one of th^
rioters, yet that such evidence was sufficient to maintain the in-
dictment ; for in law it was the stroke of all that party, according
to the resolution in Mackally's case, {t)

2. That in this case all that 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 preseilt aiding and assisting, and principals,
as well as those that issued out and actually committed the as-
sault ; for it was but within five rod of the house, and in view
thereof, and all done as it were in the same instant, (u)

4. That here was sufficient notice that it was the constable, be-
fore the man was killed. 1. Because he was the constable of the

Bntford^ temp. Will. 3. ad incipum Mayden, one of the company, killed

MS. Tracey 63. 1 Bast P. C. c. 5. 8. tlie keeper in the Park, the Lord Dacro

St. p. 120C« ; snd iee illso Fosti 353. and the rest of the company being in

(«) Rex V. Wall is and Others, ISalk. other parts of the park; and it was

334. ruled fnat it was ndurder in them all,

(I) 9 COk 67. b. and they died for it. Crompt. 95, a.

(«> ^Itfe I»ord Daore's case. The Dalt. c. 14ft. p. 472. 34 Hen. 8. 9.

Lord Daor9 an4 diven others came to Coroa. 17S. See also Moor SO. Kelw.

shoot deer io the park vf <me MA«m. ftO. l Hale 439.

2o2

453 Of Murder. . [book hi.

same vill. 2. Because he notified his busineas at the door before
the assault^ viz. that he came with the justice's warrant. 3. Be-
cause, after his retreat, and before the man was slain, the constable
commanded the peace ; and, notwithstanding, the rioters fell on
and killed the party.

5. It was resolved, that the killing of the assistant of the
constable was murder, as well as the killing of the constable him-
self.

6. That those who come in to the assistance of the constable,
though not specially called thereunto, are under the same protec-
tion 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 office; 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 be-
cause the constable, in the beginning of the assault, and before the
man was stricken, commanded the peace.

8. 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 eilect it fairly, were going their
way, the rioters pursuing them and killing one made the ofience
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 point to convict the offenders. In the conclusion, Uie

{'ury found nine of them guilty, and acquitted those within ; not
because they were absent, but because there was no clear evi-
dence that they consented to the assault as the jury thought; and
therefore judgment was given against the nine to be hanged, (tr)

SECT. IV.

Cases where the Killing takes place in the Prosecution of some
other Criminal, Unlawful, or Wanton Act.

If an action, unlawful in itself, be done deliberately and with
intention of mischief or great bodily harm to particular individuals,
or of mischief indiscriminately, fall where it may, and death ensue

(40) Sissinghurti'kouse case, 1 Hale cer of the court, and precedents in

461, 2, 3. The award was for the cases of judgments given in the King's

marshal to do execution, because they Bench have eommonlj been, Et ^ttm

^cre remanded to the custody of the esi mare$caUo^ i^e. quodfmciat execm"

marshal, aod he is the immediate offi- iionem pericuio incumbenie.

CHAP. I. $ 4.] Unlawful or IVantan Jets. 453

against or beside the orij^nal intention of the party, it will be
murder, (jr)

Under this head may be mentioned the cases of particular malice Particular ma-
to one individual fallmg by mistake or accident upon another, dWidaid^aii-'
which, by the ignorance or lenity of juries, have been sometimes inv upon an-
brought within the rule of accidental death. But though, in a other.,
loose way of speaking, it may be called accidental death when a
person dies by a blow not intended against Aim, the case is con-
sidered by the law in a very different lighU Thus, if it appears
firom circumstances thai the injury intended to A., whether by
poison, blow, or any other means of death, would have amounted to
murder if he had been killed by it, it will amount to the same of*-
fence if B. happen to fall by the same means : {y) so that if C,
having malice i^^nst A., strikes at and misses him, but kills B.,
this is murder in C. : (z) and upon the same principle, if A.^and
B. engage in a deliberate duel, and a stranger coming between
them to part them is kiiled by one of them, it is murder in the
party killing, (a) And it has also been resolved, that where A.
had malice against D., the master of B., and assaulted him, and
upon B. the servant coming to the aid of his master, A. killed B»,
it was murder in A. as much as if he had killed the master. (i6) 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 horn ^ving
the apple to the child, (c) And, upon the same principle, it was
held to be murder where A. mixed poison in an electuary sent by
an apothecary to her husband, which did not kill him, but aft^-
wards killed the apothecary, who, to vindicate his reputation^
tasted it himself, having first stirred it about, {d) Doubt was en^
tertained, because the apothecary, of his own hand, without incite-
ment from any one, 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 the
Judges resolved that she 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 reasonable creature,
such person is guilty of the murder of whatever reasonable creature

(x) FosL 861. u n1e» both stru ck him who came to part

(y) Id. ibid. 1 Hale 441 . Williams's Ihem ; and says that by the book of ««

case, 1 Hale 469. which Holt, C. J. Ass. 71. Coroo. 180. (which seems to

thought would have been a case of be the same case more at large) he

murder, if the indictment had been so only that gave the stroke bad judg-

laid. See Mawgridge's case, Kel. 131 • ment, and was executed. 1 Hale 441.

(x) 1 East P. C. c. 5. 8. 17. p. SSO. to which this note b subjoined ; ** the

(a) 1 Hale 441. Dalt. c. 145. p. other does not appear to^ have been

478. It appears to have been hoi den before the court: but,, upon potting

in such a case, where the combatine the case, the court said^ he that struck

was by malice prepense, that the kilf is euilty of felony, but said nothing a»

ing of the person who came to part to liim who did not strike.*'

them was murder in both the com- {b) 1 Hale 4S8..

batants, 88 Edw. 3. Coron. 868. Lam- (c) Sanders' case, Flowd. 474.. f

bard out of Dallison's Report, p. 817. Hawk. P. C. c. 31. s. 45. 1 Hale 436.

But Lord Hale thinks that this is mis- (d) Gore's case, 9 Co. 81 . I Huwk.

taken, and that it is not murder in both, P. C. c. 31. s. 45. 1 Hale 436..

1

454

Of Murder. — Criminal,

[book ni;

Marder in at*
tempting to
procure an
aborUon.

General ma-
lice or de-
praved incli-
nation to mis-
chief.

Death from an
unlawful act
done with
fehniout in*
tent.

is killed thereby^ {%) So If A. put poison into wine, with intent
to kill B.j and C. drinks thereof and dies, A. is guilty of the mur-
der of C. ; and it makes no difference that the wine, unless stirred
up, would not have killed C, and that C, thinking there wad
sugar in it, stirred it up. (r)

So, where a person gave medicine to a woman to procure an
abortion, (e) and where a person put skewers into the womb of a
woman for the same purpose, (/) by which in both cases the wo-
men were killed, these acts were held clearly to be murder ; for,
though the death of the women was not intended, the acts were
of a nature deliberate and malicious, and necessarily attended with
great danger to the persons on whom they were practised.

There are also other cases where no mischief is intended to any
particular individual, but where there is a general malice or de-
praved inclination to mischief, fall where it may ; and in these
cases the act itself being unlawful, attended with probable serious
danger, and done with a mischievous intent to hurt people, the
killing will amount to murder, {g) Thus, if a man go deliberately,
and with an intent to do mischief, upon a horse used to strike, or
coolly discharge a gun amongst a multitude of people, and death
be the consequence of such acts, 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 he knew him not; for this is universal
malice, (i) And upon the same principle, if a man, knowing that
people are passing along the street, throw a stone likely to do
injury, or shoot 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 s^ny particular indi-
vidual : for it is no excuse that the party was bent upon mischief
generally, {k)

Whenever an unlawful act, an act malum in se, is done in nro-
secution of a felonious intention, and death ensues, it will be
murder : as if A. shoot at the poultry of B. intending to steal the
poultry, and by accident kill a man, this will be murder by reason
of the felonious intention of stealing. (Q And it has been holden,
that if such offenders as are mentioned in the statute 2>e male/ac-
toribus in parcisy{m) kill the keeper, &c. it is murder in all,

(z) Ante, note (d),

(r) 9 Co. 81b.

(e) I Hale 429.

if) Tinckler'8 caie, I East P. C.
c. 5. ft. 17. p. SSO. and 9. 124. p. S54.

(g) 1 Hale 475. 1 East. P. C. c. 5.
8. 18. p. 831.

(A) 1 Hale 475. 4 Blac. Com. SOD.
1 Hawk. P. C. c. 89. s. 18. 1 East.
F. C. c. 5. s. 18. p. 8S1. Hawkins,
speaking of the instance of the person
riding a horse used to kick amongst a
crowd, sajs, it would be murder
though the rider intended no more
than to divert himself by putting the
people into a fright. 1 Bswk. P. C.
c. SI. s. 68. and see ante, 487.

(0 4 Blac. Com. 800.

(k) I Hale 475. S Inst 57. 1 Bast
P. C. C.5. s. 18. p. 831.

(0 Post. 858, 859.

(m)81 Edw. 1. St 9. 1 Hale 491.
The statute S and 4 W. and M. c. 10.
s. 5. empowers owners of deer in anj
inclosed land, or any persons under
them, to resist offenders in like man-
ner as in ancient parks. And by stat
4 and 5 W. and M. c. 83. s. 4. lords of
manors, or any others authorized b?
them as gamekeepers, may resist of-
fenders in the night within their re-
spective manors or royalties, in the
same manner and with equal indem-
nity, as if the fact had been committed
in any ancient chase, &c.

CHAP. 1. $ 4.] Unlawful, or Wanttm Acts. 455

although it appear that the keeper ordering them to staiid^ as-
saulted them nrst^ and that they fled^ and did not turn till one of
the keepers' men had fired and hurt one of their companions, (n)

Also, where the intent is to do some great bodily harm to DcatUfrom
another, and death ensues, it will be murder; as if A. intend only ?« act intend-
to beat B. in anger, or from preconceived malice, and happen to h^J,^^'^^
kill him, it will be no excuse that he did not intend all the mis-
chief that followed ; for what he did was malum in se, and he must
be answerable for its consequence. He beat B. with an intention
of doing him some bodily harm, and is therefore answerable for
all the harm he did.(o) So, if a large stone be thrown at one
with a deliberate intent to hurt, though not to kill him, and by
accident it kill him, or any other, this is murder. (/?} But the
natui'e of the instrument, and the manner of using it, as calcu-
lated to produce great bodily harm or not, will vary the offence
in all such cases, (f)

Where divers persons resolve generally to resist all opposers in where severBl
the commission of any breach of the peace, and to execute it in join to do an
such a manner as naturally tends to raise tumults and affrays, as ""^^^^^^ *"'*•
by committing a violent disseisin with great numbers of people, *
or going to beat a man, or rob a park, or standing in opposition
to tiie sheriff's posse, they must, when they engage in such bold
disturbances of the public peace, at their peril, abide the event of
their actions. And therefore if in doing any of these acts they
happen to kill a man, they are all guilty of murder, (r) But it
should be observed, tliat in order to make the killing by any
murder in all of those who are confederated together for an un-
lawful purpose, merely on account of the unlawful act done or in
contemplation, it must happen during the actual strife or endea-
vour, or at least within such a reasonable time afterwards as may
leave it probable that no fresh provocation intervened. («)

And it should also be observed, that the fact must appear to The fact must
have been committed strictly in prosecution of tlie purpose for appear to hare
which the party was assembled; and therefore, if divers persons be ^fd'sfaictT^in
engaged in an unlawful act, and one of them, with malice pre- prosecution
pense against one of his companions, finding an opportunity, kill of the purpose
him, the rest are not concerned in the guilt of that act, because it p° ^ J^'^Sls aa-
had no connection with the crime in contemplation. (^) So, where semblcd.
two men were beating another man in the street, and a stranger
made some observation upon the cruelty of .the act, upon which
one of the two men gave him a mortal stab with a knife ; and
both the men, were indicted as principals in the murder ; although
both were doing an unlawful act in beating the man, yet as t£e
death of the stranger did not ensue upon that act, ana as it ap-
peared that only one of them intended any injury to the person

(») I East. P. C. c. 5. s. 31. p. 856. IT. 1 Hale 439, et sequ. 4 Blac. Cora,

citing 1 MS. Sum. 145, 175. Sum. 37, 200. 1 East. P. C. c. 55. 8. S3, p. 257.

46. Palm. 546. 8 Roll. Rep. 120. («) 1 East P. C. c. 5. s. 34. p. 850.

ifi) Post 859. (0 1 Hawk. P. C. c. 31. s. 58. Post.

(p) 1 Hale 440, 441 . 351 . And see the charge of Foster, J.

\q) Kel. 187. 1 East. P. C. c. 5» 8.38. an a soecial commission for the trial

p. 857. of JacKSon and Others, at ChUhetlsr^

(r) 1 Hawk. P. C. c. 31 . 8. 51 . Stauadf. 9 St Tri. (ed. by Hargr.) 715, et sequ.

456

Of Murder. — Unlawjvl Acts. [book iff.

killed, the Judges were of opinion that the other could not be
guilty, either as principal or accessory; and he was acquitted. (k)

In a case 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; and it was agreed by the court, that if the king's officer,
or any of his assistants, had been killed by the shot, it would have
been murder in all the gang ; and also, that if it had appeared that
the shot was leyelled at the officer, or any of his assistants, it
would also have amounted to murder in the whole of the gang,
though an accomplice of their own were the person killed, (tcf)
The point upon which this case turned was, that it did not appear
from any of the facts found, that the gun was discharged in pro-
secution of the purpose for which the party was assembled,{x)
In another case the prisoners were hired by a tenant to assist him
in carrying away his household furniture in order to avoid a dis-
tress. They accordingly assembled for this purpose armed with
bludgeons and other offensive weapons ; and a violent affiray took
place between them and the landlord of the house, who, accom-
panied 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 ques-
tion was, whether this was murder in all the company ; and Holt,
C. J., and Pollexfen, C. J., were of opinion that it was murder in all
the company, because they were tul engaged in an unlawful act,
by proceeding in the a£&ay after the constable had interposed and
commanded them to keep the. peace; especially as the manner in
which they originally assembled, namely, with offensive weapons
and in a riotouB manner, was contrary to law.(y) But the majo-
rity of the Judges held, that as the boy was found to be uncon-
cerned in the affiray, 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.(£) And it seems that this opi-
nion proceeded upon the ground that there was no evidence to
shew that the stroke by which the boy was killed was either le-
velled at any of the -opposing party, or was 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 a8semDled.(a)

(ic) 1 Hawk. P. C. c. 31. s. 59.

(w) Pi ummer^s ca.se, Kel. 109.

{k) Post. 368. and see Maosell and
Herbert's case, 1 Hale 440, 441, cited
from Dy. 1S8, b.

{9) They cited Stamf. 17, 40. Fitz.
Cor. 360. Crorap. 244.

(s) Hex V. Uodgton and others, 1
Iicach. 6. See PI u miner's case^ anie^
iiutc(w). 18 Mod. 6S9. Thompson*!

case, Kel. 66. Anon, cited by Holt,
C. J. 1 Leach 7. note (a), and a case
Anon. 8 Mod. 165. See also Keilw.
161. and Borthwick's case, Don gl. 209.
(a) 1 East. P. C. c. 5. s.33. p. 968,
959.; and see the remarks oi Lord
Hale upon the ease of Mansell and
Herbert (Dy. 198, b.) in 1 Hale 440,
441.

CHAP. I. $ 5.] Lawful Acts improper^ performed. 457

SECT. V.

Cases where ike Killing takes place in consequence of some Lawful
Act being criminally or improperly performed, or of some Act
performed without Proper Authority.

DuK caution should be observed by all persons in the discharge
of the business and duties of their respective stations, lest they
should proceed by means which are criminal or improper, and
exceed the limits of their authority. This will more especially
require the attention of officers of justice ; and should be kept in
mind by those who have to administer correction in foro domestico,
and by persons employed in those common occupations from which
danger to others may possible arise.

It has been shewn in a former part of this Chapter, (i) that Officers of
ministers of justice, when in thfe execution of their offices, are J«»ti«« •ctiinr
specially protected by the law : but it behoves them to take care ""^"'P^ ^'
that they do not misconduct themselves in the discharge ef their
duty, on pain of forfeiting such protection. Thus, though in cases
civil or criminal, an officer may repel force by force, where his
authority to arrest or imprison is resisted, and will be justified in
so doing if death should be the consequence ;(c) yet he ought not
to come to extremities upon every slight interruption, nor with-
out a reasonable necessity. (f() And if he should kill where no
resistance is made, it will be murder : and it is presumed 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, (e)
And again, though where a felon flying from justice is killed by
the officer in the pursuit, the homicide is justifiable if the felon
could not be otherwise overtaken ;(/) yet where a party is accused
of a misdemeanor only, and flies from the arrest, the officer must
not kill him, though there be a warrant to apprehend him, and
though he cannot otherwise be overtaken ; and if he do kill him, it
will in general be murder, (j") So, in civil suits, if the party
against whom the pibcess has issued fly from the officer endea-
vouring to arrest him, or if he fly after an arrest actually made, or
out of custody in execution for debt, and the officer not being able
to overtake him make use of any deadly weapon, and by so doing,
or by other means, intentionally kill nim in the pursuit, it wUl
amount to murder. (A) And also in the case of impressing seamen^

(h) Jnte, 447. ei iequ, hold of khe prisoner, and proooancing

(e) Ante, 449. words of arrest, is an actual arrest i

(tf) 4Blac. Com. ISO. or it may be made without actually

(e) 1 East P. C. c. 5. s. 63. p. 897. iayiog hold of him, if he submit to

(/) 1 Hale 481 . 4 Blac. Com. 179. the arrest. Horner o. Battyn and ano-

^o$t.27i. ther. Bull. N.P. 6S. and see 1 Bast.

\3S) Fost. 871. 1 Hale 481. P. C. c. 6. s. 68. p. 300. But see Ar-

(A) 1 Hale 481. Fost. 871. 1 East, rowsraith v. Lc Mcsurier, 8 N. R. 811*

P'C. c. 5. 9. 74. p. 306, 307. Laying

45d Of Murder. [boo&ui.

if the party fly, it is conceived that the killing by the officer in
the pursuit to overtake him would be manslaughter at least, and in
some cases murder, according to the rules which govern the case
of misdemeanors ; paying attention, nevertheless, to those usages
which have prevailed in the sea-service in this respect, so &r as
they are authorized by the courts which have ordinary jurisdiction
over such matters, and are not expressly repugnant to the laws of
the land.(t)

If an officer make an arrest out of his proper district, (except as
he may be authorized by the late act 5 Geo. 4. c. 18.) or if an officer
have no warrant or authority at all, he is no legal officer, nor entitled
to the special protection of the law : and if he purposely kill the
party for not submitting to such illegal arrest, it will be murder in
all cases, at least where an indifferent person acting in the like
manner, without any such pretence, would be guilty to that ex-
tent. (A) Thus where a warrant had been directed from the Ad-
miralty to Lord Danby to impress seamen, and one Browning hia
servant, without any warrant in writing, (/) impressed a persoi^
who was no seaman, and upon his trying to escape killed him, it
was adjudged murder, (m) And where the captain of a man of
war had a warrant for impressing mariners, upon which a deputa-
tion was indorsed in the usual form to the lieutenant ; and the
mate, with the prisoner Dixon, and some others, but without
either the captain or lieutenant, impressed one Anthony How,
who never was a mariner, but was servant to a tobacconist, and
upon How making ^ome resistance; and for that purpose drawing
a knife, which he held in his hand, Dixon, with a large walking-
stick, about four feet long, and a great knob at the end of it, gave
How a violent blow on the side of his head, of which he died in
about fourteen days; it was adjudged murder. The capture and
detention of How were considered as unlawful on two accounts ;
first, because neither the captain or lieutenant were present, and
Dixon was no lawful officer tor the purpose of pressmg, nor an
assistant to a lawful officer; secondly, because How was not a
proper object to be impressed. It was lawful therefore, under
these circumstances, for How to defend himself; and Dixon's
killing him, in consequence of an unlawful capture and detention,
was murder. (») So if a court martial order a man to be flogged
where they have no jurisdiction, and the flogging kills the man,
the members who concurred in that order are guilty of murder, (a)
Kining a per- It is no excuse for killing a man that he was out at night as a
*^" • tf** ghost dressed in white for 3ie purpose of alarming the neighbour-
^la^mei^r. ^^^^j even though he could not otherwise be taken. The neigh**
bourhood of Hammersmith had been alarmed by what was sup-

(0 1 East P. C. c. 6. s. 75. p. 308. repognant to the laws of the land.

Borthwick^s case, Dougl. SOT. (m) O. B. 13th Oct. 1690» Rokebj*s

(Ar) 1 East. P. G. c. 5. 8. 78. p. 312. MS. cited in Serjt. Foster's MS. and ia

(/) K verbal delegation of toe power 1 East. P. C. 319.

to impress seamen was held bad in (n) Dixon's case, Kingtt, Am. 1756,

Borthwick*s case, Dougl. 807. thoagb eor, Dennison, J. (said to be 1758, in

it appeared to be the us^ of the Serjeant Foster's MS.) cited in I EasL

navy, and that the petty officers had P. C. c. 5. s. 80. p. 313.

usually acted without any other au- (a) By Heath J. io Warden v. Baifey,

thority than such verbal orders. But 4 TaunI* 77.
the usage was considertd as directly

t

ckkp. I. § 5.3 Lawful Ach impraperly performed. 45^

posed 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. McDonald, C. B., nooke and Lawrence Js.^
were dear that this was murder, as the person who appeared as a
host was only guilty of a misdemeanor ; and no one might kill
im, though ne could not otherwise be taken. The jury, how-
ever, brought in a verdict Of manslaughter : but the court siud
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 that if thev did not believe the evidence, they should
acquit the prisoner. The jury then found the prisoner guilty, and
sentence was pronounced : but the prisoner was afterwards re-
prieved. (A)

Gaolers and their officers are under the same special protection Doreflsof im-
as other ministers of justice s but in regard to the great power pn«>n™«»* ^
iduch they have, and, while it is exercised in moderation, ought *^ *"'
to have over their prisoners, the law watches their conduct with a
jealous eye. If therefore a prisoner under their care die, whether
by disease or accident, the coroner, upon notice of such death,
which notice the gaoler is obliged to give in due time, ought to
resort to the gaol 5 and there, upon view of the body, make inqui-
sition into the cause of the deatn ; and if the death was owing to
cruel and oppressive usage on the part of the gaoler or any officer
of his, or, to speak in the language of the law, to duress of impri-
sonment, it will be deemed wilful murder in the person guilty of
such duress, (o) The person guilty of such duress will be the
party liable to prosecution, because, though in a civil suit, the
principal may in some cases be answerable in damages to the party
mjured through the default of the deputy ; yet, in a capital pro-
secution, the sole object of which is the punishment of the delin-
quent, each man must answer for his own acts or defaults, {p)

A gaoler, knowing that a prisoner infected with the smallpox
lodged in a certain room in the prison, confined another prisoner
against his will in the same room. The second prisoner, who had
not had the distemper, of which fact the gaoler had notice, caught
the distemper, and died of it : this was holden to be murder, {q)

Huggins Was warden of the Fleet prison, with power to execute Case of
the office by deputy ; and appointed one Gibbon, who acted as de- S|^°**^
puty. Giboon had a servant, Barnes, whose business it was to ^
take care of the prisoners, and particularly of one Arne; and
Barnes put Arne into a new-built room, over the common sewer,
the walls of which were damp and unwholesome, and kept him
without fire, chamber-pot, or other necessary convenience, for
forty-four days, when he died. It appeared that Barnes knew the
unwholesome situation of the room, and that Huggins knew the
condition of the room fifteen days at least before the death of
Arne, as he had been once present at the prison, and seen Arne
under such duress of imprisonment, and turned away ; at which
time Barnes shut the door of the room, in which Arne continued

(h) Rex V. Smith, O. B. Jan. 1804. Barnes, 8 Sir. 888.

MS. Baylej J. 4 Bl. Com. 801. n. (q) Fost. .S88. referring to the case

(o) Fost 381. 1 Hale 465. of Castell v. Bambridfe aad Corbet (an

[p) Fost. 388. Rex V. Huggins and appeal of murder), 8 Itr. 856.

460

Of Murder.

[book hi.

till he died* It was foimd that Arne had sickened and died by
duress of imprisonment, and that during the time Gibbop was
deputy Huggins sometimes acted as warden. Upon these facts
the court were clearly of opinion that Barnes was guilty of mur-
der. But they thought that Huggins was not guilty, as it could
not be inferred, from merely seeing the deceased once during his
confinement, that Huggins knew that his situation was occasioned
by the improper treatment, or that he consented to th% 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. Huggins could not know the cir-
cumstances under which he was placed in the room against his
consent, or the length of his confinement, or how long he had been
without the decent necessaries of life : and it was likewise material
that no application was made to Huggins, which perhaps mi^it
have altered the case. And the court seemed also to think that
as Barnes was the servant of Gibbon, and Gibbon had the actual
management of the prison, the accidental presence of the prin-
cipal would not amount to a revocation of the authority of the
deputy, (r)

With respect to the duty of officers in the execution of criminals,
it has been laid down as a rule, that the execution ought not to
vary from the judgment; for if it doth, the officer will be guilty of
felony at least, if not of murder. («) And in conformity to this rule
it has been holden, that if the judgment be to be hanged, and the
officer behead the party, it is murder; (t) and that even the king
cannot change the punishment of the law by altering the hanging
or burning into beheading, though, when beheading is part of the
sentence, the King may remit the .rest.(ti) But others have thought
more justly that this prerogative of the crown, founded in mercy
and immemorially exercised, is part of the common law ; {w) and
that though the King cannot by his prerogative vary the execution
so as to aggravate the punishment beyond the intention of the law,
yet he may mitigttte the pain or infamy of it : 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. (^) But the rule may apply to an officer varying from
the judgment of his own head, and without warrant or the colour
of authority, (y)

Parents, masters, and other persons having authority in foro
foro dum€ttico. domestico, may give reasonable correction to those under tiieir

care; and if death ensue without their fault, it will be no more than

Daty of offi-
cers in the
execution of
criminals.

Correction in

(r) Rex V. Humus and Barnes, 2
Stra. 888. 8Lord Ray ra. 1574. Fost.
3S8. 1 East. P. C. c. 6. 8. 98. p. SSI,
338.

(«) 1 Hale 601. 8 Hale 411. 3 Inst.
68, 811. 4 Blac. Com. 179.

(I) 1 Hale 433, 464, 466, 601. 8
Hale 411. 3 Inst 68. 4 Blac Com.
179.

(fi) 3 Inst. 58. 8 Hale 418.

(w) Fost. 870. F. N. B. 844. h. 19
Rym. Fad. 884.

(jr) Fost. 868. 4 Blac Com. 405.
1 East. P. C. C. 6. 8. 96. p. 335.

($f) It was, however, the practice,
founded in humanity, when women
were condemned to be burned ,for
treason, to strangle them at the stake
before the fire reached them, though
the letter of the judgment was that
they should be burnt in the fire UU
they were dead, Fost. 868. The 30
Geo.' 3. c. 48. now directs that they
shall be hanged as other offcndenL

GHAF. I. § 6.] Indictment^ Trial, ^c. 461

accidental death. But if the correction exceed the bounds of due
moderation^ either in the measure of it, or in the instrument made
nse of for that purpose, the death ensuing will be either murder or
manslaughter, according to the circumstances of the case. Where
the fact is done with a dangerous weapon, improper for collection,
and likely (the age and strength of the party being duly consi-
dered) 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. (2;) Thus, where a
master had employed his apprentice to do some work in his ab-
sence, and on his return found it had been neglected, and there-
upon 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 appren-
tice died of the blow ; it was held murder : for if a father, master,
or schoolmaster, correct his child, servant, or scholar, it must be
with such things as are fit for correction, and not with such instru«
ments as may probably kill them ; otherwise, under pretence of
correction, a parent may kill his child; and a bar of iron is no^
instrument 01 correction, (a)

If persons, in pursuit of their lawful and common occupations, Penom fol-
see danger probably arising to others from their acts, and yet per- comnwnoc^
sist, without giving sufficient warning of the danger, the death capations.
which ensues will 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 underneath, the question
will be, whether they deliberately saw the danger, or betrayed any
consciousness of it. If they did, and yet gave no warning, a
general malignity of heart may be inferred, (A) and the act will
amount to murder from its gross impropriety, (c) So if a person
driving a cart or other carriage, happen to kill, and it appear that
he saw, or had timely notice of the mischief likely to ensue, and
yet drove on, it will be murder, (d) The act is wilful and deli-
berate, and manifests a heart regardless of social duty, (e)

SECT. VI.

0/ the Indictment, Trial, Sfc.

Although the prisoner may be charged with murder by thein^ut- indictment.
sition of the coroner, it is usual also to prefer an indictment agamst
him. And it is said to be proper to frame an indictment for the

(z) 1 Hawk. P. C. c. 89. 8. 5. 1 (c) 3 Itist. 57. 4 Blac. Com. 194.

Hale 453, 473. Rex v, Keite, 1 Lord 1 East. P. C. c. 5. s. 38. p. 962.

lUym. 144. (d) 1 Hale 475. Post. 863. 1 East.

(a) Rex v. Grey, Kel. 64. Post P. C. c. 5. s. 38. p. 868.

868. . (e) Post. 863.

(P) yinte, 454.

4<S0 Of Murder. [book ih.

oflbnce of muider in aU cases where the degree of tiie offence is at
all doubtful ; (/) and unquestionably where there is any reason-
able ground for supposing that the facts, as they will be gi^en in
evidence, may lead to the conclusion of the higher offence having
been committed, it will be culpable not to prefer an indictment for
murder.

With respect to the place in which the indictment is to be pre-
ferred, it will be necessary to state some of the legislative enact-
ments by which trials for murder are regulated.
In wliat place Murder, like aU other offences, must regularly, according to the
^^ t b«*^^ common law, be inquired of in the county in which it was com-
peted. ~ mitted. It appears however to have been a matter of doubt at the
common law, whether, when a man died in one county of a stroke
received in another, the offence could be considered as having been
completely committed in either county :(g) but by the statute
3 and 3 £dw. 6. c. 24. s. 2. it is enacted, that the trial shall be in
the county where the death happens. The fourth section of this
statute also makes provision for the trial of an accessary, where
the murder is committed in one county and the party is accessory
thereto in any other county; and enacts, that an mdictment against
such accessory in the county where tlie offence of accessory la
committed, shall be as effectual as if the principal ofience had been
committed within the county where the indictment against the
accessory shall be found. And authority is given to the Judges of
gaol delivery, &c., or two of them, of the county where the offence
of the accessory shall have been committed, on suit to them made,
to write to the keeper of the records where the principal shall have
been convicted, to certify them whether such {urincipal be at-
tainted^ convicted, or otherwise discharged, which he is required
to certUy under his seal. (A)

If a person be stricken and die in the county of A., and the
body be found in B., it is to be removed into A. for the corcHier
of that county to take the inquest. («)
Trial, wben^ By the Statute 26 Hen. 8. c. 6. it is enacted, that murder and
**»« "?^'^ other felonies committed in Wholes may be inquired of and tried
w2m! upon an indictment in the next adjoining English county where

the King's writ runneth : and Herefordshire has been holden to
be the next adjoining English county to South Wales, and Shrop-
shire to North fFal€s:(j) but it has been considered as a doubt-
ful point iif what place the trial ought to be, supposing the stroke
given in an English county, and the death in fFales.{k)

There are also statutes which relate to the trial of murder, and
other offences which have been committed upon the sea, and
either within the King's dominions or without.

if) 1 East. P. a c 5. B. 105. p. 340. (f) 8 Hale 66. 1 MS. San. 64. 1 SasC.

ig) % H«wk. P. C. e. 25. 8. S6» 1 P. C. c.5. s. 187. p. 861.
Bast P. C. c5.$. 188. p. 361. U) Atbos' case, (father and son,)

(fc) 8 & S Edw. 6. c. 84. s. 4. Ante^ 8 Mod. 1 36. Parr7*s case, 1 Leach

40. Before ibis statute, the coroner, 185. 1 Stark. Or. PI. 15.
•uper vUmn corporis, might have in.- (k) 1 EasL P. C. c. 5. s. 189. p. 363,

quired at common law, of all accasso- el 9eq. where see a learned argument

ries or procurers before the fact, upon this point And see also 1 Stark,

though the procurement weie in an- Cr. PL 14, 15.
other county, l Bale 487.

2

6t
€6

CHAP. I. f 6.] Indictment, Trial, 8sc. MS

The 38 Hen. 8. c. 16. b. I. enacts, that all felonies, murders, When it is
&c. committed upon the sea, or in any haven, river, creek, or ^"^^ "^
place where the admiral has or pretends to have power, authority, in any haren,
or jurisdiction, shall be inquired, tried, &c* in such shires and &c. where the
places in the realm as shall be limited by the King's commission, ^e'tion'Ti^'
m like form as if such offences had been committed upon the land, in fordga*
The proceedings upon this statute and the extent of the Admiralty P'l^
jurisdiction have been already considered :(/) it may however be
again mentioned in this place, that by the 15 Rich. 2. c. 3. the
Admiral has jurisdiction given to him to enqidre '^ of the death of
a man, and of a mayhem done in great ships hovering in the
main stream of great rivers, only beneath the bridges of the
same rivers, nigh to the sea, and in none other places of the
'^ same rivers.'' In a late case at the Admiralty session, of a
murder committed in a part of Milford haven, where it was about
three miles over, about seven or eight miles from the mouth of
the river or open sea, and about sixteen miles below any bridges
over the river, a question was made, whether the place where the
murder was committed was to be considered as within the limits
to which commissions granted under the statute 28 Hen^ 8. c. 15.
extend by law: and upon reference to the Judges, they were
unanimously of opinion that the trial was properly had.(m) With
respect to acceuories to felonies committed upon the high seas, it
is enacted by the 43 Geo. 3. c. 113. s. 5., that they shall be liable
to be tried by such court and in such manner as is directed by the
statute 28 Hen. 8. c. 15., for trying felonies committed upon the
high seas, (n)

By a late statute, the 46 Geo. 3. c. 54., all murders and other
offences committed upon the sea, or in any haven, river, &c.
where the Admiral has jurisdiction, may be enquired of and tried
according to the commou course of the laws of the realm, used
for offences committed upon the land within the realm, and not
otherwise, in any of his Majesty's islands, plantaticms, colonies,
dominions, forts, or facUmes, under the King's commission ; and
the comjnissioners are to have the same powers for such trial
within any such island, &c. as any commissioners appointed under
the statute 28 Hen. 8. c. 15. would have for the trial of (fences
within the realm. The provisions of this "act are extended by a
more recent statute, the 57 Geo. 3. c. 53., to murders and man-
slaughters committed in places not within his Majesty's dominions*
It enacts, that nmrders and manslaughters committed on land at
the settlement in the bay of Honduras^ by any person residing or
being within the settlement, and in the islands of New Zkaland
and OiaAeii€y or within any other islands, countries, or places not
within his Majesty's dominions, nor subject to any European state
or power, nor within the territory of the United States of uime-
nca, by the master or crew of any British ship or vessel, or any
of them, or by any pers(m sailing in or bekinging thereto, or that
shall have sailed in and belonged to, and have quitted any British
ship or vessel to live in any of the said islands, &c., or that shall
be there living, may be tried and punished in any of bis Majesty's

(0 A^e, 107. Jnte, 107.

(ft) Rei t;. Brace, % hmch 1093. <s) J^U, 40.

464 Of Murder. [book ni.

islands, plantations, colonies^ &c. by the IGng's commission issued
by virtue of the 46 Geo. 3. c. 54. in the same manner as if such
offences had been committed upon the high seas.(o)

With respect to murders and other capital crimes committed in
Netofoundland and the isles thereto belongings it is enacted by
the 10 & 11 W. 3. c. 25. s. 13. that they may be tried in any
county of England : and though the King is enabled by subse-
quent 6tatutes(/i) to erect courts of civil and criminal jurisdiction
in that country^ it does not appear that those statutes take away
the jurisdiction given by the statute 10 & 11 W. 3.
Trial.^After The 33 Hen. 8. c. 23. enacts, that if any person being examined
^mination before the King's council, or three of them, upon treasons^ mur-
kin^conncil. ^^^9 ^* confess such offences, or die council, or three of them,
upon such examination, think any person so examined to be vehe-
mently suspected of any treason or murder, the King's commis-
sion may be made to such persons and into such shires and places
as shall be named and appointed by the King -for the speedy trial
of such offenders ; and gives power to the commissioners to en-
quire and determine such offences within the shires and places
limited by their commission, in whatsoever other shire or place,
within the King^s dominions or mthout, such offences so exa-
mined were done or committed. This statute did not extend to
accessories ; but bv the 43 Geo. 3. c. 1 13. s. 6. it is provided that
its powers and authorities shall be extended to the offence of pro-
curing, &c. or otherwise becoming an accessory be/ore the fact to
any murder. (17) It was in one case objected that the statute 33
Hen. 8. c. 23. did not extend to murders committed out of the
realm : but the court over-ruled the objection, the statute being
clear as to that point, (r)
H^s Of mi^ Though this statute of 33 Hen. 8. is not confined to o£fences
den commit' Committed within the King's dominions; yet, in a case where a
tedbjsabjecto prisoner at war abroad had entered on board an English merchant
of thig country g^p^ im^ whilst in that capacity had committed an offence upon
tmS^^^ s^ Englishman in a foreign country, it was decided that he could
not be tried for it here under this statute, on the ground that he
could not be deemed a subject of this country. The offender,
Depardo, was a Spaniard, and taken prisoner at sea; and .whikt
abroad entered on board an Indiaman, sailed to CAtna, and mur-
dered an Englishman in the Canton river : it was within the tide-
way, about eighty miles from the sea. Upon a case reserved
for the opinion of the Judges, it was urged that the prisoner was
not liable to be tried here, because he never became subject to the
laws of this country ; thai hd was not so by birth, and did not
become so by entering on board the Indiaman. No judgment was
pven, but the prisoner was discharged, (a)

But a British subject is indictable under the 33 Hen. 8. for the

(a) 57 Geo. S. c. 53. s. I. 'The Sd 76. pontinued by 34 Geo. 3. c. 44. aod

section provides that the act shall not 35 Geo. 3. c. 25.

be construed to repeal the 33 Hen. 8. (f ) By s. 7. this act of the 43 Geo.

c. 83. And see further as to the trial 3. is not to extend to Ireimmd.

of offences committed on land in the (r) Rex v. Ealing, 1 East P. C. c. 5.

baj of HwidurMif the staL 59 Geo. 3. s. 133. p. 369.

c. 44. (a) Ilex v. Depardo, Mich. T. 1807.

(p) 38 Geo. 3. c. 46. 33 Geo. 3. c. 1 Taont 86. Ross, fr Rj. 136.

CHAP. I. ^ 6.] Indictment, IVitd, ^c. 465

murder of another British subject^ though the murder were within
the dbminions of a foreign state. And the indictment need not
allege in terms that either the deceased or the offender were Bri-
tish subjects : the statement that the person murdered was at the
time in the King's peace being considered a sufficient allegation
that he was a British subject ; and the conclusion in the indict-
ment that the offence was against the King's peace, being con-
sidered as shewing sufficiently that the offender was a British
subject. The indictment charged in substance that the prisoner,
at I/isbofif in the kingdom of Partugaly in parts beyond the seas
without Englandy one H. G., in the peace of God and of our lord
the King, then and there being, feloniously did assault, shoot, and
murder, against the jpeace of our said lord the King. After a con-
viction upon this indictment it was objected, — I. That the offence
being out of the King's dominions and within the dominions of a
foreign state, was not triable under the 33 Hen. 8. ; and — 2. that
the prisoner and the deceased should have been stated to hare
been subjects of our lord the King at the time. But, after argu-
ment, the Judges held that the offence was triable here, though
committed in a foreign kingdom, the prisoner and the deceased
beiiL^T>oth subjects of this realm at the time ; and that the 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 state-
ment that this was against the King's peace sufficiently imported
that the prisoner was also a subject of this reahn at that time.
The prisoner was executed. (6)

Where a person was struck, &c, upon the high seas and died ^^*'*"~^?*
upon shore, it was holden that the admiral had no cognizance of [g u^^he ^'
the offence by virtue of his commission. (^) And it was doubtful sea, or abroad,
whether such ofience could be tried at common law i{t) the statute *nd the death
2 Geo. 2. c. 21. has therefore made provision for such cases. It ^here the ^^
enacts '' that where any person shall be feloniously stricken or wound, &e.
'^ poisoned upon the sea, or at any place out of England ^ and ^^"'^"nj^ti.
^^ shall die of the same stroke or poisoning within England; or death'atsea,
^^ where any person shall be feloniously stricken or poisoned at or abroad.
^^ an^ place within Englandy and shall die of the same stroke or
" poisoning upon the sea, or at any place out of England; in
'' either of the said cases an indictment thereof found by the jurors
'^ of the county in England in which such death, stroke, or poi-
'^ soning, shall happen respectively as aforesaid, whether it shall
" be found before the coroner upon the view of such dead body,
'' or before the justices, &c. who shall have authority to enquire
'^ of murders, shall be as good and effectual in the law, as well
'^ against the principals in any such murder as the accessories
'^ thereunto, as if such felonious stroke and death thereby ensu-
'' ing, or poisoning and death thereby ensuing, and the omnce of
'^ such accessories, had happened in the same county where such
^^ indictment shidl be found." And it further provides, that the

{h) Rex «. Sawyer, East. T. 1815. ruled.
MS. Baylej, J., and Russ. & Ry. ^94. («) 2 Hale 17,90. 1 East. P. C. c.5.
Anoflier ohjectioo was that the indict- s. 131. p. 365, 366. Ante^ 108.
raeot ought to have concladed contra (I) Id. and 1 Hawk. P. C. c. 31. s. 19.
formmm 9MuH : but that was also over*

VOL. I. 3 H «

466 Of Murder. [booi in.

justices of gaol delivery &c. shall proceed thereon, and that the
offender shall receive the like trial, &c. as if the murder and oflfence
of such accessories had happened in that county in which such
indictment is found.

Where a person standing on the shore of a harbour fired a
loaded musket at a revenue cutter which had struck upon a sand-
bank in the sea, about a hundred yards from the shore, by which
another was meJiciously killed on board the boat, it was bolden
that the trial must be in the Admiralty court, and not at com-
mon law.(u)

^mctmentT ^ '^^ °^ ^^ general rules relating to the form of the indict-
ment may be mentioned in this place.
DescnpUon of If the name of the party killed be not known, it may be laid to
kiU^. ^ ^® ^ certain person to the jurors unknown. (u^) A bastard must
not be described by his mother's name till he has gained that
name by reputation. Frances Clark was indicted for the murder
of George Lakeman Clark, a base-bom infant male child, aged
three weeks. The child was her's ; and had been christened George
Lakeman, the father's name. The murder was proved, but there
was no evidence that the child had ever been called Clark ; and on
a case reserved the Judges held that as it had not obtained the
mother*s name by reputation, it was improperly called Clark in
the indictment ; and that as there was nothing but the name to
identify it in the indictment, the conviction could not be sup-
ported, (a) It is not necessary to state the addition of the party
killed, though it may sometimes be convenient to do so for the sake
of distinction, (x) Nor is it necessary to allege that the party
killed was " in the peace of God and of our lord the king, &c.'*
though such words are commonly inserted, for they are not of
substance, and perhaps the truth may be that the party was at
the time actually breaking the peace. (^) If a constable, watch-
man, or other minister of justice, be killed in the execution of his
office, the special matter need not be stated, but the offender may
be indicted generally of murder by malice prepense, {z)
Statement of The indictment should in all respects be adapted as closely to
the dcat£r«nd ^^ truth as possible. It is essentially necessary to set forth par-
the means by ticularly the manner of the death, and the means by which it was
^'"^chitwas effected :(n) and this statement may, according to the circum-
^^^^ ' stances of the case, be one of considerable length and particu-

larity, (o) But it will be sufiicient if the manner of the death
proved agree in substance with that which is charged. Therefore
if it appear that the party were killed by a different weapon from
that aescribed, it will maintain the indictment : as if a wound or
bruise alleged to have been given with a sword be proved to have

(u) Rex V. Coorabe, 1785 — 6, 1 (z) Rex v Mackally, 9 Rep. tt. 1

Hawk. P. C. c. S7. s. 17. 1 Leach SS8. Hale 460. 19 Rep. 17.

1 East. P. C. c. 5. 9. ISI. p. 367. .ffite, (n) 1 East P. C. c. 5. ft. 107. p. 841.

108. (o) As in the case of Jackaon and

(w) 1 East. P. C. c. 5. 9. 1,14. p. 345. others, 9 St. Tri. 715. (ed. by Harrr.)

(a) Rex V. Clark, East. T.' 1818. MS. where the indictment stated a maitler

Bayley, J., and Huss. & Ry. 358. by a long course of barbarous usage,

(x) 2 Hale 182. But seeppsi, 473, as to the sUtemeot

(v) 8 Hawk. P. C. c. S5. s. 73. 8 of special circumstances.

Hale 186.

CHAP. I. § 6.] Indictment, Trial, ^c. 467

been given with a staff or axe ; or a wound or bruise alleged to
have been given with a wooden staff, be proved to have been given
with a stone. So if the death be Isdd to have been by one sort of
poisoning, and it turn out to have been b^ another* the difference
will not be material. But if a person be uidicted for one species
of killing, as by poisoning, he cannot be convicted by evidence
of a species of death entirely different, as by shooting, starving,
or strangling. (&) Where the manner of the death is doubtful, it
will be proper to lay it differently in different counts, so as to
meet the evidence, (c)

It seems to be necessary to aver a striking where the death has
been occasioned by a wound, bruise, or other assault : and it ap-
pears to have been holden that an indictment stating that the party
of malice aforethought murdered, or gave a mortal wound, with- .
out saying that he struck, &c. was bad. (of) But this doctrine has
been questioned, («) though it is admitted to be most safe to use
the term where it may seem to be required by the nature of the
fact.(/) In a late case, where the indictment charged that the
prisoners toiih certain stones of no value, which they in their
right hands then and there had and held, in and upon the back
part of the head of him the said W. W., then and there feloniously,
&c. and of their malice aforethought did cctst and thrmv, and that
they with the stones aforesaid, so as aforesaid cast and thrown,
the said W. W. in and upon the back part of the head of him the
said W. W., feloniously, &c. did strike, &c.— objection was taken
that the mode of causing the death was not properly stated. But
the point being submitted to the consideration of the Judges, they
were unanimously of opinion that the cause of the death was suffi-
ciently stated I it being clear that the stones were what were cast
and thrown at the deceased ; and the word with might be rejected,
or the words cast and throw might be considered to be used as
neuter verbs. (2) It seems also that if the death be occasioned by
any instrument holden in the hand of the party killing at the time,
it should be so alleged i and that reg^ularly the instrument should
be stated to be of a certain value or of no value : but an able
writer says that he could not find the grounds for the first of these
averments, and that the latter does not seem to be essential, (g^)
It has been considered as necessary to state in what part of the
body the wound was given, and also to state the, length and depth
of it. (A) But this doctrine was overruled, or at least qualified, in

(h) 1 East. P. C. c. 5. s. 107. p. 341. {g) 1 Bast. P. C c. 5. s. 108. p. 341,

2 Hawk. P. C. c. 83. s. 84. 2 Hale 342. In the case of Rex t>. Dale, ani^^

185, 186. 8 Inst. 319. Mackally^s note (z), it was objected that after the

case, 9 Co. 67. words ** certain stones*' there should

(e) As in Rex v. Uindmarsh,' S Leach have been a wdeUcei, mentioning the

569. namber« and also that it was not ex-

(i) Rex V. Long, 5 Co. 188 a. Dy. pressed in what hand the stones were

99. 8 Hale 184. Rex t;. Lorkin, I neld by ^acA of the prisoners t bat the

Bnlstr« 184. objections were not considered as roa-

{e) 8 Hawk. P. C. c. 83. s. 88„ re- terial.

ferriag to Cro. Jac 635. Sura. 807. (h) 8 Hale 185, 186. 8 Hawk. P. C.

Yelv.88. c. 83. s. 80,81. Trem.Ent 10. Staundf,

if) 8 Hawk. P. C. Ufid. 78 b. 79 a. 4 Co. 40 b. 41 . 5 Co. 180,

(z) Rex V. Dale and others, Hil. T. 181 b. 188. Cro. Jac. 95. Stark. Cr.

1884. 1 Ry. & Mood. C. C. 6. L. 375, 380.

2h2

466 Of Murder. [book iii-

a late case. The indictment, after stating that the prisoners felo*
niously and of their malice aforethought made an assault on the
party killed, and threw him down upon the ground ; and with their
hands and feet, while he was upon the ground, in and upon his
head, stomach, breast, belly, back, and sides, feloniously, &c.
divers times, with great force and violence did strike, beat, and
kick, and with their hands, feet, and knees did strike, push, press,
and squeeze, proceeded thus, — ^^ giving to the said J. D. then and
^^ there, as well by the pulling, pushing, casting, and throwing of
'^ him the said J. D. down, unto and upon the ground as aforesaid,
'^^ and by the striking, beating, and kicking, of him the said J. D.,
^^ whilst he was so lying and being upon the ground as aforesaid,
^^ in and upon the head, stomach, breast, belly, back, and sides, of
'^ him the said J* D. as aforesaid, as also by the striking, pushing,
^' pressing, and squeezing of him the said J. D*, whilst he the
'^ said J. D. was so lying and being upon the ground as aforesaid,
^' in and upon the belly, breast, stomach, and sides of him the said
'^ J. D., with the hands, knees, and feet of them the said R. M.
'' and B. M. in manner aifbresaid, several mortal bruises, lacera-
** tions, and wounds, in and upon the belly, breast, stomach, and
^' sides, of him the said J. D. ;" of which said several mortal
'bruises, lacerations, and wounds, the said J. D., from, &c. did
languish, &c.; and then it averred the death and the murder in the
usual form. A conviction having taken place, the prisoner's
counsel moved in arrest of judgment. It was urged that the in-
dictment was insufficient in stating only that there were several
mortal bruises, lacerations, and wounds, on several parts of the
body, of which the party languished and <Ued ; that a considerable
-degree of certainty was necessary in Uie statement of the wounds
on the face of the indictment, and of the situation, length, &c. of
leach ; that it ivas necessary to describe the particular parts of the
body on which the wound or wounds is or are alleged to be ; that
charging a wound to be inflicted on the side or sides of a man is
bad, witiiout more particularity, as non constat whether it is to
be taken to be the side or sides of the body, or of the head, or of
any or of what limb ; that the indictment, according to ancient
forms, should so state the fact as that a finger might be placed
upon the part of the body where the wound is described to be ;
that this was still requisite, although a conviction might take
place upon evidence varying from it, for the particulars ought to
be stated accurately according to the facts as they are supposed
to be, for the previous information of the court and of the party
charged, with a view to a due investigation, and in order that it
might appear, by such statement of particulars, that a due enquiry
had been made by the grand jury or the coroner's inquest as to
these circumstances, before a party should be put to undergo the
pain and peril of a trial ; and that the facts ought not to be wan-
tonly or purposely varied from in such statement; and 2 Hak
P. C. 185, Iw, was cited and observed upon.

Judgment was respited ; and the matter submitted to the consi-
deration of the Judges, who met twice for the purpose of consi-
dering the case. At the second meeting the majority of the
Judges, vi%. Gaselee, J., HuUock, R., Garrow, B., Burrou^, J.,

CHAP. I. f 6.J Indictment, Trial, ^c. 469

Park, J., Bayley, J., Graham, B., Alexander, L. C. B.^ Best, L. C. J.,
and Abbott, L. C. J., held the conviction right, as it appeared in
several old precedents (a) that the length, breadth, and depth^ of
the wounds were not stated ; and also that Mr. Justice Lawrence
had instructed the clerk of assize upon the Oxford circuit to omit
these particulars when there were more wounds than one, and
that his instructions had been followed. And they held that
although they might have felt great difficulty had the precedents
been uniform ; yet, as there were precedents against the objection^
they might consider whether common sense re*quired a statement
of these particulars : and as the statement, if introduced, need
not be proved, they thought it imnecessary. Littledale, J., and
Holroyd, J., differed from the other Judges, and thought the in-
dictment bad. (A)

It had long been settled that though it was considered necessary
to state the manner and place of the hurt, and its nature, in order
that the indictment might be good as to its formality ; yet, if it
appeared upon the evidence that the party died of another land of
wound, in another place, the indictment vras nevertheless main-
tainable. (Ar) It is necessary, in all cases, that the death by the
means stated should be positively alleged, for it cannot be taken
by implication : if, therefore, it be stated that the death was
caused by any stroke, the indictment should proceed to aver that
the prisoner thereby gave to the deceased a mortal wound or
bruise, whereof he died;(/) and an indictment setting forth that
the prisoner choaked the deceased, qxml suffocatione obiity instead
of de qua stiffbcationey &c was adjuaged to be erroneous, (m) And
if the means of the death be alleged to be by poison, it should be
averred, after stating particularly the manner in which the poison
was administered, that the party died of the poison so taken, and
the sickness thereby occasioned, (n) And an indictment which
stated the death to have been caused by means of ravishing an
infant, but omitted to aver that a mortal wound or bruise waa
given, was holden to be defective, (o)

In a case where the death proceeded from suffocation, by the
swelling up of the passage of the throat ; and such swelling pro-
ceeded from wounds occasioned by forcing things into the throat ;
it was held that the statement might be that the things were
forced into the throat, and the deceased thereby suffocated ; and
that it was not necessary to mention the immediate cause of suf-
focation ; namely, the swelling of the throat. The indictment
charged a murder, by forcing and thrusting moss and dirt into the
mouth, nose, and throat of a child, by which forcing and thrusting
of the moss and dirt into the mouth, &c. the child was then and
there suffocated. It appeared that this forcing of the moss and
dirt did not produce immediate strangulation, and that they were

(a) Rast. Entr. 863, 38S. Co. Entr. (k) 2 Hale 186, 186. 2 Hawk. P. C

355. West. Symb. 117, 151, 153, 154, c. S3, s. 81.

155, 235, 260, 261. (/) 2 Hale 186.

{b) Rex V. Hosier and another, cor. (m) 1 Roil. 137. 2 Hawk. P. G. c*

Holroyd, J., York Lent Ass. 1 825, and 23. s. 83.

decided by the Judges at tbeir second (n) 1 East P. C. c. 9. s. 111. p. 343»

meeting, Trin. T. 1825. Ry. & Mood. 2 Hawk. P. C. c. 23. s. 82, 83.

€. C. 97. (o) Rex V. Lad^ 1 Leach 96.

470 Of Murder. [book iu.

removed before the child died: but the forcing them into the
throat made the throat swell so as to choak up the passage ; and
then the child died of suffocation. Upon a case reserved, the
Judees held, that as the primary cause of the suffocation was the
forcmg the moss into the throat of the child, it was not necessary
to state in the indictment the intermediate process ; viz. the swell-
ing up of the passage of the throat, which occasioned the suffoca-
tion, such swelling having arisen by forcing the moss into the
throat, (a)
Averment of It ift necessary to state, that the act by which the death was
/Ao^A^^state* occasioned was done feloniously, and espedallv that it was done
ment of Ume, of malice aforethought^ (jp) which, as we have abeady seen, is the
place, &c. aad great characteristic of the crime of murder ; (q) and it must also
conclusion. gg stated, that the prisoner murdered the deceased, (r) If the
averment respecting malice aforethought be omitted, and the in-
dictment only fdlege that the stroke was given feloniously, or that
the prisoner murdered, &c. or killed, or slew the deceased, the
conviction can only be for manslaughter, (s) It is also necessary
to allege the time and plate, as well of the wound as of the death ;
so that where the party is indicted in the county where the death
happened, under the statute 2 and 3 £dw. 6. c. iA., (/) the stroke
should be alleged in the county where it really was ; and by the
same rule the offence must be alleged in the place where it was
committed in indictments upon the statutes 28 Hen. 8. c. 15. and
33 Hen. 8. c. 23. (te) for murders upon the sea, or in other places
therein mentioned, {x) A charge that A., on such a day, at, &c.
made an assault upon B., and him with a knife feloniously struck,
killed, and murdered, was held not to import sufficiently that the
stroke was at the same time and place as the assault, for want of
the words ^' then and there ;" and for this and other exceptions
. an outlawry on this charge was reversed, (a) And the respective
times of the wound and death must be shewn, that it may appear
that the deceased died within a year and a day from the stroice or
other cause of death : but though the day or year be mistaken, it
is not material, if it appear by the evidence that the death happened
within the time limited, without which the law does not attribute
the death to the stroke or poison. (y) The indictment is concluded,
by charging the murder upon the party by way of consequence
from the antecedent matter, in a positive ^legation that the pri-
soner in manner and by the means aforesaid feloniously, wilfully,
and of his malice aforetnought, did (poison,) kill, and murder, (z)
And where the stroke was at one time or place, and the death at
another, if the day be specially alleged, it should be that on
which the party died, and not that on which he was stricken ; for
until he died it was no murder, (o)

{a) Rex V. Tye, Bast. T. 1618. MS. (I) Anle^ 462.

Bayley, J. Rius. and Ry. S4A. {%) AnU^ 468, 464.

(p) 9 Hale 186, 187. SUand. P. C (jr) 1 Sast P. C. c 5- s 1 19. p.S4S.

ISO. Bradley o. Banks, YeW. S05. (y) S Hawk. P. C. c 88. 8.90. 9

(q) Ante, 491 , et •eq, lost 318. I £ast P. C. c. 5. s. 1 19. p.

(r) 9 Hawk. P. C. c. 93. 8. 77. Anon. 848.

Dy. 804. B»W, note <x). (a) Rex v. Buckler, Dy. 60 a.

(«) I East. P. C. e. h^ s. 1 16. p. 845, {%) 1 Bast P. C. c. 5. s. 117. p. 847.

346. 9 Hale 186. (o) id. iM.

CHAP. I, § 6.] Trial, Plea, ^c. 47i

Where the grand jury return the bill of indictment only a true Of tbe finding
bill for manslaughter^ and ignoramus as to the murder^ it is stated ^l^l^^^'
to have been the usual course to strike out, in the presence of the the grand juy.
grand jury, the words ^^ maliciously'' and ^'of malice aforethought/'
and ^' murder," and to leave only so much as makes the bUl to be
one for manslaughter ; (A) and this appears to be the practice at
the present time upon some of the circuits : (c) but it has been
thouj^t to be the safer way, to present a new bill to the grand
jury for manslaughter, {(t) Though the same indictment may
charge one with murder and another with manslaughter, yet if it
charge both with murder, the grand jury cannot find it a true bill
against one, and manslaughter as to the other; but a finding
against one for murder will be good, and there ought to be a new
bill against the other for manslaughter, (e)

If , as is very commonly the case, there be an indictment for Amignmeot.
murder, and the coroner's inquisition for the same offence against
the same person, at the same sessions of gaol delivery, the usual
practice appears to be to arraign and try the prisoner upon both,
in order to avoid the plea of autrefois acquit or attaint; and to in-
dorse his acquittal or attainder upon both presentments. (/)

Where a man has been acquitted generally upon an indictment Pleas otmore-
for murder, autrefois acquit is a good plea to an mdictment for the •^^"Sjf '#f"^
manslaughter of the same person ; ana ^ converso where a man has faiJ]
been acquitted on an indictment for nmnslaughter, he shall not be
indicted for the same death as murder ; the fact being the same,
and the difference only in the degree, (a) And upon simUar
pounds it should seem, that one who has been convicted upon an
mdictment for manslaughter, and had his clergy allowed, may
plead autrefois convict to an indictment, charging the same death
upon him as a murder, (or) And it is clear that autrefois convic(
of manslaughter, and clergy thereupon allowed, was a good bar in
an appeal of murder, (y) And auterfois acquit, or autrefois attaint,
upon an indictment for murder, is a good plea to an indictment
charging the same death as petit treason. (2)

As a final determination in a court having competent jurisdic-
tion is conclusive in all courts of concurrent jurisdiction, it has
been held that a party who has killed another in a foreign country,

{b) S Hale 1 62. eqaall y where the pmrly has been ae-

(c) Es relai. Mr. Pogh, Clerk of quiited upon a former indiclment for

Assize, on the Oxford CxrcmXj 1816. manslaughter, the plea in the latter

{d) By Lord Hale, (9 Hale 168.) on case is clearly proper, upon the ground,

the ground that the words of the lo- that if the party was not guilty even of

dorsemeot do not make the indictment, manslau|^ter, he cannot be charged

bat only evidence the assent or dissent with havmg caused the death, with the

of the rrand jury, and that the bill it- circumstances of aggravation neces*

self is the indictment when affirmed. sary to constitute murder.

(e) 1 East P. C. c. 6. s. 1 16. p. S47. {y) Rex v. Wigges, 4 Co. 45.

(/) 1 East P. C. C.5. s. 1S4. p. 371. (z) 8 Hale 246, 858. Post 889. As

(a) Rex V. Holcroft, 4 Co. 46 b. 8 to the general doctrine of these pleas.

Hale 846. and that they can only avail where the

(x) The only objection would be, first indictment was valid, see 1 Chit,

that he could not have been convicted Crim. L. 458, ei oeq. And see Hex v.

of murder upon the former indict- Clark, poH, 478, 473.
ment} and though this might be said

47S Of Murder. [booe iir.

and been there prosecuted^ tried^ and acquitted, may avail himself
of Buch acquittal in answer to any charge against him in this coun-
try for the same offence, (e)

In a case where the prisoner had been tried for murder, and
convicted of manslaughter, and had received the benefit of cle^y,
and was subsequently tried for murder, and convicted of man-
slaughter, in killing another individual (who died after the first
trial) by the same act which caused the death of the first ; the
Judges were unanimously of opinion, that the former allowance of
clergy protected the prisoner against any punishment upon the
second verdict ; and that if the prisoner were to' be called up for
judgment, he might rely upon such allowance as a bar. (/)
Of the cTi- The evidence, in cases of murder, will consist of the proof of the

dence. particular facts and circumstances which shew the killing as stated

in the indictment, 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 circumstances of acci-
dent, necessity, or infirmity, are to be satisfactorily shewn by Uie
prisoner, unless they arise out of the evidence produced a^nst
him ; for the law presumes the fact to have been founded in malice
until the contrary appears, {g)

A charge of murder by forcing a person to take, drink, and
swallow down oil of vitriol, will be sufficiently supported by evi-
dence of forcing him to take it into his mouth and throat, if that
produced the death ; and negative evidence that none could have
been swallowed down, and that the effect upon the throat must
have produced the death, will not vary the case. The indictment
was, that the prisoner, contrinng to murder J. S. with oil of vitriol,
gave him a quantity thereof, and forced him to take it into hb
mouth and throat, knowing it would occasion his death ; bv means
whereof he became disordered ; and by the oil of vitriol aroresaid,
and by the disorder, choaking, &c. occasioned thereby, died : and
to this indictment there was a plea of autrefois acquit. The
former indictment stated, that the prisoner, contriving to murder
J. S. by poison, gave him poison; that is, oil of vitriol, and forced
him, to take, drink, and swallow it down, by means whereof he
became sick; and by the poison so by him taken, drank, and swal-*

{e) Rex V. Hutchinson, 1 Show. 6. Ross, and Rj. S88. The act which

Bull. N. P. 245. 3 Mod. 19-^. I Leach occasioned the death of the two indi-

195, note (a). The defendant betn|^ viduals (two children) was one lurtf lAe

apprehended here, and committed to same. The general effect of the allow-

Newgate, was brought into K. B. by ance of clergy, after the 8 Bliz. c. 4.,

habeas corpus t where he produced an was to discharge all offences precedent

exemplification of the record of his within clergy ; but not sucn as were

acquittal in Portugal : but the King not entitled to the benefit of clergy.

(Car. S.) being willing to have hjm. But by the late act, 6 Geo. 4. c. S5. s.

tried here for the same offence, re- 4., the allowance of the benefit of

ferred the point to the consideration clergy to any person who shall be con-

of the Judges ; who all agreed, that as victed of any felony, shall not render

the partT had been already acquitted the person to whom such benefit is

of the charge by the law of Portugal, allowed dispunishable for any other

he could not be tried for it again in felony, hy him or her committed, be*

England. fore the time of such allowance.

(/) Rex V. Jennings, EastT. 1819. {g) Post. 255. Jnie^ 482,483.

CBA9. 1. ^ 6.] Trial, EtMenee, tgc. 47S

lowed down as aforesaid, and of the sickness occasioned thereby,
he died. On demurrer, the plea was overruled, subject to a case,
and the prisoner was tried and convicted. The case was argued ;
and it was urged, that on the first indictment swallowing must
have been proved, which in &ct had been negatived; and that
proof of forcing J. 8. to take it into his mouth and throat would
not have been sufficient : but eleven Judges (Wood, B. being ab-
sent) held otherwise. It was also urged, that upon the first indict-
ment it m^st have been, proved, that oil of vitriol was a poison,
which, in the secoud, would not be necessary : but the Judges
seemed to think, that the second indictment implied, that oil of
vitriol was a poison, and a pardon was recommended, (a)

It has been holden as a rule, that no person should be convicted Rule u toiu
of murder unless the body of the deceased has been found : and a Jw^**?^
very great Judge says, " I would never convict any person of mur- of*the de- ^
^' der or manslaughter, unless the fact were proved to be done, or ceased has
" at least the body be found dead.'' (A) But this rule, it seems, ^"^ ^*''*"^-
must be taken with some 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
ndse, 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 captidn 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 sulmitted 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 ooDvicted, aiul (the convic-
tion being unanimously approved of by the Judges) was afterwards
executed, (i)

It is better not to put forth more of the special circumstances Proof of the
of the case, in an indictment for murder, than are required by the Jhe™ict^"*
established rules : but if all the special matter in respect of which ment.
the law implies malice be set forth, it is laid down that a variance

(«> Rex «. CIarke,.Hil. T. 18S0. 1 mother and reputed father of a bastard

Brod. and Biogh. 47S. child were observed to take the child

(A) 2 Hale 290. to the margin of the dock, at Livet^

(i) Rex V. Hindmarsh, 9 Leach 571 . pool; and, after strippiae it, cast it into

It was urged on the prisoner's behalf the dock. The body of the infant was

at the trial by Garrow, (now Mr. Baron not aflerwards seen ; and as the tide of

Garrow,) that he was entitled to be ac- the sea flowed and reflowed into and

quitted, on the ground that it was not out of the dock, the learned Judge,

preyed that the captain was dead ; and upon the trial of the father and mother

that as there were many ships and ves- for the murder of their child, obserred

sels near the place where the transac- that it was possible the tide might have

tion was allied to have taken place, carried out the living infimt ; and upon

the probability was, that he was taken this ground the jury, by his direc-

up by some of them, and was then tion, acquitted the prisoners. But

^jive. And the learned counsel men- qu. the form of the indictment in this

tioned a remarkable case which had case,
nappeaed before Mr. J. Gould. The

474 Of Murder. [bookui.

between the indictment and the evideiice is not materiid, provided
the subBtance of the matter be found, (t) Upon this principle,
where an indictment for the murder of a serjeant at mace of the
city of London supposed that the sheriff of London, upon a plaint
entered, made a precept to the serjeant at mace to arrest the de-
fendant^ and it appeared that there was not any such precept made,
and that, by the custom of London, after the plaint entered, any ser-
jeant, es officio^ at the request of the plaintiff, might arrest a de-
fendant j absque aliqtto prcecepto, ore tenus vel iUiter, it was holden
that this statement of the precept was but circumstance not neces-
sary to be supported in evidence, and that it was sufficient if the
substance of the matter were proved without any precise regard
to circumstance. (A) And if a capias ad saHsfaciendum^ fieri
faciasy writ of assistance, or any other writ of the like kind, issue
directed to the sheriff, and he or any of his officers be killed in the
execution of it, it is sufficient, upon an indictment for this murder,
to produce the writ and warrant, without shewing the judgment
or decree. (/)

In a case where the prboner was charged with murder by poi-
soning, and the indictment stated that she delivered the poisoned
food to the deceased, it was ruled that such allegation was proved,
by shewing that the prisoner put the poison in some pudding
meal, which was in a bowl in the milk Ik>U8C, Arom whence it was
taken by the deceased, as usual, to make the pudding for the fa-
mily, and afterwards eaten by her. (m)
Dylnir decla- There is One important species of evidence occasionally resorted
Tations of the to in cases of homicide, namely, the dying declarations of the party
party kiUed. killed, which wiH be considered in a future part of this Treatise.(ff )
Of the rerdict. The jury may, upon an indictment for murder, find the prisoner
guilty of the offence charged, or of the lesser offences of man-
slaughter or excusable homicide, (o) Where, however, the facts
of the case amount only to excusable homicide, it is usual for the
Judge, at the present day, to permit or direct a general verdict of
acquittal, unless some considerable blame appears to attach to the
conduct of the party, (p) And several persons present at a homi-
cide may be gtulty in different degrees, one of murder, the other
only of manslaughter. So a wife or servant may be guilty of
petit treason, and a stranger of murder, being all present at the
fact, {q)
Verdict of ^7 ^he 39 Geo. 3. c. 37< s. 2. any person tried for murder, or

manslaughter manslaughter committed upon the sea, by virtue of any commission
when the of. directed under the 28 Hen. 8. c. 15. (r) and found guilty of man-

fenee waa o 0

committed on slaughter Only, shall be entitled to the benefit of clergy in like

the seas, and manner, and shall be subject to the same punishment as if he had

commUoo. committed such manslaughter upon land. And by the 43 Geo- 3.

c. 113. s.6. {s) in case any offender shaU, in pursuance of that act,

or the act of 33 Hen. 8. c. 23. (f) be indicted for murder, and, upon

(0 1 East P. C. c. 5. 8. 115. p. 846. Lit.8S«,a.

{k) Rex 0. M ackally, 9 Co. 67. (p) J^at. Chap, on BsetumUe Hewd*

(0 Post. 911 ^ 3 IS. eUe. Post S7Q, 889.
(m) Rex V. Nicholson I Bast P. C. (9) I East P. C. c. 5. 8. iS». p. S71«
c. 5. ft. lis. jp. S46. (r> Anie^ 46S.

(n) Fo»tj Book VI. upon Evidence. («) Jlnie^ 464.
(0) 1 Hale 449. S Hale SOS. Co. (I) JtUe^ 464.

CHAP. 1. 4 6.] TWoZ, Verdict, %c. 475

the trial, thall appear to be guOty only of nuaiBlaiigfater^ the jury
may, on such incuctinent, find the party guilty of manslanghter
only ; or, in case of doubt or difficulty, may find a special yerdii^
upon whidi there shall be the like proceedings, judgment, &c. as
if the offence had been committed within any county of the realm,
and the trial had been had and verdict been found upon an ini£ct*
ment for murder, according to the course of the common law, by
a jury of the county within ndiich the ofience was committed.

In every case where the point turns upon the question whether The jury
the homicide was committed wilfully and maliciously, or under "l^onid attend
circumstances justifying, excusing, or alleviating, the matter of lroD.'oftib^'
fact, namely, whether the fade alleged by way of juUificatkmy court.
excuse, w aUeviatian, are truey is the pn^r and cmly province
of the jury. But whether, upon a supposition of the truth of the
facts, sucn homicide be justified, excused, or alleviated, must be
submitted to the judgment of the court; for the construction
which the law puts upon &ct8 stated and agreed, or found by a
jury, is in this, as in all other cases, undoubtedly the proper pro-
vince of the court. In cases of doubt and real difficulty it is com-
monly recommended to the jury to state facts and circumstances
in a special verdict. But where the law is clear, the jury, under
the direction of the court in point of law, matters of fact being
still left to their determination, may, and if they are well advised,
always will, find a general verdict, conformably to such direc-
tion, (tc) And if the jury bring in a verdict of manslaughter in a
case which clearly amounts to murder, the court should not re-
ceive the verdict, (a)

The statute 43 Geo. 3. c. 58. which repeals the 21 Jac. 1. Of thererdict,
c. 27*, and the Irish act 6 Anne, (w) provides that the trials, in &c. where
England and Ireland, of women charged with the murder of any for™he mc^
issue of their bodies, which being bom alive would by law be der of their
bastard, shall proceed by the like rules of evidence and presump- bastard chUd-
tion as are allowed to take place in respect toother trials for ^uted of the
murder. And the statute further enacts, {s) *^ Tliat it shall and mnrder, and
** may be lawful for the jury, by whose verdict any prisoner '**'*°i5?'^'^^
** charged with such murder as foresaid shall be acquitted, to bS^h. °* *
'^ find, in case it shall so appear in evidence, that the prisoner was
'^ delivered of issue of her body, male or female, which, if bom
'^ alive, would have been bastard ; and that she did, by secret
^^burjing, or otherwise, endeavour to conceal the birth thereof;
^' and thereupon it shall be lawful for the court before which such
^ prisoner shall have been tried to adjudge that such prisoner
*^ shall be committed to the common gaol, or house of correction,
** for any time not exceeding two years.'* (A)

(«) Post. 256v 9S6. and does not make the concealment

(«) Rex 0. Smith, enie^ 459. And an ofience for "which an indictment

see Shughterford*s case cited Str. 855. can be preferred. Rex v. Parkinson,

(«) AtUe^ 494. CBrltifeSuro.AsB.1821. (MS. Bayley, J.)

M S. 4. lo consequence much difference of

(h) This statute only empowers a opinion and practice is slated to haye

jury to find the prisoner gnutj of the prevailed amongst the ^tlemen serv^

concealment of the hirlii of a bastard ing upon the grand Junes of the coun

child, when she is tried upon an in- try, upon the f|uestion whether, when

dicUnent for the martfn* of such child, there clearly is no case upon which

476 Of Murder. [booil ni.

Astotbeoon- By the repealed statute of 21 Jac. 1. the concealment of the
ceilmenu death of the bastard child by the mother made her guilty of a
capital offence, imless she could prove that the child was bom
dead ; and upon this statute it was decided, that if the mother
called for help, or confessed herself with child, she was not within
its construction: and, upon the same principle, evidence was
always allowed of the mother's having made provision for the
birth, as a circumstance to shew that she did not intCTHi to con-
ceal it, (y) So upon the 43 G. 3. c. 58. it seems that if the
woman has made her pregnancy known to persons not implicated
with her in the concealment, it will be an answer to the charge of
concealment. Thus where the prisoner threw a bastard child of
which she had been delivered into the privy ; and it was probable
upon the evidence that the child was still-bom; Bayley, J. held
that this was no answer to the charge of concealment : but he
said that if the prisoner had communicated her pregnancy, or^ to
the knowledge of any other persons, made preparations for her
confinement, the case would not have been withm the statute, (t)
Upon the statute of 21 Jac. 1. the presence even of an accomplice
was holden to take a case out of the act ; so that where a woman
was indicted for the murder of her bastard chUd, and the mother
of the woman was indicted at the same time for being present
aiding and abetting, and there was no other evidence of guilt but
the concealment by both the prisoners, they were acquitted, (z)
And if from the view of the child it were testified by one witness,
by apparent probabilities, that it had not arrived at its debiium
partus tempus, as if it wanted hair or nsuls, the case was con-
sidered 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 evi-
dence, as at common law, to say whether the mother was gmlty
of the death, (a) But the constmction upon the 43 G. 3. c. 58.
has been different. A woman may be found guilty of conceal-
ment, although from appearances it is probable the diild was still-
bom, and although the birth was probably known to an accom-
plice. The prisoner and one Diana Thompson were indicted for

the prisoner ought to be pot upon her *' that if anj woman in Scotland shall

trial for murder, but some evidence *' conceal her being with child during

of a concealment, it is proper to find " the whole period of her pregnancy,

the bill for murder, in order that the '* and shall not call for and make use

prisoner ma^ be tried for the conceal- ** of help or assistance in the Mrth,

ment : and it certainly does seem to '* and it the child be found dead or

be a painful and severe proceeding, *' be missing, the mother, being law-

when there is clearly nothing but a ** folly convicted thereof, shall be

concealment of the birth, to send a \* imprisoned for a period not exceed-

mother to the bar, to answer to the *' ing two years, in such common gaol

dreadful accusation of having mur- *< or prison as the court before which

dercd her own offspring. The statute '* she is tried shall direct and fip-

49 Geo. S. c. 14. which repeals the " point'*

Scotch act of parliament, relating to {y) \ East P. C. c. 5. s. 15. p. 8S^.

the murder of bastard children {ante^ (Q Rex fi. Southern, Stafford Asaaes

484, note (c),) differs from the 48 G. S. 1S09, MS. Bayley* J.

c. 58. and does not make the conceal- {%) PeaVs case, Exeter Sum. Ass.

ment a matter which can only be found li^S^ cor, Hcatb, J. 1 East P. C. c.

hj the jury upon the trial of an in- 5. s. 15. p. 229.

dictment for murder, but enacts (s. 2.) («) 2 Hale J289. •

CHAP. I. § 7.3 Judgment and Exemtwn. 41T1

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 it was still-bom. D. Thompson, when questioned imme-
diately after the child's birdi, wholly denied it, though she must
have known it. The prisoner threw the cluld down the privy ;
and the jury found this an endeavour to conceal the birth : but
Silvester, R. doubted the propriety of that finding. Upon a case
reserved the Judges were unanimous that this was evidence of an
endeavour to conceal the birth, and held the conviction right. (A)
Whether the prisoner be charged with the murder of her bas-
tard child by the coroner's inquisition, or by a bill of indictment
returned by the grand jury, she may be found guilty under this
statute of tne 43 Ueo. 3. of endeavouring to conceal the birth, (c)

SECT. VII.
Of Judgment and Execution.

The judgment in cases of murder is regulated bv the statute 25
Cleo. 3* c. 37« which, reciting that this horrid cnme had been of
late more frequently perpetrated than formerly, was passed in
order to add some further terror and peculiar marks of infamy to
the punishment of death.
By section 1. of this statute it is enacted, that '^ all persons Timeof eze-
who shall be found guilty of wilful murder, be executed accord- cn^oo-
ing to law on the day next but one after sentence passed, unless
the same shall happen to be Sunday^ and in that case on the
Monday following."

The second section enacts, ^' That the body of such murderer Disposal of
^ so convicted shall, if such conviction and execution shall be in ^^^ bodies of
' the county of Middlesex^ or within the city of London^ or the '""~*""'
' liberties thereof, be immediately conveyed by the sheriff or she-
^ rifis, his or their deputy or deputies, and his or their officers,
^ to the hall of the surgeons' company, or such other place as
^ the said company shall appoint for tiiis purpose, and be deli-
^ vered to such person as the said company snail depute or ap-
' point, who shall give to the sheriff or sheriffs, his or their
^ deputy or deputies, a receipt for the same ; and the body so
^ delivered to the said company of surgeons shall be dissected and
' anatomized by the said surgeons, or such person as they shall
^ appoint for that purpose ; and in case such conviction and exe-
^ cution shall happen to be in any other county, or other place in
' Great Britain, then the Judge or Justice of assize, or other
^ proper Judge, shall award the sentence to be put in execution

(It) Res V. Cornwall, Trin. T. 1817. MS. Bayley, J. Run. & Rj. 940. CoIe*8
MS. Baylej, J. and Rusb. & Ry. 386. cue, 8 Gampb. 371. 9 Leach. 1095.
(c) Rex V. Majroard, Mich. T. 1819« Cimi€€$ier ImA Aasiz. 1819.

478

Of Murder.

[book III.

C(

Sentence to be

pronounced

immediately.

The bodlei of
murderers
may be hung
in chains ; but
may not be
buried unless
after dissec^
tion.

Form of the
sentence.

the next day but one after such conviction (except aa is before
^ excepted) ; and the body of such murderer Bhw, in like man-
^^ ner, be delivered by the sheriff or his deputy and his officers,
^ to such surgeon as such Judge or Justice shall direct for the
^^ purpose aforesaid/'

The third section enacts^ ^^ That sentence shall be pronounced
^^in open court immediately after the conviction of such mur-
^^ derer, and before the court shall proceed to any other business^
*^ unless the court shall see reasonable cause for postponing the
^* same ; in which sentence shall be expressed not only the usual
'^ judgment of deaths but also the time appointed hereby for the
^* execution thereof, and the marks of infamy hereby directed for
^^ such offenders, in order to impress a just horror in the mind of
'^ the offender, and on the minds of such as shall be present, of
*' the heinous crime of murder."

By the fifth section, it is provided, ^^ That it shall be in the
^^ power of any such Judge or Justice, to appoint the body of any
^^ such criminal to be hung in chains : but that in no case what-
^' soever, the body of any murderer shall be suffered to be buried,
^' imless after such body shall have been dissected and anatomized
'^ as aforesaid ; and every such Judge or Justice shall and is
^' hereby required to direct the same either to be disposed of as
'^ aforesaid, to be anatomized, or to be hung in chains, in the
'^ same manner as is now practised for the most atrocious of-
^ fences/'

It appears, that the .{orm of the sentence or judgment to be
pronounced, in conformity. to the provisions of this statute, was
made the subject of conference at a meeting of the Judges, {d)
and that the following form was agreed upon :

^* That you be taJcen frdm hence to the prison from whence fou
^' camSy and that you be taken from thence on the d^ of

^^ instant (or next) to the place of execution, and that you

^ be there hanged by the neck, till your body be dead; and that
"your body, when dead, be taken down, and be dissected and
** anatomized."

There was some doubt whether either judgment of dissectioB or
hanging in chains might not be given ; and, if the first were pro-
nounced, whether, if no surgeon would take the body, it might
not be hung in chains : but, on debate, it was agreed by nine
Judges, that, in aU cases within the act, the judgment for dissect-
ing and anatomizing only should be part of the iudgment pro-
nounced; and that, if it were thought adviseable, the Judge
might afterwards direct the hanging in chains by special order to
the sheriff, pursuant to the proviso for that purpose in the sta-
tute, {e)

A difference of opinion has been entertained upon the point
whether the award of dissection and anatomization is or is not an
essential part of the sentence : the omis»on, however, tx> pro-
nounce it at the time (even supposing it to be essential) may be

(d) Rex V. Swan and Jefferys, 1 East. (e) Fost 107. I Bast. P. C. c. 6. s.

P.C. c, 5. 8. 130. p. 373. dtln^ Seij. IS6. p. S74. wbera it is slated, that

Forster'ft MS. Exj^Uone Ckve, J. sack is thevpractice.
Fost. C. L.

CHAP. I. $ 7.] Judgment and Execution. 479

rectified during the afisizes by having the prisoner again bibnght
up and passing the sentence de novo. Upon a conviction for the
murder of a bastard child, the award of dissecting and anato-
mizing was omitted in passing sentence : other sentences were
then passed, and the court adjourned to the Judges' lodgings.
In the calendar the award was made. Upon a case reserved all
the Judges held that it would have been remedied if the Judge,
after the adjournment to the lodgings, had gone again into court
and pronounced the rieht judgment: and Lord Ellenborough,
Lord Alvanley, McDonald, C. B., Heath, J. Rooke, J. and Cham-
bre, J., held that the statute was directory only, and the omission
immaterial: but the other six Judges held otherwise; and the
prisoner was pardoned upon condition of transportation, (a)

But it is not essential to award the day of execution in the
sentetice, the statute in that case being directory only; and if a
wrong day is awarded, it will not vitiate the sentence : at least it
may be set right during the assizes ; especially if the mistake is
discovered and set right before any other business has been done^
though on a following day. A trial for murder took place on
Thursday ; the prisoner was convicted and sentence pronounced
for execution upon the Monday following. The court imme*
diately adjourned, but the mistake was discovered in the evening ;
and on the Friday morning before any other business was done,
the prisoner was brought up and sentence awarded for the Satur-
day; but the execution was respited. Upon a case reserved.
Lord Ellenborough, McDonald, C. B., Heath, J., Grose, J., Cham-
bre, J., and Bayley, J., against Thomson, B., Le Blanc, J., Gra-
ham, B., and Wood, B., thought the statute directory only, and
that the time did not form a necessary part of the sentence : and
all agreed that the mistake might be set right during the assizes,
and that the attainder was therefore right, (b)

It has been decided by the house of peers, that a peer, con- The sut. 25 6.
victed of murder, ouipht to receive judmient according to the ?• ^: Y' **'

• • r xf A. ^ X ji 'A. 1 J -J J • fL tend* to peers.

provisions of this statute : and it was also decided in the same
case that, supposing the day appointed by the judgment for exe-
cution should lapse before such execution done (which, however^
the law will not presume), a new time may be appointed tot the
execution either by the high court of parliament, before which
such peer shall have been attainted, or by the court of King's
Bench, the parliament not then sitting, the record of the attainder
being properly removed into that court. (/)

By the fourth section of the statute, it is enacted, that after Execution
sentence pronounced, '^ in case there shall appear reasonable maybe stayed.
^' cause, it shall and may be lawful, to and for such judge or
" justice before whom such criminal shall have been so tried, to
'^ stay the execution of the sentence, at the discretion of such

Ut) Rex V. Fletcher, Trin. T. 1803. Judgment was pronouDced according-

MS. Bayley, J. and Russ. & Ry. 68. It, awarding: ezecation on Thursday

(b) Hex V. Wyatt, East. T. 1819. the 81st April: Ji)ut the prisoner was

MS. Bayler, J. & Rus8. and Ry. 230. not executed till the 5th of May, when

(/) Sari Ferrer's case. Post. 138, there was a writ under the great seal

139. 1 F^t. P. C. c. 6. % 136. p. 374. for that purpose. 19 St Tr. 961 , 978.

480 Of Murder. [bookiu.

^' judge or justice^ regard being always had to the true intent and
^* purpose of this act."
Treatment of By the sixth, seventh, and eighth sections^ certain regulationB
muMeren^ ^ are given, for the treatment of a murderer, after conviction. It
tion. ' ^ enacted, that such criminal shall be confined in a separate cell,
and that no person but the gaoler or his servants shall have access
to him, without licence under the hand of the judge or sheriff: and
that he shall, between sentence and execution, be fed with bread
and water only (except on receiving the sacrament, or in case of
necessaries administered medicinally by a professional man), under
a penalty upon the gaoler of 20/., and imprisonment till it be paid,
and forfeiture of his office. But in case the judge or justice shall
see cause to respite the execution, he may relax any or all of these
restraints, by licence in writing, signed by him.(g-}
f^^v^^^ . ^^^^ ^^ persons had been convicted of a barbarous murder
the indictment ^ Pembrokeshire at the Hereford assizes, being the next English
to the King's county, and the indictment had been removed by certiorari into
Bendjby«r- ^^ court of King's Bench, in order to argue some exceptions
which were overruled, that court decided, after some question
made whether the prisoners ought not to be sent back to Here-
fordshire to receive sentence, that they had the same jurisdiction
over facts committed in fFales, as if committed in the next adja-
cent county in England ; and the prisoners were therefore sen-
tenced in the PQng's Bench, and were executed by the marshal. (A)
But it seems to have been considered in a late case, that sentence
pursuant to the statute 25 Geo. 2. c. 37. may be passed by a judge
at Nisi Prius upon an indictment for murder, removed by cer-
tiorari into the court of King's Bench, and afterwards tried at
Nisi Prius, without remittii^ the transcript of the record to the
court of King's Bench, (t)

(g) S. 7. fendants, beiD|^ in the custody of Ae

(A) Athos* caae (father and son) as marshal, were executed at Si. ThotmMM

cited in note (r). 1 Hale 463. where it a ffaiering*^ near the end of Kent

is said, that the prisoners were exe- Street. And see also the case in 1 Str.

cuted at Kennington ^lows, near 553, and'S Mod. 136.; and see Sissio^

Southwark. In Taylor*s case, 5 Burr, hurst-house case, ante^ 458, note(v).
8797. the reporter says, that he re- (Q Bex v. Thomas, 4 M. and S. 447.
members this case i and that the de-

1^.

mi

CHAPTER THE SECOND.

or PETIT TREASON.

Petit treason is a breach of the lower allegiance of private and
domestic faith; and considered as proceeding from the same prin-
ciple of treachery in private life as would have led the person^
harbouring it, to have conspired in public against his liege lord
and sovereign. At common lawlhe instances of this kind of
crime were more numerous than they are at present, and involved
in some uncertainty : (a) but, by the statute 25 Edw. 3. st. 5. c. 2.
they were reduced to the following cases, — 1. Where a servant
kills his master. 2. Where a wife kills her husband. 3. Where
an ecclesiastical person, secular or regular, kills his superior, to
whom he owes faith and obedience.

The principles which have been laid down, with respect to Principles re-
wilful murder, are also applicable to the crime of petit treason, Yf^ JS ^"
which, though it appears to have been sometimes regarded differ- are applicable
eDtly,(i) is substantially the same offence as mui^er, differing to petit trea-
only in degree, (c) It is murder aggravated by the circumi§tance *<"^*
of the allegiance, however low, which the murderer owed to the
deceased ; and in consequence of that circumstance of aggrava-
tion, and of that alone, the judgment upon a conviction is more
grievous in one case than in the other; though in common prac-
tice no material difference is made in the manner of the exe-
cution.fc/) Accordingly a person guilty of petit treason maybe
indicted for murder :(e) and a wife or servant joining with a
stranger in the murder of the husband or master, may be charged
in one indictment (which could not be if their offences were not
substantially the same) ; and such indictment concluding that
they *^ feloniously, traitorously, and of malice afore-thought,

(a) 1 Hale 376. treason is made liable to such further

{h) By unwary people, as Mr. J. pains and penalties as are declared by

Foster says. Fost. 3S3. 25 G. 2. c. 37. with respect to persons

(c) Fost. SSS, 327,336. 4BIac. Com. convicted of wilful murder.

203. (e) 1 Hale 378. Fost. 325, et »equ.

(d) Fost. 323. And now by SO G. 3. There is a case afntri cited in Coke v.
c. 48. in all cases of conviction of any Woodburn, 6 St. Tr. 224. : but Mr. J.
woman for high or petit treason, the Foster gives good reasons for the con-
judgment sball be that she shall be elusion thatno such case ever existed,
drawn and banged, and not burned ; Fostt 386.

and any woniaa convicted of petit
VOL, J. 2 I

482

Of Petit Treason.

[book III.

A prisoner in-
dicted for petit
treason may
be found guilty
of murder, and
acquitted of
tlie treason.

Serrant kill-
ing master or
mistress.

murdered/' is good for both^ reddendo singula singulis.{f) But,
though the indictment may be for murder only, it is considered a$
most proper to prefer an indictment for petit treason, because the
judgment is different, and because a person indicted for petit
treason is entitled to a peremptory challenge of thirty-five. (^)
And this doctrine was acted upon by a very learned judge, in a
case of late occurrence. The prisoner was arraigned on the last
day of the assizes, and after the grand jury had been discharged,
upon an indictment charging her with the wilful murder of her
sister; when Lawrence, J., upon reading the depositions taken
before the coroner, found that she had acted as a servant in her
sister's family ; upon which, after conferring with the counsel for
the prosecution, and citing the authority of Foster, J., (A) he re-
fused to try her upon that indictment, and ordered her to be de-
tained in prison ; and that an indictment for petit treason should
be preferred against her at the next assizes, (t)

Upon an indictment for petit treason, if the killing of the de«
ceased with malice be proved, but not the relation between the
parties ;(&) or if the fact can only be proved by one witness, or by
the examination of the deceased before a magistrate, by virtue of
the statutes of Philip and Mary, tlie prisoner may be found guilty
of murder, and acquitted of the treason :(/) and upon such an in-
dictment the prisoner may be acquitted of the treason, and found
guilty of manslaughter. (m)

The statute of the 25 Edw. 3. has been construed so strictly
that no case which could not be brought within the meaning of
the words, howev er heinous in its nature, has been expounded to
be within the equity of them ; and, therefore, it has been held that
the murder of a father by a son shall not be punished as petit
treason, unless the son may by a reasonable construction come
under the word 5ert;an^ But, if he be bound apprentice to his
father or mother, or is maintained by them, or does for them any
necessary service, though he do not receive wages, he may be in-
dicted by the description of servant (n) 3 and a near relation, as a

(/) Post. 329. Swan's case, Post.
105. Dalis. 16.

(f) Swan's case, FosL 104, et Mequ.
And see Post. 398, where the learned
author says, that in cases where, upon
any indictment for murder, it should
come out in evidence, that the crime
amounted to petit treason, he should
make no sort of difficulty of discharg-
ing the jury of the indictment for
murder, and ordering a fresh indict-
ment for petit treason; and that he
thought it by no meahs advisable to
direct the jury to give a verdict of
acc|uittal, as a person charged with a
crime of so hemous a nature ought
not to have the chance riven him by
the court of availing himself of the
pica of autrefois acquit. And in Post.
329, it is laid down that autrefois
acquit or attaint upon an indictment
for murder is a good bar to an indict-

ment f(»r petit treason for the same
fact, and so ^ converto. See also 2
Hale, 246, 252. 3 Inst. 213. It may be
observed* as to the challenge of thirty-
five, that it was restored by I & 2 Ph.
&M. c. 10.

{h) Ante^ note (g).

(1) Hex v. Edwards, cor. Lawrence,
J. Stafford A^,yiS.

{k) 1 Hale 378. 2 Hals 184, 292.
Post. 328.

(0 Radboume's case, I Leach 457.
And see 1 Hale 305. 2 Hale 284. Post
328. The statutes 1 & 2 Ph. and M.
c. 13, and 2 and 3 Ph. & M. c 10. ex-
tend only to felonies.

(m) 1 Hale 378.

{n) 1 Hawk. P. C. c. 32. s. 2. 1 Bast.
P. C. C.5. s. 99. p. 336. At common
law, the son would have been guilty of
petit treason, though not a servant.
1 Hale 380.

CHAP. 11.] Of Petit Treason. 48^

sister^ may be a servant within the meaning of the statute, if she
acts as i<uch in the family (o). The murder of a mistress, or of a
master's wife, has been adjudged petit treason within the statute,
on the ground of those persons being within the meaning of the
word master^ which is used to signify any person to whom another
stands related as servant, {p) And the murder of a person by
one who was his servant, upon malice conceived during the service,
though it be not within the express words of the statute, is within
their meaning; for it is but the execution of the treasonable in-
tention of the party conceived while he was a servant. (9)

A wife, though divorced a mensd et tharoy is still within the Wife killing
statute, because the vinculum matrimonii subsists: but other- ^cr husband,
wise, if there be a divorce causd consanguinitatisj or pr^BCon^
tract&s; for then the vincnlnm is dissolved. (r) A wife de facto
is not sufficient; and therefore if A. be married to B., and during
that intermarriage marry C, the second marriage being merely
void, C. is not a wife within this law ; though perhaps she might,
under circumstances, be considered as a servant, if she cohabit
with A., and he find her necessaries for her subsistence, {s) But
a husband cannot be guilty of petit treason by killing his wife, for
there is no reciprocity of obedience and subjection. (/)

A clergyman is understood to owe canonical obedience to the Clergyman
bishop who ordained him, to him in whose diocese he iS beneficed, kiUiD^ his
and also to the metropolit^m of such suffragan or diocesan bishop ; "P*"®*'"
and, therefore, to kill any of these is petit treason. And if he
have livings in two dioceses, the bishops of both are his imme-
diate ordinaries; for he swears obedience to both.(M)

If a wife or servant procure a stranger to kill the husband or Of principals
master, in the absence of such wife or servant, neither the pro- ^^ acccsao-
curer nor actor are guilty of petit treason, but only of murder; "*
as it is an allowed maxim that the offence of an accessory can
never be of a higher kind than that of the principal. But, if the
wife or servant be either actually present when the crime is com-
mitted, or present only in the judgment of the law by being in
the same house, though not in the same room, such wife or ser-
vant will be deemed principals equally with the stranger, and they
will be guilty of petit treason, and the stranger of murder, {to)
If a wife procure a servant to kill the husband, she being absent,
it will be petit treason in the servant, and the wife will be an
accessary : \x) and it seems, that if a stranger procure a wife or
servant to kill the husband or master, such stranger may be in-
dicted as an accessory to petit treason. ( y)

If a servant and a stranger, or if a wife and a stranger, con-
spire to rob the husband or master; and the servant or wife be
present when the master happens to be killed in prosecution of

(o) Rex V. Edwards, ante^ note (0* (0 1 Hawk P. C. c. 3?. s. 9.

(p) 1 Hale 3S0. 1 Hawk. P. C. c. 32.^ (ti) 4 Blac. Com. S03. 1 East. P. C.

s. 3. c. 5. s. 101. p. 338. 1 Ha^ 3S1. 1

iq) 1 Hawk. P. C. c. 32. s. 4. 1 Hale Hawk. P. C. c. 32. s. 10.

380. 1 East. P. C. c. 5. s. 99. p. 336. («) 1 Hawk. P. C. c. 32. 9. 7. 1

(r) I Hale 380. 1 Hawk. P. C. c. 32. Hale 378, 379.

s. 9. 4 Blac. Com. 203. {x) 1 Hawk. P. C. c. 32. s. 8. 1

(0 I Hale 380. But the learned Ea«t. P. C. c. 5. s. 102. p. 338.

writer adds lamen qtucre. (y) 1 Hawk. P. C. c. 32. 8. 8.

2i2

JM Of Petit Treason. [book jh.

the original design, the wife or servant will be guilty of petit
treasqn. (s) And if a wife or servant intending to poison or kill
a stranger, the wife by mistake poison or kill her husband, or the
servant his master, this, which would have been murder if it had
taken effect against the stranger, becomes petit treason in the
death of the husband or master, (a)

The same rule holds throughout, mutatis mutandis, for an in-
ferior clergyman in relation to his superior. (£)
Of the judg- The judgment in petit treason is, that the criminal be drawn
SSion"^ ®*®" (on a hurdle), and hanged until dead, (c) It was formerly dif-
ferent in the case of women, who were adjudged to be drawn and
burned : but this was altered by the statute 80 G. 3. c. 48. by
which they are subjected to the same judgment in all respects as
men, and particularly with respect to the provisions of the statute
26 G. 2. c. 37. And it has been resolved by the Judges that the
judgment for dissecting and anatomizing, and touching the time
of execution, ought to be pronoimced in cases of petit treason,
though murder only is mentioned in the statute, and in that case
too that the time of executbn should be part of the judgment, {d)

(2) 1 Hale 379. (Dy. 188 a.) 1 JBast. afterwards the head shajl be aeTered

P. C. c. 5. 8. 102. p. 838. from the body, and the body be di-

(a) 1 Hale 379. Plowd. Com. 475 b. vided into four quarters.

(b) 1 East. P. C. c. 5. s. 102. p. 338. (d) I East. P. C. c. 5. s. 136. p. 372.,

(c) The sentence in high treason is and the case of Swan and Jefferys, U.
made similar to this b? a late statute, p. 373.

54 6. 3. c. 146. with the addition that

485

CHAPTER THE THIRD.

OF MANSLAUGHTER.

In this species of homicide^ malice^ which has been shewn (a) to
be the main ingredient and characteristic of murder^ is considered
to be wanting ; and though manslaughter is in its degree felo-
nious, yet it is imputed by the benignity of the law to human -
infirmity ; to infirmity which, though in tne eye of the law cri-
minal, IS considered as incident to the frailty of the human con-
stitution. (&) The punishment appointed for it is proportionably
lenient ; as (with the exception onlv of one sort of manslaughter,
which by the statute 1 Jac. I. c. 8. conmionly called the statute
of stabbing, is made a capital crime,) the offender is admitted to
the benefit of clergy.

In order to make an abettor to a manslaughter a principal in Of aiders and
the felony, he must be present aiding and abetting the fact com- a^'^"* *?<*
mitted. (c) But there cannot be any accessories before the fact ^ »c«c»wnci.
in manslaughter, because it is presumed to be altogether sudden^
and without premeditation, (d ) Thus, if the indictment be for
murder against A., and that B. and C. were counselling and abet-
ting 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, (e) There may, however, be accesr
sories after the fact in manslaughter. (/)

The several instances of manslaughter may be considered in the
following order : —

I. Cases of provocation.

II. Cases within the statute of stabbing, — 1 Jac. 1. c.8.

III. Cases of mutual combat.

IV. Cases of resistance to officers of justice, to persons acting
in their aid, and to private persona lawftilly interfering to
apprehend felons, or to prevent a breach of the peace.

(a) Ai^te, ¥t\^et tequ. (e) 1 Hale 437, 450.

ib) Fost. 290. 1 Hale 466. (/) 1 Hale 450. 1 East. P. C. c. 5«

{e) I Hale 4S8, 439, and see anie^ s. ISS. p. 353. This seems to have

4SI, ee tequ, as to what will be a pre- been doubted before the statute I'Ann.

seoce, aidihg and abetting. stat. 8. c. 9. a. 1. fS Hawk. P. C. c. 89.

(d) 1 Hale 437. 1 Hawk. P. C. c. s. 84) : but the effect of that statute

SO. t.*^. seems to have removed the doubt

486 Of Manslaughter. [book hi.

V. Cases where the killing takes place in the prosecution of

some other criminal, unlawful, or wanton act.
VI. Cases where the killing takes place in consequence of some
lawful act being criminally or improperly performed, or of
some act performed without lawful authority.

SECT. I.
Cases of Provocation.

Whenever death ensues from sudden transport of passion, or
heat of blood upon a reasonable provocation, and without malice,
it IS considered as solely imputable to human infirmity ; and the
offence will be manslaughter, {g) It should be remembered that
the person sheltering himself under this plea of provocation must
make out the circumstances of alleviation to the satisfaction of
the court and jury, unless they arise out of the evidence pro-
duced against him ; as -the presumption of law deems all homicide
to be malicious, until the contrary is proved. (A)
Words of pro- It has been shewn that the most grievous words of reproach,
vocation. contemptuous and insulting actions or gestures, or trespasses

against lands or goods, will not free the party killing from the
guilt of murder, if upon such provocation a deadly weapon was
made use of, or an intention to kill, or to do some great bodily
harm, was otherwise manifested, (t) But if no such weapon be
used, or intention manifested, and the party so provoked give the
other a box on the ear, or strike him with a stick or other weapon
not likely to kill, and kill him unluckily and against his intention,
it will be only manslaughter, {k)

It is, indeed, said to have been held in one case that words of
menace of bodily harm are a sufficient provocation to reduce the
offence of killing to manslaughter : (/) but it has been considered
that such words ou^ht, at least, to be accompanied by some act
denoting an immediate intention of following them up by an ac-
tual assault, (m)

But, though words of slighting, disdain, or contumely, will cot
of themselves make such a provocation as to lessen the crime into
manslaughter ; yet, it seems that if A. give indecent language to
B., and B. thereupon strike A., but not mortally, and then A.
strike B. again, and then B. kill A., that this is but manslaugh-
ter. The stroke by A. was deemed a new provocation, and the

ig) \ Hale 466. 1 Hawk. P. C. c. SO. p. 233.

80. Post. 290. 4BIac. Com. 191. 1 (/) Lord Morlcy's case, i Hale 455.

Past. P. C. c. 5. s. 19. p. 232. The same case is mentioned in Kel.

{h) Ante^ 422. 55. ; but no such position is there

(0 Jnte, 434, 435. sUted.

(k) Post 291. 1 East. P. C. c. 5. s. (m) 1 East. P. C. c. 5. s. 20. p. 233.

CHAP. III. §1.] Provocation, 487

conflict a sudden faUing out ; and on those grounds the killing
was considered as only manslaughter, (n)

Where an assault is made with violence or circumstances of Prorocation
indignity upon a man's person, as by pulling him by the nose, ^y sMAolt*
and the party so assaulted kills the aggressor, the crime will be
reduced to manslaughter, in case it appears that the assault was
resented immediately, and the aggressor killed in the heat of
blood, the furor brevis occasioned by the provocation, (o) So if
A. be passing along the street, and B. meeting him (there being
convenient distance between A. and the wall) take the wall of him
and justle him, and thereupon A. kill B., it is said that such
justling would amount to a provocation, which would make the
killing only manslaughter. And again it appears to have been
considered that where A. riding on the road, B. whipped the
horse of A. out of the track, and then A. alighted and kUled B.,
it was only manslaughter, (p)

But^ in the two last cases, it should seem that the first aggres-
sion must have been accompanied with circumstances of great
violence or insolence ; for it is not every trivial provocation which,
in point of law, amounts to an assault, that wUl of course reduce
the crime of the party killing to manslaughter. Even a blow will
not be considered as sufficient provocation to extenuate in cases
where the revenge is disproportioned to the injury, and outrage-
ous and barbarous in its nature : but, where the blow which gave
the provocation has been so violent as reasonably to have caused
a sudden transport of passion and heat of blood, the killing which
ensued has been regarded as the consequence of human infirmity,
and entitled to lenient consideration. Thus, where a woman,
after some words of abuse on both sides, gave a soldier a box on
the ear, which the soldier returned, by striking her on her breast
with the pommel of his sword; and the woman then running
away, the soldier pursued, and stabbed her in the back with his
sword 5 Holt, C. J. at first considered it to be murder : but, upon
its coming out in the progress of the trial, that the woman had
struck the soldier with a pittten on the face with great force, so
that the blood flowed, it was holden clearly to be no more than
manslaughter, {q) In this case, the smart of the soldier's wound,
and the effusion of blood, might possibly have kept his indigna -
tion boiling to the moment of the fact, (r)

Where a man has been injuriously, and without proper authority provocation
restrained of his liberty, the provocation has been considered su^- by rcstraininp
ficient to extenuate; as where a creditor placed a man at the «^"onofl>w
chamber door of his debtor, with a sword undrawn, to prevent him
from escaping, while a baiUff was sent for to arrest him ; and the
debtor stabbed the creditor, who was discoursing with him in the

(n) 1 Hale 455, where it is said, that East P. C. c. 5. s. 20. p. 9SS.
this was held to be manslaughter, ac- (p) 1 Hale 455. Lanure's case,
cording to the proverb, ** the second (9) Stedman's case, Old Bailej, Apr.

blow makes the affray;" and Lord 1704, MS. Tracy and Denton, 57. Post.

Hale says, that this was the opinion of 292. 1 East P. C. c. 5. s. 21 . p. 2S4.
himself and some others. (r) Post 292. See the case more

M Kel. 135. 4Blac. Com. 191. 1 fully stated irnf^ 436.

49B^ Of Mandaughter. {[book m.

cBamber. (s) And the Bame doctxine was held in a case where a
Serjeant in the army laid hold of a fifer, and inaisted upon carrying-
him to prison : the flfer resisted ; and whilst the seijeant had hold
of him to force him, he drew the Serjeant's swcMrd^ pliingedit into.
his body, and killed him. The serjeant had no right to make the
arrest, except under the articles of war ; and the articles of war
were not given in evidence. Buller^ J. considered it in two
lights : first, if the serjeant had authority ; aild, secondly, if he had
not, on account of the coolness, deliberation, and reflection^ with
which the stab was given. The jiuy found the prisoner guilty :
but the Judges were unanimous, that the articles of war should
have been produced ; and^ for want thereof, held the conviction
vsTong. {t)
Provocation Where a man finds another in the act of adultery with his wife,
by dctectingr and kills him in the first transport of passion, he is only guilty of
adulterer. manslaughter, and that in the lowest degree : (u) for the provoca*
tion is grievous, such as the law reasonably concludes cannot be
borne in the first transport of passion. But it has been already
shewn, that the killing of an adulterer deliberately, and upon re*
venge, would be murder, {w)
ProTocations lliere are instances, where sUgbt> provoeations have been oon^
v*ri*^*^h\ sidered as extenuating the guilt of homicide, upon the ground,
have'been^ai- ^^^^' ^^ conduct of the party killing iqK>n such pnyvocmtioiis.nught
lowed to ex- fairly be attributed to an ihtention to chastise, rather than to a
tenuate, where cfuel and implacable malice. But, in cases of this, kind, it must
ing has not *^^" ^PP^^y that the punishment Vas not urged with btiital^vioknce,
acted with cm- nor greatly disproportionate to the offence ; and the inslrunRnt
eity, or used must not be such as, from its nature, was likely to endanger
s^uaents. ^' life, (or) Thus, whete A. finding a trequBser on his land^ in the
first transport of his passion, beat him, and unluckily happened to
kin him, it was holden to be mandaughter : but it must be under-
stood, that he beat him, not with a mischievous intention, but
merely to chastise for the trespass, and to deter him from cam*
mitting it again, (y) And ^ of the case of the keeper of a park,
who, finding a boy stealing wood in his master's ground, tied him
to a horse's tail, and beat him, upon which the horse mnning
away, the boy was killed, («), it is said, that if the chastisement had
been more moderate, it had been but manslaughter; for, between
persons nearly connected together by civil and natural ties, the law
admits the force of a provt)cation done to one to be felt by the
other, (a) And, a Jbrtiori, if the master had himself caught the
trespasser, and beat him in such a manner as shewed a desirexioly
to chastise and prevent a^repetition of the offence^ but had uBfixr-

(ffVBackuer^s. case. Sty. 467. greiiler prpvocstion.

(/) Rex V. Withers, Mich. T. 1784. (w) Ante, 442.
MS. Bayley, J., and 1 East. P. C. c. 5. (x) Post. S91. 4 Blac. Com. 200.
8. SO. p. 233. This case is al^ cited (^> Post. Sdl. 1' Hale 473. Jm$6,

as to a point of evidence in Holt's 440.
case, 2 Leach, 594. (z) Halloway's case, Cro. Car» 131.

(ti) Manning's case, T: R^yni. 212> 1 Hale 458. 1 Hawk. P. a c. 81.

1 Ventr. 159. And' the court directed s. 49. Post. 292. .^ate, 440.
the bttrmng in the hand to be inflicted (a) 1 Bast. P. C c. S. 8. 22»:p. 237«
gently, because there could not be a

CMAV^ in. $ 1.] Pravocatum. ^^

tunfitsely, and against his intent^ killed him^ it would only have
been manslaughter, (b)

Where a peison, whose pocket had been picked, encouraged by Ducking a
a concourse of people, threw the pickpocket into an adjoining pickpocket.
pond, in order to avenge the theft, by duckii^^ him, but without
any appar»it intention to take away his life, and the pickpocket-
was drowned, it was ruled to be only manslaughter; for though
this mode of punishdient is highly unjustifiable and illegal, yet the-
law respects the infirmities and imbecslKties of human nature,
where certain provocations are given, (c)

In a case where the piisoner^s son having, fought with another Father takiof
boy akid been beaten, ran home to his father all bloody, and the "P^?*« q«an«i
father presently took a cudgel, ran three quarters^ of a mile, and' ° ^ "^°*
struck the other boy upon the head, upon which he died ; it was*
ruled to be manslaughter, because done in sudden heat- and fva-^
sioBz^d) but the true grounds of the judgment seem to have been*
that the accident happened by a single stroke given in heat . of:
blood, with, a cudgel, not likely to destroy, and that death did not
immediately ensue, (e) .

Smend other cases are reported, in which the nature of the in- Nature of the
strament used led to a lenient consideration of the homicide, on ^°J^™^?^
the ground that such iostrumentwas not likely to endanger life, party killing.
Thus^ where a man, who was sitting driirkinjgin an alehouse, being*
called by a woman ^^ a 8on>of a whore,'' took up a broomStaiF, and
threw it at her. from a distance, and killed her ; the Judges were
not unanimous, and a pardon was advised: and the doubt appears
to have arisen upon the ground that the instrument' was not such
as eottU probably, at the given distance, have occasioned death^.
or great bodily harm. (/) A similar doubt appears to have been
entertained in the following case, which was stated in a special
verdict. A mother-in-law employed her daughter-in-law, a child
of ten years old, to reel some yam ; and finding some of the skains
knotted, threw a four-legged stool at the child, which struck her
on the right side of the head, on the temple, and caused her death
soon afterwards : the verdict stated, that the stool was of sufficient
size and weight to give a mortal blow ; but that the mother-in-law
did not intend, at the time she threw the stool, to kill the child, {g)
And in a case where the prisoner had struck his boy with one of
his clogs, because he had not cleaned them, it was held to be only
manslaughter, because the master could not, from the size of the
instrument he had made use of, have had any intention to take
away the boy's life. (A)

In a case where the prisoner, who was a butcher, had employed

(b) 1 East P. C. c. 5. s. 22. p. 837. (^) Hazel's case, 1 Leach S68. The.

(e) Fray's case. Old Bailey, 1785. question whether this was murder or

1 Hawk. P. C. c. 31. 8. 38. 1 East. P.O. manslaughter was considered as of

c. 5. s. 82. p. 236. great difficulty, and no opinion was

(d) Rowley's case, 12 Rep* 87. I ever delivered by the Judges.

Hale 453. (h) Turner's case. Comb. 407, 408.,

(e) Post 894, 895. Cro. Jac. 896. and cited in 1 Ld. Raym. 148, 144. 8
Godb. 188. See the case ante^ 4S8, Ld. Raym. 1498. The clog was ^ small
^3fi« one ) and Hok, C. J. said, that it was

(/) 1 Hale 455, 456. 1 £«t..P. (a: an unlikely thtog to kill tke boy.
^ 5. s. 88. p. 836.

490 Of Manslaughter. [book hi.

a boy to tend some sheep^ which were penned, who negligently
suffered some of the sheep to escape through the hurdles, upon
which the prisoner, seeing the sheep get through, ran towards the
boy, and taking up a stake that was lying on the ground, threw it
at him, and with it hit the boy on the head, and fractured his
skull^ of which fracture he soon afterwards died ; Nares, J. told
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 the circumstaqces, and in the particular situa-
tion, an improper instrument for the purpose of correcting the
negligence of the boy. And that, if they thought the stake was
an improper instrument, they should further consider, whether it
was probable that it was used with an intent tb kill: if they
thought it was, that they must find the prisoner guilty of mur-
der; but on the contrary, if they were persuaded that it was not
done with an intent to kill, that the crime would then amount,
at most, to manslaughter. The jury found it manslaughter, (t )

It has been before shewn, that the plea of provocation will not
avail in any case, where it appears, that the provocation was
sought for and induced by the act of the party, in order to afford
him a pretence for wreaking his malice ; ijc) and that even where
there may have been previous struggling or blows, such plea
cannot be admitted, where there is evidence of express malice. (/)
It has also been observed, that in every case of homicide upon
provocation, how great soever that provocation may have been,
if there were sufficient time for passion to subside, and reason
to interpose, such homicide will be murder : (m) and it should
always be remembered, that where a party relies upon the
plea of provocation, it must appear that, when he did the fact,
he acted upon such provocation, and not upon any old grudge.(ii)

SECT. II.
Cases within the Statute of Stabbing, — 1 Jac. 1. c. 8.

iJac. l.c.8. By this statute, "every person and persons, who shall stab

"* * '^ or thrust any person or persons, that hath not then any weapon

** drawn, or that hath not then first stricken the party which

^^ shall so stab or thrust, so as the person or persons so stabbed or

" thrust shall thereof die within six months then next following,

(0 ^iggs's case, reported id a note (k) Ante, 448.

to Hazel^ case, 1 Leach 378. If, how- (/) Ante, 440, 441.

ever, the instniment used is so im- ■ (m) Ante^ 442. Fost. 896.

proper, as manifestly to endanger life, (fi) 1 Hale 461. 1 East. P. C. c 5.

It seems that the intention of the party s. 83. p. 8S9. See Mason^s case, aair,

to kill will be implied from that cir** 440, et sequ,
cumstance. utffilra4S8»439, 461.

CHAP. HI. ^2.] Statute of Stabbing. ^1

" although it cannot be proved that the same was done of malice
aforethonght; yet the party so offending, and being thereof
convicted by verdict, confession^ or otherwise, according to law,
*^ shall be excluded from the benefit of clergy, and suffer death,
** as in case of wilful murder." There is a proviso that the act
shall not extend *^ to cases of self-defence, misfortune, or in
** any other manner than as aforesaid ; nor to any person, who
^^ shall commit manslaughter, in preserving the peace, or chastising
" or correcting bis child or servant."

This statute was made on account of the frequent quarrels, and L«n»«nt «»-
stabbings with short daggers, between the Scotch and the English, {he^gtatote.
at the accession of James the First ; and as it was intended to
meet a temporary evil, it would perhaps have been better if it had
expired with the mischief it was meant to remedy, (o) It has
been considered as a rigorous statute, of doubtful expediency ; {p)
and, accordingly, construed, by the benignity of the law, so
favourably in behalf of the subject, and so strictly when against
him, that the offence of stabbing is left by this statute {dmost
upon the same footing as it stood at common law. (q) Indeed,
it was agreed by the Judges, in Lord M orley's case, that the sta-
tute was only declaratory of the common law ; (r) and it was the
opinion of Mr. Justice Foster, that whenever the defendant is in-
dicted at common law, and also upon the statute, {s) the most im-
portant question will be, whether the fact, upon the evidence, is or
is not murder at common law. (t) And Glyn, C. J. said, upon an
indictment on this statute, that, in order to bring a case within
the meaning of the act, there ought to be malice, {u)

All circumstances which, at common law, will serve to justify,
excuse, or alleviate, in a charge of murder, have always had their
due weight in prosecutions grounded on this statute ; anct, in the con-
struction of it, one general rule may, it is conceived, be safely laid
down ; namely, that in all cases of doubt and difficulty the benig-
nity of the common law ought to turn the scale, (tc) Thus, though
the words of the statute are very general ; yet many cases coming

(o) 4 Blac. Com. 193. 1 Ld. Rayin. fence of stabbing, where death does

140. It was continued by 16 Car. 1. not ensue, provision has been made

e. 4. till some other act shall be made, by the 43 G. 3. c. 58., which will be

touching the continuance or disconti- stated in a subsequent Chapter,

nuance thereof. (r) Lord Morley's case, Kel. 55. 1

(p) Fosl. ^09, SCO., where Mr. Jus- Hale 456. Post. S98.

tice Foster says, *' Let me add, that (t) " A prisoner, whose case may be

*' if the outrages at whi'ch the statute " brought within the letter of the act,

** was levelled had been prosecuted " commonly is arraigned upon two

*' with'due vigour and proper severity ** indictments, one at common law

" upon the foot of common law, I ** for murder, the other upon the sta-

'* doubt not an epd would soon have " tute; and if it cometh out in evi-

'* been put to them, without incum- '* dence, that the fact vras either justi-

*' bering our books with a special act '' £able, or amounted barely to man-

" for that purpose, and a variety of *' slaughter at common law, it hath

" questions touching the true extent ** been rarelv known, that such per-

** of it This observation will hold " son hath been convicted of man-

with regard to many of our penal '* slaughter upon the statute." Fost.

statutes, made upon special and 899.

pressing occasions, and savouring (/) Fost. 301, 302. \

rankly of the times.** (u) Buckner*s case. Sty. 467.

(q) 4 Blac. Com. 193. As to the of- (w) Fost. 898, 908.

• 4

4d^

Of Manslaughter.

[book If r.

No acceBSO-
liesy nor aiders
and abettors.

Particular
points upon
the construc-
tion of the
stetute.

Meaning of
the woids
*' *tab or
thniit."

Tnthin the letter of the act, and not covered by any of the excep-
tions in the proviso, have been very rightly adjudged not to be
within its meaning, (x) By this construction, the case of an adol-
tetter, stabbed by the husband in the act of adultery, has been held
not to be within the act, but manslaughter at common law.(y) So
where a man assaulted by thieves in his house, stabs one of them,
thb thieves having no weapon dralvii, nor having struck him, it is
not within the statute, but justifiable homicide ; (2) and where,'
upon an outcry of thieves in the night time^ a person, Tiiio was
concealed in a closet, but no thief, was in the hurry and surprise
stabbed in the dark, it was considered as an innocent mistake, and
ruled to be homicide by misadventure, (a) And where an officer
pushed violently and abruptly into a gentleman's chamber early in
the morning, in order to arrest him, not telling his business, nor
Using words of arrest ; and the gentleman, not knowing that he
was an officer, under the first surprise, took down a sword that
hung in the chamber, and stabbed him ; it was ruled manslaughter
at common law, though the defendant was indicted on the statute;
for the defendant, not knowing the officer's business, might, from
his behaviour, have reasonably concluded, that he came to rob or
murder him. {b)

There are no accessories within this statute: (c) and it has been
holden, that persons present, aiding and abetting, though, at com-
mon law, principals in the manslaughter, are not within the statute ;
and therefore, where several persons were indicted upon it, and it
did not appear which of them made the thrust at the party killed,
they being all present, it was held that they could only be convicted
of fnan'slaughter at common law, and must have their clergy, {d)

It may be proper to mention some of the questions, which have
been raised and decided upon the construction of this statute ;
mote particularly as to the meaning of the words ^^ stab or thrust;"
as to the person ''that hath not then any weapon drawn ;" as to
what is considered as '' a weapon drawn ;" and as to the meaning
of the words '' that hath not then first stricken the party, which
'' shall so stab or thrust."

Under the words *' stab or thrust," shooting with any sort of
fire arms, and thrusting with a sta£F, or any other blunt weapon,
have been brought within the act : and the case of shooting with
fire arms will govern the cases of sending an arrow out of a bow,
or a stone from a sling, or using any device of that kind, holden in
thb hand of the party at the instant of discharging it. {e) The

(jr) Post 898. 4 Blac. Com. 19S.

(^) 1 Hale 486. I Yentr. 158. Sir
T. Rayin. 819. Post 898.

(«) Sty. 469. Post. 898.

(ir) 1 Hate 474. Cro. Car. 538. Tost
899.

(») rHik]e470$ and see Kel. 1S6.
Post 898, 899.' 1 East P. C. c. 5. s.
89. p. 851,. where it is said, that per-
haps there were circomstances in the
case not mentioned, which mi^bt rea-
sonably induce such a suspicion, and
raise such afe&r as might fall in cm^
•Umiem v&um.

(e) 1 East P. C. c. 5. s. 89. p. 847.

(1/) 1 Hale 468. 8 Hale 344. Post
301 . Alleyn 44. 1 Hawk. P. C. c. 30.
s. 7. Sty. 86. 1 East P. C. c, 5. s. 89.
p. 847.

(e) 1 Hale 469. Post 300. Lord
Hale, after saying that if the stabbing,
or thpustinjp were with a sword, or with
a pikestaff, it is within the statute,
says, — So it seems, if it be a shot with
a pistol, or a blow with a sword or
staff*. ** Tei^ quare § for JantSf JMi"
tice, denied tl."

CHAP. III. ^ 2.] StatuU of Stabbing. 493

case of thrusting with a blunt weapon is supposed to have heen in
the contemplation of the Legislature, as otherwise it would not be
easy to account for the exception with regard to the correction of
children or servants : (/) but it is elsewhere said, that the kilHng
a person with a hammer, or such like instrument, which cannot
properly come under the words ^^ thrust," or ^' stab," is not a kill-
ing within the statute ; (g) and certainly throwing at a distance,
and wounding the party, whereby death ensues, the weapon^ be it
what it may, being delivered out of the hand at the time the stroke
is given, is not considered with strict propriety to come within the
terms ^^stab" or ^' thrust/' {h) It maybe added, that the stab or
thrust onght to be made with a weapon or instrument from which
danger was likely to ensue, (t)

As to the ^' person or persons, that hath not then any weapon Who shaU be
*^ drawn," it has been properly holden, that these words extend to mW to be a
any other person, acting in concert upon the same design with the ^^^knottkeu
party killed : {k) and if two assault a third person, and one of them " any wa^
strike him, and he kill the other who did not strike, he is not "^^^'*
within the statute ; for it is the assault and striking of both. (/)
The Judges were once divided upon the construction of the word
then — the party killed ^^ not having then any weapon drawn,"* —
and the point in debate was, whether the word then was to be
confined to the instant the stab was given, or whether it related to
the whole time of the combat, (m) The circumstances were these.
Upon mutual words of reproach between Hunter and De Loy^
the former struck the latter with his hand ; whereupon De Loy
attempted to draw his dagger at Hunter : but, being prevented by
the company present, he threw a pot at him, and missed him ; on
which Hunter gave De Loy the mortal wound with his sword.
Those who were for the conviction admitted the pot to be a wea*
pon drawn, as long as it was in De Loy's hand ; but thought that
after he had thrown it out of his hand, without hurt done, and
was afterwards stabbed, the case fell within the statute. On the
other hand it was maintained, that the word then referred to the
time of the fighting or controversy^ and not to the immediate in-
stant of the wounding : and they thought it unreasonable that one
having a weapon drawn at one time during the controversy, and
having done all the mischief he could with it, should be within the
protection of the statute, which was made to prevent the sudden
killing of men without provocation or defence ; and they compared
it to Sie case of two wno are fighting, and one lets fall his sword,
or it is beat out of his hand, and he is then killed ; which cases,
they conceived, could not be brought within the statute, (n) It is
said, that the latter opinion being more conformable to the princi-

(/) Post. 300. Williams in Mawgridg^'s case, Kel.

ig) I Hawk. P. C. c. SO. s. 8. 131.

(A) Newman's case, Old Bailey, 8 (t) I East. P. C. c. 5. s. 29* p. 848.

Amie, where the point of a sword was (k) Id. Udd.

thrown at twenty yards* distance; MS. (/) Rex v. Buckner, Sty. 467. 1

Deoton and Chappie. 1 East. P. C. c. East. P. C. c. 6. s. 89. p. 848.

5. s. 89. p. 848. and Williams's case, (m) Post. SOI.

1 Hale 468. W. Jones 488, where a (») Rex v. Hunter, S Lev. 855. 1

hammer was thrown ; and see the opi- East P. Q. c. 5. s. 89. p. 848, 849.
nion of Holt, C. J. as to this case of

2

494;

Of Manslaughter.

[book III.

What is con-
sidered as " a
** weapon
" drawn,"

The meaning
of the words
** that hath not
**then/lrtt
" stricken the
•* party f which
*'shaUtottab
''orthrmt.*'

plea of the common law^ in a case where the meaning of the statute
is at least doubtful, seems most to be relied upon ; more especially
BS the prisoner in this case finally had his clergy : and it is laid
down as a rule^ that if the party killed be at any one instant of
time during the controversy out of the protection of the statute,
between which time and the time of receiving the mortal wound
the common law would allow for the prisoner's blood con-
tinuing to be heated, the case will not be governed by this sta-
tute, (o)

' An extraordinary cudgel, or other thing proper for defence or
annoyance in the hand of the party, has been considered, as a
weapon drawn, so as to take the case out of the statute ; though
the words, ^^ a weapon drawn" seem rather to import a sword or
other weapon of that kind, drawn out of the scabbard, {p) But it
has been already shewn, that this statute has been construed with
reference to its rigorous nature ; and, upon the same principles,
the discharging a pistol, or throwing a pot, or candlestick, or
other dangerous weapon, at the party, has been holden to be within
the equity of the words, " having a weapon drawn." (g) This
construction, however, does not extend to such an instrument as
may not probably do hurt, such as a small riding rod or cane ; (r)
and, therefore, what was said by Glyn, C. J. {s) that a tobacco-
pipe had been adjudged a weapon drawn, may admit of ques-
tion, {t)

The meaning of the words, 'Hhat hath not then ^rst stricken
'^ the party, which shall so stab or thrust," was questioned in a
case, in which it was ultimately decided that the words " not hav-
" ing first stricken" signify, not havifig given the first blow in the
affray, {u) But one of the Judges {w) was of a different opinion ;
and thought that the meaning of the words was, not having struck
before the mortal wound was given : and this latter opinion, not-
withstanding the decision of the case, has been approved by great
authorities, the view and spirit of the statute having been more
{idly sifted and understood. Holt, C. J. says of the decision in
that case, that it was against the natural order of the words, and
the obvious meaning of the act. (x) And Mr. Justice Foster
thought that the arrangement of the words, as they stand in the
statute, seemed to have been inverted, and a construction extorted
from them, of which the Legislature never dreamt, (y) Hawkins
says expressly, that wherever a person, who happens to kill an-
other, was struck by him in the quarrel, before he gave the mortal
wound, he is out of the statute, though he himself gave the first
blow 3 (z) and Mr. Justice Blackstone speaks of this as the better
opinion, (a)

It is also said, that it may be well to consider, whether these
words, ^^ having first stricken,^' &c. mean any thing more than
having first assaulted, &c.; and, therefore, whether the attempt to

(o) I East. P. C. c. 5. s. S9. p. 249.

{p) Post, 300, SOI. 1 Hale 470.

(9) 1 Haiik. P. C. c. 30. s. 8.

(r) 1 Hale 470.

(«) Rex V, Buckner, Sty. 468.

(0 1 East. P. C. c. 5. s. 89. p« 2bO,

(«) R«x V. Byard, W. Jones 340.

(tr) Richardson, J.

(x) Skin. 668.

(y) Post. 301.

(z) 1 Hawk. P. C. c. 30. s. 6.

(a) 4 Blac. Cooi. 193.

CHAP. III. § 3.] Mutual CdHibat 495

strike, being in law an assault, and equivalent to an actual strik-
ing, is not equally within the plain intent of the act as the stroke
itself. (6)

SECT. III.
Cases of Mutual Combat.

9

Instances of mutual combat in which, from the deliberate con- Manslaughter
duct of the parties^ from some undue advantage taken by the party J.° ™^'"*^
killing, or from the violent conduct which the party killing pur-
sued in the first instance, the conclusion of malice has been drawn,
and the killing has consequently amounted to murder, have been
shewn in the preceding Chapter, {c) We have now to consider
those cases where, upon words of reproach, or any other sudden
provocation, the parties come to blows, and a combat ensues, no
undue advantage being sought or taken on either side : for if death
happen under such circumstances, the offence of the party killing
will amount only to manslaughter, (rf)

If, therefore, upon a sudden quarrel, the parties fight upon the Sadden quar-
spot, or if they presently fetch their weapons, and go into a field "'•
and fight, and one of them be killed, it will be but manslaughter^
because it may be presumed that the blood never cooled, (e) And
it must be 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 condescen-
sion to the infirmities of flesh and blood, has extenuated the
offence. (/)

If two draw their swords \ipon a sudden quarrel, and one kills Walton's case,
the other, it is only manslaughter. Sir Charles Pym with one
party, and Mr. Walters with another parUr, dined at a tavern ;
and on coming out Sir Charles P. and Mr. W. quarrelled and
drew their swords, and Mr. W. ran Sir Charles P. through the
body, and he died. There was no evidence of any unfair advan-
tage taken by Mr. W.; nor could the witnesses say more than*
that they heard them quarrelling, saw their swords drawn, and
the sword through Sir Charles P.'s body ; and it appeared that the
parties did not know each other before. When Sir Charles P. fell,
Mr. W. took him by the nape of the neck, dashed his head upon
the ground, and said, " Damn you, you are dead." Jenner, B.
told the jury 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 AUibone, J. repeated to them that it
was manslaugliter only, and they found accordingly, (a)

(ft) 1 East. P. C. c. 5. s. 29. p. 370. 31. s. 89. 3 Inst. 51.

(c) j4nte, 443, et seq. (/) Post 138, 896.

(<0 Post. 295. (a) Rex v, WaltefS and others, 18

(e) 1 Hale 453. 1 HaMfk. P. C c. St. Tr. lU.

496 OfMamlaugbter. [bd<«; ni.

Lord Byron'f Lord Byron and Mr. Chaworth differed at a dub as to tbe best
^^^*^' means of procuring game. Mr. C mentioned Sir X3. Sedkj's

manors ; Lord B. asked wliich they were ; Mr. C. named NutUiII
and another ; Lord B. repeated his question : Mr. C. said^ ^ Surely
*' you will allow Nuttall to be Sir C. Sedley's : but if you have
" any thing more to say, you will find Sir C. Sedley in Dean
*^ Street, and me in Berkeley Row/' The conversation then
dropped, and they stayed together at least half an hour ; and Lord
B. during that time conversed with a gentleman who sat next him:
Mr. C. settled the bill, buit made a mistake in marking the dub
room, which might arise from agitation; he 'marked Lord B. as
absent, though be was there. Mr. C. then went out, and a Mr.
Ponston followed him, of whom Mr. (J. asked if he had been
short with Lord B. in what he said last to him ; to which Mr.
Donston ai^swered ^^ No,'' and was returning into t^e rocnn, when
he met Lord B. coming out. Lord B. said to Mr. C, '^ I want to
^pe^ to yQu;" upon which they both caUed the waiter, and were
shewn into a small room, and the waiter left a candle in the room.
Lord B. asked Mr. C. if he meant tbe conversation upon game to
Sir C. Sedley or to him; upon whicii Mr. C. said, ^* if you have
^^ any thiag to say we bad better shut the door, or we shall be
" heard," and he shut the door. On turning from the door he
saw Lord B/s eiwotd hall drasvn, and I^rd B. said, '^ Draw, draw."
Mr. C. drew, and thrust at Lord B.; and after one or two thrusts
}Ar. C. received a mortal wound of which he died. An indict-
ment was preferred for murder : but upon the trial the peera (123)
were unanimous that it was manslaughte^r only. (&}
Ayes'scMc. In a case where there had been mutual blows, and then, upon

one of the parties being pushed down on the ground, the other
^tamped upon his stomach and belly with great force and thereby
killed him, it was considered to be only manslaughter. The de-
ceased, who was 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 cla-
mour 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 tbe ground, two or three stamps with great force with his
right foot on the stomach and belly; and afterw^ds, 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 cau^ 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 the learned Judge by whom the prisoner was tried,
thinking that the case required further consideration, reserved it

{b) Bex V. Lord B>ron, 11 St Tr. 1177.

€HAP. ill. ^ S.] Mutual Combat. 497

for thdt parpose, and the Judges were of opinion that it was only
a case of noanslaughter. (c)

A. uses provoking language or behaviour towards B., and B. Tint blow itn-
atrikes him, upon which a combat ensues^ in which A. is killed. ™»*«"ji» ^
This is holden to be manslaughter; for it was a sudden affray, deolTiid^ ~

com-

and they fought upon equal terms ; and in such combats, upon bat equal,
sudden quarrels, it matters not who gave the first blow, (g) But
it would be otherwise, if the terms were not •equal, and if the
party killing sought or took undue advantage ; as if B., in the
foregoing case, had drawn his sword, and made a pass at A., the
sword of A. being then undrawn, and thereupon A. had drawn,
and a combat had ensued, in which A. had been killed : for this
would have been murder, inasmuch as B., by making the pass,
his adversary's sword being undrawn, shewed that he sought his
blood. (A) And A.'s endeavour to. defend himself, which he had
a right to do, will not excuse B. : but if B. had first drawn, and
forborne till his adversary had drawn too^ it had been no more
than manslaughter, (t)

And such an indulgence is shewn to the frailty of human na*
ture, that where two persons, who have formerly fought on
malice, are afterwards, to all appearance, reconciled, and fight
again on a fresh quarrel^ it shall not be presumed that they were
moved by the old grudge, unless it appear by the whole circum-*
stances of the case, {k)

Though, from the preceding cases, it appears, that not only the if the combat
occasion must be sudden, but that the party assaulted must be ^ equal at the
put upon an equal footing in point of defence at the onset, to save of a^deadly*^
the party making the first assault and killing from the guilt of weapon after-
murder ; yet if, on any sudden quarrel, blows pass without any ^^^ ^ °®^
intention to kill or injure another materially, and in the course of f^nce more '
the scuffle, after the parties are heated by the contest, one kill than man-
the other with a deadly weapon, it will only amount to man- »ia»>g'»'«'r«
slaughter. (/) But we have seen that the conclusion would be
different if there were any previous intention or preparation to
use such a weapon in the course of the affray, (a)

John Taylor, a Scotch soldier, and two other Scotchmen, were Taylor's case.
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 Taylor and his company, on which Taylor 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 ser-
vant with his fist. The servant who was struck went out of the
room into the yard, to fetch his fellow-servants to turn Taylor
and his company out of the room; and, in the mean time, an
^tercation ensued between Taylor and the deceased, who was the
owner of the house^ but not the occupier, and who had come

<c) Rex V. Ayes, East. T. IS 10. 895.
MS. Bayiey, J. and Russ. & Ry. 166. {k) 1 Hawk. P. C c. 91. s. SO. 1

(g) Fost. 295. 1 Hale 456. « Hale 458, and see ante, 446, 447.

(h) 1 Hawk. P. C. c. 31. s. 87. Fost (/) 1 East. P. C. p. 5. s. 26. p. 84S«
895. And see ante, 445. {m) Anie^ 446.

(i) 1 pawk. P.C. C.31. •.88. Fost.

vol.. I. 2 k

408 Of Manslaughter. [bookim.

into the room after the servant went into the yard. He innated
that Taylor should pay for his liquor, and go out of the house ;
and Taylor, 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 hin&
down against a settle. Taylor then paid for the liquor ; where-
upon the deceased hud hold of him again by the collar, and
shoved him out of the room into the passage : and Taylor 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 Taylor's collar ; and together they violently pushed
him out of the door of the alehouse : whereupon Taylor mstantly
turned round, drew his sword, and gave the deceased the mortid
wound. This was adjudged manslaughter, (m)
Snow's case. In another case of a similar kind, where the jury had found the
prisoner guilty of murder, the followiag facts were stated for the
opinion of the Judges. The prisoner, whose name was WiUiam
Snow, and who was a shoemaker, lived in the same neighbour-
hood as the deceased, and at no great distance from him. On
the afternoon of the day mentioned in the indictment, the pri-
soner, very much intoxicated by liquor, passed accidentally by
the house of the deceased's mother, wUle the deceased was
thatching an adjacent barn. They entered into conversation :
but on the prisoner's abusing the mother and sister of the de-
ceased, 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 fece with her hand, and prevented
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. Ms 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 vou are gotfhmi
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, ai^d 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 haid with
the other hand, that the deceased could not disengage himsdf*
He made, however, a vigorous effort, and by that means drew
the prisoner from the ground ; and during this struggle the pri*
soner gave a blow, on which the deceased immediately exclaimed,
'* The rogue has stabbed me to the heart ; I un a dead man ;"
and expired. Upon inspection, it appeared, that he had received

(»)Rex V. Taylor, 5 Burr. 279a. 1 Hawk^P.C. c SI. 8.99*

CHAP. ni. $ 3.3 Mutual Combat. 499

three wounds, one very Bmall on the right breast ; another on the
left thigh, two inches deep, and half an inch wide ; and the mor-
tal wound on the left breast. After great argument and considera-
tion, the Judges determined that the o&nce was only man-
slaughter, (n)

It appears that the Judges thoueht^ in this case, that there was
not sufficient eridence that the prisoner lay in wait for the de-
ceased^ 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 or
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 concealed 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
ottcnce only amounted to manslaughter; and the prisoner was
recommended for a pardon. (0)

It is said, that he shall be adjudged guilty of manslaughter. Third person
who seeing two persons fighting together on a private quarrel, interfering on
whether sudden or malicious, takes part with one of them, and ojJere.""^' ^
kills the other, (p) And it seems clear that if a master, malicious-
ly intending to kiU another, take his servants with him vrithout
acquainting them with his purpose, and meet his adversary, and
fight with him, and the servants, seeing their master engaged^ take
part with him, and kill the other, they would be guilty of man-
slaughter only, but the master of murder, (a) From this it fol-
lows, a fortiori, that if a man-servant or friend^ or even a stranger,
coming suddenly, and seeing him fighting with another man, side
with him, and kill the other man, or seeing his sword broken
send him another, wherewith he kills the other man ; such ser-
vant, friend^ or stranger, will be only guilty of manslaughter, (r)
But this supposes that the person interfering 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, come in and take part against B.^ and kill 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 &r 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. And the law is the

(») Rex «. Snow, I Leaeh. 161. Hale 498. Plow. Com. 100 b. Rex

{o) 1 Easl. P. C. c. 5. s. S6. p. €46. v. Salisbury,

whe cites Seijeant Foster's MS. (r) 1 Hawk. P.C. c. 91. s. 6S» J

(p) 1 Hawk. Pi C. €. 91. 8. 95. East. P. C. c. 5. 8. 58. p. 896.
(q) I Hawk. P^C. c. 31. s. 55. 1

2k2

• _

608 Of Manstaughter. [book hi.

same in the case of the master killing the other in defence of the
servant, (s)

If two persons be fighting, and another interfere with intent to
part <theni/ but do not signify such intent, and he be killed by
one of the combatants, this is but manslaughter. (/) And if a
third person should take up the cause of one who has been
worsted in mutual combat, and should attack the conqueror, and
be killed by him, the killing would, it seems, be manslaughter.

A. and B. were walking together in Fleet^sireet, 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 made towards A., who retreated
ten or twelve jrards; and€. pursuing him. A* drew his sword,
made « pass at C, and killed him. A. being indicted for murder,
the court directed the jury to find it manslaughter ; not murder,
because it was upon a sudden falling out; not «e defendendon
partly because A. made the first breach of the peace by striking

B. I 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 uppor-
tunity to draw his sword, and with more advantage to come upon

C. than to avoid him: and accordingly, at last, it was found
manslaughter, (u)

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 : and this was held manslaughter, because it hap-
pened upon a sudden motion in revenge of his fnend. {w) But it
must be intended that the two men who fell out were actually
fighting together at the time ; for if words only had passed be-
tween them, it would have been murder ; nothing but an open
affray or striving being such a provocation to one person to med-
dle with an injury done to another as will lessen the offence to
. manslaughter, if a man be killed by the person so meddling, (x)

Though Lord Hale and others appear sometimes to intimate
a distinction between the interference of servants and friends, and
that of a mere stranger, yet the limits between them do not ap-
pear to be any where accurately defined* And it has been observed,
that the nearer or more remote connexion 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 in-

<«) 1 East P. C. c. 3. s. 59. p. S92, Kel. 66.

and ibeaotborities there cited. 1 Hale (u) I Hale 482, 48S. A case at Nem'

484. So Tremain says> that a fervant i^af^, 1671.

may kill a maa to save the life of his (w) IS Rep. 87.

master, if he cannot otherwise escape. (x) See the opinion of the Jod^

91 H. 7. c. 39. Plowd. Com. 100. 1 in Rex v. Huggett, Kel. 59, and 1 Etft

litS. Sura. P. C. c. 5. s. 89. p. 388, 389.

(0 I East. P; C. c. 5. s. 59. p. 898.

cUap. in. § 4.] Resisting Officers and Others. 501

duced the interference, than as fumisfaing any precise rule of law
grounded on such a distinction. (y)

As a blow aimed with malice at one individual, and by mistake Blow intended
«r accident falling upon another and killing him, will amount to J^nlLitUir *
murder ;(8) so if a blow intended against A. and lighting on B. on another,
arose from such a sudden transport of passion as, in case A. had
died by it, would have reduced the offence to manslaughter, the
fact will admit of the same alleviation^ if it should happen to
kill B.(a)

A quarrel arose between some soldiers- and a number of keelmen Brown'f cuei
at Sandgate ; and, a violent affray ensuing, one of the soldiers was
stripped, and a party of five or six came up and beat him cruelly.
A woman called out from a window, '^ You rogues, jou will murder
the man." 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 pass-
tige to save himself. The prisoner returned, and asked if they
had murdered his comrade ; and the people came back, and as-
saulted him several times, and then ran from him. He some-
times 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 Judges were clearly of opinioxt.
that this was only manslaughter. (A)

SECT. IV.

Cases of Resistance to Officers of Justice ;- to Persons acting in their-
Aid; and to Private Persons lawfully interfering. to apprehend
Felons, or to prevent a Breach* of the Peace.

It has been before mentioned as a general rule^ that where per-
sons having authority to arrest or imprison, and using 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, (c) But
this protection of the law is extended only to persons who^

iy) 1 East P. C. c. 5. s. 5S. p. 892. (^ Brown^s case, 1 Leach 148. L

(z) AnU, 459. East P. C. c. 5. s. 27. p. 245, 246.

\fl) Post. 262. (c) AntCy 449.

pOi Of Manslaughter. [book. ih.

have proper authority, and who use that authority in a proper
manner; (a) wherefore questions of nicety and difficulty have
frequently arisen upon the points of authority, legality of jHnocess,
notice, and regularity of proceeding : and as the consequence ci
defects in any of these particulars is in general that the oBeoce of
killing the person resisted is extenuated to manslaughter, it will
be proper in this place to consider some of those questions which
have met Mdth judicial decision.
^^^otityot rjt^^ authority to arrest and imprison is greater in cases of
pcbmtow- felony than in matters of mere misdemeanor; and least of all in

TCft and im- civil SuitS.

Sffelon'^^*'^ If a felony be conunitted, and the felon fly from justice, or a
dangerous wound be 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 d fortiori, if hue and cry be levied, all who join
in aid of those, who began the pursuit, will be under the same
protection of the law: and the same rule holds, if a felon, after
arrest, break away as he is being carried to gaol, and his pur-
suers cannot retake him without killing him«(«) Thus wheie^
upon a robbery committed by several, the party robbed ndsed
hue and cry, and the country pursued the robbem, and one of the
pursuers was killed by one of the robbers, it wis held that this
was murder, because the country, upon hue and ciy levied, are
authorised by law to pursue and i^rehend the otwleractora; and
that, although there were no warrant of a justice of the peace^ to
raise hue and cry, nor any constable in the pursuit, yet the hoe
and cry was a good warrant in law for the pursuers to apprehend
the felons; and that, therefore, the killing of any of the pursmers
was murder, (/)
Anthority of Bq^ ^here private persons use their endeavours to bring fidons
sons^to tfrest ^ justice, some cautions ought to be observed. In the first place,
&c. in caaea of it should be ascertained that a felony has actually been coounitted^
felony. qj. i]^^^ ^^^ actual attempt to conmiit a felony is being made by the

party arrested : for if that be not the case, no suspicion, however
well grounded, will bring the person so interposing within the
protection which the law extends to persons acting with proper
authority. (^) If it is clear that a felony has been committed, the
next consideration will be, whether it was committed by the person
intended to be pursued or arrested; for, supposing a felony to have
been actually committed, but not by the person arrested or pur-
sued upon suspicion, this suspicion, though probably well founded,
trill not bring the person endeavouring to arrest or imprison within
the protection of the law, so for as to excuse him from the gmlt
of manslaughter, if he shoidd kiU^ or, on the other hand^ to make
the killing of him amount to murder. It seems that, in either
case, it would only be manslaughter ; the one not having used due

(d) Fost. SI 9. roael v, Pftjne, Doa^ 359. And ia

{e) 1 Hale 489, 490. 1 Hawk. P. C. Coze o. Wirrmll, Cro. Jac. 194, it wit

c. 88. 8. II. Fost. 309. I East. P. C. holden, that, withoni a fact, satspi-

e> 6. 8. 67. p, «98. cion is do cause of arrest; and 8 fid.

(f) Jackson*8 case, 1 Hale 464. 4^ 3. 5 Hen. 7. 5. 7 H8B# 4. 35. are

Mttle; 450. cited.

(g)% Inst. 5S, 179. Fo8t. 316. Sa-

2

emkp. Mil. $ 4.] Re€%3ting Ojffiten and Others. SOS

diligence to be apprised of the truth of the fact^ the other not
having submitted and rendered himuelf to justice. (A)

In a late case where Headley, being called up in the night by Orattemptoto
one iA his servants, found that his stable had been attempted, and commitfelony,
the door cut in such a manner that the bolt was exposed, and
found the prisoner and another person concealed in the jrard^ and
a steel instrument was also found by which the door of the stable
appeared to have been cut, and some housebreaking instruments
were also found near the spot where the prisoner and his com-
panion were ccmcealed, ana under these circumstances they had
been apprehended and detained by Headley and his servant, and
during such detention, and in the course of the same night, the
prisoner had cut Headley's servant with a knife, a point wa»
made that such cutting was not within the 43 Geo. 3. c. 58. on
the ground that the prisoner was not lawfully in custody, there
being no warrant, and an attempt to commit a felony being only
a misdemeanor. But the Judges held that the prisoner being
detected in the night attempting to commit a felony, might be
lawfully detained without a warrant, until he could be carried
before a magi8trate.(s)

These distinctions between officers and private persons proceed DisttoctionB
upon the principle of discouraging persons from proceeding to between the
extremities upon their own private suspicion or authority. And officen and^
upon this principle, it appears to have been consider^, that a private per^
private person is not bound to arrest any one standing indicted ^^^
for felony, against whom no warrant can be produced at the time;
and, therefore, the law does not hold out the same indemnity to
such person, as it does to constables and other peace officers, who
are ex officio not merely permitted, but enjoined by law, to arrest
the parties, as well on probable suspicion of felonv, as in case, of
felony actually committed ; and who may therefore well arrest
upon the finding of the fact by the grand inquest on oath, which
is suspicion grounded on high authoritv.(t) In this case, how-
ever, it might perhfq>s be weU contended, that a person arresting
another with the knowledge of the indictment having been foun<^
cannot be properly considered as acting upon his own private sus*
picion or authority; and ought, therefore, to have the same pro-
tection as the officers of justice. And it -seems agreed, that the
indiiitment found is a good cause of arrest by private persons, if
it may be made without the death of the felon : {k) but it is said,
that, if he be killed, their justification must depend upon the fact
of the party's guilt, which it will be incumbent on them to make
out; otherwise, they will be guilty of manslaughter. (Q

(A) 1 Hale 400. Foal. SI 8. only can take notice of a charge on

(s) Rexv. Hunt, East T. 18S5. Ry. record, 1 East P.O. c.5. 8. 66. p. 300.

and Mood.Cr. C. 03. /V«<, Book 111. (Ap) Dalt c. 170. s. 5. 1 East P. C.

Chap. X. c. 5. 8. 68. p. 301.

(0 8 Hale 84, 85, 87, 01, 93. ied (/) 8 Hale 83, 99.; and see 1 East
vide 1 Hale 489, 400. Hawkins, in al« P. G. c. 5. s. 68. p. 301, where it is
Ittdiog to the power of arfwt by offi- said, that if the Act of the ^uilt of
cen in this case, gives as a reason that the partj be necessary for their corn-
there is a charge against the party on plete justification, it is conceived, that
record. 1 HaWk. P. C. c. 88. s. 18. the bill of indictment found by the
But upon this, it b remarked, that it erand jury would, for that purpose^
does not readily occiir» why officers be prlmA/tfeJ^ evidence of the fact

5M

Of Manilaughier.

[ttOOAAIl

Ford's caae,-
Arresl on
charge of fe-
lony imper-
fectly ex-
pressed.

Thompson's
case,—
Illegal arrest.

£f^en in the case of a constable, it was formerly supposed to be
tiecessary, that there should have been a felony committed in fact^
trhich the constable must have ascertained at his peril : but it has
since been determined, that a peace officer may justify an arrest
on a charge of felony, on reasonable cause of suspicion, without a
warrant ; although it should afterwards appear tJiat no felony had
been committed. (m) And where a private person suspecting
another of felony, has laid his grounds of suspicion before a con*
stable, and required his assistance to take him, the constable may
justify killing the party, if he fly, and cannot otherwise be taken,
thpugh in troth he were innocent. But in such case, where no
hue and cry is levied, the party suspecting ought to be present, a9
the justification must be that the constable did sAd him in taking
the party suspected : and the constable ought to be informed of
the grounds of suspicion, that he may judge of the reasonableness
of it.(n)

In a late case tt was held, that killing an officer will amount to
murder, though he has no warranty and was not present when any
felony was committed, but takes the party upon a charge only ;
and though such charge does not in terms specify all the par-
ticulars necessary to constitute the felony. And it appears, from
the same case, that it will be no excuse for killing an officer that
such officer was proceeding to handcuff the party who was in his*
custody upon a charge of felony. The prisoner had produced a
forged baiJc note; and from his conduct at the time, which justified
a suspicion that he knew it to be forged, he was apprehended and
carried to a constable, and delivered with the note to the con-
stable ; and the charge to the constable was '^ because he had »
forged note in his possession.'' After he bad been in custody at
the constable's some hours, namely, from six o'clock in the even-
ing until eleven, the constable was handcuffing him to another
man, when he pulled out a pistol and shot the constable. The
constable was not kUled, but the prisoner was indicted upon the
43 Geo. 3. c. 58. ; and it was urged on his behalf that the charge
imported no legal offence, for unless he knew the note to be
forged he was no felon ; and if the charge was insufficient^ the
arrest was illegal ; and killing the officer (if that had taken place)
would have been only manslaughter. But the prisoner having
been convicted, and the case reserved for the consideration of the
Judges, they were all of opinion that this defect in the chargie was
immaterial ; that it was not necessary for such a charge to contain
the same accurate description of the offence as wouljd be required
in an indictment ; and that the charge in question must have been
considered as imputing to the prisoner a guilty possession, (a)

In this case there was not only reasonable suspicion of a felony
having been committed, but the charge naturally implied the par-
ticulars necessary to constitute felony, though they were not spe-
cified in terms. But in a recent case, where an arrest by a oon-
stable would have been clearly illegal ; an attempt to make it
under the circumstances was held to be such a provocation as;

(m) Samuel v, Payne, Doug!. 359. (a) Rex r. Ford, East T. 1817. MS.

{n) 2 Hale 70, 80, 91 , 9«, 9S. 3 Inst. Bayley, J., and Russ. & R5: 399.
S«l. 1 East. P. C. c. 5. s. 69. p. SOI.
1

cnxf, HI. $ 4.] Resisting Queers and Others. 505

would have reduced the c^ase to manslaughter if death had ensued*
The indictment was for stabbing and cutting with intent to murder
Upon the same statute 43 Greo. 3. c. 58. On the trial 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; that he applied again subsequently, was i^in 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 bloody constable
that offered to stop him; that he was ready to die, and would have
a life before he lost bis 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 a constable to take the prisoner into cus*
tody; 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 proceeded together to the yard of an mn,
where they found the prisoner in a public privy, as if he had occa-
sion there ; the privy had no door to It. The master said, '' that
is the man, and i give you in charge of him ;" upon which the con-
stable said to the prisoner, ** My gopd fellow, your master gives
me charge of you, you must go with me." The prisoner, without
saying any thing, presented the knife, and stabbed the constable
under the left breast ; and attempted to make several other blows
which the constable parried off with his staff. The constable then
aimed a blow at the prisoner's head, upon which he ran away
with the knife. The knife had struck against one of the con-
stable's ribs and glanced off : if it had struck two inches lower^
death would have ensued; but the wound as it happened was not
considered dangerous.

The prisoner having been found guilty, sentence of death was
passed upon him: but the learned judge (Mr. Baron Garrow)
respited the execution, and submitted the case to the opinion of
the Judges; all of whom (except Best, C. J., and Alexander, C. B.,
who were absent) met and took it into consideration. The majo-
rity, namely, Abbott, C. J., Graham, B., Bayley, J., Park, J.,
Garrow, B., Hullock, B., Littledale, J., and Gaselee, J., 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 provocation as, if
death had ensued, would have made the case manslaughter only;
and tliat therefore the conviction was wrong. Holroyd, J., and
Burrough, J., thought otherwise.(6)

A constable, or other known conservator of the peace, may law- Autboriiy to
fully interpose upon his own view to prevent a breach of the peace, pri!JiJn"Vwr»
and to quiet an affray ; and if he or any of his assistants, whether of misdemeR-
commanded or not, be killed, it will be murder in all who take "o"-

(b) Rex V. Thompson, Hil. T. 1825, 1 Ry. and Mood, 80.

506 Of Mansiaughter. [book m.

part in the resistance ; there being either implied or express noU-
fication of the character in which he interposed. (o) It has^ how-
ever, often been questioned, how far a constable or other peace
officer is authorized to arrest a person upon a charge by another
of a mere breach of the peace, alter the afiEray is en&d, and peace
restored, without a special warrant from a magistrate ; and it ap*»
pears to be the better opinion, that he has no such authority.(p)
But if one menace another to kill him, and complaint be maide
thereof to the constable forthwith, such constable may, in order
to avoid the present danger, arrest the party, and detain him till
he can conveniently bring him to a justice of the peace.(;)
P^^PP^®^^" It has been said, that S peace officers meet with night-walkers^
wldkefs. or persons unduly armed, who will not yield themselves^ but

resist or fly before they are i^prebended, imd who are upon
necessity slain, because they cannot otherwise be overtaken, it i»
no felony in the officers or their assistants, though the parties
killed were innocent, (r) But it is doubted wliether, at this day,
so great a degree of severity would be either justifiable or neces-
sary (especially in the cas^ of bare flight), unless there were a
reasonable suspicion of felony. («) And it has been considered,
that the taking up^of a person in the night, as a night-walker and
disorderly person, though by a lawful officer, would be illq^ if
the person so arrested were innocent, and there were no reason-
able grounds of susfMcion to jmslead the officer. (^)

(o) 1 Hale 463. 1 Hawk. P. C. c. SI. to ttie apprehension of night*i9a]kers»

s.54b Post. S10« Sll. 1 Bast. P.O. and persons unduly armed. And see

c« 5« s. 71 . p. SOS. Lawrence v. Hedbeer, 3 Taunt 14.

(p) 1 Bast. P. C. c. 6. 8. 78. p. S05, (t) I Bast P. C. c. 5. s. 70. p. SOS.

who cites S Inst 5S. 8 Hawk. P. C. Both the statutes mentioned m the

C. 18. 8. 80. and c. IS. 8. 8. 8 Lord last note were levelled against par-

Baym. 1901. Strickland v. Pell, Dalt ticniar descriptions of offenders* who

c I. 8. 7.; and sajs, that there can be no roved about ne couatrj in bodici^ in

such authority rar the purpose of im- a darin|r manner,

prisoning or compelling tne party to (<) Tooley*A case, 8 Lord Raym.

nnd sureties; though Lord Coke says, 1896. There is a MS. note of this case

(4 Inst. 865.) that a constable may given by the editor of Lord Rale (8

take surety of the peace by obliga* Hale S9,) which slates Lord Hoh to

lion. Lord Hale and some later au- have said, that, of late, constables had

thorities have holden, that such officer made a practice of taking up people

may arrest the party upon the charge onlv for walking the streets : but tnat

of another, though the affray be over, he anew not wnence they had such

for the purpose of bringing him before authority. But see Lawrence •. Hed-

a justice, to find sureties of the peace, ger, 3 Taunt 14, where it was baldcB

or for appearance. 8 Hale 90. Hand« that watchmea aiid beadles have an-

cock V. Sandham and others, 1785, thority, at common law, to arrest and

and Williams r. Dempsey, 1787, cited detain in prison, for examination, per-

ID Bast P. C. id. 306. But see aaltf, sons walking in the streets at aint,

873, 874k I whom there b reasonable rround to

(f) 8 Hale 88- This power seems to suspect of felony, although there is
be grounded on the duty of the officer no proof of felony having been cam-
to prevent a probable felony; and mitted. And it has been said by Haw-
must be governed by the same rules kins and otheis, that every prwmie
which apply to that case « though penea may, by the cooBmon law, ar-
Oalton (ch. 116. & 3.) extends it even rest any suspicious nigbt-walker, and
to the prevention of a battery. Vide detain him till he given good account
1 Bast P. C. c. 5. s. 78. p. 306. of himself. 8 Hawk. P. C. c. IS. s. 6.

(r)8 Hale 85, 97. The statutes 8 c 8. s. 38.; and it has been held, that a

Bd. 3. c. 3^ and 5 Bd. 3. c. 14. aelals person may be indicted for beiag a

CHAP. ni. § 4.] ResUting Offtcers und Others. 607

It has sometimes happened that peace ofEicers have taken oppo- Officen taking
site parties in an affray, and the death of one of them has ensued ; opposite par-
as in the case put by Lord Hale, where A. and B., being constables
of the viU of C., and a riot or quarrel happening between several
persons, A. joined with one PArbr, and commanded the adverse
party to keep the peace, and !B. joined with the other party, and
m I&e manner commanded the adverse party to keep the peace,
•and the assistants and party of A. in the tunralt killed B. (ti) This,
Lord Hale says, seems but manslaughter, and not murder, inas-
mnch «8 the officers and their asidstants we^ engaged one against
the other, and each had as much authority as the other : (w) but
upon this it has been remarked, that perhaps it had been better
expressed, to have said, that inasmuch as they acted not so much
with a view to keep the peace, as in the nature of partisans to the
different parties, they acted altogether out of the scope of their
characters as peace officers, and without any authority whatever. ( jr)
And in another case. Lord Hale says, that if the sheriff have a writ
of possession against the house and lands of A,, and A. pretending
it to be a riot upon him, gain the constable of the vill to assist
him, and to suppress the sheriff or his bailiffs, and in the conflict
the constable be killed, this is not so much as manslaughter ; but
if any of the sheriff's officers were killed, it would be murder, be-
cause fhei constable had no authority to encoimter the sheriff's
proceeding when acting by virtue of ue king's writ, (y)

There is a late case, which appears to have been ruled upon the
foregoing principles. Some sheriffs' officers having apprehended a
man by virtue of a writ against him, a mob collected, and endea-
voured by violence to rescue the prisoner. In the course of the
scuffle, which was at ten o'clock at night, one of the bailifib having
been violently assaulted, struck one of the assailants, a woman^
and as it was thought for some time had killed her ; whereupon,
and before her recovery was ascertained, the constable was sent
for, and charged with the custody of the bailiff who had struck the
woman. The bailiffs, on the other hand, rave the constable notice
of their authority, and represented the violence which had been
previously offered to them ; notwithstanding which, he proceeded
to take them into custody upon the charge of murder ; and at
first, offered to take care also of their prisoner, but the latter was

commoo nif^htrwalker, as for a mis- refuse, or wilfully neglect, to tako

demeauor. S Hawk. P. 0. c. 8. s. 38. such offender into custody, and to

Latch. 173. Poph. SOS. By the vagrant take and convev him or her before

act, 5 Geo. 4. c. 83. s. 6., it is made some justice of tne peace, or shall not

lawful for any person whatsoever to use bis best endeavours to apprehend

apprehend any person who shall be and to convey before some justice of

found offending against that act, and the peace, any person that he shall

forthwith to take and convey him or find offending against the act, it shall

her before some justice of the peace, be deemed a neglect of duty in such

to be dealt with in such manner as is constable or other peace officer, and

thereinbefore directed, or to deliver he shall, on conviction, be punished

him or her to anv constable or other in such manner as is thereinafter di-

peace officer of tne place where he or rected.
she shall have been apprehended, to be («) 1 Hale 460.
so taken and conveyed as aforesaid : (w) Id. ibid,
and it further enacts, thai in case any (*) 1 East. P. C. e. 5. 8« 7U p« 904.
constable or other peace oiBcer shall (jf> 1 Hale 460.

508

Of Manslaughtet.

[bookiil

Private per-
sons interpos-
inir in sudden
affrays.

Authority to
arrest and im-
prison in civil
iuits.

Authority to
impress sea-
men.

fioon rescued from them by the surrounding mob. Hie wosan
having recovered^ the bailiffs were released by the constafafe Its
next morning. Upon an indictment for an assault and rescw.
Heath, J. was clearly of opinion, that the constable and his as-
sistants were guilty of the assault and rescue^ and directed the jury
accordingly, (s)

Where private persons interpose in the case of sadden affirsys^to
part the combatants, and prevent mischief, and give express ixitict
of their friendly intent, it will be murder in either of the perBoos
making the affray, who shall kill the party so interposing : bst
it wi]l not be murder in the other affirayer, unless he also strike the
party, (a)

It has been shewn that though, even in civil cases, an officrr
may repel force by force, where his* authority to arrest or imprison
is resisted, and may do this to the last extremity in cases of rea-
sonable necessity ; {b) yet if the party against whom the process
has issued ily from the officer endeavouring to arrest him, or if he
fly after an arrest actually made, or out of custody, in executioo
for debt, the officer has no authority to kill him, though he cannot
overtake or secure him by any other means, (e)

The authority of an officer, in civil cases, must be regolated and
limited by the vmt or process which he is empowered to execntt,
and by the extent of the district in whidi he is privil^ped to act
It is only in the character of officer that he can proceed to arrest
or imprison, as no private person can of his own authority arrest
in civil suits, ((f)

A press-warrant extends in terms to ^^ seamen, seafaring men,
and others, whose occupations and callings are to work in vessds
and boats upon rivers ;" {e) and persons of this description may
be impressed to serve on board his Majesty's ships of war, by
those who have proper authority delegated to them for that pur-
pose. (/) A proceeding which has been sometimes considered as
hardly consistent with the temper and genius of a free government,
but which may be defended on the ground of its necessity for the
safety of the state ; in order that the government may be enabled,
in time of need, thus peremptorily to call for the services of per-
sons who have freely chosen a seafaring life, and whose education
and habits have fitted them for the emplovment*

But as this is a power of an extraordmary nature, it is highly
requisite that no persons should assume it without being duly qua-
lified for that purpose ; as the especial protection which the law
affords to its officers will not be extended to those who venture to
act vrithout proper authority. Thus, where the execution of a
press-warrant is directed by the terms of the warrant (as is now
always the case) not to be intrusted to any person but a commis-

(k) Anon. Exeter Sura. Ass. 1793. 1
East. P. C. c. 6. 8. 71. p. S06.

(a) 1 Hawk. P. C. c. SI. s. 4S, 64.
Post 878, SI 1. 1 East P. C. c. 5. s.
71. p. 304. Anle^ 873.

{b) Ante, 449, 457.

(r) 1 Hale 481. Post. 871.

id) 1 Hawk. P. C. c. 88. s. 19.

{e) Eex r. Softly, I East: R. 466. 1

East. P. C. c. 5. 8. 75. p. 307. The
same terras occur also in the warnuit
in Broadfoot*s case. Post. 156.

{f) Broadfoots case, 18 SI. Trial
(by Howell) 1383. Post. 154: where
see an elaborafe argument delivered
by Mr. J. Foster, as recorder of Bru-
toi, in support of the legality of im-
pressing seamen.

CHAF. Jii. § 4.] Resisting Officers and Others. 509

sioned officer, the execution of it by another person will be illegal.
As in a case where the lieutenant of a press-gang, to whom the
execution of a warrant was properly deputed, remained in King
Road, in the port of Bristol, while his boat's crew went some
leagues down the channel, by his directions, to press seamen.
This was illegal ; and when, in the furtherance of that service, one
of the press-gang was killed by a mariner in a vessel which they
had boarded with intent to press such persons as they could meet
with, it was ruled to be only manslaughter, though no personal
violence had been offered by the press-gang. (^) And upon the
same principles, where the mate of a ship and a party of sailors,
without either the captain who had the press-warrant or the lieu-
tenant who was regularly deputed to execute it, impressed a man,
and upon his makuig some resistance, one of the party struck him
a violent blow with a large stick, of which he died some days
after, it was adjudged murder. (A) AnJ, in another case, the dele-
gation of the power of impressing by a lieutenant (to whom the
warrant had b^en directed) to a petty officer and several others, to
whom he had given verbal orders to impress certain seafaring men,
of whom he had received intelligence, was decided to be clearly
bad; though it was found to be the constant usage and invariable
eustom of the navy for all commissioned officers, having in their
custody such press-warrants, to give verbal orders to such petty
officers whom they might think fit to employ upon the impress
service, and that such petty officers usually acted without any
other authority than such verbal orders, (t)

If a ship's sentinel shoot a man, because he persists in ap- Murder by a
proaching the ship when he has been ordered not to do so, it will ^^^^^^^^^
be murder, unless such an act was necessary for the ship's safety, persons from
And it will be murder, though the sentinel had orders to prevent approachin(c
the approach of any boats ; had anununition given to him when he ^^^ ^^^^'
'was put upon guani ; and acted under the mistaken impression
that it was his duty. The prisoner was sentinel on board the
AchUle^dwhea she was paying off. The orders to him from the
preceding sentinel were, to keep oiF all boats, unless they had offi-
cers with uniforms in them, or unless the officer on deck allowed
them to approach ; and he received a musket, three blank car-
tridges, 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. It was put to the jury to find, whether
the sentinel did not fire under the mistaken impression that it was
his duty: and they found that he did. But a case being reserved^
the Judges were unanimous that it was, nevertheless, murder.
They thought it, however, a proper case for a pardon: and further,
they were of opinion, that if the act had been necessary for the

ig) BroadfooVfl case. Post. 154. But (I) Borthwick's case, Dougl. 207.

if a warrant be directedlo several, one The warrant enjoined all mayors, &c.

of them may execute it. 1 Hale 459. to aid and assist the officer to whom it

. (A) Dixon's case, I East. P. C. c. 5. was directed, and thoie emplajfed by

s. 80. p. 313.: and see also Browning s him in the execution thereof,
case, l.£ast. P. C. c. 5. s. 80. p. 31S.

510 Of Manslaughter. [book iik

preservation of the ship, as if the deceased had been 'Stirring up a
mutiny, the sentinel would have been justified, (a)
The authori^ The party taking upon himself to execute process, whether by
imp^n can ^^^ ^^ warrant, must be a legal officer for that purpose) or hu
only be exer- assistant : and UP an officer make an arrest out of his proper dis*
\^ ^Z • trict, or have no warrant or authority at all, or if he execute pro-
i^in the' ^^^^ ^^^ ^^ ^^ jurisdiction of the court from whence it issues, be
properdUtrict. will not be considered as a legal officer entitled to the special pro*
tection of the law : and therefore, if a struggle ensue with the
party injured, and such officer be killed, the crime will be only
manslaughter. (A) And it has been ruled, that homicide com*
mitted upon a bailiff, attempting to execute a writ within an exclu*
sive liberty, such writ not having a non-omittetg clause, will not
amount to murder, {x) It has been held, that if the constable of
the vill of A. come into the vill of B. to suppress some disorder,
and in the tumult the constable be killed in the vill of B«, this will
be only manslaughter, because he had no authority in B. as con-
stable. (Q But it was considered, that if the constable of the vill
of A. had a particular precept from a justice of peace directed to
him by name, or by his name of office as constame of A., to sup-
press a riot in the yVH of B., or to apprehend a person in the vill of
B. for some misdemeanor within the jurisdiction and conusance of
the justice of peace, and in pursuance of that warrant he went to
arrest the party in B., and in executing his warrant was killed in
^ f^Couite!' ^*^ ^^ amounted to murder, {m) A kte important statute, 5 G.
biesmayexe- 4* c. 18., recites, that warrants addressed to constables, head-
cute warranto boroughs, tithing«men, borsholders, or other peace officers of
vrecln^s^pro- P*^"®'^> townships, hamlets, or places, in their characters of and
Tided it be ' 1^ constables, headboroughs, tithing-men, borsholders, or other
within the Jii- peace officers of such respective parishes, townships, hamlets, or
Sw j^aSce*^ places, cannot be lawfully executed by them out of tiie precincts
mnting or t^^ereof respectively, whereby means are afforded to criminals and
baking tht Others of escaping from justice; and then for remedy thereof

enacts, ^' that it shall and may be lawful to and for each and eveiy
^^ constable, and to and for each and every headborough, tithing-
^^ man, borsholder, or other peace officer, for every parish, town-
'' ship, hamlet, or place, to execute any warrant or warrants of
'^ any justice or justices of the peace, or of any magistrate or
^^ magistrates, within any parish, township, hamlet, or place,
^ situate, Ijong, or being within that juijisdiction for which such
^ justice or justices, magistrate or magistrates, shall have acted
^^ when granting such warrant or warrants, or when backing or
^^ indorsing any such warrant or warrants, in such and the like
'^ manner as if such warrant or warrants had been addressed to

(a) Rex V. Thomas, East. T. 1816. IS. s. S7, SO. It may be here meo-

MS. Bayley, J. ttoned, tiiat by 84 Geo. 8. c. 44. s. 6.

(k) 1 Hale 457, 468, 459. 1 East if a warrant is irregular in the frame

P. C. c. 5. s. 80. p. SIS, 814. of it, the officer exeoutiog it miDtsle-

(jr) Rex V, Mead and another, S rially is indemnified against any action

StarLC. 803. for damages by the party lojured,

(/) 1 Hale 469. thoueh the magistrate by whom it nw

(in) i Hale 469. 8 Hawk. P. C. ^. issue! exceeded

CHAP. III. § 4.] Resisting Officers and Others. 511

*' such constable, headboiougli, tithing-man, borsholder, or other
^* peace oflBicer, specially, by his name or names, and notwith-
'^ standing the parish, township, hamlet, or place, in which such
'^ warrant or warrants shall be executed, shall not be the parish^
township, hamlet, or place, for which he shall be constable,
headborough, tithmg-man, or borsholder, or other peace officer^
'^ provided that the same be within the jurisdiction of the justice
*^ or justices, magistrate or magistrates, so granting such warrant
^* or warrants, or within the jurisdiction of the justice or justices,
'^ magistrate or magistrates, by whom any such warrant or war-
^' rants shall be Imsked or indorsed/' (a) It may be observed,
that if a warrant be directed to several persons, any of them may
execute it. (n)

Where an officer endeavouring to execute process is resisted A* ^ tbe U-
and killed, the crime will not amount to murder, unless the pro^ —^^
cess is legal; but by this is to be understood only that the pro-
cess, whether by writ or warrant, must not be defective .in the
frame of it, and must issue in the ordinary course of justice from
a court or magistrate having jurisdiction in the case, (o) There-
fore, though there may have been error or irregularity in the pro-
ceeding previous to the issuing of the process, it wUl be murder
if the sheriff or other officer should be killed in the execution of
it; for the officer to whom it is directed must, at his peril, pay
obedience to it. (p) And for this reason, if a capias ad satis/a^
ciendtitn, Jieri/aciaSf writ of assistance, or any other writ of the
like kind issue, directed to the sheriff, and he or any of his of-
ficers be killed in the execution of it, it is sufficient, upon an
indictment for this murder, to produce the writ and warrant,
without shewinff the judgment or decree, (q) But it seems that
the writ, as well as the sheriff's warrant to the bailiff, must be
produced, (z) So, though the warrant of a Justice of peace be
not in strictness lawful, as if it do not express the cause with
sufficient particularitv | yet, if the matter be within his jurisdic-
tion, the killing of the officer executing the warrant will be mur-
der ; for it is not in the power of the officer to dispute the validity
of the warrant, if it be under the seal of the Justice, (r) It may
be observed also, that in all kinds of process, both civil and cri-
minal, the falsity of the charge contained in such process will
afford no matter of alleviation for killing the officer; for every

(a) It has been decided thai this sifted such proce«, and the process

statute on! J auih^rixci constables to was in the name and under the seal of

execute the warrants therein men- his superior, and it was process against

tioned out of their own parishes, &c. the goods only,

hut does not compel them to do so. (p) Fost/Sll. 1 Hale 457.

Ginibert v. Coynej and another^ £x- \q) Rogers's case, ComwrnH Sum.

che^. Trin. T. 1SS5. Ass. nS6» ruled hj Lord Hardwicke.

(n) 1 Hale 459. Fost 911, SIS. auto, 474.

(o) Fost Sil. An attachment is- (z) Rex v. Mead and another, %

sued, and signed by the county clerk Stark. C. 805, an arrest upon mesne

in his own cause, is legal process: for process.

it was held, that in issuing it the (r) 1 Hale 459, 460. It is said, how-
county clerk acted merely in a minis- CTcr, that this must be understood of
terial capacity, and not as judge in a warrant containing all tbe essential
bis own eaose. Baker's case, 1 Leach* requisites of one* 1 East. P. C. c. 5*
1 18. He was the only officer who s. 78. p. 510.

512

Of Manslaughter.

{[book lU.

Process de-
fective in the
frame of it.

Of the illega-
Uty of blsDk
warrants.^
Stockley's
case.

man is. bound to submit himself to the regular course of jus-
tice : (s) and therefore^ in the case of an escape warrant, the per-
son executing it was held to be under the special protection of
the law^ though the warrant had been obtained by gross imposi-
tion on the magistrate^ and by false information as to the matters
suggested in it. (/)

A seijeant at mace in the city of London having authority, ac-
cording to the custom of the city, by entry in the porter's book
at one of the counters, to arrest one Murray for debt, arrested
l)im between five and six in the evening of the 8th November,
saying at the same time, ^' I arrest -you in the King's name, at the
*^ suit of Master Radford ;'* but he did not produce his mace :
Murray 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 Serjeant should have shewn fiis mace, and
that a custom stated in the verdict to arrest without process first
against the goods was illegal : but the objections were overruled ;
and judgment was given for the King, and one of the prisoners
was executed, (a)

But if the process be defective in the frame of it, as if there be
a mistake in the name or addition of the person on whom it is to
be executed ; or if the name of the officer or the party be in-
serted without authority, and after the issuing of the process;
and the officer endeavouring to execute it be killed; this will
amount to no more than manslaughter in the person whose liberty •
is so invaded, (u)

It appears to have been formerly a very common practice to
issue bla7ik warrants, notwithstanding their illegality ; a practice
exceedingly reprehensible, and which, in the following case, af-
forded, to a desperate and atrocious ofiender, a shelter from the
capital punishment which he well merited, by extenuating his
crime of killing the person who assisted in executing the warrant
to manslaughter. The prisoner Stockley, about Lady-day 17^>
had been arrested by Welch, the deceased, at the suit of one
Bourn, but was rescued; and he afterwards declared, that if
Welch offered to arrest him again, he would shoot him. A writ
of rescue was made out at the suit of Bourn, and carried to the
office of a Mr. Deacle (who acted for the undersheriff of Stafford-
shire) to have warrants made out upon such writ. The custom
of the imdersheriff was to deliver to Deacle sometimes blank war-
rants, sometimes blank pieces of paper, under the seal of the
office, to be afterwards filled up as occasion required. Deacle
made out a warrant against Stockley upon one of these blank
pieces of paper ; and delivered it to Welch, who inserted therein
the names of lliomas Clewes and William Davil, on the 12th
July, 17S3. On the 19th of September following, Welch, Davil,
Clewes, and one Howard, the person to whom Stockley had de-
clared he would shoot Welch, went to arrest Stockley on this
warrant. Clewes and Davil, having the warrant, went into

(a) \ East. p. C. c. 5. s. 8. p. 310.
«) Curtii>*s case, Fost. 135. And
see Fost. 312.

(a) M*Allaj's case, 9 Co, 65 b.

(if) 1 Hale 457. i Hawk. P. C. c
31. s. 64. Fost. 312. 1 East. P.O.
c. 5. s. 78. p. 310. Sir Henrj Ferrers's
case, Qrq, Car. 371.

CHAF. III. 5 4'.] Resisting Officers and Others. 613

Stockley's house first, and called for refreshment ; but, an alarm
being giren that Welch was coming, the door was locked : upon
which Clewes arrested Stockley on this illegal warrant, who there-
upon fell upon Clewes, and thrust him out of doors, but kept
Davil within, and beat him very dangerously, he crying out mur-
der. On hearing this, Welch and Howard endeavoured to get
into the house : and Welch broke open the window, and had got
one leg in, when Stockley shot and killed him. Stocklev then
absconded, and was not apprehended till December, 1771 • At
the Lent Assizes following he was tried for murder, when the jury
expressly found that the deceased attempted to get into the house
to assist in the arrest of Stockley. Howard, Clewes, and Davil,
being dead, their depositions before the coroner were read, . and
minutes were taken of the above facts for a special verdict: but,
to save expense, the case was referred to the Judges of the King's
Bench ; who certified that the offence amounted, in point of law^
•only to manslaughter, (w)

This practice of issuing blank warrants was reprobated in a Otber cases as
more recent case, where the sheriff having directed a warrant to ^^|J**o}'j|f j^
A. by name, and all his other officers^ the name of another of the Warrants. ***
sheriff's officers B. was inserted after the warrant was signed and
sealed by the sheriff; and, therefore, an arrest by B. was holden
iUegal. (x) And in another case it was considered that the arrest
was illegal, where the warrant was filled up after it had been
sealed, (y) But if the name of the officer be inserted before the
warrant is sent out of the sheriff's office, it seems that the arrest
will not be illegal, on the ground that the warrant was sealed
before the name of the officer was inserted. Banks and Powell
had a warrant from the sheriff of Salop upon a writ of possession
against the prisoner's house; and their names were interlined
after the warrant was sealed, but before it was sent out of the
office. The prisoner refused them admittance ; and, on their burst-
ing open the door, shot at Banks, and wounded him severely.
Upon an indictment for wilfully shooting, upon the 43 G. 3. c. 58.,
objection was taken that the warrant gave Banks and Powell no
authority, because their names were inserted after it was sealed.
But the prisoner having been convicted, and the point reserved
for the consideration of the Judges, all who were present {viz, II) •
held that the conviction was right, (t) But where a magistrate
who kept by him a number of blank warrants ready signed, on
being applied to, filled up one of them, and delivered it to the
officer, who, in endeavouring to arrest the party, was killed ; it
was held that this was murder in the person killing the officer,
aud he was accordingly executed. (2)

It may be proper to remark a circumstance in the preceding
case of Stockley, which has been thought to deserve considera-

<w) Stockley*8 case, 1772, Serjeant (i) Rex v. Harris, East. T. 1801. «

Forstcr*8.MS. 1 East. P. C. c. 5. s. 78. MS. Bayley, J.

p. 310, 311. The case was so decided (e) Per Lord Kenyon, ia Rex v.

without argument. the Inhabitants of Winwrik, 8 T. R.

(x) Housin V. Barrow, 6 T. R. 129. 454, who there mentions it asa caso.

And see a case referred to by Lord determined by the Judges so(ti« years

Keiiyon, 6 T. R. 123. before.

(y) Steveosoa's case, 19 SL Tr. 846.

VOL. I. 2 h

514 Of Manslaughter. [wsL m.

tion, (a) namely^ that he had before deliberately resoHed opm
shooting Welch in case he offered to arrest him a^in^ whidi k
all probability it might be his duty to do. It certainly resent
a former case, where, upon some officers breaking open a sbop-
door to execute an escape warrant, the prisoner, nrho had pre-
viously sworn that the first man that entered shonld 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 opinkm
that this would have been murder, though the warrant had not
been legal, and though the officers could not have justified tlie
breaking open the door, upon the grounds of the brutal cmdty
jof the act, and of the deliberation manifested by the prisoner^
who, looking out of a window with the axe in his hand, hai
sworn, before any attempt to enter the shop, that the first mm
that did enter should be a dead man. (6) But in another case,
prior to either of these, where the cruelty and the deliberation
were of a similar kind, the crime was considered as extenuated by
the illegality of the officer's proceeding. A bailiff having a war-
rant to arrest a person upon a capi€is ad satisfadendumy came to
his house, and gave him notice ; upon which the pen!on menaced
to shoot him if he did not depart : the bailiff did not depart, but
^ broke open the window to make the arrest; and the person shot
him, and killed him. It was holden that this was not murder,
because the officer had no right to break the house ; but that it
was manslaughter, because the party knew the officer to be a
baiUff. (c)
As to notice The parties whose liberty is interfered with must have due

of tbe autho- noticc of the officer's business ; or their resistance and killing of
^ty to arrest. ^^^ officer will amount only to manslaughter, (rf) Thus, where

a bailiff pushed abruptly and violently into a gentleman's chamber
early in the morning, in order to arrest him, but did not tell his
business, nor use words of arrest^ and the party not knovring that
the other was an officer, in the first surprise, snatched down a
swordy which hung in his room, and killed the baUiff ; it was ruled
to be manslaughter, {e) But it will be otherwise, if the officer
and his business be known ; (/) as where a man said to a baififf
who came to arrest him, '^ Stand off, I know you well enough,
come at your peril,'' and, upon the bailiff takmg hold of him, ran
the bailiff through the body and killed him, it was held to be
murder, {g) This will apply as well to a special bidliff as to a
known officer : but where the party does not shew by his conduct
that he is acquainted with the officer and his business, material
diatinctionir arise as to notice of a known officer, and one whose
authority is only speciaL With regard to private persons inter-
fering, as they may do, in case of sudden affrays, in order to port
the combatants, and prevent bloodshed, it is quite necessary that
they should give express notice of their friendly intent ; other-

ifi) 1 Bast. F.C. c. 6. s.78. p. 311. {e) \ Hale 470, case at JftwgwU^

(b) Curti8*8 case» 1756. Post. 135. 1657. And see Kel. 136.

(c) Cook's case, 1 Hale 458. Cro. (/) Mackally's case, 9 Co. 09.
Car. 537. W. Jones 4119. (g) Few's case, Cro. Car. 183* 1

(d) I Hale 458, ei iequ. I Hawk. Hale 458.
P. C. c. 31. 8. 40, 50. Post. 310.

riiAP. ni. $ 4.] Resisting Officers and Others. 5^5

wise the persona engaged may, in the heat and bustle of the
affray, imagine that they come to act as parties. (/<)

With regard to such ministers of justice as, in right of their Ag to notice
offices^ are conservators of the peace, and in that right alone in- ^y officers in-
terpose in the case of riots and affrays, it is necessary, in order {hccMc^or
to make the offence of killing them amount to murder, that the Hots and af-
parties engaged should have some notice of the intent with which fr>y>*
they interpose ; for the reason which was mentioned hi relation to
private persons ; lest the parties engaged should, in the heat and
bustle of an affray, imagine that they come to take a part in it. (t)
But, in these cases, a small matter will amount to a due notifica-
tion. It is sufficient if the peace be commanded, or the officer^
in any other manner, declare with what intent he interposes. Or
if the officer be within his proper district, and known, or but
generally acknowledged, to bear the office he assumes, the law
"will presume that the party killing had due notice of his intent ;
especially, if it be in the ^ytime. {k) In the night some fur-
ther notification is necessary; and commanding the peace, or
using words of the like import, notifying his business, will be
sufficient. (/) Killing a watchman in the execution of his office
is not the less murder for being done in the night ; and the kill-
ing of an officer who arrests on civil process may be murder,
though the arrest be made in the night ; and in the case of an
affiray in the night where the constable, or any other person who
comes to aid him to keep the peace, is killed, after the constable
has commanded in the King's name to the keeping of the peace,
such killing will be murder ; for though the parties could not dis-
cern or know him to be a constable, yet if it were said at the time
that he was such officer, resistance was at their peril, (a) There-
fore though the saying of a learned Judge, *' that a constable's
istaff will not make a constable,'' is admitted to be true ; yet if a
minister of justice be present at a riot or affiray within his dis-
trict, and in order to keep the peace produce his staff of office, or
any other known ensign of auUiority, in the daytime when it can
be seen, it is conceived that this will be a sufficient notification
of the intent with which he interposes ; and that, if resistance be
made after this notification^ and he or any of his assistants killed,
it will be murder in every one who joined in such resistance, (m)
For it seems, that in the case of a public bailiff, a hdHiS juratus
€t cognitus, acting in his own district, his authority is considered
as a matter of notoriety; and, upon this ground, though the war-
rant by which he was constituted bailiff be demanded, he need
not shew it; {n) and it is sufficient if he notify that he is the

(fc)Fost SIO, Sll. jastice*8 warrant 3. Because, after
(0 Fo9t SIO. Kel. 66, 115. his retreat, and before the man slain,
(Ar) 1 Hale 460, 461. Fost. SIO, 911. he commanded the peace; and, not-
So in the case of Sissinghurst-house, withstanding, the rioters fell on and
1 Hale 468J 463, it was resolved, that killed the party. See the case folly
there was sufficient notice that it was stated, ante^ 451, e< iequ,
the constable before the man was (/) 1 Hale 461. Fost. 311.
killed : — 1 . Because he was constable {a) 9 Co. 66. a.
of the same vill. 8. Because he noti- (m) Fost. 311. '^
fied his business at the door before the (n) 1 Hale 458, 461, 583. Mack-
assault, viz, that he came with the al1j*9 case^ 9 Co. 69 a- But it i>

2l2

51S Of Manslaughter. [bookdi.

eanstable, and arrest in the King's name, (o) And this kind of
notification by implication of law will hold sdso in caises where
public officers^ having waiTants^ directed to them as such, to exe-
cute, are resisted, and killed in the attempt. (/?) Thus, where a
warrant had been granted against the prisoner by a justice of
peace for an assault, and directed to the constable of PattiMLj
and delivered by the person who had obtained it to the deceased,
to execute, as constable of the parish, and it appe^ffed that the
deceased went to the prisoner's bouse 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 ; it was deter-
mined that this was sufficient evidence and notification of the de-
ceased being constable, although there were no proof of his
appointment, or of his being sworn into the office. (9)
To what per- It is laid down in one case, that if, upon an affitiy, the constable,
sons m an af- or Others in his assistance, come to suppress it, and preserve the

irav notice ^ t jr ^ *

shall be held peace, and be killed in executing their office, it is murder in law,
to extend ; and although the murderer knew not the party killed, and though the
the°cas*^*^ f* ^^^7 wcre sudden ; because he set himself against the justice of
third persons ^^ realm, (r) It is said, however, that in order to reconcile this
interposing, with Other authorities, it seems that the party killing must have
\iaA implied notice of the character in which the peace officer aod
his assistants interfered, though not a personal knowledge of
them, {s) For it is elsewhere laid down, tjiat if there be a sudden
affray, and the constable come in, and, endeavouring to appease it,
be killed by one of the company who knew him, it is murder in
the party killing, and in such of the others as knew the constable,
and abetted the party in the fact ; but only manslaughter in those
who knew not the constable : (/) and that others continuing in the
affray, neither knowing the constable, nor abetting to his death,
would not be guilty even of manslaughter, (u) But these posi-
tions do not apply to an affray deliberately engaged in by par-
ties determined to make common cause^ and to maintain it by
forceu (w)

It is however agreed, that if a bailiff or other officer be resisted

otherwise as to the writ or process arrested. 9 Co. 69 b.

ogaiQSt the party. Both a public and (0) 1 Hale 583.

private bathff, where the party sub- (p) 1 Bast. P. C. c. 5. s. 81. p. 315.

mits to the arrest and demands it> are (9 ) Rex t;. Gordon, J^^rikmrn^Uu

bound to shew at whose suit, for what Spr. Ass. 1789, cor, Thonnson, B. af-

cause, and out of what court the pro- terwards considered ata conference of

cess issues, and Ivhere returnable. 5 all the Judges, S6th June, 1789. See

'<?o. 54 a. 9 Co. 69 a.: but it witi be 1 Ea^t. P. C. c 5. s. 81. p. 315.

no excuse that he did not tell the party (r) Young*s case, 4 Co. 40 b. 3

if the party resisted so as not to give Inst. 52.

time for telling, 9 Co. 69 a. And in (t) I East. P. C. c. 5. «. 88. p. 316.

no case is the bailiff required lo part (I) 1 Hale 438, 446, 461. Xel. 115,

vilh the possession of the warrant; 116.

neither is a constable, whether acting (u) 1 Hale 446. Lord Hale adds,

within or without his jurisdiction. 1 quod iamen qutere^ but (as it is said

MS. Sum. 950. 1 East P. C c. 5. s. 1 East. P. C. c. 5. s. 8S. p. 316.) ner-

84. p. 319. By a known bailiff is haps over cautjously, if in troth lAere

meant one who is commonly known were no abetment,

to be so s it is not necessary that he (to) See as to the cases of that kind,

should be known to the party to be antct P* S4, 85.

CHAP. m. $ 4.] Restating Officers and Others. 617

in the regrular discharge of his duty in executing process against a
party, and a third person, even the servant or friend of the party
resisting, come in and take part against the officer, and kill him, \\
will be murder, though he knew him not.(jr) But it is suggested,
that, in this case, in order to make it murder in the servant or
friend, the party whom they came in to assist must have had due
notice of the officer's authority : and that if the offence would not
have been murder in the party himself resisting for want of such
notice, neither would it in thfe servant or friend under the like ig-
norance, (y) The law upon this point may, perhaps, hardly seem
to be reconcileable with that above-mentioned, of a person not
knowing the constable, and killing him in an affray; but it is de-
fended on the principle, that every person wilfully engaging, in
cool blood, in a breach of the peace, by assaulting another instead
of endeavouring to assuage the dispute, is bound first to satisfy
himself of the justice of the cause he espouses at his peril. (s)'
And, upon this principle, if a stranger seeing two persons engaged,
one of them a bailiff, attacking the other with a sword, and the
other resisting an arrest by such bailiff, interfere between them
without knowing the bailiff, for the express purpose of defending
the party attacked against the bailiff he must abide the conse-
quences at his peril ; but if he interfere, not for the purpose of
aiding one party against the other, but with intent only to pre-
serve the peace, and prevent mischiefs and in so doing happen to-
kill the bailiff, the case would possibly fall under a different con-
sideration, (a)

In all cases, whether criminal or civil, where doors may be Notice beforr*
broken open in order to make an arrest, there must be a previous ?*^/" *™
notification of the business, and a demand to enter on the one ^ ^^ ^ ^
hand, and a rehisal on the other, before the parties proceed to that. '

extremity. (6) In a case where an outer door had been broken
open by two constables and a gamekeeper, to execute a warrant
granted by 22 and 23 Car. 2. c. 25. s. 2. to search for, and seize
any guns, &c. for destroying game : and it appeared, that the
door was broken open without the party having been previously
requested to open it ;. the court held, that, in a case of misde-
meanor, a previous demand of admittance was clearly neces-
sary, before an outer door was broken open. Abbott, C. J. said,
^^ it is not at present necessary to decide how far in the case of a
^' person charged with felony it would be necessary to make a pre-
^^ vious demand of admittance, before you could justify breaking,
'' open the outer door of the house ; because I am clearly of opi-*

(jr>I Hairk. P. C. c. 81. s. 57. Keb. under similar circuinstaiice8>W8sholden'

87. 4 Co. 40 b. 1 East P. C. c 5. s. not to be guilty of murder. This case

82. p. 316. 18 differently reported by Kelyng^ ; and

(y) 1 East. P. C. c. 5. s. 82. p. SI 6. Keble, reporting the same case very

(z)' 1 Hawk. P. C. c. 31. s. 59. 1 shortly, says, — It was adjudged, that

East. P. C. c. 5. s. 88. p. 316, 317, if any casually assist against the law,

^here the erounds upon which the law and kill the bailiff*, it is murder, espe«

in each of these cases may be sup- cially if he knew the cause. 1 Keb»-

ported, and considered as reconcile- 584. ; and see 1 East. P. Q, c. 5. s. 83.

Able, are more fully stated. p. 318.

(a) See the case of Sir C. Standlie (b). Post. 320. 2 Hawk. P. C. c 14..

And AudrewSf Sid. 159, where Andrews, s. 1. 1 East. P. C. c. 5. s. 87. p. 324.

ftlS Of Mamlaugkter. [

'' nion^ thatj in the case of a misdemeanor, snch previous
^^ is requisite." Bayley, J. saidy generally, ^ even in the exeo-
'^ tion of criminal process, you must demand admitiance, bdnre
*^ you can justify breaking open the outer door. That poo^
^^ was mentioned in the judgment of the Court in Bardett r.
*' f^ho{X.*\b) The question as to what should be coofliderri
as due notice was much considered in a case where two oflkcn
went to the workshop, of a person, against whom they had an es-
cape warrant; and, finding the shoj^ door shut, called out to the
person, and informed him that they had an escape warrant againil
him, and required him to surrender, otherwise they said ther
would break open the door ; and, upon the person's refasing to
surrender, they broke open the door, and one of their assistanti
was immediately killed. Nine of the Judges were of opinion, th^
no precise form of words was required in a case of this kind ; and
that it is sufficient if the party has notice that the officer coofees
not as a mere trespasser, but claiming to act under a proper si-
thority. The Judges who differed, thought that the officers ought
to have declared, in an explicit manner, what sort of ^varrant they
had ; and that an escape does not, ex vi termini^ nor in the notioo
of law, imply any degree of force, or breach of the peace ; and,
consequently, that the prisoner had not due notice that they came
under the authority of a warrant grounded on a breach of the
peace ; and that, for want of this due notice, the officers were not
to be considered as acting in discharge of their duty, but as mere
trespassers, (c)
Notice lyjr pri- In the case of a private or special bailiff''^ either it must appear
vatc buUff. j^^^ tjjg p&rty knew that he was such officer, as where the party
said, ^' Stand off, I know you well enough ; come at your peril ;"
or, that there was some such notification thereof that the party
might have known it, as by saying, ^' I arrest you.'' These words,
or words to the like effect, give sufficient notice ; and if the per-
son using them be a bailiff, and have a warrant, ibe killing of such
officer will be murder. {cTj A private bailiff ought also to shew
the warrant upon which he acts, if it is demanded : (e) and with
respect to the writ or process against the party, both the public
and private bailiff, in case the party submit to .the arrest and make
the demand, are bound to shew at whose suit, and for what cause
the arrest is made, out of what court the process issues, and when
and where returnable. ( f) In no case, however, is he required to
part vrith the warrant out of his own possession : for that is his
justification, {g)
Ab to the re- It may be observed generally, that where an officer, in executing
guiarity of the his office, proceeds irregularly, and exceeds the limits of his au-
proceeding. thority, the law gives him no protection in that excess : and if he

{b) Launock v. Brown, 8 B. & A. rest, 1 Hale 458. And see 1 Hale 459,

598. where it is said that a jastice of peace

{c) Hex V. Curtis, Post 1S6, 137. maj issue his warrant to a private

(d) 1 Hale 461. Rex v. Mackally, person; but then such person mast
9 Co. 69 b. shew his warrant, or signif j the con-

(e) 1 Hale 583. That is, the warrant tents of it.

by which he is constituted bailiff; (f) I Hale 458, note (g). 5 Co. 54

which a bailiff or officer, juratui ei a. 9 Co. 69 a.

^ognUuB^ need not shew upon the ar- {g) \ Bast. P. C. c. 5. s. 83. p. 319.

CHAP. III. $ 4.] Resisting Officers and Others. 519

ci](^., be killed, the offence will amoimt to no more than manslaughter
^^^^ in the person whose liberty is so invaded. (A) He should be care-
,j ^ fill, therefore, to execute process only within the jurisdiction of
J ^^. the court from whence it issues ; as, if it be executed out of such
r .^ jurisdiction, the killing the officer attempting to enforce the exe-
L f^! cation of it will be only manslaughter, (t) But, if the process be
^^^ executed within the jurisdiction of the court or magistrate from
^^^ .„ whence it is issued, it will be sufficient, though it be executed out
!^ ^ of the vill of the constable, provided it be directed to a particul^
.^. constable byname, or even by his name of office. (A) And the
.; ,' officer must adso be careful not to make an arrest on a Sunday^
except in cases of treason, felony, or breach of the peace ; as, in
all other cases, an arrest on that day will be the same as if done
without any authority. (/) But process maybe executed in the
night time, as well as by day. (m)

The right of officers to break open windows or doors, in order RigbtofoiB-
to make an arrest, has been a subject of some litigation: bat cento break
many of the points have been settled, and require to be shortly ^^^n to
noticed. And the general rule must be kept in mind, that in makeanarreit.
every case, whether criminal or civil, in which doors may be
broken open in order to make an arrest, there must be a previous
notification of the business, and a demand to enter on the one
hand, and a refusal on the oUier, before the parties proceed to that
extremity, (ji)

Where a felony has been committed, or a dangerous wound
given, the party's house is no sanctuary for him ; and the doors
may be forced, after the notification, demand, and refusal which
have been mentioned, (o) So, where a minister of justice comes
armed with process, founded on a breach of the peace, doors may
be broken, (p) And it is also settled, upon unquestionable au-
thorities, that where an injury to the public has been committed,
in the shape of an insult to any of the courts of justice, on which,
process of^ contempt is issued, the officer charged with the execu-
tion of such process may break open doors, if necessary, in order
to execute it. {q) And the officer may act in the same manner
upon a capias utlagatum, or capias profile, (r) or upon an habere
facias possessi(mem,{s) The same force may be used where a for-

(A) Post. SI 9. open, where one known to have com-

ii) 1 Hale 458, 450. 1 East P. C. mitted a treason or felony, or to haver

c. 5. s. 80. p. 314. given another a dangerous wound,

(k) 1 Hale 459. 8 Hawk. P. C. c. is pursued, either with or without a

13. s. S7, 30. 1 East P. C. c. 5. s. 80. warrant, by a constable or private

p. 3 14. And see 5 6. 4. c. 1 8. Anie^ 5 10. person.

(/) 29 Car. 8. c. 7. 1 East P. C. c. (p) Post 380. 1 Hale 459. 8 Hawk.

5. 8. 88. p. 384, 385. The statute P. C. c. 14. s. 3. Curtis's case. Post*

makes Yoia all process, warrants, &c. 135.

served and executed on a Sunday, ex- (q) Burdett v. Abbott, 14 East. 157.

ceptin the cases mentioned in the text, where the process of contempt pro*

(m) 9 Co. 66 a. 1 Hale 457; 1 cceded upon the order of the House

Hawk. P. C. c. 31. s. 68. of Commons^^ and see Semaynes' case,

(n) Post 880. 8 Hawk. P. C. c. 14. Cro. Eliz. 909. ; and Brigg's case, 1

s. 1. Jnte^bM. Rol. Rep. 336.

(o) Post. 380. 1 Hale 459. And (r) 1 Hale 459. 8 Hawk. P. C. c.

see 8 Hawk. P. C. c. 14. s. 7. where 14. s. 4.

it is said that doors may be broken (s) 1 Hale 458. 5 Co. 95 bv

&20 Of Manslaughter. [jblOok ii f .

cible entry or detainer is found by inquisition before justices of
peace, or appears upon their view ; \t) and also where the proceed-
ing 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, [n) But in this latter case
the officer executing the warrant must, if required, shew the same
to the person whose goods and chattels are distrained, and sufier a
copy of it to be taken. (/r)

But though a felony has been actually committed ; yet a bare
suspicion of guilt against the party will not authorize a proceeding
to this extremity, unless the officer comes armed with a warrant
from a magistrate, grounded on such suspicion, (jt) For where a
person lies under a probable suspicion only, and is not indicted, (y)
it is said to be the better opinion, that the breaking open doors
without a warrant, in order to apprehend him, cannot be justi-
fied : {z) or must at least be considered as done at the peril of
proving that the party, so apprehended on suspicion, is guilty, {a)
But a different doctrine appears to have formerly prevailed upon
this point ; by which it was held that if there were a charge of
felony laid bdfore the constable, and reasonable ground of sus-
picion, such constable might break open doors, though he had no
warrant, {b)

It is said, that if there be an affray in a house, the doors of
which are shut, whereby there is likely to be manslaughter or
bloodshed, and the constable demand entrance^ and be reused by
those within, who continue the affray, the constable may break
open the doors to keep the peace, and prevent the danger: (c) and
it is also said, that if there be disorderly drinking or noise in a
house at an unseasonable time of night, especially in inns, taverns,
or alehouses, the constable or his watch demanding entrance, and
being refused, may break open the doors to see and suppress the
disorder. (cTj And further, that where an affray is made 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 immediately
pursued by him, and he is not suffered to enter in order to sup-
press the affiray in the first case, or to apprehend the affrayers in
either case, he may justify breaking open the doors, {e)
In civil cases But this mode of proceeding, by breaking the doors of the party,
f ™*"^«^^usc ig founded upon the necessity of the measure for the public weal,
u IS cas e. ^^^ .^ ^^^ permitted to the particular interest of an individual. In
civil suits, therefore, the principle that a man's house is his castle,
for safety and repose to himself and his familv, is admitted ; and,
accordingly, in such cases, an officer cannot justify the breaking
open an outward door or window to execute the process. (/) If
he do so, he will be a trespasser ; and if the occupier of the house

(I) 2 Hawk. P. C. G. 14. 8. 6. Ante^ 4. 9 a.

883. (c) % Hale 95.

(v) S Hawk. P. C. c. 14. s. 5. (d) 8 Hale 95.; and it isadded, '* This

\w) 87 Geo. 8. c. 80. *^ is coDStantly used in London aod

(x) Fosk. S8I. " Middlesex.** But see ciile, 878, 873.

(y) Jnte^ 503. {e) 8 Hawk. P. C. c. 14. s. 8.

(z) 8Hawk.P.C. c. U.S. 7. (/) Cook's case, ^ro. Car. 537.

{a) 1 East. P. C. c. 5. s. 87. p. 388. Post. 319.
{b) 1 Hale 583. 8 Hale 98. 13 Ed.

CHAP. III. $ 4.J Resisting Officers and Others. 521

resist him, and in the struggle kill him, the offence will be onlf
manslaughter ; (g) or if the occupier of the house do not know
him to be an officer, and have reasonable ground of suspicion that
the house is broken with a felonious intent, the killing such officer
will be no felony. (//)

It has been considered, however, that this rule of every man's
house being his castle has been carried as far as the true principles
of political justice will warrant, and that it will not admit of any
extension, (i) It should be observed, therefore, that it will apply
only to the breach of outward doors or windows ; to a breach of
the house for the purpose of arresting the occupier or any of his
family ; and to arrests in the first instance*

Outward doors or windows are such as are intended for the The prirllpge
security of the house, against persons from without endeavouring ^ ^"^^ ?**'***
to break in. {k) These are protected by the privilege which has hrs"castie"ap-
been before mentioned : but if the officer find the outward door plies only to
open, or it be opened to him from within, he may then break open ^^^ l^rejch of
any inward door, if he find that necessary in order to execute his **** ""*
process. (/) Thus, it has been holden that an officer, having en-
tered peaceably at the outer door of a house, was justified in
breaking open the door of a lodger, who occupied the first and
second floors, in order to arrest such lodger, {m) And in a late
case it was decided, that a sheriff's officer in execution of mesne prO'
cessj 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 ; B. having refused to open the door
of the room, after being informed by the officer that he had a war^-
rant against him. (a) But it seems that if the party, against whom
the process is issued, be 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, (n) Though in case
the person, or the goods of the defendant, are contained in the
house which the officer has entered, he may break open any door
within tlie house without any further demand, (o) 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 vrithin,
Uefore he breaks open any inner door ; as if they are not, he will
not be justified, (p)

In a case where an outward door was in part open (beinff di-
vided 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 pre-

(g) Cook^s case, Cro, Car. 5S7. (a) Lloyd v. Sandilands, 2 Moore

Fost. 319. 807.

W 1 Hale 458. 1 Bast. P. C. c. 5. (n) Ratcliffe v. Burton, 3 Bos. and

8.87. p. 381,398. Pull. 823.

(0 Post 319, 380. ^ (o) Per Gibbs, J. in Hutchinson o.

(k) Post. 320. Birch and another, 4 Taunt. 619.

(/) I Hale 458. 1 East. P. C. c. 5. (p) Cooke o. Birt, 5 Taunt 765.

8. 87. p. 383. Johnson v, Leigh, 6 Taunt. 840. Pbut^

(ai) Leev. Gansel, Cowp. 1. 588.

529

Of Manslaughter.

^BOOK III.

And to cases
where the
house is
broken, in
order to arrest
the occujrieTf
or any J/kit
/atntiy.

And also, to
mrretts in the
Jirtt imtmnce.

Interference
by third per-

vailing, the prisoner shot at and killed him ; it was ^held to be
murder, {q)

This personal privilege of an individual^ in respect to his outer
door or window, is confined also to cases where the breach of the
house is made in order to arrest the occupier or any of his /amity,
who have their domicile, their ordinary residence, there : for if a
^tranger, whose ordinary residence is elsewhere, upon a pursuit,
take refuge in the house of another, this is not the castle of such
stranger, nor can he claim in it the benefit of sanctu^ury. (r) But
it should be observed, that in all cases where the doors of strangers
are broken open, upon the supposition of the person sought being
there, it must be at the peril of finding him there ; unless, as it
seems, where the parties act under the sanction of a magistrate's
warrant, (js) And an ofiicer cannot even enter the house of a
stranger, though the door be open, for the purpose of taking the
goods of a defendant, but at his peril as to the goods being found
there or not 5 and if they be not found there, he is a trespasser.(/)
And it has been decided that a sheriff cannot justify breaking the
inner doors of the house of a stranger, upon suspicion that a de-
fendant is there, in order to search for such defendant, and arrest
him on mesne process, {u)

And the privilege is also confined to arrests in thejirst ittstance.
For if a man, being legaUy arrested, {uf) escape from the officer,
and take shelter, though in his own house, the officer may, upon
fresh suit, break open doors in order to retake him, having nrst
given due notice of his business, and demanded admission, and
been refused, (or) If it be not, however, upon fresh pursuit, it
seems that the officer should have a warrant from a magistrate :
and it should be observed, that the officer will not be authorized to
break open doors in order to retake a prisoner in any case where
the first arrest has been illegal, (y) Therefore^ where an officer
had made an illegal arrest on civil process, and was obliged to
retire by the party's snapping a pistol at him several times, and
afterwards returned again with assistants, who attempted to force
the door, when the party within shot one of the assistants; it was
ruled to be only manslaughter, (s)

In all cases where the officer or his assistants^ having entered a
house in the execution of their duty, are locked in, they may justify
breaking open the doors to regain their liberty, (a)

It has been deemed a question worthy of great consideration

(q) Baker*8 case, I Leach 118. 1
East.P.C. C.5. s.87.p.323. It should
be observed, that in tnis case there was
proof of a previous resolution in the
prisoner to resist the officer, whom he
afterwards killed in attempting to at-
tach his goods in his dwelling-housjs,
in order to compel an appearance in
the county court. The point reserved
related to the legality of the attach-
ment. Ante^ 511.

(r) Post. S20. 5 Co. 93.

(9) 8 Hale 103. Fost. 321. 1 EaaL
P. C. c. 5. s. 87. p. 384.

(I) Cooke r. Birt, 5 Taunt 765.

(u) Johnson v. Leigh, 6 Taunt. 846.
JntCt 581.

(tp) Lajjring hold of the prisoner, and
pronouncing the words ot arrest, is an
actual arrest. Post 380. But bare
words will not make an arrests the
officer must actually touch the pri-
soner. Genner v. Sparkes, 1 Salk. 79.

(x) Post 380. Genner v. Sparkes,
1 Salk. 79. 1 Hale 459. 8 Hawk. P.
C. c. 14. 8. 9.

(y) 1 East P. C. c. 5. 8. 87. p. 384.

(a) Stevenson's case, 10 St. Tr. 468.

(a) 8 Hawk. P. C. c. 14. s. II. I
East P. C. c. 5. 8. 87. p. 384.

CHAP. III. § 4.3 Resisting Officers and Others. 523

how far third persons^ especially mere strangers, interposing in be- J?"'^*'*']^
half of a party illegally arrested, are entitled to insist upon the iUegST"
illegality of the arrest, in their defence, as extenuating their guilt
in killing the officer.

The point was raised in the following case : — ^One Bray, who Tooley't cne.
was a constable of St. Margaret's parisn in Westminster, came
into the parish of St. Paul, Covent Garden, where he was no con-
stable, and consequently had no authority ; (&) and there took up
one Ann Dekins, under suspicion of being a disorderly person, but
who had not misbehaved herself, and against whom Bray had no
warrant. The prisoners came up; and, though they were aU
strangers to the woman, drew their swords, and assaulted Bray,
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 Bray carried the woman
to the round house in Covent Garden. A short time afterwards,
the woman being still in the round house, the prisoners drew their
swords again, and assaulted Bray, on account of her imprisonment,
and to get her discharged. Bray called some persons to his as-
sistance, to keep the woman in custody, and to defend himself
from the violence of the prisoners : upon which a person named
Dent came to his assistance ; and before any stroke received, one
of the prisoners gave Dent, while assisting the constable, a mortal
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, (c) 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 im-
prisoned : (d) and they also thought that the prisoners, in this
case, had sufficient provocation ; on the ground that if one be im-
prisoned 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 sub-
ject 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 case of Hug'get, and also that of Sir Henry Ferrers, appear Hogget's case.
to have been relied upon in support of the argument of the seven •
Judges, who in the preceding case held the offence to be man-
slaughter. Hugget 8 case, in the fuller report of it, (e) appears to
have been thus : — ^Berry and two others pressed a man without

(b) One Jud^e only thought that Braj Lord Ra jra. 1 296.

acted with authority, as he shewed his (d) For this Young's case, 4 Co. 40.

staff, and that, with respect to the pri- was cited ; and Macka]ly*s case, 9 Co.

soners, he was to he considered as con- 65.

stable de facto, (e) Hugget's case, Kel. 59.

(r) Rex V. Tooley and others, 8

1

5S4 Of Manslaughter. [book hi.

any 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 Berry 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 Berry : whereupon Berry
« and his two companions drew their swords, and a fight ensued, in

which Hugget killed Berry. But this case is stated very differently
by Lord Hale, as having been under the following circumstances: —
A press-master seized B. for a soldier; and, with the assistance of
C, laid hold of him. D. finding fault with the rudeness of C,
there grew a quarrel between them, and D. killed C: and by the
advice of all the Judges, except very few, it was ruled that this
SirH.Fefren's was but manslaughter. (/) The case of Sir Henry Ferrers was
^*^' only this : — ^That Sir Henry Ferrers being arrested for debt, upon

an illegal warrant, his servant, in seeking to rescue him, as was
pretended, killed the ofiicer : 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 the murder and
manslaughter, {g)

But Mr. Justice Foster is of opinion, that these cases of Hugget
and Sir Henry Ferrers's servant did not warrant the doctrine laid
down by the seven Judges in the case of Tooley : and this great
master of the crown law (A) has animadverted upon that doctrine
with much force, viewing it as having carried the law in fevour of
private persons officiously interposing in cases of illegal arrest fur-
ther than sound reason, founded in the principles of true policy,
will warrant, (t) After observing that, in Hugget's case, 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 aifray began ; {k) whereas, though in Tooley's
case, the prisoners had, at the first meeting, drawn their swords
against the constable unarmed, they had put them up again, ap-
pearing 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

if) 1 Hale 465. (/) Post. SIS, e< $eq,

ig) Sir Henry Ferrers's case, Cro. (Ar) In Hugget's rase the Judges, wbo

Car. 371. > held it to be manslaughter, put the

(h) So called by Mr. J. Blackstooc, point upon an cndeavuur to rcsciie%

4 Com. 2.

CHAP. HI. ^ 4.] Resisting Officers and Others. 535

" an illegal arrest and imprisonnoient, 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 (/) 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 that 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 stimu-
'^ late 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 reflec-
" tion, than in human infirmity ; audit is to human infirmity alone
^^ that the law indulges in the case of a sudden provocation.'' He
then prbceeds further: ^^But if a passion for llie common rights
'^ of the subject, in the case of individuals, must, against all expe-
*' rience, be presumed to inflame beyond a personal affront, let us
" suppose the case of an upright and deserving man, imiversally
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."(m)

In a more recent case, the prisoner, who cohabited with a person Adey'i ctse.
named Farmello, killed an assistant of a constable, who came to
apprehend Farmello, as an idle disorderly person, under the sta-
tute 19 Geo. 2. c. 10. Farmello, though he was not an object of
the act, did not himself make any resistance to the arrest : but the
prisoner, immediately upon the constable and his assistant requir-
ing Farmello to go along with them, without making use of^any
argument to induce them to desist, or saying one word to prevent
the intended arrest, stabbed the assistant. And Hotham, B.,
with whom Gould, J. and Ashhurst, J. concurred, held the offence
to be murder. A special verdict, however, was found ; (n) and the

(0 Holt, C. J., iQ delivering the (m) Post 315, 316, 317.

jiidj;mentiaTooley*scase, said,*' Sure («) The court advised the jury to

'* a luaa ought to be concerned for find a special verdict, on the eround

*' Magna Charta and the laws ; and if of the difference of opinion which had

^^any one against the law imprison a been entertained in Toole'y's case, and

" man, be is an offender against Magna the case of Uugget, ante, 523, 524.
" Charta."

ii
It
(t

536 Of Manslaughter^ [sook iii.

case wad or^ed in the Exchequer chamber, before ten of the
Judges : but no opinion was ever publicly delivered, (o)

SECT. V.

Cases ivher^ the Killing takes place in tfte Prosecution of some
other Criminal, Unlawful, or Wanton Act.

foecQess and It has been shewn, that where from an action^ unlawful in itself,
iBOBntious done deliberately, and with mischievous intention, death ensues,
•^^' though agzdnst or beside the original intention of the party, it will

be murder : (p) and it may be here observed, that if such delibera-
tion and mischievous intention does not appear, (which is matter
of fact, and to be collected from circumstances,) and the act was
done heedlessly and incautiously, it will be manslaughter, {q)
Blow aimed Where an injury, intended against one person, mortally affects
at one person another, as where a blow aimed at one person lights upon another
kills another, ^j jjjjg j^-^^ ^.j^^ inquiry will be whether, if the blow had killed

the person against whom it was dmed, the offence would have
been murder or manslaughter* For if a blow, intended against A.,
and lighting on fi., arose from a sudden transport of passion,
which, in case A. had died by it, would have reduced the offence
to manslaughter, the foct will admit of the same alleviation, if it
shall have caused the death of B. (r)
Acta generaBj There are many acts so heedless and incautious as necessarily
incantioiiB. to be deemed unlawful and wiuiton, though there may not be aAy
express intent to do mischief : and die party committing them, and
causing death by such conduct, will oe guilty of manslaughter.
As if a persoh, breaking an unruly horse, ride him amongst a crowd
of people, and death ensue from the viciou^ness of the animal, and
it appear clearly to have been done heedlessly and incautiously
only, and not with an intent to do mischief, the crime will he
nlanslaughter.(«^ But it is said, that in such a case it would be
murder, if the nder had intended to divert hiihs^lf iHth th<e fright
of the crowd'. (/) And if a man, knowing that people at^ passing
along the streets, throw a stone or shoot an arrow over a house or
wall, and a person be thereby killed, this will be manslaughter,

(•) Adey*8 case, 1 Leach 906. And P. C. c. 5. s. 89. page S99. note (a),

see tfdL p. 819. ^here tl is said, that the where it is said, ** Upon inquirjf, bow-

prisoner laid eighteen months in gaol, *' eTcr, it appears that, pending the

and was then discharged:— but the fol- ** consideration of the case by the

lowing note is added, *' It is said, that ** Judges, she escaped during the rtots

the Judges held it to be manslaughter '■ in 1780, and was never retaken."

only, but no opinion was ever pub- (p) Anie^ 459, et «ff .

cc
<(
tt
ic

licly given; and qutere whether the {q) Post. 961.

prisoner did not escape pending the (r) Post 969.

opinion of the Judges, when the gaol («) 1 Bast P. C. e. 5. s. I^. p. SSI.

** was burnt down in 1780, and was (() 1 Hawk. P.O. c. 31. s. 68.
V never retaken.*' AndseealsolBast

CHAP. HI. § 5.] Criminal, Unlatcful, or Wanton Acts. 527

though there were no intent to do hurt to any one ; because the
act itself was unlawful, {u) 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 man-
slaughter : for the act was likely to breed danger, and manifestly
improper, (w)

it has been shewn that where death ensues from an act done in Death from
the prosecution of a felonious intention, it will be murder : {x) but »ctoof tie»-
a distinction is taken in the case of an act done with the intent ^'^
only of committing a bare trespass ; as if death ensues from such
act, the offence will be only manbiaughter. (y) Thus, though if
A. shoot at the poultry of B., intending to steal them, and by ac-
cident kill a man, it will be murder ; yet, if he shoot at them wan-
tonly, and without any such felonious intention, and accidentally
kill a man, the offence will be only manslaughter, (s) And any one
who voluntarily, knowingly, and unlawfully, intends hurt to the
person of another, though he intend not death, yet, if death ensue^
is guUty of murder or manslaughter, according to the circum-
stances of the nature of the instrument used, and the manner of
using it, as calculated to produce great bod[ily harm or not. (a)
And if a man be doing an unlawful act, though not intending bo-
dily harm to any one, as if he be throwing a stone at another's
horse, and hit a person and kill him, it is manslaughter, (b) But
it seems that in cases of this kind the guilt would rather depend
upon one or other of these circumstances, either that the act might
probably breed danger, or that it was done with a mischievous
intent, (c)

Where sports are unlawful in themselves, or productive of dan- Death hap-
ger, riot, or disorder, so as to endanger the peace, and death ensue P*"!"? *' ^
in the pursuit of tiiem, the party killing is guilty of man- "^

slaughter, (d) Such manly sports and exercises as tend to give
strength, activity, atnd skill in the use of ai^ms, and are entered
into as private recreations amongst friends, are not, however,
deemed unlawful sports : {e) but prize-fighting, public boxing
matches, or any other sports of a similar kind, wmch are exhibited
for lucre, and tend to encourage idleness by drawing together a
number of disorderly people^ have met utrith a different considera-
tion. (/) For in these last-mentioned cases the intention of the
parties is not innocent in itself, each being careless of what hurt
may be given pr6vided the promised reward or applause be ob-
tained: and meetings of this kind have also a strong tendency in
their nature to a breach of the peace, (g) Therefore, where the
prisoner had killed his opponent m a boxing match, it was holden
that he was guilty of manslaughter 5 though he had been chal-
lenged to fight by his adversary for a public trial of skill in boxings

(«) 1 Hale 475. 1 HtfWl^. P. C. c. (h) I Hale S9.

tS9. g. 9.' (c) 1 East. P. C. c. 5. 8. se. p. 957.

(tf) Btirton's cib6, 1 Str. 481. (d) Post. 859, S60. 1 £ast. P. €. c.

(x) jinfe, 45S. 5. s.41. p.S68.

(y) Post. 358. Though Lord Coke (c) 1^#//Chap. on Excusable Heki-

seems to think otherwise, 3 Inst. 56. cfde.

(z) Post. 858, 859. 1 Hale 475. (/) P6st. 860.

(a) 1 East. P. a c. 5. s. 38. p. 856, (^) 1 East. P. C. c. 5. s. 48. p. 870^
S57. 1 Hale 39.

It

528 Of Manslaughter. {[book hi.

and was also urged to engage by taunts ; and the occasion was
sudden. (A)

The custom of cock-throwing at Shrovetide has been con-
sidered as an idle^ dangerous, and unlawful sport ; and accordingly,
where a person throwing at a cock missed his aim, and killed a
child who was looking on, Mr. J. Foster ruled it to be manslaugh-
ter; and, speaking of the custom, he says, ^^ it is a barbarous un-
manly custom, frequently productive of great disorders^ dan-
gerous to the by-standers, and ought to be discouraged.'' (t) So
throwing stones at another wantonly in play, being a dangerous
sport without the least appearance of any good intent, or doing
any other such idle action as cannot but endanger the bodily hurt
of some one or other, and by such means killing i^ person, will be
manslaughter, {k)

Though the sports be not in their nature unlawful ; yet, if the
weapons used be of an improper and deadly nature the party
killing will be guilty of manslaughter : as was the case of Sir John
Chichester, who unfortunately killed his man-servant as he was
playing with him. Sir John Chichester made a pass at the servant
with a 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 tbe

Joint of the sword. (/} This was adjudged manslaughter : and Mr.
• Foster thinks, in conformity with Lord Hale, that it was rightly
so adjudged ; on the ground that there was evidently a want of
common caution in making use of a deadly weapon in so violent
an exercise, where it was highly probable that the chape might be
beaten off, which would necessarily expose the servant to great
bodily harm.(Y7i)

Shooting at deer in another's park, without leave, is fm unlaw*
fill act, though done in sport, and without any felonious intent ;
and therefore if a bystander be killed by the shot, such killing will
be manslaughter, (n)
Where nereral It has been shewn, that where a body of persons, resolving gene*
join to do an rally to resist all opposers in the commission of any breach of the
peace, and to execute it in such a manner as naturally tends to
raise tumults and affrays, happen to kill any one in the proseQu-
tion of this unlawful purpose, they will be guilty of murder, (o)
Yet, in one case, where divers 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,

(h) Ward^s case, O. B. 1789, cor^ ** bard, bj consent, seems* not to be

Ashhurst, J. 1 East. P. C. c. 5. s. 48. ** an unlawful act; for it is not a dan-

p. 270. *' &erou» weapon likely to occasion

rO Fost. S61. '* death, nor did it so in this case, but

(/r) 1 Hawk. P. C. c. SO. s. 5. ** by an unforeseen accident; and

(0 Sir John Chichester's<case, 1 Hale *' therein differs from the case of

478, 47S. AUeyn 12. Keil. 108. ''justing, or prise-fighting, wherein

(m) 1 Hale 473. Fost. 260. 1 East. '' such weapons are made use of as

P. C. c. b. s. 41. p. 269. But see in " are fitted and likely to give mortal

Hale 473, the fullowing note : — " This " wounds.**

'* seems a very hard case: and indeed (n) 1 Hale 475.

** the foundation of it fails ; for the (o ) jfn/e, 458, 454.
** pushing with -% sword in the scab-

unlawful act.

€HAr. III. § 6.] Lawful Acts improperly performed. 5^9

wi» endeavouring in the night forcibly to regain the possesBion^
and to fire the house, they were adjudged guilty only of man-
iilaughter,(jp) It is said, that perhaps it was so adjudged for this
reason, that the person slain was so much in fault himself* (9)

SECT. VI.

Cases where the Killing takes place in consequence 0/ 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, (r) And as
the circumstances of the case may vary, the party so killing ano-
ther may be guilty only of the extenuated offence of manslaughter..

Though officers of justice are authorised to execute their duties Officers of jni-
in a proper and legal manner, notwithstanding any resistance [^Iropcrf
which may be made to them;(«) yet they should not come to ex-
tremities upon every slight interruption, nor unless there be a
reasonable necessity. Therefore, where a collector, having dis-
trained for a duty, laid hold of a maid servant who stood at the
door to prevent tihe 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 of opinion that he was guilty of manslaughter in so far
exceeding the necessity of the case, (t)

There is a case reported in Strange, as a case of manslaughter, CaseofTraa-
which, if the circumstances of it were as stated in that report, g^^**'^ ^*"
does not seem to have been entitled to so favourable a construc-
tion. Mr. Lutterel, being arrested for a small debt, prevailed on
one of the officers to go with him to his lodgings, while the other
was sent to fetch the attorney's bill, in order, as Lutterel pre-
tended, to have the debt and costs paid. Words arose at the
lodgings about civility money, which Lutterel refused to give ;
and he went up stairs, pretending to fetch money for the payment
of the debt and costs, leaving the officer below. He soon returned
with a brace of loaded pistols in his bosom, which, at the impor-
tunity of his servant, he laid down on the table, saying, ^^ 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 re •
turned to his companion at the lodgings ; and, words of anger

ip) Rex V. Drayton Basset, Crom. (r) Anle^Abl, <l 9equ,
8S. 1 Hale 440. (f) yinie, 449, 457.

{q) I Hawk. P. C. c. 81. s. 53. (/) Goffe's case, 1 Ventr, 216,

vol.. I. 2 M

590 Of Manslaughter. [[booe in.

arising, Lutterel struck one of the o£Bcer8 on the face wifh tL
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 foTjmercyj and unable to resist them; and
one of them fired one of the pistols at him while on the ground,
and gave him his death's wound, (u) This is reported to hare
been holden manslaughter, by reason of the first assault with the
cane : but Mr. Justice Foster thinks it a very extraordinary case,
as thus reported ; and mentions the following additional circum-
stances, which are stated in another report.(icr) 1. Mr. Lutterel
had a sword by his side, which, after the affray was over, was
found drawn and broken. 2. When Mr. Lutterel laid the pistols
on the table, he declared that he 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 pistols were
discharged in the affray,) and slightly wounded on the wrist by
some sharp pointed weapon : and the other was slightly wounded
in the hana by a like weapon. 5. The evidence touching Mr.
Lutterel's begging for mercy was not, that he was on the ground
begging for mercy, but that on the ground he held up his hands,
<u t/he was begging for mercy. Upon these facts the chief jus-
tice directed the jury, that if they believed Mr. Lutterel endea-
voured to rescue himself, which he seemed to think was the case,
and which very probably was the case^ it woidd be justifiable
homicide in the officers. And as Mr. Lutterel gave the first blow,
accompanied with menaces to the officers, and the circumstance of
producing loaded pistols to prevent their taking him from his
lodgings, which it would have been their duty to have done if the
debt had not been paid, or bail given^ he declared it would be no
more than manslaughter, (or)
Officers of Though "resistance be made to an officer of justice ; yet if the

justice acting officer kill the party, after the resistance is over, and the neces-
ancc. "*"*" sity has ceased, the crime will at least be manslaughter, (y)
Or upon the Where a felony has been committed, or a dangerous wound
^tghi of the given, and the party flies from justice, he may be killed in the
party arrested, pm-g^j^;^ jf jjg cannot otherwi^jc be overtaken. And the same rule
nolds, if a felon, aftbr arrest, break away as he is carrying to
gaol, and his pursuers cannot retake without killing him. But if
he may be taken in any case without such severity, it is, at least,
manslaughter in him who kills him ; and the jury ought to en-
quire, whether it were done of necessity or not. (z) In making
arrests in cases of misdemeanor and breach of die peace^ (with
the exception, however, of some cases of flagrant misdemeanors,)
it is not lawful to kill the party accused if he fly from the arrest^
though he cannot otherwise be overtaken, and though there be a
warrant to apprehend him ; and, generally speaking, it will be
murder : but^ under circumstances, it may amount only to man-

(tt) Rex V. Tranter aad Reason, 5. s. 63. p. 297. And if there wer«

Stra. 499. Ante^ 436. time for the blood to have cooled, it

(w) 6 St. Tri. 195. 16St. Tri. (by "would, it is conceived, amount to

Howell) 1. murder, ante, 442.

(x) Post. 293, 294. {z) 1 East. P. C. c. 5. s. 67. p. 898.

(y) MS. Bamet 37. 1 East. P. C. c.

2

the aea ser*

TICC.

CHAP. III. $ 6.] LawfvX Acts improperly performed. 5Sl

slaughter, if it appear that death was not intended, {a) In civil
suits, if the party against whom the process has issued fly from
the officer endeavouring to arrest him, and be killed by him in
the pursuit, it has been said that it will be murder, (b) nut it is
rather to be considered as murder, or manslaughter, as circum-
stances may vary the case ; for if the officer, in the heat of the
pursuit, ana 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, (c)

In cases of pressing for the sea service, if the party fly, the Prewingfor
killing by the officer in the pursuit to overtake him will be man-
slaughter, at least, and in some cases murder, according to the
rules which govern the case of misdemeanors ; paying attention^
nevertheless, to those usages which have prevailed in the sea ser-
vice in this respect, so far as they are authorised by the courts
which have ordinary jurisdiction over such matters, and are not
expressly repugnant to the laws 6f the land. An officer in the
impress service put one of his seamen on board a boat belonging
to one William Collyer, a fisherman, with intent to bring it
imder the stern of another vessel, in order to see if there were
any fit objects of the impress service on board. The boat steered
away in another direction; and the officer pursued in another
vessel for three hours, firing several shots at her with a musket
loaded with ball for the purpose of hitting the hallyards and bring-
ing the boat to, which was found to be the usual way ; and one
of the shots unfortunately killed Collyer. The court said, it was
impossible for it to be more than manslaughter, (d) It is pre-
sumed, that this decision proceeded on the ground that the mus-
ket was not levelled at the deceased, nor any bodily hurt intended
to him. But inasmuch as such an act was calculated to breed
danger, and not Wc^rranted by law, though no bodily hurt were
intended, it was holden to be manslaughter, and the defendant
was burned in the hand, (e) It may here be observed, however,
that by the statute for the prevention of smugglings it is en-
acted, that in case any vessel or boat liable to seizure or examina-
tion shall not bring to on being required to do so, or being chased
by any vessel in his Majesty's navy, having the proper pendant
ensign of his Majesty's ships hoisted, or by any vessel employed
for the prevention of smuggling, under the authority of the com-
missioners therein mentioned, having a pendant or ensign hoisted
of such description as is therein mentioned, it shall be lawful for
thet^ptdn, 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 assistance, or by his directions, shall be indemnified and
discharged from any indictment, penalty, or action, for so doing. (/)

(a) Post 871. 1 East. P. C. c. 5. (e) I East. P. C. c. 5. s. 75. p^ SOS.
S. 70. p. 308. (/) 6 Geo. .4. c. 108. s. 14. which

' (b) By Lord Hale, 1 Hale 481. contains also a proviso for admittiDg

(c) Post. 871. to hail persons prosecuted for firing,

(d) Rex V, Phillips, Cowp. 830. wounding, killing, &c.

2 m2

533

Of Manslaughter.

[book III.

Gaolers.

Officer arrest- Where an officer makes an arrest out of his proper district, or
ing out of hU without any warrant or authority, {g) and purposely kills the
SrktT"^ ^*" P^^y ^^^ ^'^^ submitting to such illegal arrest, the crime will,
generally speaking, be murder : that is, in all cases at least where
an indifferent person acting in the like manner, without any such
jretence, would be guilty to that extent, (/i) In the case of pri-
vate persons u»ing their endeavours to bring felons to justice,
caution must be used to ascertain that a felony has actually been
committed, and that it has been committed by the party arrested
or pursued upon suspicion ; as, if the suspicion be not supported
by the fact, the person endeavouring to arrest or imprison, and
killing the party in the prosecution of such purpose, will be guilty
of manslaughter, {i)

Gaolers, like other ministers of justice, are bound not to exceed
the necessity of the case in the execution of their offices ; there-
fore 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. (Xr)
And if an officer, whose duty it is to execute a sentence of whip-

Eing upon a criminal, should be so barbarous as to exceed all
ounds of moderation, and thereby cause the party's death, he
will at least be guilty of manslaughter. (/)

Moderate and reasonable correction may properly be given by
parents, mastery, and other persons, having authority in faro do-
mesticoy to those who are under their care ; but if the correction
be immoderate or unreasonable, either in the measure of it, or in
the instrument made use of for that purpose, it will be either
murder or manslaughter, according to the circumstances of the
case. If it be done with a dangerous weapon, likely to kill or
maim, due regard being always had to the age and strength of the
party, it will be murder : but if with a cudgel, or other thing not
likely to kill, though improper for the purpose of correction, it
will be manslaughter, (m)

In the foUowmg case the nature of the instrument used, and
the probability of its causing death, or great bodily harm, when
used in the manner stated in the case, occasioned much doubt.
The prisoner having employed her daughter-in-law, a child of ten
years old, to reel some yam, and finding some of the skeins
knotted, threw at the child a four-legged stool, which struck her
on the right side of the head, on the temple, and caused her
death soon afterwards. The stool was of sufficient size and weight
to give a mortal blow : but the prisoner did not intend, at the
time she threw it, to kill the child. These facts were stated in a
special verdict: but the matter was considered of great difficulty,
and no opinion was ever delivered by the Judges, (n)

Correction in
furo dometticOm

Hazera case.

Or) AfUey 457, 458.

(A) I East P.C. c 5. s. 80. p. 312.

(0 Fost 318.

(At) 1 East. P. C. c. 5. s. 01. p. 331.
citing I MS. Sum. 145. semb. Pult.
ISO, 121. And see 1 Hftwk. P. C. c.
?8. s. IS. where it is said, that if a
criminal endeavouring io break the
I

i:aoU assault tlie gaoler, he may be
awfully killed by nim in the affray.
(0 1 Hawk. P. C- c 29. s. 5.
(m) Post 262. 1 Hale 454. Keite's
case, 1 Ld. Rayro. 144.

(n) Rex V, Hazel, 1 Leach. 368.
tdnte^ 430, 440.

cttJLP. iti. § 6.3 Lawful Acts improperly performed. 533

In the foregoing case, the counsel for the prisoner cifed the wiggs'i ca«e.
following case. A shepherd boy had suSi^red some of the sheep,
which he Was employed in tending, to escape through the hurdles
of their pen. The boy's master, the prisoner, seeing the sheep
get through, ran towards the boy ; and, taking up a stake that was
lying on the ground, threw it at him. The stake hit the boy on
the head, and fractured his tfkull, of which fracture he soon after-
wards died. The learned Judge, (o) in his directions to the jury,,
after stating that every master had a right moderately to chastise
his servant, but that the chastisement must be on just grounds,,
and with an instrument properly adapted to the purposes of cor-
rection, desired them to consider, whether the stake, which, lying
on the ground, was the first thing the prisoner saw in the heat of
his passion, was or was not, under such 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. There-
fore, if the jury should think the strike was an improper instru-
ment, they would further consider whether it was probable that it
was used with an intent to kill : that if they thougnt it was, they
must find the prisoner guilty of murder ; but if they were per-
suaded it was not done with an intent to kill, the crime would
then amount at most to manslaughter. The jury found it man-
slaughter, {p) In this case it is presumed, that the learned Judge
must be understood as meaning, that if the jury should think the
instrument so improper as to be dangerous, ana likely to kill or
maim, the age and strength of the party killed being duly con-
sidered, 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 correc-
tion, was not likely to kill or maim, the crime would only be
manslaughter, unless they should also think that there was an in*
tent to kill.

Though the correction exceed the bounds of moderation, the'i^atnreof thr
court will pay a tender regard to the nature of the provocation, provocation
where the act is manifestly accompanied with a good intent, and considered in
the instrument not such as must, in all probability, occasion death, . child was
though the party were hurried to great excess. A father^ whose killed by the
son had frequently been guilty of stealing, and who, upon com- JtrMrent.^'
plaints 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 a^nst him, beat
him, in a passion, with a rope, by way of chastisement for the
offence, so much that he died. 1 he father expressed the utmost
horror, and was in the greatest affliction for what he had done^
intending only to have punished him with such severity as to have
cured him of his wickedness. The learned Judge, by whom the
father was tried,, consulted his colleague in office, and the prin-

(•)Nare8^J. (p) Rex v. Wiggs, J^offoUc Sura.-

Assiz. 1784. 1 Leach. 378. note («).

534 Of Manslaughter. [book iix.

cipal counsel on the circuit, who all concurred in opinion^ that it
was only manslaughter; and so it was ruled, {q)
Self's case.— Cases may occur in which the correction is not inflicted by
Correction by means of any active and personal violence, but by a system of
privation and pnvation and ill treatment. The following case seems to be of
iU treatment, this nature : — ^The prisoner, upon his apprentice returning to him
from Bridewell, whither he had been sent for misbehaviour, in a
lousy and distempered condition, did not take that care of him
which his situation required, and which he might have done ; 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. In this
case, the medicsd persons who were examined 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 they inclined to think, that if he had been properly treated
when he came home, he might have recovered. But, though
some harsh expressions were proved to have been spoken by the
prisoner to the boy, yet there was no evidence of any personal
violence having^ been used by the prisoner : and it was proved that
the apprentice had had sufiEicient sustenance; and the prisoner
had a general good character for treating his apprentices with hu-
manity; and had made application to get this boy into the hos-
pital. Under these circumstances, the Recorder left it to the
jury to consider whether the death of the boy was occasioned by
the ill treatment he received from his master, after returning from
Bridewell ; and whether that ill treatment amounted to evidence
of malice, in which case they were to find him gtiilty of murder.
At the same time they were told, with the concurrence of Mr.
Justice Gould and Mr. Baron Hotham, that if they thought other-
wise, yet, as it appeared that the prisoner's conduct towards his
apprentice was highly blameable and improper, they might, under
all these circumstances, find him guilty of manslaughter ; which
they accordingly did. (r) And upon the question being afteni'ards
put to the Judges, whether the verdict were well found, they all
agreed that the prisoner should be burned in the hand and dis-
charged, (s)

In a note upon the foregoing case Mr. East says, '' I have been
'' the more particular in stating the ground of the decision in this
*^ case, because Mr. Justice Gould's note of the case, firom
* ** whence this is taken, is evidently different from another re-
^' port (/) of the opinion of the Judges in this case, from whence
^' it might be collected, that there could be no gradation of guilt
'' in a matter of this sort, where a master, by his ill conduct or
'^ negligence, had occasioned or accelerated the death of his ap-
^' prentice, but that he m\ist either be found guilty of murder or
^^ acquitted; a conclusion which, whether well or ill founded, cer-

(g) Anon. fForceater Spr. Ass. 1775. p. 8S6, 227.
Serj. Forster*8 MS. 1 East. P. C. c. 5. (•) Easter T. 16 6. 3. De Grey^C. J.

8. 37 V p. 261. and Asbhurst, J. being absent.

(r) Hex V. Self, O. B. 1770, MS. (1) 1 Leach. 137.
Gould, J. 1 East P. C. c. 6. s. IS.

dHAP. ui. § 6.] Laioful Acts improperly performed. £9$

*' tainly cannot be drawn from this etatement of the case. The
'' same opinion, however, is stated, in the Old Bailev Sessions
'^ praers, to have been thrown out by the Recorder m Wade's
" case." (m)

Where persons employed about such of their lawful pccupa- Persons foi-
tions, from whence d&nger may probably arise to others, neglect lowing their
the ordinary cautions, it will be manslaughter at least, on account ^Mtions!^*
of such negligence, (w) 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
thev did not look out and give timely warning to such as might
be below, and there was even a small probability of persons pass-
ing by, it will be manslaughter, {x) 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, notwithstanding such caution be used, {y) But
this must be understood with some limitation. If it be done
early in the morning, when few or no people are stirring, and the
ordinary caution be used, the party may be excusable : but when
the streets are full, such ordinary caution will not suffice ; for, in
the hurry and noise of a crowded street, few people hear the warn-
ing, or sufficiently attend to it. (s)

So if a person, driving a cart or other carriage, happen to kill
another, and it appears that he might have seen the danger, but
did not look before him, it will be manslaughter, for want of due
circumspection, (a) Upon this subject the following case is re«
Dorted :— A. was driving a cart with four horses in the highway at
Whitechapel ; and he being in the cart, and the horses upon a
trot, they threw down a woman, who T^as going the same way
with a burthen upon her head, and killed her. Holt, C. J.,
Tracy, J. Baron Bury, and the Recorder Lovel, held this to be
only misadventure. JSut by Holt, C. J., if it had been in a street
where people usually pass, it had been manslaughter, {b) But
upon this case the following observations have been made : '* It
'^ must be taken for granted from this note of the case, that the
*' accident happened in an highway where people did not Visually
^* p€us ; for otherwise the circumstance of the driver's being in
^^ his cart, and going so much faster than is usual for carriages of
'^ that construction, savoured much of negligence and impro-
'^ priety : for it was extremely difficult, if not impossible, to stop
^ the course of the horses suddenly, in order to avoid any person
^* who could not get out of the way in time. And, indeed, such
'' conduct, in a driver of such heavy carriages, might, under most
^^ circumstances, be thought to betoken a want of due care, if
any, though but few, persons might probably pass by the same
road. The greatest possiblie care is not to be expected, nor is
^' it required : but whoever seeks to excuse himself for having un-
*^ fortunately occasioned^ by any act of his own, the death of an-

(ti).Rex V. Wade, 0. B. Eeb. 1784, (y) R«x v. Hull, Kel 40.

SesB. Pap. (z) FosU 863.

(«) Post. SdS. 1 East. P.C. C.5. {a)Id:md.

9. S8. p. 869. W Anon. O. B. 1704* 1 East P. C.

{») Fost. 868. 1 Hale 475. c. 5. s. 38. p. 863.

536

' Of Mamlaughier. £ftooKiii.

'* other, ought at least to shew that he took that care to avoid it^
'< which persona in similar situations are accustomed ta do/'(c)

There is one species of criminal negligence,^ punishable by the
provisions of the statute law, which may be mentioned in this
place, though the offence is not made manslaughter* By the 10
Geo. 2. c. 31. if any waterman, between Gravesend and Wind-
sor, receive into his boat or barge a greater number of persons
than the act allows, and any passenger be then drowned, such
waterman, being thereof lawfully convicted, is guilty of felony,
and liable to be transported as a felon«(<2)

SECT. VII.

0/ the Indictment and Judgment.

ladictnent.

Jodgment and
pwDishmcBt.

The indictment for manslaughter differs from the indictment
for the higher crime of murder, in the omission of any statement
as to malice, and of the conclusion that the party accused did kill
and ^^ murder :" and we have seen that a bill of indictment for
murder may be converted into one for manslaughter, by striking
out such statement and conclusion, (e)

The ofience of manslaughter is felonv within the benefit of
clergy; the punishment of which was formerly burning in the
hand, and forfeiture of goods and chattels.(/) By the 19 G. 3«
c. 7 A. the court had the power (which was generally exerdaed)
of imposing upon the offender such a moderate pecuniary fi^e, as
the circmnstances of the case seemed to require, with imprison-
ment for any term not exceeding a year, {g) But by a late sta-
tute a more severe punishment may oe inflicted. The 3 G. 4. c.
38. 8. 1., reciting that the punishment of burning in the hand had
long been deemed ineiSectual and inexpedient, and that the other
punishments of manslaughter were frequently inadequate to the
aggravated circumstances of the offence, enacts, '^ that wheneyer
** any person shall be lawfully convicted of the offence of man-
^' slaughter, such person shsdl not be liable to be burned or
*^ marked in the hand, or in any part thereof, but such person
'^ shall be liable to be transported beyond the seas for the term of
*^ his or her natural life, or for any term of years, as the court
'^ before which any such person shall be convicted shall adjudge ;

(c) 1 East. P. C. c. 5. 8. 38. p. 86S,
864.

{d) It has been observed, that this
may serve as a caution to sti^e coach-
men and others, nrho overload their
carriages for the sake of lucre, to the
i;reat danger of the lives of the |ia8-
scngers ; me number of whom are re-
gulated b> act of parliament 1 East^

Pr C. c. 5. s. S8. p. 9S4. and aee bow
60 G. 8. c. 48. by which the 98 6. S.
c. 57. 80 G. 8. c 86. and 46 O. S. c.
136. are severally repealed* and va-
rious new regulations are enacted.

{e) yinie^ 471.

(/) 1 Hale 466. 4 Blac Com* 199.

(g) 19G.8. C.74.S.3&4. 1 East.
P.C. c. 5* s. 4. p. 918.

CHAP. III. § 7.] Judgment and Punishment. 537

'' or shall be liable, in case the said court shall think fit^ to be
'' imprisoned only, or to be imprisoned and kept to hard labour
^' in the common gaol, house of correction, or penitentiary house,
'' for any term not exceeding three years ; or shall be liable to
'^ such a pecuniary fine, as to the said court, in its discretion,
shall seem t^eet ; and such fine or other punishment imposed by
virtue of this act, shall have the like emmets and consequences
to the party on whom such fine or other punishment shall be so
imposed, with respect to any discharge from the same "or other
'' felonies, or any restitution to his or her estates, capacities, and
^^ credits, as if ne or she had continued liable to the former pu-
'' nishment of burning or marking in the hand, and had suffered
'^ such former punishment/'

The benefit of clergy is taken awayirom one species of man-
slaughter ; namely, mortally stabbing another under circumstances
within the statute 1 Jac. 1 . c. 8. which has been treated of in a
former part of this Chapter, (t)

(0 AniCt 490. And see 4 Blac. Com. 193. 1 East. P. C. c. 5. s. 4. p. S18.

538

CHAPTER THE FOURTH.

OV BXCUSABLS AND JUSTIFIABLE HOMICIDS.

Ws may now properly proceed to treat of such homicide as, not
amoimting even to manslaughter, must be considered either aa
excusable or justifiable : excusable when the person, by whom it
is committed, is not altogether free from blame ; and justifiable
when no blame whatever is attached to the party killing.

Excusable Homicide is of two sorts; either per tn/oriuniumy
by misadventure; or se et sua de/endendOy 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 fe-
lony, though in strictness it deems it to be deserving of some
degree of punishment. It appears to be the better opinion, that
the punishment inflicted for this offence was never greater than a
forfeiture of the .goods and chattels of the delinquent, or a portion
of them : (a) and, from as early a time as our records will reach,
a pardon and writ of restitution of the goods and chattels have
been granted as a matter of right, upon payment of the expenses
of suing them out. At the present time, in order to prevent this
expense, it is udual for the Judges to permit or direct a general
verdict of acquittal in cases where the death has notoriously hap-
pened by misadventure, or in self-defence, {b) There may, how-
ever, be cases so bordering upon, and not easily distinguishable
from, manslaughter, that t^e offender may, with propriety, be put
to sue out his pardon, according to the provisions of the statute
of Gloucester, (c) and consequently not be entitled to a general
verdict of acquittal, (d)

Justifiable homicide is of several kinds : as it may be occa-
siouQd 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 advance-
ment of public justice, or for the prevention of some atrocious

crime.

«

(a) 4 Blac. Com. 188. The penaltj et tequ. Fost. 988.
for this offeDce is said by Sir Edward {b) 4 Blac. Com. 188. Fost 888.

Coke to hsTO been anciently no less 1 East. P. C. c. 5. s. 8. p. 882.
than death, 8 Inst 148, 315. : but this {e) 6 Ed. 1. c. 9.
is denied by other writers, 1 Hale (iQ Fost 889.
P. C. 485. 1 Hawk. P. C. c. 89. s. 80,

CHAP. IT. M.] Misadoentwrc. fi39

SECT. I.

Of Excusable Homicide by Misadventure*

HoMiciDB by misadventure is where one doing a lawful act, with- Penons dtAag
out any intention of bodily harm, and using proper precaution to a lawful act

5 re vent danger, unfortunately happens to kill another person, (e) J^^^*^*°*^
*he act must be lawful; for u it be unlawful, the homicide
Mdll amount to murder, or manslaughter, as has been already
shewn : (/} and it must not be done with intention of great
bodily harm; for then the legality of the act, considered ab-
stractedly, would be no more than a mere cloak, or pretence, and,
consequently, would avail notliing. The act must also^ be done
in a proper manner, and with' due caution to prevent danger, (g)

Thus, if people, following their common occupations, use due Penonifbl-
caution to prevent danger, and nevertheless happen, unfortunately, lowing tbelr
to kill any one, such killing will be homicide by misadventure* As ^SJ^omT
if workmen throw stones, rubbish, or other thmgs, from a house,
in the ordinary course of their business, by which a person under-
neath happens to be killed, this will be misadventure only, if it
were done in a retired place, where there was no probability of
persons passing by, and none had been seen about the spot before,
or if timely and proper warning were given (A) to such as might
be below, (t) And the party will not be more criminal who is
working with a hatchet, when the head of it flies off, and kills a
by-stander. (k) So, where a perv on, driving a cart or other car-
riage, happens to drive over another and kill him, if the accident
happened in such a manner that no want of due care could be im-
puted to the driver, it will be accidental death, and the driver will
be excused. (/) A. was driving a cart with four horses in the
highway at Whitechapel, he being in the cart ; and the horses
being upon a trot, threw down a woman who was going the same
way with a burthen upon her head, and killed her. Holt, C. J.,
Tracey, J., Baron Bury, and the Recorder Lovell, held this to be
only misadventure : but by Lord Holt, if it had been in a street
where people usually pass, this had been manslaughter, (m) And,
upon the same ground of no want of due care being imputable to
the party, in a case where a person was riding a horse» and the
horse, being whipt by some other person, sprang out of the road,
and ran over a child and kiUed it, this was held to be misadveu-

(e) 1 East. P. C. c. 5. s. 8. p. 821. c. 5. 8. 38. p. 862.

and s. 36. p. 860, 861. Post 858. 1 * (Ar) 1 Hawk. P. C. c. 89. s. 8.

Hawk. P. C. c. 89. s. 1. (0 Fost 863. 1 Hale 476.

if) Ante^ 458, el ieq, 586, ei icq, {m) O. B. Seas, before Micb. T.

(g) 1 East P. C. c. 5. s. 36. p. 861. 1704. MS. Tracy 38. 1 East. P. C. c.

{h) AnU^ 535. 5. s. 38. p. 863. ; and see obserYations

(0 1 Hale 478. 475. 1 Hawk. P. C. op this case, anU^ 535.
c. 89. 8. 4. Post. 868. 1 East P. C.

540

Of Excusable Homicide.

[booh Ith

Persons using
dangerous ar-
ticles, or in-
stnimentoi

As to the de-
gree of cau-
tion which
must be oh '
served in the
use of danger-
ous instru-
ments.

ture only in the rider, though manslaughter in the person who
whipped the horse. f«)

As the degree of caution to be employed depends upon the pro-
bability of danger, it follows that persons using articles or instru-
ments, in their nature peculiarly dangerous, must proceed with
such appropriate and reasonable precaution as the particular cir^
cumstances 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 that would be^
token great inadvertence, and might in some cases amount tcf
manslaughter, (o)

A., having deer frequenting his cornfield, out of the precinct of
any forest or chase, set himseflf in the night-time to watch in a
hedffe, and set B., his servant, to Watch in another comer of the
field, with a gun chalked with ballets, giving him order to shoot,
when he heard any bustle in the com by the deer. The master
afterwards improvidently rushed into the com himself : and the
servant, supposing it to be the deer, . shot and killed the master.
This was ruled to be misadventure, on the ground that the servant
was misguided by his master's own direction, and was ignorant
that it was any thing else but the deer. It seemed, however, to
the leamed judge who so decided, {p) 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 discovened his mark, {q) But
upon this it has been remarked, that if, from all the other circum-
stances of the case, there appeared a want of due caution in the
servant, it does not seem that the command of the master could
supply 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. (r) By the same rule as to due caution being
observed, it has been holden to be misadventure only, where a
commander coming upon a sentinel hi the night, in the posture of
an enemy, to try his vigilance, is kilted by him as such ; the
sentinel not being able to distinguish his commander, under such
circumstances, from an enemy, {s)

But it should be observed, that the caution which the law re-
quires, is not the utmost caution that can be used : it is sufficient
that a reasonable precaution be taken ; such as is usual and ordi-
nary in similar cases ; such as has been found, by long experience
in the ordinary course of things, to answer the end. (/) This
proper modification of the mle respecting caution does not appear
to have benn sufficiently attended to in the following case. A
man found a pistol in the street, which he had reason to believe

, (n) 1 Hawk. P. C. c. 89. s. 3.

(o) 1 Hale 431. 1 East. P. C. c. 5.
8. 40. p. 266.

(p) Lord Hale.

(q) I Hale 476. The same ca<)e is
previously mentioned, I Hale 40. where
the learned author seems to think that
the offence amounted to manslaughter;

, but considers the question as of great
difficulty. The case was, however, de-
termined at Peterborough^ as slated in
the text

(r) 1 East. P. C. c. 5. s. 40. p. 966.

(«) 1 Hale A%.

(I) Post. ?64.

CHAP. IT. $ 1.] Misacbenture. 541

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 tf)uched the trigger ; and the pistol went

off, and killed the woman. This was ruled manslaughter. (t<) 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, {w) And

Mr. Justice Foster, after stating his reasons for disapproving of

the judgment, says, that he liad 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 accident, in which the trial was had before himself.

Upon a Sunday morning, a man and his wife went a mile or two

from home with some neighbours, to take a dinner at the house of

their common friend. He carried his gun with, him, hoping to

meet with ;fiome diversion by the way : but before he went to

dinner he discharged it, and set it up in a private place in his

friend'^ house. After dinner he went to church; and in the

evening, returned home with his wife and neighbours, bringing

his gun with him, which was carried into the room where his wife

was, she having brought it part of the way. He, taking it up,

touched the trigger ; and the gun went off and killed his wife,

whom he dearly loved. It came out in evidence, that, while the

man was at church, a person belonging to the family privately

took the gun, charged it, and went ajfter some game ; but, before

the service at church was ended, returned it, loaded, to the place

whence he took it, and where the defendant, who was ignorant of

all that had passed, found it, to all appearance, as he had left it,

^^ I did not enquire," says Mr. Justice Foster, " whether the poor

^ man had examined the gun before he 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 acquitted.'' (x)

It has been shewn, that where parents, masters, and other per- Correction m
sons, having authority in foro domesticoj give correction to those. /*^ domeiUco.
under their care, and such correction exceeds the bounds of due
moderation, so that death ensues, the offence will be either murder
or manslaughter, according to the circumstances : {y) but if the

(ii) Rampton^s case, Kel. 4 1 . could receive from the rammer, unless it

(w) Fost. 264. where it i$ said, that were passed so smartly down the barrel

perhaps the rammer, which the man as clearly to give the sound of the me-

had not tried before, was too short, tal at the bottom. However, there is a

and deceived him. But, quiere^ whe- qu^tre to the case in the margin of the

ther the ordinary and proper precau- report; and it appears that the learned

lion would not mivebeen to have exa- editor (Holt, C. J.) was not satisfied

mined the pan, which in all proba- with the judgment; and that it is one

bility roust have been primed* The of the points which, in the Preface,

rammer of a pistol, or gud, is so fre- he recommends for further considera-

qucntiy too short, from having been tion.

accidtotally broken, that it would be (x) Fost. 865.

very incaatious in a uerson previously \y) Ante^ 460, Chap, on Murders

unacquainted with tne state of theiu- 532, Chap, on Mantlaughler,
strumentto rely upon such proof as he

b4d OfExcusabk Hamidde. [[book in.

correction be reasonable and moderate, and by the struggling of
the party corrected, or by some other misfortime, death ensue, the
killing will be only misadventure, (z)
DeiiUi hap- Such sports and exercises as tend to g^ve strength, activity,

ETi^faf ^"^ and skill in the use of arms, and are entered into as private
^^'^ recreations amongst friends, such as playing at cudgels, or foils,
or wrestling by consent, are deemed lawful sports ; and if either
party happen to be killed in such sports, it is excusable homicide
by misadventure, (a) A different doctrine, indeed, appears to
have been laid down by a very learned Judse : {b) but the
grounds of that doctrine nave been ably combated by Mr. Justice
Foster, who gives this good reason for considering such sports
as lawful, that bodily harm is not the motive on either side, (r)
And certainly, though it cannot be said that they are altogether
free from danger, yet they are very rarely attended with &tal
consequences, and each party has friendly warning to be on his
guard. Proper caution and fedr play should, however, be ob-
served; and, though the weapons used be not of a deadly natore, yet,
if they may breed danger, there should be due warning given, that
each party may start upon equal terms. For, if two be engaged
to play at cudgels, and the one make a blow at the other, likely to
hurt, before he is upon 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 to murder, ^e
intent not being malicious, {d)
gportf wbere Ordinarily the weapons made use of upon such occasions are
deadly "^^^ not deadly m their nature : but, in some sports, the instruments
pons are used, ^g^j ^^^ ^j ^ deadly nature ; yet, in such cases, if they be not
directed by the persons using them against each other, and therefore
no danger be reasonably to be apprehended, 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 kmed : (e) and with
respect to the lawfalness of shooting at game, it may be observed,
^ that though the party be not qualified, the act will not be so un-

lawful as to enhance the accidental killing of a bystander to man-
slaughter. (/)

(z) 1 Hale 464, 473, 474. 4 Blsc. (e) Fost S60.

Com. 188. (4 1 East P. C. c. c. 5. s. 41. p. 269.

(a) Fost S69, 860. 1 East. P. C. c. (e) 1 Hale SB, 478, 475. 1 Hawk.
' 6. 8. 41. p. 868. Bat there are other P. C. c 89. a. 6. 1 East. P. C. c. 5.

sports which come under a differeot s. 41.

consideration. See aniCy 687. (/) 1 Hale 475. Fosl. 859.

(b) 1 Hale 478.

CHAF. IT. $ S.] Sdf'Defence. 543

SECT. II.

Of Excusable Homicide in Self-Defence.

HoMiciDB in self-defence ie a sort of homicide committed se et
sua defendendo, in defence of a man's person or property, upon
some sudden affiray, considered by the law as in some measure
blameable, and barely excusable, (g)

When a man is assaulted in the course of a sudden brawl or Defence of
quarrel, he may, in some cases, protect himself by killing the per- chSoTmed'
son who assaults him, and excuse himself on the ground of self- ley.
defence. But, in order to entitle himself to this plea, he must/
make it appear, first, that before a mortal stroke given he had de*
clined any further combat; secondly, that he then killed his adver-
sary through mere necessity, in order to avoid immediate death. (A)
Under such circumstances, the killing will be excusable self*
defence, sometimes expressed in the law by the word chance
medley f or (as it has been written by some) chaud medley ; the
former of which, in its etymology, signifies a casual affiny ; the
latter an affray in the heat of blood, or passion. Both of them are
pretty much of the same import : but the former has, in common
speech, been often erroneously applied to any manner of homicide
by misadventure ; whereas it iqipears by one of the statutes, (t) and
the ancient books, (ft) that it is properly applied to such killing as
happens in self-defence upon a sudden rencounter. (/)

Homicide upon chance medley borders very nearly upon^man* Homicide
slaughter ; and, in &ot and experience, the boundaries are in some ^^J^^bor^
instances scarcely perceivable, though in consideration of law they den nearly"
have been fixed, (m) In both cases it is supposed that passion upon man-
has kindled on each side, and blows have jpassed betweea the par- *^^^^^*
ties : 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, (n) And the true crite-
rion between them is stated to be this : when both parties are ac-
tually combating at the time the mortal stroke is given, the slayer
is guilty of manslaughter ; but if the slayer has not begun to fight,
or (having begim) 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, (o)

(g) Fost. 8TS. '* Self-defence cul- Kel. 67.

*^ pabte, but through the benignity of (I) 4 Blac. Com. 184. Post 875.

*' the bw excusable." SkeneDeverborum tignificaiiane^ Verb.

(h) 1 East. P. C. c. 5. s. 61. p. 880. Chaudmelle.

Fost. 873. («> Post 876.

(0 84 Hen. 8. €.6. («) PoM.877. .

(k) Staund. P. C. 16. 8 lost 55, 57. (0) 4 Bl«c Com. 184.

544 Of Excusable Homicide. [book ni.

The party j^ i^]^ cases of homicide excusable by self-defence^ it must be

not Tct with taken that the attack^was made upon a sudden occasion, and not
premediu- premeditated, or with malice : and, from the doctrine which has
f^rhlT^ ""*' *^®®° above laid down, it appears that the law requires^ that the
mnch as'be person who kills another in his own defence should have retreated
caa with safe- as far as he conveniently or safely could, to avoid the violence of
tj to himaelf. the assault, before he turned upon his assailant ; and that not fic-
titiously, 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 in-
terval to enable the party to renew the fight with advantage, {p)
The party assaulted must therefore flee, as far as he conveniently
can, either 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 kill his assailant instantly, (a)

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 de/endendo, if he could
not otherwise have escaped ; or bare manslaughter, if he could
have escaped and did not. (r)

As in the case of manslaughter upon sudden provocation^ where
the parties fight upon equal terms, all malice apart, it matters not
who gave the first blow ; so in the case of excusable self-defence,
it seems that the first assault in a sudden affray, all malice apart,
will make no difierence, if either party quit the combat, and retreat,
be/ore a mortal wound be given, (s) According to thb
if A. upon a sudden quarrel assaults B. first, and upon B/s
turning the assault, A. really and bona fide flies, and being
to the wall turns again upon B. and kills him, this vnll be se tte--
fendendo : (t) but some writers have thought this opinion too
favourable, inasmuch as the necessity to which A. is at last re-
duced, originally arose from his ovm fault, (ti) 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 adver-
sary even after a retreat, unless there were reasonable ground to
apprehend that he would otherwise have been killed himself, (tr)

(p) 1 Hale 481, 483. Fost. «77. 4 "any rate I think there is great difli-
Blmc. Com. 186. "coUy in applyinr the distinclicm
(f) 1 Hale 483. 4 Bl. Com. 185. ''Uken by Lord Hale and Hawkins
(r) 1 Hale 458. ''.against him who makes the firat as-
(t) Fost 877. " sault, to the case of mutoal combat
(I) 1 Hale 482. " by consent, though upon a soddea
(») 1 Hawk. P. C. c 89. 8. 17. Lord " occasion, where neither of the par-
Hale seems also to distinguish the case ** ties makes an attack till the other is
of him who is first attacked from the ''prepared; because in these caart it
asnilant, with respect to the point of ** mattera not who gives the first blow;
retreating, 1 Hale 488. Upon this sub- " it forms no ingredient in the merits
Ject some remarks are offered by Mr. " of the question.**
£sst,(l Bast P. C. c. 6. s. 53. p. 881, (») Fost 873, 875. 889. 4 Blac.
888.) and he coadades by saying, " At Cora. 184.

CHAP. IV. $ 3.] Self-Defence. 645

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 construed the same as the act of the party
himself, (x)

If A. in defence of his house kill B., a trespasser, who endea- Defence of
vours to make an entry upon it, it is at least common manslaughter; l^^^^^^iw
unless, indeed, there were danger of his Ufe. But if B. enter into ^uen.
the house, and A., having first requested him to depart, gently lay
bis hands upon him to turn him out, and then B. turn upon him
and assault him, and A. then kill him, it will be se defendeneto,
supposing that he was not able by any other means to avoid the
assault, or retain his lawful possession. And so it will be, if B.
enter upon A., and assault him first, though not intending to kill
him, but only as a trespasser to gain the possession : for, in such
case, if A. thereupon kill B., it will be only se de/endendo, and not
manslaughter, (y) And it seems, that in such a case A., being in
his own house, need not fly as far as he can, as in other cases of
se defendendo ; for he has the protection of his house to excuse
him from flying, as that would be to give up the protection of his
house to his adversary by his flight, (z) But where the trenpass is
harely against the property of another, the law does not admit the
force of the provocation as sufficient to warrant the owner in
making use of any deadly or dangerous weapon ; more particularly
if such violence is used after the party has desisted from the tres*
pass. But if the beating be with an instrument or in a manner
not likely to kill, it will only amount to manslaughter : and it is
even lawful to exert such force against a trespasser, who comes,
without any colour, to take the goods of another, as is necessary to
make him desist, (a)

There is one species of homicide se defendendo where the party Homicide
slain is equally innocent as the person who occasions his death : "P^^^ unfortn-
and yet this homicide is also excusable, from the great universal '^*«'*®c«*"*y*
principle of self-preservation, which prompts every man to save his
own life in preference to that of another, where one of them must
inevitably perish. Of this kind is the case mentioned by Lord
Bacon, where upon two persons being shipwrecked and getting on
the same plank, one of them, finding it not able to save them both, ^

thrust the other from it, whereby he was drowned. (i6) But, ac-
cording to Lord 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 do not comply : so that if one man should as-
sault another so fiercely as to endanger his life, in order to compel
him to kill a third person, this would give no legal excuse for his
compliance, {c) But upon this it has been observed that if the
commission of treason may be extenuated by the fear of present

(x) 1 Hale 484. 4 Blac. Com. ISO. c. 5. s. 56. p. 989.
(y) S Bdw. 3. Coron. S5. Cronipt (b) 4 Blac. Com. 186. Bac. ElenoL

87 b. 1 Hale 486. • c 5. 1 Hawk. P. C. c. 88. 8. 36.
(z) 1 Hale 485. (c) 1 Hale 51, 434.

(a) 1 Hale 4T3, 486. 1 East P. C. .

XOU I. 2 N

^6

Of Justifiable Homicide, [book iir.

death, and while the party is tinder actual compulsion, (d) there
seems to be no reason why homicide may not also be mitigated
upon the like consideration of human infirmity : though, in case
the party might have recourse to the law for his protection from
the threats used against him, his fears will certainly furnish no
excuse for committing the murder, {e)

It should further be observed that, 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 war-
ranted: (/) for if a person assaulted does not fall upon the ag-
gressor tUl the affray is over, or when he is running away^ this is
revenge, and not dercnce. {g)

SECT. III.

OfJtutifiable Homicide.

Acts of nna-
voidable ne«
ceuity, or
permitted by
Uw.

Execution of
malefactors.

Officer! kill-
ing those who
asnultand
fesiBtthem*

It has been already stated that Justifiable homicide is of several
kinds, as it may be occasioned by the performance of acts ci
unavoidable neces^ty, or by acts done by the permission of the
law. (A)

Amongst the acts of unavoidable necessity may be classed tlie
execution of malefactors, by the person whose office obliges him,
in the performance of public justice, to put those to death who
have forfeited their lives by the laws and verdict of their country.
These are acts of necessity, and even of civil duty ; and, therefore,
not only justifiable, but commendable, where the law requires
them.(t) But the law must require them, otherwise, they are not
justifiable ; and, therefore, wantonly to kill the greatest of male-
factors would be mtuder : and. we have seen that all acts of official
duty should, in the nature of their execution, be conformable to
the judgment by which they are du:ected.(A)

Amongst the acts done by the permission of the law, for the ad-
vancement of public justice, may be reckoned those of the officer,
who, in the execution of his office, either in a civil or criminal
oase, kills a person who assaults and resists him. The resistance
will justih^ 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 resistea in so doing, they may repel force with

(4 1 East P. C. c. 2. 8. 16. p. 70. (J) 1 East P. C. c. 5. s. 60. p. S9S.

and the authorities there cited. {g\ 4 Blac. Com. 5HM.

(^ 1 East P. C. c. 5. s. 61. p. 294. (A) ^iil«,63S.

lord Hale sajs that in the raost ex- (0 Fost 267. 1 Hale 406, 502. 4

treme case, where there could be no Blac. Com. 176.

recourse to law, the person assailed (*) AmU^ 460^ «n4 see I Hale 501.

on(;ht rather to die himself than kill 9 Bale 41 1.
an innocent person.

2

CE4P. IV. § S.] By Officers. 64l^

force, and need not give back ; and if the party making resistance
is unavoidably killed in the struggle, this homicide is justifiable. (/)
A rule 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 holden guttty rf
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, (m) seems to
stand alone, and has been mentioned with disapprobation. (n)
With respect to ofienders against the revenue laws, it is enacted,
that, if any person or persons liable to be arrested and detained
imder the provisions of any act relating to the revenue of cus-
toms, shall not be detained at the time o£ committing the offence
for which he or they is or are so liable, or, after detention, shall
make his or their escape, it shall and may be lawful for any officer
of the army, navy, or marines, being duly authorized and on full
pay, or any officer of customs or excise, or any other person acting
in his or their aid or assistance, or duly employed under such offi-
cer, to stop, arrest, and detain such person so liable to detention
aa aforesaid^ at any time afterwards, and to carry him before two
justices of the peace, to be dealt with as if detained at the time of
conunitting the said offence (o)

But where the party does not resist, but merely flies to avoid Officers kin-.
the arrest, the conduct of the officer should be cautiously regu- ^S^'^^^
lated by the nature of the proceeding. For in civil cases, and also ^t. ^^'
in the case of a breach of the peace, or any other misdemeanor,
short of felony, if the officer should pursue a defendant flying in
order to avoid an arrest, and should kill him in the pursmt, it
will be murder or manslaughter, according to the peculiar cir-
cumstances by which such homicide may have been attended, (/i)
Bui if a felony be committed, and the felon fly from justice, or a
dangerous wound be given, it is the duty of every man to use his
best endeavours for preventing an escape ; and if in the pursuit
the party flying be killed, where he cannot be otherwise over-
taken^ this will be deemed justifiable homicide. (9) This rule is
not confined to those who are present, so as to have ocular proof
of the fact, or to those who first come to the knowledge of it : for
if in these cases fresh suit be made, and a fortiori if hue and cry
be levied, aU who join in aid of those who began the pursuit are
under the same protection of the law. And the same rule holds.
if a felon, after arrest, break away as he is carrying to gaol, and
his pursuers cannot retake without killing him.(r)

Where a person is indicted for a felony, and will not suffer him-

(/) 1 Hsle 494. 1 Hawk. P. C. detention of persons committine of-

c. 88» 8. 17, 18. Fost. 870. 4 Blac. fences therein enumerated. And see

Cono. 1-79. 1 East P. C. c. 5. 8. 74. p. anle, Book II. Chap. z. p. 117, et

807. 9equ.

(m) I Roll. Kep. 189. (p) Ante^ 449, 457, 508.

(It) Fost 871. 1 East. P. C. c. 5. \q) 1 Hale 489, 490. 1 Hawk. P. C.

a. 74. p. 307. C.88. s. 11. Fost 871. 4 filaa. Com*

(0) 6 Geo. 4. c. 108. 6. 5K And 179.

more partienlar provisions are con-^ {r)U.iMu lEastP.C. c.5. 8.67,

' '* m.the act, as to the arrest and p. 898.

2n2

H8

Officers dis-
persing a mob
in case of a
riot, dLC*

Gaolers and
their assist-
ants killing
prisoncra.

Mate/actiire$
in pards.

Of Justifiable Homicide^ ([book m.

self to be arrested by an officer, having a warrant for that parpose^
the officer may lawfully kill him if he cannot otherwise be tskken;
though such person be innocent, and though in truth no felony
have been committed. (5) But it seems that this must be under-
stood only of arrests by officers, and does not extend to arrests by
private persons of their own authority. (^)

In the case of a riot or rebellious assembly, the peace officers
and their assistants, endeavouring to disperse the mob, are justi-
fied, both at common law and by the riot act, in proceeding to
the last extremity, in case the riot cannot otherwise be sup-
pressed. (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 authorized by the
law to arm himself for the preservation of the peace. («?)

Gaolers and their officers are under the same special protection
as other ministers of justice ; and, therefore, if in the necessary
dischaige of their duty, they meet with resistance, whether from
prisoners in civil or criminal suits, 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 if the party so resisting happen to be killed, this, on
the part of the gaoler, or his officer, or any person coming in aid
of him, will be justifiable homicide, (j:)

If a forester, parker, or warrener, find any trespassers wan-
dering within his liberty, intending to do d^age therein, who
will not yield, after hue and cry made to stand unto the peace, bat
do continue their malice, and disobeying the king's peace, do flee
or defend themselves with force and arms, if such forester, parker,
or warrener, or their assistants, kill such offenders, either in ar-
resting or taking them, they shall not be troubled for the same,
nor suffer any punishment.^) But they cannot kill persons who
come to take only decayed wood.(z) It is also enacted, that
owners of deer in any enclosed land, or any persons under them,
may resist offenders, in like manner as in ancient parks, (a) And
by another statute, lords of manors^ or any others authorized by

(c) 1 Hawk. P.C. C.98. s. IS.

(i) 2 Hale 84. Sed vid. 1 Hale 489,
490. and 1 £ast.P. C. c. 5. s. 68. u. SCO,
301. where it is said, that the tact of
the indictment found is a good cause
of arrest b^ private pervins, if it may
be made without the death of the fe-
lon: and that if the fact of his guilt
be necessarv for their complete justifi-
cation, it 19 conceived that the bill of
indictment found by the grand jury
would, for that purpose, be primu
facie evidence of the fact, till the con-
trary be proved.

(11) 1 Hale 53, 494, 495. MS. Tracy
36. cited 1 East P. C. c 5. s. 71.
p. 304. Riot act, 1 Geo. 1. st 8. c. 5.
where persons continue together an
hour aifter proclamation. And see
M/r, Book 11. Chap. ixv. Of BioU,

i^e. p. 247, 866.

(w) 1 Hawk. P. C. c. 88. s. 14. and
see Post. 878. Poph. 181. It was so
resolved by all the Judges ia Easter
Term, 39 Eliz. though they thoughl
it more discreet for every one in
such a case to attend and assist the
king^s officers in preserving the peace.
And, certainly, if private persons in-
terfere to suppress a riot, they must
give notice of their intentioo.

(jr) Post. 381. 1 Hale 481, 496.

(jr)81 Ed. 1. Stat. 8.

(z) 1 MS. Sum. 145, 175. Sura. 37,
46. cited 1 Bast. P.C. c. 6. s. 31. p. 856.
Palm. 546. 8 Roll. R. 180. And there
is a ^lecial vraming in the slatote,
that the foresters act not from malica
or malicious pretence, s. 8.

(a) 3 and 4 W. & M. c. 10. $.5.

CHAP. IV. § 3.] In Preventing Crimes. 549

them as gamekeepers, may resist ofienders in the night, within
their respective manors or royalties, in the same manner and with
equal indemnity as if the fact had been committed in any ancient
chase. (i6)

Sir William Hawkesworth being weary of life, and willing to
be rid of it by the hand of another, having first blamed his keeper
for suffering his deer to be destroyed, and commanded him to exe-
cute the law, came himself into his park at night as if with intent
to steal the deer; and being questioned by the keeper, who knew
him not, and refusing to stand or answer, he was shot by the
keeper. This was decided to be excusable homicide by the statute
De makfactoribus in parcis.{c)

A man may repel force by lorce in defence of his person, habi- Homicide in
tation, or property, against one who manifestly intends and en- ^^ prevcn-
deavours, by violence or surprise, to commit a known felony upon forcibie^fiAd
either. In these cases he is not obliged to retreat, but may pursue atrociooi
his adversary till he finds himself out of danger ; and if, in a con- ^i^^*
flict between them, he happens to kill, such killing is justifiable.(d)
But it has been holden, that this rule does not apply to any crime
unaccompanied with force, as picking of pockets.(e) It seems,
therefore, that the intent to murder, ravish, or commit other felo-
nies attended with force or surprise, should be apparent, and not
be left in doubt : so that if A. make an attack upon B., it must
plainly appear by the circumstances of the case (as the manner of
the assault, the weapon, &c.) that the life of B. is in imminent
danger; otherwise, his killing the assailant will not be justifiable
self-defence. (/) And the rule clearly extends only to cases of
felony ; for if one come to beat another, or to take his goods
merely as a trespasser, though the owner may justify the beat-
ing of him, so • far as to make him desist, yet if he kill
him, it is manslaughter, (g) But if a house be broken open,
though in the daytime, with a felonious intent, it will be within
the rule. (A)

A statute made(t) in affirmance of the common law, after recit- 24 Hen. 8.
ing, that it had been doubted whether, if any person should taiin^thoi^
attempt feloniously to rob or murder any persons, in or near any ^ho are at-

{b) 4 and 6 W. & M. c. 23, s. 4. It But if one pick iny pocket, and I can-
has been doubted whether an assistant not otherwise talie him than by kill-
to a legal gamekeeper could justify in? him, this falls under the general
seizing a fishing net. Under thisstatute, rule concerning the arresting of felons,
s. 5. and whether the authority were 1 East. P. C. c. 5. s. 45. p. 273.
not personal. Rex v. Annesley and (/) 1 Hale 484.
Redding, 9 St Tri. SS9, 330. But it (g) 1 Hale 485, 486. 1 Hawk. P. C.
is said, that, without considering that c. 88. s. 93. Kel. 138. 1 East. P. C.
question, it is sufficient to observe, c. 6. s. 44. p. 878.
that the case did not turn upon this (A) I East. P. C. c. 5. s. 44. p. 873.
clause of the act, which has express In 4 Blac. Com. 180. it is saio, that
reference to the powers given by the the rule reaches not to the breaking
Stat. 81 Ed. 1. and that statute ex- open of any house in the day-time,
tends in terms to assistants. 1 East, unless it carries with it an attempt of -
P. C. c. 5. s. 31. p. 856. robbery also. But it will apply where

(e) 1 Hale 40. the breaking is such as imports an

(if) Post. 873. Kel. 188, 189. 1 Hale apparent robbery, or an intention or

445, 481, 464. et aequ, 1 Hawk. P. C. attempt of robbery. 1 Hale 488.
c. 88. 8. 8 1 , 84. (0 84 Hen. 8. c. 5.

(e) 1 Hale 488. 4 Blac. Com. 180.

5M) Of Ju8tijiahle lAmicide, [book m.

tempting to common highway, cart-way, horse-way, or footway, or in thdr
c^comiSt^^' mansions, messuages, or dwelling places, or attempt to break any
burglary, are dwelling-house in the night-time, and should happen in such fdo-
not to suffer nious intent to be slain by those whom they should so attempt to
of ffoo?r &? ^^^ ^F murder, or by any person being in their dwelling-hoose,
but to be' fully attempted to be broken open, the person so happening to slay the
acquitted, person so attempting to commit murder or burglary, should foridt
goods and chattels, enacts ^^ that if any person ox persons be in-
'^ dieted or appealed of or for the death of any such evil-disposed
'^ person or persons attempting to murder, rob, or burglanly to
" break mansion-houses, as is abovesaid, the person or persons so
'^ indicted or appealed thereof and of the same by verdict so found
*' and tried shall not forfeit or lose any lands, tenements, goods,
'^ or chattels, for the death of any such evil-disposed person in
^^ such manner slain, but shall be thereof and for the same folly
^^ acquitted and discharged,'' in like manner as if lawfully ac-
quitted of the death of such person. But though the statute -only
mentions certain cases, it must not be taken to implv an exclugion
of any other instances of justifiable homicide which stand xxpaa
the same grounds of reason and justice. So that the kUiing <tf
one who attempts the wilful burning of a house is free from for«
feitiire without the aid of this statute. (A)
Oronnds of Important considerations will arise in cases of this kind, as to

suspicion of a the grounds which the party killing had for supposing that the
at^°^ ~ person slain had a felomous design against him ; more especially
where it afterwards appears that no such design existed. One Levet
was indicted for killing Frances Fi^eeman, under the fdUowing dr-
Leyet*s case, cumstances. Levet being in bed and asleep, his servant who had

Erocured Frances Freenum to help her about the work of the
ouse, and went to the door about twelve o'clock at night to let
Yket out, conceived that she heard thieves ab<Mit to l»eak into the
house : upon which she ran to him, and told him of what she ap-
prehended. Levet arose immediately, took a drawn Bword^ and,
with hia wife, went down stairs : when the servant, fearing tluit her
master and mistress should see Frances Freeman, hid her in the
buttery. Levet with his sword searched the entry for tfaievesy
when his wife, spying Frances Freeman 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 Levet, not knowing that it was Frances Freeman in the
buttery, hastily entered with his drawn sw<Mrd, and being in the
dark, and thrusting before him with his sword, thrust Frances
under the left breast and gave her a mortal wound, of which she
instantly died.(/) This was ruled to be misadventure: but a
great judge appears to have thought the decision too lenient, and
that it would have been better nikd manslaughter ; due circum-
spection not having been used, (m) Upon this opinion, however,
some observations have been made; and it has been ably argued,
upon the peculiar facts and circumstances of the transaction, that

(k) 1 Hale 488. 1 East P. C. c. 5. Hale 49, 474. Jones (W.) 4S0.
8. 44. p. S78. (m) Post. S99.

(i) Levels case^ Cro. Car. iS8. 1 •

CHAP. IT. i 3.3 In Preventing Crimes. 551

the case seeniB more properly to be one of those mentioned by
Lord Hale^ (n) where tiie ignorance of the fact excuses the party
from all sort of blame, (o) And in another book of great authority,
the case is mentioned 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, (p)

Questions will also sometimes arise as to the apparency of the Apparency of
intent in one of the parties to commit such felony as will justify '^^^^
the other in killing him. Mawgridge, on words of anger, threw a Mawgridse^t
bottle with great force at the head of Mr. Cope, and immediately case,
drew his sword, upon which Mr. Cope returned a bottle with
equal violence : q) and it was held that this was lawful and justifi-
able on the part of Mr. Cope, on the ground that he that has
manifested nudice against another, is not fit to be trusted with a
dangerous weapon in his hand, (r) There seems to have been
good reason for Mr. Cope to have supposed that his life was in
danger : and it was probably on the same ground that the judg-
ment on Ford's case proceeded. Mr. Ford being in possession of Ford's cast.
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 Mr. Ford and his company, and Mr.
Ford drew his sword, and killed one of them : and this was ad-
judged justifiable homicide, {s) For if several attack a person at
once with deadly weapons, as may be supposed to have happened
in this case, though they wait tUl 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, (t) But no assault, however violent, will justify killing Unless a felo-
the assailant under the plea of necessity, unless there be a plain nions intent
manifestation of a felonious intent, (u) And it may be further ^ JJIHl^?**^'
observed, that a man cannot, in any case, justify killing another by howerer vio-
a pretence of necessity, unless he were wholly without fault in }«nt» will not
bringing that necessity upon himself; for, if he kill any person in IhrpM^f/Sd
defence of an injury done by himself, he is guilty of manslaughter the necessity
at least : as in the case where a body of people wrongfully detained must not bo
a house by force, and killed one of those who attacked it, and en- h[^"J|l*/b'"/the
deavoured to set it on fire, (w) party kUling.

Mr. Justice Foster was of opinion, that, upon the same prin-
ciple upon which Mawgridge's case was decided, and possibly
upon the rule touching the arrest of a person who has given a

(ir) 1 Hale 42. used by Mr. Justice Foster in citiue

(o) 1 Bast P. C. c. 6. 8. 46. p. 274, it, were probably made on the ground

27 5. of the reason suggested in the margin

(p> 1 Hawk. P. C. c. 28. s. 27. of Keiyngfor the judgment, namely,

(9) Mawgridge*s case, Kel. 128, 129, that the killing by Mr. Ford in de-

Ante^ 445. fence of Ids own possession of the room

(r) By Lord Holt, Kel. 128, 129. was justifiable^i9\i\c\\, under those cir-

(«) Ford's case, Kel. 51. cumstances, might be fairly question-

(0 1 Bast P. C. c. 5. s. 47. p. 276. ; ed : as, on that ground, it might

and see 1 East P. C. c. 5. s. 25. p. have been better ruled to be man-

243. where Ford^s case is observed slaughter.

upon ; and it is said that the memo- (») 1 Bast P. C. c. 6. s. 47. p. 277.

randum, in the margin of Kelyng to (w) 1 Hawk. P. C. c. 28. s. 22. 1

inquire of this case, and the qu^tre Hale 405, 440, 441.

552

Of Justifiable Homicide.

[book hi.

Interference
by third per-
sons to pre-
▼ept felonies.

Interference
by third per-
sons in cases
of mutual
combats and
affiUys.

Time within
which homi-
cide will be
Justifiable,

dangerous wound^ the Legislature^ in the case of the Marqius de
Guiscard, who stabbed Mr. Harley sitting in Council, discharged
the parties who were supposed to have given the Marquis the
mortal wound from all manner of prosecution on that account,
and declared the killing to be a lawful and necessary action.(jr)

Where a known felony is attempted upon any one, not only the
party assaulted may repel force by force, but his servant attending
him, or any other person present, may interpose to prevent the
mischief; and if death ensue, the party so interposing will be jus-
tified, {y) So, where an attempt is made to commit arson, or
burglary, in the habitation, any part of the owner's family, or even
a lodger, may lawfully kill the assailants, in order to prevent the
mischief intended, (z)

But, in cases of mutual combats or sudden affrays, a person in-
terfering 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 kUIing
will be justifiable : (a) but, in general, if there be an affray and an
actual fighting and striving between persons, and another run in,
and take part with one party, and kill the other, it will not be jus-
tifiable homicide, but manslaughter, {b)

It should be observed, that as homicide committed in the pre-
vention of forcible and atrocious crimes is justifiable only upon
the plea of necessity, it cannot be justified, unless the necessity
continue to the time when the party is killed. Thus, though the
person upon whom a felonious attack is first made be not obliged
to retreat, but may pursue the felon till he findri himself out of
danger; yet if the felon be killed after he has been properly se-
cured, and when the apprehension of danger has ceased, such kill*
ing will be murder : though perhaps, if the blood were still hot
from the contest or pursuit, it might be held to be only man-
slaughter, on account of the high provocation, {c)

{x) 9 Ann. c. 16. Post. 275.

iy) 1 Hale 481, 484. Post. 274.
And in Handcock v. Baker and others,
2 Bos. & Pul. 265. Cbambre, J. said,
** It is lawfal for a private person to
** do any thin? to prevent the perpe-
*• tration of a felony.'*

{%) Post. 274.

(a) 1 Hale 484. 1 East. P. C. c. 5.
8. 58. p. 290.

(5) 1 East. P. C. c. 5. s. 58. p. 291.
AnlCy 499 ; and see also ojito. Book
II. Chap. xxvi. Of AJfrayt^ p. 270.

(c) 1 East. P. C. c. 5. s. 60. p. 29J.
4 Blac. Com. 185. I Hale 485.

553

CHAPTER THE FIFTH.

OF DESTROYING INFANTS IN THB MOTHBR's WOMB.

We have already seen^ that an infant in its mother's womb^ not Common kw
being in rerum naturd, is not considered as a person who can be offence*
killed within the description of murder, (a) An attempt, however,
to eifect the destruction of such an infant, though unsuccessful,
appears to have been treated as a misdemeanour at common
law: (6) and a statute has lately been passed, by which certain
acts, intended to procure the miscarriage of a woman with child,
are made highly penal.

The 43 Geo. 3. c. 58. s. 1., after reciting that certain heinous 43 q. 3. ^^ ^g^
offences, with intent to procure the miscarriage of women, had a. i.tdminU-*
been of late frequently committed, and that no adequate means tering powon,
had been provided for their prevention and punishment, enacts, tent to^csMo
that if any person or persons shall, either in England or Ireland, the miscar-
'' wilfully, maliciously, and unlawfully, administer to, or cause to ''"K* ^^t^
** be administered to, or taken by any of his majesty's subjects, SSwffelpny
'^ any deadly poison, or other noxious and destructive substance withoutclersy-
*' or thing, with intent such his majesty's subject or subjects
*^ thereby to murder, or thereby to cause and procure the mis-
^^ carriage of any woman then being quick with child," the
person or persons so offending, their counsellors, aiders, and
abettors, knowing of and privy to such offence, shall be felons,
and shall suffer death, as in cases of 'felony, without benefit of
clergy.

l^on an indictment on this section of the statute, the woman. The words
in point of fact, was in the fourth month of her pregnancy : but " quick with
she swore that she had not felt the child move within her before tc^constni^d
taking the medicine, and that she was not then quick with child, according to
The medical men, in their examinations, differed as to the time the common
when the fcetus may be stated to be quick, and to liave a distinct [^^S'J^gii
existence : but they all agreed, that, in common understanding, a they signify
woman is not considered to be quick with child till she has felt ^^^ the wo-
the child alive and quick within her, which happens with different SecwSmore
women in different stages of pregnancy, although most usually within her.

. (a). Attic, 424. roeanor at common law in 3 Chit.

{b) See a precedent of an indict- Crim. Law, 798. procured from the
ment for this offeace as a mtsde- ^rown Office, Mien. T. 42 Gep. S.

554 Of Destroying Infants in the Womb, [book in.

about the fifteenth or sixteenth week after conception. And Law-
rence^ J. said^ that this was the interpretation that must be put
upon the words^ " quick with child, in the statute ; and, as the
woman had not felt the child alive within her before taking the
medicine, he directed the jury to acquit the prisoner, (c)
58 ^' ^'Ad '^® second section of the statute recites that it might some-
minlsteriag ' times happen that poison or some other noxious and destructive
medicines, &c. substance or thing might be given, or other means used, with in-
^•T"^A*^ tent to procure miscarriage or abortion, where the woman might
du^, with io- ^'^^ ^ quick with child at the time, or it might not be proved that
tent to pro- she was quick with child : and enacts, ^^ that if any person or per-
cnre niiflcar- €c gQ^g gj^^jj wilfully and maliciously administer to, or cause to be
j^ihMa'Lj ^^ administered to, or taken by any woman, any medicines^ d^^gs
imprisonment^ '' or Other substance or thing whatsoever, or shall use or employ,
Ac^hipping €i qj. cause or procure to be used or employed, any instrument or

or transports- ^r ■% ^ t • i • » •

tion for four- Other means whatsoever, with intent thereby to cause or procure
teen jears. " the miscarriage of any woman not being, or not beinf proved to
'^ be, quick with child at the time of administering such things, or
*^ using such means, that then and in every such case, the person
'^ or persons so offending, their counsellors, aiders, and abettors,
'* knowing of and privy to such offence, shall be and are hereby
*^ declared to be guilty of felony, and shall be liable to be fined,
'^ imprisoned, set in and upon the pillory, publicly or privately
'' whipped, or to suffer one or more of the said pimishments, or to
'^ be transported beyond the seas, for any term not exceeding
^' fourteen years, at the discretion of the court, before which such
^' offender shall be tried and convicted/'({{) It is observable, that
the using an instrument, &c. with intent to procure a miscarriage,
thus made a felony within clergy, is not noticed in the former sec-
tioo of the statute, which relates to the procuring the miscarriage
of a woman being quick with child.
Antntolon An indictment upon this section of the statute charged the pri-
**' ^^^^^"^ soner with having administered to a woman a decoction of a certain
^uademgtne- Bhrub caUcd savifi ; and it appeared upon the evidence that the
Tit, Theques- prisoner prepared the medicine which he administered, by pouring
^ondsection "^^^? water on the leaves of a shrub. The medical men who
of the sutute were examined stated, that such a preparation is called an in/usion^
IB whether any and not a decoctioHj (which is made by boiling the substance in
^admin^^ the water) upon which the prisoner's counsel insisted that he waa
teredto pro- entitled to an acquittal, on the ground that the medicine was mis-
core abortion, described. But Lawrence, J. overruled the objection, and said
that infusion and decoction are efusdem generis, and that the va-
riance was immaterial : that the question was, whether the pri-
soner administared any matter or thing to the woman to procure
abortion, (e)
And it is not In the same case, witnesses having been called on behalf of the
J?J|^^^^ prisoner to prove that the shrub he used was not savin, the counsel

(c) KejLV.VhWlx^fs^MonmctUhSvim, 75. And upon an indictment for-
Ass. 1812. «or. Lawrence, J. SCampb. murder, if the death be laid to have
77. been by one sort of poison, and it lora

(d) The punishment of the pillory out to have been by another, the dif-
is now taken away, by the 50 Geo. S. ference will not be material,
c. 138. 467.

(e) Rex i;. Phillips, 3 Camph. 74,

CHAP. ▼.] Cf Destroying Infanta in th^ Womb. 55i^

for the prosecation iorifited that he might, notwithstanding, be ^^l"'^^ ^ .
foand guilty upon the last count of the indictment, which charged theni^ute^
that he administered a large quantity '^ of a certain mixture, to the cbarging the
** jurors unknown, then and there being a noxious oand destructive P^^^f^
^^ thing.'* The prisoner's counsel objected that, unless the shrub simiitered
was savin, there was no evidence that the mixture was *' noxious
^' and destructive/' Lawrence, J. held, that in an indictment on
this clause of the statute, it was improper to introduce these
words ; and that though they had been introduced, it was not ne-
cessary to prove them. And he further said, '' it is immaterial
'' whether the shrub was savin or not, or whether or not it was
'^ capable of procuring abortion, or even whether the woman was
" actually isrith child. If the prisoner believed, at the time, that "^^^^ Uie
^^ it would procure abortion, and administered it with that intent, ^Ibolorewaa
'' the case is within the statute, and he is guilty of the offence noxious or
« laid to his charge."(/) ^^^^

the woman

(/) Rex V. PhiUi|M, SCmropb.76. the jonng woman an ioooeent draught was with child.

The prisoner had previously been tried for the purpose of amusine her, as she

upon the first section of the statute, had threatened to destroy lierself, un-

for the capital charge, and acquitted, less enabled to conceal her shame i

See ante^ 653. Upon this second in- and the jury returned a verdict of

dtctment he urged that he had givea J^Pt guilig.

'acertua
'mixtare,
'tothejnron
* unknown,
'then and
< there befaig
'a noxious
'and de-
' ttnictiTe

d56

CHAPTER THE SIXTH.

OF RAPJB^ AND THE UNLAWFUL CARNAL KNOWLSOGB OF

F£MALB CHILDREN.

Elii. c 7. 8. 1.

SECTION I.

Of Rape.

Definition of Rapb has been defined to be the havuig unlawful and carnal know-
v^P^ ledge of a woman, by force, and against her will, {a)

Made a capital This offence has, for many years past, been justly visited with
offence by 18 capital punishment : but it does not appear to have been regarded
as equsJly heinous at all periods of our constitution. Anciently,
indeed, it appears to have been treated as a felony, and^ conse-
quently, punishable with death : but this was afterwards thought
too hard ; and, in its stead, another severe but not capital punish-
ment was inflicted by William the Conqueror, namely, castration
and loss of eyes ; which continued till after Bracton wrote, in the
reign of Henry III.(i6) The punishment for rape was still further
mitigated, in the reign of Edward L, by the statute of Westm. 1.
c. 13. 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 necessary, in about
ten years afterwards, and in the same reign, s^ain to make the
offence of forcible rape a felony, by the statute Westm. 2. c. 34.
The punishment was still further enhanced by the statute 18 fHiz.
c. 7.. 8. 1., which enacts, that any person committing felonious rape
or rayishment, and found guilty by verdict, or outlawed, or con-
fessing the crime upon arraignment, shall suffer death without
benefit of clergy. And an indictment for this offence may be pro-
secuted at any time, and notwithstanding any subsequent assent
of the party grieved, (c)

(a) 1 Haivk. P. C. c. 41 . s. 9. 1 Hale P. C. c. 41 . s. 1 1 . 1 Hale 627. BracL

627,628. Co.Lit. 123. b. 2 lost. 180. lib. 3. c. 28. Leg. Gal. 1. I. 19.

9 Inst. 60. 4 Blac. Com. 210. 1 East Wilk. Leg. Anglo-Sax. 222, 290.

P. C. c. 10. s. 1. p. 434. (e) 1 Hale 631, 632. 1 East. P. C. c

(l») 4 Blac. Com. 211. 1 Hawk. 10. s. 9. p. 446.

CHAP. VI. § 1.] Of Rape. 657

All who are present^ idding and assisting a man to commit a Of ^enand
rape, are principal offenders in the second degree, whether they wccssories.
be men or women ; and they are also ousted of clergy, {d) And
there may be accessories before and after in this offence ; for though
it be made felony by a statute, which speaks only of those who
commit the offence, yet accessories, before and after, are conse- -
quentially included : but such accessories have their clergy, {e)

The law presumes, that an infant, under the age of fourteen Of persons
years, is unable to commit the crime of rape ; and, therefore, it ^j^^^^i?'
seems that he cannot be guilty of it. (/) This doctrine, however, rape,
proceeds upon the ground 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, (g) A husband cannot be guilty of a rape
upon his wife, on account of the matrimonial consent which she
has ^ven, and which she cannot retract : but he may be guilty as
a principal by assisting another person to commit a rape upon his
wife; for though in marriage the wife has given up her body to
her husband, she is not by him to be prostituted to another. (A)
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 holden, that she could not maintain an appeal of rape
against her husband, unless the marriage were first legally dis-*
solved : but that when the marriage was made void ab initioj by a '

declaratory sentence in the ecclesiastical court, the offence became
punishable, as if there had been no marriage, (t) The forcible
taking away and marrying a woman against her will is, however^
made felony by the statute 3 Hen. 7> c. 2. (J)

The offence of rape may be committed, though the woman at Of tbepenoat
last yielded to the violence, if such her consent was forced by fear "^"^^*^^
of death or by duress, (k) And it will not be any excuse that she ^mmitted.^
was first taken with her own consent, if she were afterwards forced
against hep will; nor will it be an excuse that she consented after
the fact, or that she was a common strumpet, or the concubine of
the ravisher : for she is still under the protection of the law, and
may* not be forced, (a) Circumstances of this kind, however,
though they do not necessarily prevent the offence from amounting
to a rape, yet are material to be left to the jury, in favour of the
party accused, especially in doubtful cases. (/) The notion that if
the woman conceived it could not be a rape, because she must, in
such case, have consented, appears to be quite exploded, (m)

{d\ Rex V. Tide and others, Fitz. Tri. 387. 1 Hale 689. Hutt. 1 16. 1

Corone, pi. 86. I Hawk. P. C. c. 41. Str. 683.

s. 10. Lord Baltimore's ease, 4 Barr. (i) 1 Hale 6S9.

S179. 1 Hale 688, 633. 1 East. P. C. {j) IhiL Chap. viit.

c. 10. 8. 1. p. 436. Bex v. Burgess and (k) 1 Hawk. P. C. c. 41. s. 6. 1 East,

others, Trin. T. 1818, post, 561. P. Cc. 10. s. 7. p. 444.

(e) 1 Hale 63] , 638, 633. As to ac- <a) 1 Hawk. P. C. c. 41 . s. 7. 1 East,

cessories being conseqaenttally in- P. C. c. 10. s. 7. p. 444, 445. 4 Blac.

eluded, see ante, 38. Com. 813.

(/) 1 Hale 630. Ante, 3. (/) 1 East. P. C. c. 10.' s. 7. p. 445.

ig) Id.iM» (m) 1 Hale 631. 1 Hawk. P. C. c. 41 .

(Jb; Lord CastlebaTen^s case, 1 Si i.8. 1 East. P. C. c. 10. s. 7. p. 445.'

558 Of Rape. [boo& ihw

A quefitloBL lately arose, whether having CBrnal knowledge of a
married woman, under circumstances which induce her to sup^
pose it 13 her husband, amounts to a rape. The prisoner broke
and entered a house by night, in order to ha^e connection with
the owner's wife if he could pass as her husband, but not mean-
ing to force her if she discovered the fraud; he was in the act of
copulation when she made the discovenr, and inunediately and
before completion he desisted. Upon an mdictment for burglary
with intent to commit a rape, the jury found that he entered with
the intent to pass for the woman's husband, and to baye conneo'
tion with her if she did not make the discovery, and to desist if
she did. Upon a case reserved, four ctf the Judges thought ihat
the having carnal knowledge of a woman whilst Ae was under the
belief of its being her husband would be a rape ; but the other
eight Judges thought that it would not : and Didlas, C. J. pointed
out forcibly the difference between compelling a woman against
her will, when the abhorrence which would naturally arise in her
mind was called into action, and be^roiling her iirto consent and
co-operation. But several of the eight Judges intimated that if
the case should occur agdn, they would advise the jury to find a
special verdict, (a)
Of the carnal It is agreed that there must be penetraHo, or ref m re, in order
knowledge^ to constitute the " carnal knoidedge,'" wtdch is a necessary part
institute the of this ofiTence. (n) But a very slight penetration is sufi&cient.
offence. Thus, where it was proved on behalf of a prisoner, who was

charged with having ravished a young girl, tlmt the passage oi
her parts was so narrow that a finger could not be introduced;
and that the membrane called the hymen, which crosses ihe va-
gina, and is an indubitable mark of virginity, was perfectly wfacde
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; Ashhurst, J. 1^ it to the jury to say whetfa^ any
penetration were proved. And the Judges afterwwds held upon
' a conference, (De Grey, C. J. and Eyre, B. being absent,) uat
this direction was perfectly right ; and that the least d^ree of

Senetration is sufilcient, though it may not be attended with the
epnvation of the marks of virginity, (o)
(HemUiio But. whether or not there must oe emissio seminiSf in order to

f*"**^* y constitute a rape, is a point which has been much doubted, and
upon which very different opinions have been holden.(|i) The
mer cases di£Eer also upon this question. Thus, in a case of
sodomy, which is governed by the same principles as rape, six
Judges held, upon a special verdict finding penetration but the
emission out of the I jay, that both emission and penetration
were necessary : while on the other hand five Judges thought that
the injectio seminis was not necessary ; and they said that iigec-

(a) Ret D. Jackson, Tr. T. 1688. (o) Rex v. Ruaseo, 0. B. Oct 1777«

^ Ruse. & Ry. 487. Se^. Fosters MS. 1 Bast P. C. c 10.

(n) 1 Hale 688. ^ Inst 59, 60. 1 a. 3. p. 4S8, 4^9. MS. Bayley, J.

Hawk. P. C. c. 41. a. 3. Sum. 117^ (p) 18 Rep. 37. Stim. 117. Stm£

1 Bast. p. €. c 10. 8. 3. p. 437. Rex 44. 1 Hawk. P. C. c. 4. a 8, e. 41. s.

V. iPage, t)if « 304 a. i» aisrf « Cro. 8. that the emiuio t

Car. 3Sil. 1 Hale esa^ eoslrs;

GHAF. VI. i I.] Of Rape. 559

tion cannot be protied in the ca^e of a child, or of bestiality, and
that penetration may be evidence of emission. (9) Subsequently
to tUs case, Willes, C.J. presiding at a trial for this offence,
adopted the doctrine of the proof of emission being necessary : (r)
but that great crown lawyer, Mr. J. Foster, held otherwise upon
a similar occasion, («) as did Clive, J. upon another trial a few
years afterwards. (/) The matter was farther considered, in a
case where the prosecutrix could not prove any emission ; and
Bathurst, J. directed the jury, that if they believed that the pri*
soner had his will of her, ana did not leave her till he chose it
himself, they should find him guilty, though an emission were not
proved ; and after the jury had returned a verdict of guilty, he
aaid, that it was always his opinion, that it was not necessary to
prove emission ; and Smythe, B., who was present at the trial,
was clearly of the same opinion. (t<) And in a case which hem
been before mentioned, where it was agreed that die least degree
of penetration was sufficient, it seems that the jury were directed
by Ashhurst, J. that if the penetration wete proved, the rape was
<;omplete in law.(fcf) The weight of the authorities, therefore,
afiier these cases had beoi decided, was supposed to be much
against the necessity of the proof of emission as weU as penetra*
tion.(a:)

But a more recent case appears to have introduced the contrary
doctrine. The case, which was reserved for the opinion of the
Judges, stated, tiiat the fact <»f penetration was positivdy sworn
to ; but that there was no direct evidence of emission. From in*
terruption, it appeared probable that emission was not eflkcted j
and the jury, under the direction of the learned Judj^e who tried
the prisoner, found a verdict of guilty, but said, that they did not
find the emission. Upon this case three of the Judges (y) held,
that the oflence was complete by penetration only ; but seven of
them (2) held both emission and penetration to be necessary : they
thought, however, that the fact should be left to the jury. One
judge was absent; (a) and Lord Mansfield only stated, that a great
majority seemed to be of opinion that both were necessary, it is
said that the majority, in this case, proceeded upon th^ ground
that carnal knowledge (which they considered could not exist
without emission) was necessary to the consummation of the of-
fence : but that this definition was denied by the others, who ob-
served, that carnal knowledge was not necessary to be laid in the
indictment, but only that Uie defendant ravished the party.(i)

(9) Rex V. Duffin, O.B. 17S1, or (u) Rex ir. ^heridao, 0. B. 8 Geo. 3.

1728» Baron Price*9 MS. 1 East. P. C. 2 MS. Sum. 3S3. 1 East F. C. c. 10.

c. 10. s. 3. p. 437, 438. The Judges 9. 3. p. 436.
thus differing ia opioion, it was pro- (w; Rex v. Russen, attto, note {o\
posed to discnarge the special verdict, (x) 1 East. P. C. c. 10. s. 3. p. 489.
and indict the party for a misde- (jf) Lord Loughborough, Bnller, J.

meanor. (who tried the prisoner) and Heath, J.

(f) Rex V. Care, O. B. 1747, SerJ. {%) Skynner, Ld. C. B., Gould, Wil-

Forster^s MS. 1 East. P. C. c. 10. s. 3. les, Ashhurst, and Nares, Justices, and

p. 438. Eyre and Hotham, Barons.

(t) 1 East P. C. ihU. (a) Perryo, B.

(f) B«x V. Bloottifield, Thetfori^ (ft) Rex v. HtU, 1781. MS. Gould.

I7ft8, Set;^. Fenlei^s M8. l BastP.a and Bnller, lustice*. i East P.O.

tfMiT. C. 10. 9. 3. p. 439, 44fe.

bob Of Rape. [book hi.

In a later case from the privy council, upon proceedings under a
court martial against a seaman for sodomy, it was stated that
there was complete penetration and emission : but the emission
was out of the body of the person on whom the sodomy was com-
mitted ; and, upon full consideration, the Judges were of opinion
that injectio seminis was essential ; and they stated as their opinion
that, upon the authority of what a series of later years bad been
understood to be the law, and had been acted upon as such, the
offence was not complete, and that the prisoner should not have
been convicted.(jr)

Upon the authority of these cases it seems, therefore, that at the
present time, the offence would not be considered as complete
without some proof of the emissio seminis. But this doctrine is
not free from considerable difficulty; and appears to be &irly
open to the observation, that where the violence has proceeded to
the extent of an actual penetration of the unhappy sufferer's body,
an injury of the highest kind has been effected. The quick sense
of honour, the pride of virtue, which nature, in order to render
the sex amiable, has implanted in the female heart, is violated be-
yond redemption ; and the injurious consequences to society are
m every respect complete.(c)

Supposing, however, that emission is necessary, it seems that
penetration is prima facie evidence of it, unless the contrary
appear probable from the circumstances, (d) Thus, where a
>voman swore that the defendant had his will with her, and had
remained on her body as long as he pleased, but could not apeak
as to emission, BuUer, J. said, that it was sufficient evidence of a
rape to be left to the jury.(e) And he mentioned a case, which
he recollected, of an indictment for a rape, where the woman had
sworn that she did not perceive anything come from the man, and
that, though she had many children, she never was in her life sen-
sible of emission from a man ; and that this was ruled not to
invalidate the evidence which she gave of a rape having been com-
mitted upon her. In a case where the party ravished had died
before the trial, her deposition, corroborated by other evidence of
actual force and penetration, was held sufficient to warrant a con-
viction, though mere did not appear to be any direct evidence of
emission. It was left to the jury to determine whether the crime
had been completed by penetration and emission ; and they were
directed that they mignt collect the fact of emission from the evi-
dence, though the unfortunate girl was dead, and could not there-
fore give any further account of the transaction, ttian that which
was contained in her deposition before the magistrate. (/)
If something occurs to create an alarm to the party while he is

(x) Rex V. Parker, Hil. T. 1812. (tf) Rex r. Harmwood, WmckeHet^

HS. Bavley, J. Spr. Ass. 1787. 1 Bast P. C. c 10.

(c) 1 East. P. C. c. 10. s. 3. p. 436| s. 3. p. 440. The indictnieol iras for

437. Post. 874. an assault with iotent to nivish ; aod

(if) The majority of the judges in the learned judge ordered the defend-

Hilrs case, anle^ note (h\ thougnt the ant to be acquitted of that charge,

question of emission was a fact for the upon the evidence appearing to

jury ;'aDd see the opinion of Bathurst, amount to proof of an actual rape.
J. anlei 550,; and see 1 East. P. C. (/) Rex v. Flemming and Wind*

c. 10. 8. 3. p. 440. ham, 2 ieach. 854.'

€aAP. VI. § L] Of Rape. d6l

perpetrating the oflEence, it may be for the jury to say whether he
left the body re infecta because of the alarm, or whether he left it
because his purpose was accomplished. The prisoner had been
in the body of the woman two or three minutes ; and then, two
men coming in sight, she struggled violently, and he withdrew
from her body, but jumped with his knees upon her breast, and
held her by the mouth and throat so that she could not speak or
stir : but afterwards, upon her seizing an opportunity and calling
out, the men came up and secured the prisoner. The woman
spoke of him as having seen the men before he withdrew : the
men thought he did not see them at that time. Holroyd, J. left
the question to the jury, whether the prisoner had completed the
crime before he withdrew, and withdrew on that account ; an4
the jury found that he had. And the Judges held that it was a
question for the jury, and rightly left to them. (2)

It appears always to have been admitted, that emissio seminis
of itseu makes neither rape nor sodomy ; but it is spoken of as
prima fade evidence of penetration. (^)

As the absence of previous consent is a material ingredient in of the indicw
the offence of rape, it must be averred in the indictment ; where mtux.
it is usually expressed by stating that the fact was done ^^ against
the will'' of the party. (A) It is essential to aver, that the odender
did feloniously '^ ravish" the party ; and the omission of the word
ravished mdll not be supplied by an averment that the offender
^^ did carnally know," &c.(t) It has been considered, that the
words ^' did carnally know" are not essential, on the ground that
rapere signifies legally as much as camaliter cognoscere :{k) but
they are at any rate appropriate in describing the nature of the
crime, and appear to be generally U8ed.(/) The omission of them
would not, therefore, be prudent, (m) The indictment usually
concludes ^' against the form of the statute ;" but as the offence
was anciently, as has been shewn, (n) a capital felony, such a
conclusion has been thought to be unnecessary, (o) The indict-
ment must conclude, as in other cases, ^' against the peace, &c. :"
but where the conclusion was against the peace of our ssdd late
lord the King, the offence being in the time of the present King,
and no other King had been mentioned, it was held not to be ob-
jectionable. The indictment was for a rape, stated to have been
committed on the 9th March, 1 Geo. 4., and concluded ^^ agdnst
the peace of our said late lord the King : and, upon a case re-
served^ the Judges were unanimous that ^* late" might be rejected;

{%) Rex V. Burrows, Mich. T. 1823. Lit 137.

MS. Bay ley, J. Ruas. & Ry. 519. (0 See the precedents referred ta,

{g) 1 Hale 6S8. 1 Hawk. P. C. c. 4. anle^ note \h).

s. 8. S Inst. 60; But qutere how far (m) 1 East. P. C. c. 10. s. 10. p. 448.

it can be taken as eYidence of pene- 9 Stark. Crim. Plead. 409. note (p).

^tion* 4 3 Chit. Crim. Law, 812. It is laid

(fc) Cro. Circ. Corop. 401. 2 Stark, down generally, in some of the books,

Crim. Plead. 409. 3 Chit. Crim. Law, that the indictment must bo rapuii et

015. camaUter cognovU, 1 Hale 628» 632.

(0 1 Hale 628, 632. Br. Indict, pi. (») Ante, a56.

7. citiog 9 Ed. 4. c. 6. (o) 1 East. P. C. c. 10. s. 10. p. 448.

(k) 8 Ihsl. 180. and see 2 Hawk, but see 2 Stark. Crim. Plead. 409.

P. C. c. 85. s. 56. Staundf. 81. Co. note (9).

VOX- r. 2 o

56S Of Rape. [book m.

and Holroyd, J. thought that if it stood^ it was not inapplicable to
the existing King, and the prisoner was executed, (c)

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 one only should have been charged as ravishing,
and the others as accessories; or that there should hare been
several appeals, as the ravishing by one would not be the ravish-
ing of the others ; it was answered, that if two come to ravish,
and one by comfort of the other does the act, both are principals,
and the case proceeded, (a) And, in a modem case, the form of
the indictment, in a charge of this kind, came under the con-
sideration of the Judges. Hie indictment was against three per-
sons for a rape, charging them all as principals in the first de-
gree, that they ravished and carnally knew the woman ; and the
prisoners were all found guilty. The Judge who tried them (at
Chester) doubted whether the charge could be supported ; and, at
his ^esire, the case was mentioned by Heath, J . to the oUier
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«(&)
lie party im- It is clear that the party ravished is a competent witness : and
competent indeed she is so much considered as a witness of necessity, that
witaen. where a husband has been charged with having assisted another

man in ravishing his own wife, the wife has been admitted as a
witness against her husband, (/i)
Bnt brr credi- But though the party ravished is a competent witness, the cre-
left^^toUilru* dibility of her testimony must be left to the jury, upon the cir-
upon the con- cumstances of fact which concur with that testimony. Thus, if
curringcir- ghe be of good fame ; if she presently discovered the ofience, and
cnmBtncet. made search for the offender ; if she shewed circumstances* ai^d
signs of the injury, whereof many are of that nature that women
only are proper examiners; if the place where the fact was done
were remote from inhabitants or passengers ; if the party accused
fled for it; these, and the like, are concurring circumstances,
which give greater probability to her evidence, (gr) But if, on the
other hand, the witness be of evil fame, and stand unsupported
by others ; if, without being under controul, or the influence of
fear, she concealed the injury for any considerable time after she
had the opportunity of complaining ; if the place where the fact is
^ alleged to have been committed, was near to persons by whom
she might probably have been heard, and yet she nuufe no out-
cry ; if she has ^ven wrong descriptions of the place ; these, and

(e) Rex e. Scott. East. T. 1820. MS. the ChcMter Spr. A». 1813, in 5 Evmnr

Bayley, J. Russ. & Ry. 415. Col. Stat. CI. 6. p. S99. note (19).

(a) Rex o. Vide and others, Fits (p) Rex v. Lord Castlrhaveo« 1 St

Corone, pi. 86. ^nto, 89, 557. Tri.387. 1 Hale 629. Halt. 116. 1

Ot) Rex r. , Tr. T. 1813, Lord Str. 633. Ante, 557.

Sllenborough, C. J., Mansfield, C. J., (q\ 4 Blac. Com. SIS. 1 East P. C.

and Grose, J., were absent The case c. 10. s. 7. p. 445.
is mentioned as hafing occurred at

CHAP. VI. § 1.] Of Rape. 563

the like circumstances, afford a strong though not conclusive
presumption that her testimony is feigned, (r)

The character of the prosecutrix as to general chastity may be
impeached by general evidence, (a) But, in a case where a ques-
tion was put to a prosecutrix, ^^ Whether she had not before had
^' connection with other persons ; and whether she had not before
" had connection with a particular person who was named ;*' an
objection taken to this question by the counsel for the prosecu-
tion was allowed by the learned Judge ; who also allowed an ob-
jection, made by the counsel for the prosecution, to the admissi-
bility of evidence to prove that the girl had been caught in bed,
about a year before this charge was preferred, with a young man
who was tendered by the prisoner's counsel to prove that he had
connection with her ; and the question as to the admissibility of
such evidence being reserved, eight Judges, who were present at
the discussion^ held that both the objections were properly al-
lowed. (£)

The application of these and other rules upon this difficult sub- Great cantioti
ject should always be made with due regard to the cautious observ- *? ^ ?*®**-?*
ations of a great and experienced Judge. Lord Hale says, '^ It |j^ "ffence.
*^ 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
f^ made and hard to be proved, and harder to be defended by the
'^ party accused^ though never so innocent.^' (^) ^^ ^^^^ 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 vigi-
^' lance ; the heinousness of the offence many times transporting
" the Judge and jurv with so much indignation, that they are
^^ over hastily carried to the conviction of the person accused
^' thereof, by the confident testimony, sometimes, of malicious
** and false witnesses." (/)

It has been already mentioned, that this offence is subjected to paniBhment.
capital punishment ; being made felony without benefit of clergy,
by 18 Eli2. c. 7. (")

Where there is no reason to expect that the facts and circum- Of an assault
stances of the case, when given in evidence, will establish that with intent to
the crime of rape has been completed, the proper course will be, ™^^ '
to prefer an indictment at common law, for an assault with intent
to ravish ; which offence, though only a misdemeanor, yet is one
of a very aggravated nature, and has, in many instances, been
visited with exemplary punishment. (t£^) But this proceeding

(r) 4 Blac. Com. 213, 814. 1 East (v) To the extent of fine, imprl-

P. C. c. 10. 8. 7. p. 445, 446. Bonroent, and pillory, and finding sure-

(a) Rex V. ClarKe, 8 Stark. N. P. C. ties for good behaviour for life, 1 East
241. Stark. Evid. Part IV. p. 1869. P. C. c. 10. s. 4. p. 441. The punish-

(b) Rex V. Hodgson, December 1811, raent of the pillory could not now be
Huss. & Ry. 811. imposed for such oflTence, in conse-

(«) I Hale 635. quence of the 56 Geo. 3. c. 138.; and

(li I Hale 636. with respect to sureties for good beha-

(«} Ante^ 556. Tiour for life, it b observed, that such

2o2

W8*

Of Rape.

[book in.

should not be adopted "where there is any probability tliat the
higher offence will be proved ; as where^ upon an indictment for
an assault with intent to commit a rape^ the prosecutrix proved a
rape actually committed, a learned Judge directed an acquittal,
on the ground that the misdemeanor was merged in the felony .(x)
Assaults by taking indecent liberties with females, though with-
out actual force or violence, will be mentioned in a subaequeot
Chapter, (t)

SECT. II.

The carnal

a child under
ten years old
ma^i felony
without cler-
gy, by 18 Eliz.
c. 7.

The carnal
knowledjfi^ of
a child above
ten and under
twelve years
old made a
misdemeanor
by iUt. of
WestBQ. 1. c.
13.

Of the unlawful Carnal Knatvledge of Female Children. *

In rape, as we have seen, the carnal knowledge must be agahut
the will of the party : but, bv the fourth section of the eitatute
18 £liz. c. 7* carnal knowledge of any woman child nnder the
age of ten years is made felony without benefit of clei^ ; and
this without any reference to the consent or non-consent c^ the
child, which must ^therefore be considered as immaterial. Tlie
statute enacts^ '^ that if any person shall unlawfnlly and carnally
*^ know and abuse any woman child under the age of ten years,
'< every such unlawful and carnal knowledge shall be felony ; and
'< the offender, thereof being duly convicted, shall suffer as a
** felon without ^owance of clci^."

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. I. c. 13., which
enacts '^ that none do ravish any maiden within age, neither by
" her own consent nor without," being admitted to refer, by the
words " within age," to the age of twelve years.(y) It is, now-
ever, now well established, that if the child be above ten years
old it is not a felonious rape, unless it be against her will and
consent, (s) But children above that age, and under twelve, are
still within the protection of this 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
Wekm. 2. c.34. or 18£liz. c.7. (a) The statute Westm. 1.
e. IS. makes the deflowering a child above ten years old and
under twelve, though with her own consent, a misdemeanor
punishable by two years' imprisonment, and fine at the King*8
plea3ure.(A)

part of the sentence is not consonant
to the practice of our present consti-
tution m the apportionment of discre-
tionary punishment; as tending to im-
prisonment for life. East. P. C. ibid,
(jt) Rex o. Harrawood, car. Buller,
J., JFinclMter Spr. Ass. 1787, 1 East.
P. C. o. 8. a. h. p» 411. and c. lO^ &•
a. p. 44i). Anie^ 56Q.

(t) Fo»t. chap. xi. s. 1.

{y) 1 Hale §31. 8 Inst 180. Slnsl.
69.

(s) Sum. 118. 4 Blac Com. 818»
1 East. P. C. c. 10. 8. 8. p. 436.

(«) Ante^ 556.

{b) 4 Blac. Com. 818. 1 East. P. &
€■ 10. s. 8. p.^S6.

CHAP. vt. $ 2.] Of the Comal Knowledge of ChUdrm. 565

It 18 said, that an indictment on the statute 18 Eliz. c. 7. for {2^^!°>«»^ <'«
deflowering a child under ten years of age, ought to conclude ^'

*^ against the form of the statute/' because the crime, as well
as the punishment, is created by that statute, (c) And that,
on the same account, it is necessary for the indictment to pursue
the words of the act, and charge that the defendant feloniously,
unlawfully, and carnally, knew and abused the party, being under
the age of ten years, without adding the word ravished* (d)

Upon prosecutions for this offence, it is an important con- T«ftliA(Miy^
sideration how hx the child, upon whom the injury has been tlwcaild.
committed, is a competent witness. In former times, the com-
petency appears to have been made to depend upon the age of the
chUd ; and when the rule prevailed that no children could be
admitted as witnesses under the age of nine years, and very few
under ten, (e) the testimony of the injured child must have been
for the most part excluded. A more reasonable rule has, how-
ever, been since adopted ; and it appears now to be well estab-
lished, that a cliild of any age, if capable of distinguishing be-
tween good and evil, may be examined upon oath : but that,
whatever may be its age, it cannot be examined unless sworn. (/)
By such capability of distinguishing between good and evil, must
be understood a belief in Grod, or in a future state of rewards and
punishments; from which the court may be satisfied that the
witness entertains a proper sense of the danger and impiety of
falsehood, (g)

It appears to have been allowed, that the fact of the child's
having complained of the injury recently after it was received, is
confirmatory evidence :( A) but where the child is not fit to be
sworn, it is clear that any account which it may have given to
others ought not to be received, (i) Thus, on an indictment for a
rape on a child of five years of age, where the child was not exa-
mined, but an account of what she had told her mother about
three weeks after the transaction Was given in evidence by the
mother; and the jury convicted the prisoner principally, as was
supposed, on that evidence ; the Judges, on a case reserved for
their opinion, thought the evidence clearly inadmissible ; and the
prisoner was accordingly pardoned, {k)

In all cases of this kind, it is undoubtedly much to be wished
that, in order to render the evidence of the child credible, there
should be some concurrent testimony, of time, place, and circum-;
stances, in order to make out the fact ; and that the conviction
should not be grounded singly on the unsupported accusation of
an infant under years of discretion. (/) But no general rule can
be laid down on the subject ; and as a prisoner may be legally

(«) 1 Bast P. C. c. 10. 8. 10. p. 4 Blac. Com. 814. Anon. Dy. 804 a.
448. ~ " ■

{d) Id. md.

\e) Rex V. Travers, 1 Str. 700. Rex
«. Dunnel, 1 East P. C. c. 10. s. 5. p.
442. 1 Hale 30^. 2 Hale 278.

(/) Brazier^s case. Beading Spring
Ass. 1779. 1 East P. C. c. 10. s. 5.
p. 443,444. 1 Leach 109, S. C. Powell's
case, 1 Leach 1 10. Bull. N. P. 203.

(f) White's case, 1 Leach 430, 431.
aoa the cases cited. Id, 431, note {a)
and see post^ Book on Evidence,

{h) Brazier's case, ante^ note (/).

(0 Phil, on Evid. 15.

{k) Tucker's case, 1S08. Phil, on
Evid. 15.

(0 4 Blac. Com. 214.

566 Of the Carnal Knowledge of Children. [book in.

convicted on such evidence, alone and unsupported, the d^ree of
corroboration which the account given by the witness requires, is
a question exclusively for the jury, from all the circumstances of
the case, and especially from the manner in which the child hu
given its evidence, lliat evidence may he such as to leave no
reasonable doubt of the prisoner's guilt, although it stands unsup-
ported by other witnesses, (m)
Postponement Where a criminal pifosecution was coming on to be tried, and
whmthecbild *^^ learned Judge found that the principal witness was a female
-WM not capa- infant, wholly incompetent to take an oath, he postponed the, trial
bie of giving till the following assizes ; and ordered the child to be instructed in
testimony. ^^^ mean time, by a clergyman, in the principles of her duty, and
the nature and obligation of an oath. (;i) And at the next assizes,
the prisoner was put upon his trial ; and the in&nt, being found
by the court on examination to have a proper sense of the nature
of an oath, was sworn 5 and the prisoner was convicted upon her
^"t'b^d™'*'' testimony, and executed, (o) But in a late case where it appeared
order that^an^ ^^^^ the material witness, though an adult, and of sufficient in-
aduU may be- tcUect, had no idea of a future state of rewards and punishments,
come capable, anj ^he learned Judge had on that account stopped the case, and
discharged the Jury, in order that the witness might have an op-
portunity of being instructed upon that subject, before the next
assizes ; the Judges were of opinion, that the discharge of the
jury was improper, and that an acquittal should have been di-
rected, {p)

(m) Phil, on Evid. 16. See note (a) to Whitens caae, I Lctcb

(») Anon. cor. Rooke, J. at Glou- 4S0. ; and % Bac. Abr. 677 in tbe

eeiier. Mr. J. ^oke mentioned the notes,

case on a trial at the Old Bailey in (0) Id, ibid.

1795 ; and added, that upon a confer- (p) Rex v. Wade, Bast T. 192i

ence with the other Jod^, on his re- Ry. & Mood. C. C. 86. An ap»iict-

turn from the circuit, they nnani- tion for a pardon was recomnieoaed.

mously approved of what he had done. .

667

CHAPTER THE SEVENTH.

OF SODOMY.

Iff treating of the offence of sodomy, peccaium illud horribile,
inter Christianas non nominandum^ it is not intended to depart
from the reserved and concise mode of statement which has been
adopted by other writers.

It appears from different authors^ that in ancient times the offence made
punishment of this offence was death : (a) but it had ceased to be capital by 27
BO highly penal^ when the statute 27 H* 8. c. 6. again made it a ^* ^« ^ ^
capital offence. That statute reciting that there was not sufficient
and condign punishment appointed and limited by the due course
of the laws of the realm, for the detestable and abominable vice of
buggery, committed with mankind or beast, enacts, ^' that the
'^ same offence be from henceforth adjudged felony, and such order
'^ and form of process therein be used against the offenders as in
'^ cases of felony at common law : and that the offenders being
'^ hereof convicted by verdict, confession, or outlawry, shall suffsr
^^ such pains of death, and losses and penalties of their goods,
'' chattels, &c. as felons be accustomed to do, according to the
*' order of the common laws of this realm ; and that no per-*
'^ son, offending in any such offence, shall be admitted to his
" clergy.".(i) ,

The offence consists in a carnal knowledge committted against Definitioii of
the order of nature by man with man; or m the same unnatural the offence,
manner with woman ; or by man or woman in any manner with

(a) But the books differ as to the bj the general act of 1 Ed. 6. c. 1S.$

mode of punishment. According to but by % Ed. 6. c. 89. the offence was

Britton, a sodomite was to be burnt, made felonj. without clergy, though

Britt. lib. 6. c. 9. In Fleta it is said, without loss of lands or goods, or cor-

pccoraniea ei iodomiite in ierfA vhd ruption of blood. But this act of %

eonfodianivr. With this the Mirror Ed. 6. was repealed by the 1 M. c. 1.

agrees : but adds, ** utint que me- and the 85 H. 8. c. 6. also stood re-

*' moire teont reatraine^ pur le grand pealed till the fifth year of Elizabeth.

'* abomination delfaii;^^ thereby con- Then by the statute 5 Eliz. c. 17. the

signing them, with just indignation, entire act of85H. 8. c.6« is revived and

to shameful and eternal oblivion, re-enacted, so that the offence stands

Mirr. c. 4. s. 14. About the time of at this day absolutely felony without

Richard the First, the practice was to benefit of clergy. 1 Hale 669. And

hang a man, and drown a woman, offenders standmg mute, not directly

guiUy of this offence. 3 Inst. 58. answering, or challenging peremp-

{b) This act was at first only tempo- torily, above twenty, are deprived of

rary, bat made perpetual by S8 Hen. clergy, by the general enactment of

8. c. 3. It was afterwards repealed the 3 and 4 W. and M. c. 9. s. 2.

56S

Of Sodomy.

[book III.

Of aiders, &c.
and acces-
foiies,

Indictment.

Evidence.

Attempts to
cdMibit felony.

beast, (c) With respect to the carnal knowledge necessary to
constitute this offence, as it is' the same that is required in the case
of rape, it will be sufficient to refer to the preceding Chapter. (cQ

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, (o) An unnatural connection with an
animal of the fowl kind is not sodomy; a fowl not coining
under the term ^' beast :" and it was agreed clearly 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, (/i)

Those who are present, aiding and abetting in this offence, are
all principals, and deprived of the benefit of clergy : (e) but if the
party on whom the offence is committed be within the age of
discretion, namely, under fourteen, (/) it is not felony in him,
but only in the agent, {g) There may be accessories before and
after in this offence, as the statute makes it felony geneiBlly : bnt
Accessories are not excluded from clergy. (A)

The indictment must charge that tiie offender contrh ndturat
ordinem rem habuit veneream^ et camattter cognovit, {i) But it
is said, that this alone would not be sufficient ; and that, as tiie
statute describes the offence by the term ** buggery," the indict-
ment should also charge peccatumque illud sodomiticum Angtick
dictum buggery adiunc et ibidem neguiteTy felonies, diabolic^j [a€
contrh naturamy commisit, ac perpetravit. {k)

That which has been before stated with regard to the evi-
dence and manner of proof in cases of rape, ou^ht especially
to be observed upon a trial for this still more heinous offence.
When strictly and impartially proved, the offence well merits
jstrict and impartial punishment : but it is from its nature so
easily changed, and the negative so difficult to be proved,
that the accusation ought clearly to be made out. The evidence
should be plain and satisfactory, in proportion as the crime is
detestable. (/)

In cases where it is not probable that all the circumstances ne*
cessary to constitute this offence will be proved, it may be ad-
visable only to prefer an indictment for an assault with intent to
commit an unnatural crimel And it should be observed, that the
mere soliciting another to the commission of this crime has been
treated as an indictable offence, (m)

. (c) 1 Sale 669. Sam. 117. SInst.
56, 59. 1 Hawk. P. C. c. 4. 6 Bac. Ab.
Sodomy. 4 Blac. Com. 215. 1 Burn.
Jast. Buggery. I East P. C. c. 14.
8. 1 . - Wiseroao*8 case, Fortesc. 91. As
to tiie offence by man with woman
if the case sholild occur, it may be
proper to enquire whether the doc-
trine in the text is sufficiently sup-
ported by the authorities cited.

(d) Anie^ 558, et tequ.

(o) Rex V. Jacobs, East T. 1817.
RusR. &Ry. SSI.

(p) Rex r. Mu1reaty» Hil. T. 1812*
MS. Bayley,X

(f) 1 dale 670. 3 Inst. 59. Post.
4«8, 483.

(/) Ante, S, 3.

(g) I Hale 670. 3 Inst 59. 1
P. C. c. 14.8.2.

(h) 1 Hale 670. Post 422, 423.

(0 1 Hawk. P. C. c 4. s. 2. 3 Inst.
58, 59.

(k) Post. 424. referring to Co. Ent
351. b. as a precedent settled by great
advice.

(/) 4 Blac. Com. 215. Ante^ 5«3.

(m) See a precedent of an indict-
fnent for such solicitation, 2 Chit
Crim. L. 50. And for the principles
and cases upon which sncn mn in-
dictment may be supported, see Atifr,
44,45.

569

CHAPTER THE EIGHTH.

«V TRK VOftCIBUB ABDVCTIOS AMD ITIt&AWWL TAKINa AWAT

4

OF FJBBtAI«B8; AND OF CLANOKSTlNB liAARtAGBS.

It* l^peats to be the better opinion that if a man marrv a woman Offences at
tinder age, without the consent of her father or guardian, it will commoalmw^
not be an indictable offence at common law* (a) But if children
be taken from their parents or guardians, or others entrusted with
the care of them, by any sinister means ; either by violence, deceit,
iSoiispiracy, or any corrupt or improper practices, as by intoxica**
tion ; for the purpose of marrying them ; it appears that such cri-
minel means will render the act an offence at common law, tbough
the parties themselves may be consenting to the marriage, (b)
And seduction may be attended with s\ich drcumstances of com-
bination and conspiracy as to make it an indictable offence. A
case is reported where 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
soliciting her to desiert her father, and to commit whoredom and
adultery with Lord Grey, who was the husband of another daugh-*-
ter of tqe 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 divere
flecret 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 proof 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 pifevail 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

(«) 1 East. P. C. c. 11. s. 9. p. 458. laforniation for a misderaeanor, in
l^b) Id. ibid, p. 459. And see in 3 procuring a marriage with a minor, by
Chit Crim. L. 713. a precedent of an false allegations.

570 Of the Forcible AbdwUon of Females, [book hi.

his servants, or persons acting by his command, and under his
controul. (c)
Offences by The forcible abduction and unlawful taking awav of women and

statutct. female children are made highly penal by the provisions of several

statutes.
3 Hen. 7. c. 2. The statute 3 Hen. 7* c. 2. relates to the fordble taking away
"*K®J *tSi* ®^ * woman of substance against her will. It recites that women,
awayof a wo? as well maidens as widows and wives, having substances, some in
man of sub- goods moveable, and some in lands and tenements, and some being
stance a felony, heirs apparent unto their ancestors, for the lucre of such sub-
stances, had been oftentimes taken by misdoers, contrary to their
will, and after married to such misdoers, or to others by their as-
sent, or defiled, to the great displeasure of God, and contrary to
the King's laws, and disparagement of the said women, and utter
heaviness and discomfort of their friends, and to the evil ensample
of all other : and then enacts, '^that what person or persons from
^^ henceforth that taketh any woman so against her will, unlaw-
^^ fully ; that is to say,, maid, widow, or wife, that such takings
'^ procuring, and abetting to the same, and also receiving wittingly
*^ the same woman, so taken against her will, and knowing the
'* same, be felony ; and that such misdoers, takers, and procura-
^' tors to the same, and receitors, knowing the said offisnce, in form
'^ aforesaid, be henceforth reputed and judged as principal felons.
'^ Provided always, that this act extend not to any person taking
^' any woman, only claiming her as his ward or bondwoman.''
And offenders Cleigy was taken away nom persons found guilty of offences
^i^r ^ against this statute, by the 39 £liz. c. 9. : but the late statute,
transportii^on ^ ^^* ^- ^* ^^^v repeals this enactment of the 39 Eliz. c. 9., and
or imprison- enacts, that persons duly convicted of such offences shall be liable
menu to be transported beyond the seas for life, or for such term not

less than seven years, as the court before which such person shall
be convicted shall adjudge ; or shall be liable, in case the said
court shall think fit, to be imprisoned only, or imprisoned and kept
to hard labour in the common gaol, penitentiary house, or house of
correction, for any term not exceeding seven years.
Accessories. It was made a question of considerable doubt whether persons
^' receiving wittingly the woman so taken against her will, and
'^ knowing the same,'' were ousted of clergy by the statute of
Elizabeth, when that statute was in existence, (d) But it was
agreed that those who received the offrnder, knowingly, were only
accessories after the fact, according to the rule of the conmion
^^- (/) With respect to those who are only privy to the mar-
riage, but in no way parties or consenting to the forcible taking
awav, it has been holden that they are not within the statute, (g^)
Where the woman has nothing, and is not heir apparent, the
case is not within the statute, (s) Thus where a man, worth
5,000/. in lands and goods, had a son and a daughter, and the

(o) Rex V. Lord Grey and others, 8 41. s. 9. 8 Inst 61. St. F. C. 44. 1

St. Tri. 519. 1 Bast. P. C. c. 1 1. s. 10. East. P. C, c. 11. a. S. p. 459, 453.

p. 460. (g) Fulwood's case, Cro. Car. 488,

(0 1 Hale 661. 1 East P. C. c. 11. 489. 1 Hawk. P. C. c. 41. s. 10.

s. 2. p. 459, 453. (jr) 18 Co, 100.

(/) I Hale 661. 1 Hawk. P. C. c.

CHAP. VIII.] Statutes 3 Hen. 7. c 2. 39 Eliz. c. 9. 67J

daughter was enticed from his house, forced into the country^ and
there married : a bill being exhibited against the husband for this ^
conduct^ it was referred to the Chief Justice and Hobart, whether
this was within the statute, and so not examinable in the Star
Chamber : and, on conference with all the Judges, they, held that
it was not within the statute ; because the daughter liad no sub-
stance of her own, and was not heir apparent ; and it was only to
women having substance of their own, or being heirs apparent,
that the statute applied, (y)

It is no sort of excuse that the woman was at first taken away ConttmctioD
with her own consent, if she afterwards refused to continue with of thesutate
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 may from that time as properly be said to be taken against her
wiU, as if she had never given any consent. (A) Getlting a woman
inveigled out by confederates, and then detaining and taking her
away, is a taking within the statute. Thus, where a confederate
of the prisoner's inveigled a girl of fourteen, having a portion of
5,000/., to go with her and a maid servant in a coach into the
Park, where the prisoner got into the coach, and the two women
got out : and the prisoner detained the girl while the coach took
them to his lodgings in the Strand ; and uie next morning he pre-
vailed upon her (having threatened to carry her beyond sea if she
refused) to marry him, and (though he was apprehended on the
same day) there w^ evidence that she was deflowered ; the pri-
soner was convicted and executed, (z) The taking alone will not
constitute the offence : it is necessary that the woman taken away
be married or defiled by the misdoer, or by some others with his
consent, (a) But if she were under force at the time of the taking,
it is not at all material whether she were ultimately married or
defiled with her own consent or not ; for an offender shall not be
considered as exempted from the provisions of the statute, by hav-
ing prevailed over the weakness of a woman, whom he got into his
power by such base means, (t) And a marriage will be sufficient
to constitute the offence, though the woman was in such fear at
the time that she knew not what she did. Sarah Cox, an orphan,
having 1,300/., was forced from her house at Islington into Surrey,
and there married. The indictment against the two men who car-
ried her away, uid one of whom married her, was in Surrey, and
the taking "was alleged there. She was examined as a witness ; and
swore that when &e was married she wa^ in such fear that she
knew not what she she said or did. Several objections were made.
It was urged, that the taking being in Middlesex, the indictment
should not have been in Surrey, no force having been proved there :
but the court said it was a continuing force into Surrey; and,
therefore, a forcible caption there. Ihen it was said, that the
marriage was null ; because the woman did not know what she

(y) Braton v. Morris, Hob. 182., and 12 Co. 100.

see Cro. Car. 485. (t) 1 Hale 660. 1 Hawk. P. C. c. 41.

(&) I Hawk. P. C. c. 41. s. 7. Cro. s. 8. Ful wood's case, Cro. Car. 485,

Car. 485. 493. Swendscn*s case, 5 SI. Tri. 450,

(z) Rex V. Brown, 1 Ventr. 843. 464, 468.

(a) And. 115. Cro. Car. 486, 489.

573 Of the Forcible Abduction of Femalea. [book iii.

said or did : but the court held, that thcnigfa this might avoid the
marriage, yet it was a marriage defactOf and sufficient within the
statute. Further it was urged, that an intent to many or defile
was not alleged in the indictment t but the court said it was not
necessarjr. (r)
Of thecooDty If, however, a woman be taken away forcibly in one county,and
in whi€h the afterwards go voluntarily into another county, and be there mar-
bf'a^t^re ^ed or defiled, with her own consent, the &ct is not indictable in
been qom- either county ; on the ground that the oflfence was not complete in
^'°*^^^ either : but if, by her l^ing carried into the second county, or in

any other manner, there being a continuing force in that coimty,
Uie oflfender maybe indicted there ; though the marriage or defile-
ment ultimately took place with the woman's own consent. (J)
^•*«^f L^k- 1^ doctrine, that there must be a continuance of the force into
and i^udon ^^ county where the defilement takes place was rec<^nized and
Gordon. acted Upon in a case of recent occurrence, and one by which a

There must be ^at deal of public interest was excited. The prisoners^ Lockhait
ofthe force^ Gordon, a clergyman, and Loudon Gordon, his brother, were in-
into the conn- dieted upon tlus Statute, for the forcible abduction of Rachael
^where the Antouina Lee, under the following circumstances. Tlie proaecu-
uket'pUDe. ^^9 Mn. Lee, a natural daughter of Lord Le De Spencer, and en*
titled by his Lordship's will to a considerable fortune, married, in
the year 1794^ and when she was about the age of twenty, a Mr.
M. A. Lee, firom whom she shortly afterwards separated, and con-
tinued to live apart from him, in the receipt o{ an income of above
900/. per annum, secured to her separate use. In the month of
December, 1803, when she was living in Bolton-Row, Piccadilly,
the prisoner Loudon Gordon, under the care of whose mother she
had been placed for some time when a girl, introduced himself to
her, by means of her medical attendant, as an old acquaintance ;
and some short time afterwards, the other prisoner Lockhart Gor*
don also called upon her ; and both of them being recognized by
her, they continued, but more especially Loudon Gordon, occa-
sionally to visit at her house. Loudon Gordon called four or. five
times m the month of December, and several times in the follow-
ing January, previous to the transaction in question » Mrs. Lee
Btated, that their conversations, on these visits, were chiefly upon
books, as her habits were studious ; but that upon Loudon Uordon
taking leave after his first visit he saluted her ; and that on his
second visit she warned him against entertaining any attainment
for her, which she thought a likely thing to happen, as he was a
young man ; and that, upon her giving t£is caution, he said he had
an attachment, and that his happiness was in her hands. By way
of changing the conversation, she then read to him an account c(
a dream, which she had had, and requested him to interpret it,
which he afi;erwards did by sending to her im interpretation,
which was clever and ingenious. The third time he called he
proposed a tour into Wales, which she did not agree to, either
then or at any time ; but she admitted that she did not give such

(r) Rex V. Fulwood, Cro. Car. 482, (J) Fulwoodls esse. Cro. Car. 485,

484, 488, 493. The prisoners were 488. IHaleSSO. 1 Hawk.P.C. c. 41.

found guilty, aod seotenced to be s. 9. I Basl. P« C.c. ll.t.8. p. 4M.
hanged.

CBkP. viilJ Camtruction of the Statute B Hen. 7. c. % 57$

an abflolute refiisal as to prevent his mentioning the subject again,
and that, in a letter which he wrote to her, about the 12th of Ja-
nuary, (and which contained strong declarations of attachment) he
allu&d to the tour : but she expressly stated, that she did nol
know of any plan for going with him any where, nor ever con-
sented to any such plan; though, when it was mentioned by him
on the same day on which she received his letter, she said, <^ We
'' will talk of it" A letter from LfOckh«rt Gordon was received by
her, together with that frcMn Loudon, in' whidi he- also mentioned
the proposed tour as likely to conduce to her happiness ; described
himself as having a head to conceive, a heart to feel, and a hand to
execute, whatever might be for her advantage ; and declared that if
his brother ever deceived her, he would blow his brains out. A
short time before Sunday, the 15th of January, Mrs, Lee invited
Loudon Gordon to dine with her on that day, and requested that
he would bring his brother Lockhart with him ; and they came
accordingly. This was the time at which the offence was alleged
to have been committed. According to Mrs, Lee's account of the
material transactions at that time, it appeared that after dinnes
she said to Lockhart (Gordon, ^^ What do you think of the extraor^
^' dinary plan your brother has proposed ?" To which he repliedji
'^ If he loves you, and you love nim, I think it will tend to youv
*^ mutual happiness y you will gain two friends." That she did
not recollect any thing more being said upon the subject till Lock-»
hart Gordon ptdled out his watch, said.it was near seven o'clock,
and that the chaise would soon be there; and said further, '^ You
^ must go with Loudon to night." She thought this a joke i as
no mention had been previously made of leaving London, or of any
chaise ; and she knew of no preparations having been made for her
leaving London. About this time Loudon Gordon came towards
Mrs. Lee, with a ring, and attempted to put it on her finger ; but
she drew away her hand, and the ring was left upon the table.
She then attempted to go up stairs, but Lockhart Gordon said she
should not, and placed himself against the door ; and either at that
time, or soon afterwards, he produced a pistol: she, however, after
having rung the bell violently, got out at the door, and went up
stairs, where she said to her female servant, ^' There is a plan to
'^ take me out of my house ; thev are armed with pistols ; say no
'^ more but watch." She descrioed herself as having felt quite
panic-struck at that time. Soon afterwards the prisoners came
up stairs ; and Lockhart Gordon said. ^' I am determined you shall
^^ go :" this was not said in a threatening manner ; but soon after-
wards, upon her saying to him, '^ What right have you to force me
^' ont of my house ?" He said, '^ I am desperate," and looked as if
he was so. Mrs. Lee described herself as then getting into a very
wretched and confused state of mind, not absolutely stupid, but
unable to recollect what passed. But it appeared, nom the evi-
dence of her servants, that Loudon Gordon first came down stairs,
and sent the footman to call a coach, who went accordingly ; and
that the only servants then in the house were two females : that
Loudon returned up stairs, when a scuffle was heard almost imme-
diately, and Mrs. Lee called out, ^ I am determined not to go out
^ of my oara; house;" to whkb |>>ckbart Gordon repUe4, ^U am

574 Of the Forcible Abduction of Females, [[book hi.

^' desperate, Mrs. Lee/' The female servants went immediately
up stairs, and found Lockhart pushing Mrs. Lee out of the drawing
room, with his arm round her waist, and Loudon near them. Mrs.
Lee was in a thin muslin dress, with a small crape handkerchief
about her head, as she was dressed for dinner, and without any hat
or bonnet. One of the servants put her arms round Mrs. Lee's
waist to drag her away; but Lockhart Gordon produced a pistol,
and swore that he would shoot the servant, by which she was so
much alarmed that she desisted. The othq^ servant then took Mrs.
Lee by the hand ; but quitted it upon Lockhart Gordon's threat-
ening also to shoot her, and presenting a pistol. Lockhart Gordon
then laid hold of one of the servants ; and, both of them being so
much alarmed as to make no further resistance, Loudon Gordon
put his arm round Mrs. Lee's wedst, and took her down stairs, and
out at the street door ; when Lockhart Gordon immediately fed-
lowed. It appeared, by other witnesses, that a post chaise^ which
the prisoners had ordensd in the course of the morning, was at that
time waiting at the end of Bolton-Row ; that Mrs. Lee was taken
to it by Loudon Gordon; that Lockhart Gordon followed; and
tliat it drove off immediately on the road to Uxbridge. Mrs. Lee's
account was, that though she remembered but imperfectly wfaat
took place at the time she was taken away, she was certain that
she went from the house against her will, but that no manual foice
was used to get her into the chaise. She described herself as in a
state of partml stupefaction : and several of the witnesses spoke of
her as being of a very nervous frame, easily agitated, and subject
to depression of spirits to such an extent as to be occasionally in a
state of great mental misery.

As soon as Mrs. Lee and the two prisoners had got into the
chaise, it drove off at a smart pace towards Uxbridge, Mrs. Lee
sitting in the middle between the prisoners ; and it appeared that,
after changing horses at Uxbridge and at Wycombe, the party
arrived at Tetsworth, about twelve miles from Oxfoid, between
one and two o'clock in the morning. Mrs. Lee stated, that she
frequently remonstrated with the prisoners in the course of the
journey ; and particularly told Lockhart Gordon that it was *' a
'^ most infernal measure, and a breach of hospitality :" and re*
peatedly asked him for a chaise to take her back to London*;
making the application principally to him, because he seemed to
have taken the lead in the whole business. But it appeared, as
weU from her own admissions as from the evidence of the post-
boys, that she never called for assistance at the inns, turnpike-
ffates, or other places ; and one of the post-boys stated, that, at
Wycombe, one of the prisoners asked her, whether she would stay
there or go on to Tetsworth or Oxford, and that her answer was,
^^ I don't care." Mrs. Lee also admitted, that a ring was put upon
her finger in the course of the journey by Loudon Gordon ; and
that, during the journey^ but whether before they got to Uxbridge
or afterwards she could not tell, she took a steel necklace, with a
camphire bag attached to it, from her neck, and threw it out of the
winaow of the chaise, saying, ^'That was my charm against plea-
^' sure ; I have now no occasion for it." She said, that she used
th6 word *^ cbarm^" as alluding to the supposed medical property

CHAP, vni.] Constrttotkm of the Statute 3 Hen. 7. c. 2. 575

of camphire in quieting the nerves, and calming the passions, par-
ticularly the passion which a person of one sex feels for a person
of the other ; and that she was in the habit of wearing it as a sedi^
tive : that at the time she used the expression she gave herself up,
but that she afterwards expostulated. And she also admitted, that
during the journey she made some inquiries concerning Loudon
€lordon's health ; and might, perhaps, have inquired how long it
was since he had been acquainted with a person of her own sex.

At Tetsworth the parties got out of the chaise, and supper and
beds were ordered to be prepared. Mrs. Lee stated, that she eat
a good supper, and that there was a good deal of cheerful conver-
sation during the repast; the whole of which she did not recollect,
but that part of it related, as she believed, to Egjrptian hierogly'-
phics ana architecture. A question was then put to her, whether
the whole of what passed might not have induced Loudon Gordon
to have believed that he might approach her bed ; to which she
answered, ^ It might; I was in desperation.'' She admitted, that
she might have told Loudon Gordon to see that the sheets were
well aired : but said that if she had had the perfect exercise of her
judgment, and her mind had been free from force, she should have
been more inclined to have ordered a chaise than to have gone to
bed. After she had gone up stairs into the bed-room, the cham-
bermaid asked her, when she should be in bed, and when the gen-
tleman should come up ; to which she replied, '^ In ten minutes.''
Upon this statement' of Mrs. Lee's, in her examination, the follow-
ing question was put to her, " What induced you to send suclt a
message ?".and it was objected to by the counsel for the prisoners,
on the ground that it was not a question as to a fia.ct, but to some-
tiling existing in the mind of the witness. Lawrence, J. over-
ruled the objection : but said, that whether the answer would be
evidence or not must depend upon the nature of it; that if Mrs.
Lee should answer, '^ I thought my life in danger; for Lockhart
^^ Gordon told me, if I did not let Loudon Gordon come to bed to
^^ me, he would blow my brains out ;" such answer would certunly
be evidence, though the apprehensions of the witness, unsup-
ported by words used by the prisoners, or facts, would not. The
question was then put ; and Mrs. Lee answered, ^* I was under

the impression that my life was in danger from Lockhart

Gordon ; and I was apprehensive of some serious scufl9e at the
^' inn, in which lives might be lost." Mrs. Lee then stated, that
shortly after the chambermaid left the room Loudon Gordon came
to bed to her, and remained with her all the night; and that the
intercourse took place between them, which usually takes place
between husband and wife.

These were the material facts of the case, with the addition,
that it was proved by the woman with whom the prisoners lodged
in London, that, previous to the time when this transaction took
place, Lockhart Gordon was pressed for money, and backward in
his payments, and that Loudon Gordon had admitted to her that
he was in distressed circumstances. The learned coimsel for
the prisoners was proceeding in his cross-examination of Mrs.
Lee, to question her as to her religious principles ; and she had
just admitted, that she seldom went to any place of worslup,

57«

Necetiary

statements in
the indict*
ment.

Of the eri-
dence of the
woman when
taken away,
and married.

Of the tmkmful taking wmf a/" Femalfis. [book va,

said was inclined to doubt the Christian religion, when Lawrenoe,
J.9 alter haying enquired of the counsel for the jprosecutioiiy
whether they had any further evidence to offer of force in the
county of Oxford, and been told by them that they had not, said,
that he was of opinion the case should not proceed any fmther*
The learned judge then addressed himself to the jury, and told
them, that, in order to constitute the offence with which the pri^
soners were charged, there must be a forcible taking, and a con-
tinuance of that force into the cQimty where the defilement 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, 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. (Xr)

It has be«n resolved, that an indictment for this^ offence must
expressly set forth that the woman taken away had lands or goods,
or was heir apparent ; and that the taking was against her will ;
and that it was for lucre 5 and also that she was married or de-
filed; svch statements being. necessary to bring a case within the
preamble of the statute, to which the enacting clause clearly
refers, when it speaks of persons taking away a woman ^' $0
against her will.''(Q But it is said not to be necessary to state
in the indictment, tiiat the taking was with an intention to marry
Gt defile the party, because the words of the statute do jiot require
such ao intentiozi, nor does the want of it in any way lessen the
kuury.(i9>)

There is no doubt but that the woman taken away and married
may be a witness against the offender, if the force were continuing
upon her till the marriage ; and that she may herself prove such
continuing force i{n) for, though the offender be her husband de
factOf he is no husband de Jure, in case the marriage was actually
against her will.(o) It seems, however, to have been questionec^
how far the evidence of the inveigled woman can be allowed, in
cases where the actual marriage is good by her consent having
been obtained after her forcible abduction, (p) But other autho*
rities appear to agree, that it should be admitted, even ii^ that
case 3 esteeming it absurd that the offender should thus take ad-

(Xr) Rex v, Lockhart and Loudon
Gordon, eor. Lawreacc, J., Oxford
Lent Ass. 1S04.

(0 1 Hawk. F. C. c 41.8. 4. I Hale
460. 4 Blac. Com. 9.

(m) Rex V, Fulwood, Cro. Car. 488.
Ante, 670, 571. It is said, however, in
IHale 660,thatthe words §A inieutidne
nd iptam mariiMndam are usually add-
ed in indictments upon this statute,
and that it is safest so to do.

(n) Fullwood's case, Cro. Car. 48a
Brown's case, I Ventr. 249. fweod*
^ea*! fiiM^ 5 $t. Tci« 459,

{0) 1 Hale 660, 961. 4 Blae. Con.
SOS.

ip) 1 Hale 661, where the autfior
observes upon Brown*s case, («»<e,
note(fi) ) that some of the reasons why
the woman was sworn and gave cwt-
dence were, that there was no cohabi-
tation, and that there was concurring
evidence to prove the whole fact: but
that if she had freelj, and without
constraint, lived with the person who
married her for any considerable time,
her exwniaatioa in erldea^ migbl be

mom <iQCiiM»DsMe.

CHAF. Yiii/J Statute 4 and 6 Ph. and M. c. 8. 577

vantage of his own wrong, and that the very act of marriage,
wliich is a principal ingredient of his crime, should (by a forced
construction of law) be made use of to stop the mouth of the most
material witness against him. (9) And where the marriage was
against the will of the woman at the time, there does not seem to
be any good ground upon which her competency can be objected
to, though she may have given her subsequent assent, (r) It also
appears to have been ruled upon debate, in a modern case, that a
wife is a competent witness for, as well as against, her husband,
on the trial of an indictment for this offence, although she has
cohabited with him from the day of her marriage. (5)

The statute 4 and 5 Ph. and M. c. 8. makes provision for the Statute 4 and
punishment of an offence of the same kind as that which we have ^ g*** * ^•
been considering upon the statute of Hen. 7., but inferior in degree,
and differing also in this, that the taking away of the woman need
not be attended with force.

The second section of this statute enacts, ^' that it shall not be * and 5 Ph.
*^ lawful to any person or persons to take or convey away, or *°2 prohibits
^^ cause to be taken or conveyed away, any maid^ or woman child the uklog
^^ unmarried, being under the age of sixteen years, out of or from away a maid
^^ the possession, custody, or governance, and against the will of ^^trsirom^^
^^ the father of such maid or woman child, or of such person or the custody
** persons to whom the father of such maid or woman child, by of the father
*' his last will and testament, or by any other act in his lifetime, ^^ ^^^ **°*
^^ hath or shall appoint, assign, bequeath, give, or grant the order,
^^ keeping, education, or governance of such maid or woman child,
^' except such taking and conveying away as shall be had, made,
^* or done, by or for such person or persons, as without fraud or
*' covin be, or then shall be, the master or mistress of such maid
*^ or woman child, or the guardian in socage, or guardian in chi-
** valry, of or to such maid or woman child." '

The third section of the same statute enacts, " that if any per- 4 and 5 Ph.
^' son or persons above the age of fourteen years, shall unlawfully *°^ ^^' ^* ^•
** take or convey, or cause to be taken or conveyed, any maid or son taUng^^'
*^ woman child unmarried, being within the age of sixteen years, away a maid
*^ out of or from the possession, and against the will of, the father ^?^^^^ ^IJ^^^
" or mother of such child, or out of or from the possession and ofth^'father°"
*^ against the will of such person or persons as then shall happen or mother, or
'^ to have, by any lawful ways or means, the order, keepinfr, edu- g«ftrdian,to

c€ A.' ^ e L -J u'lj ^i_ ^ be imprisoned

*' cation, or governance of any such maiden or woman child ; that for two years,
*' then every such person and persons so offending, being thereof or fined.
*^ lawfully attainted or convicted by the order and due course
^^ of the laws of this realm, (other than such of whom such person
^* taken away shall hold any lands or tenements by knight's ser-
^* vice) shall have and suffer imprisonment of his or their bodies,
^^ by the space of two whole years, without bail or mainprise, or
'^ else shall pay such fine for his or their said offence, as shall be

{q) 4 Blac. Com. 209. " settled, that in all cases of personal

(r) 1 East. P. C. c. 11. s. 6. p. 454. *' injuries conmiitled hy the husband

(«) Perry^s case, Bristoi, 1794. 1 V or wife against each other, tbo in*

Hawk. P. C. c. 41. 8. 1:^.; and in 1 East *' jured party is an admissible wirness

P. C. c. 11. s. 5. p. 455. the learned *^ against the other." And see poil^

Author says, *' I conceive it to be now Book on Evidence,

VOL. I. 2 P

578

Of the unlaivjid taking awcof ofFemaUs. [jbook in.

4 and 5 Ph.
and M. c.8.
B. 4. any per-
son so taking
away and de-
flowering any
such maid, or
against the
will or know-
ledge of the
father, &c.
contracting

matrimony
with any such
maid, to be
imprisoned
for five yeats,
or pay a fine.

l*oints upon
the construc-
tion of this
statute.

'^^ assessed by the council of the queen's highness, her heirs or
*^ successors, in the star chamber at Westminster."

The fourth section further enacts, ^^ that if any person or per-
^^ eons shall so take away, or cause to be taken away, as is afore-
'^ said, and deflower any such maid or woman child as is aforesaid,
'^ or shall against the will, or unknowing of or to the father of any
" such maid or woman child, if the father be in life, or against the
'' will, or unknowing of the mother of any such maid or woman
'^ child (having the custody or governance of such child, if the
'^ father be dead) by secret letters, messages, or otherwise con-
'^ tract matrimony with any such maiden or woman child, except
^^. such contracts of matrimony as shall be made by the consent of
^^ such person or persons, as by the title of wardship shall then
'^ have, or be entitled to have, the marriage of such maid or woman
^^ child ; that then every such person or persons so offending,
'^ being thereof lawfully convicted as is aforesud, shall suffer im-
" prisoument of his or their bodies, by the space of five years,
'^ without bail or mainprise, or else shall pay such fine for his or
^' their said offence, as shall be assessed by the said council in the
'^ said star chamber ; the one moiety of all which forfeitures and
*^ fines shall be to the king and queen's majesties, her heirs and
** successors, the other moiety to the parties grieved."

It has been decided, that the taking away a natural daughter j
under sixteen years of age, from the care and custody of her puta-
tive father, is an offence within th^s statute. (^) It has also been
holden that a mother retains her authority, notwithstanding her
marriage to a second husband; and that the assent of the second
husband is not material. (u) In the last case it was also ruled,
that the fourth section of the statute extends only to the custody
of the father, or to that of the mother where the father has not
disposed of the custody of the child to others, (t;) In a case 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 had attained the age of sixteen, and with-
out the consent of her mother, who was her guardian ; it was
holden that in order to bring the offence within the statute, it
must appear that some artifice was used ; that the elopement was
secret ; and that the marriage was to the disparagement of the
family. (f£;) But upon this case it has been remarked, that 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 guar-
dian did not consent, is not within the statute ; for that then every
schoolmistress might dispose, in the same manner, of the children

(I) Rex V. Cornforth, 2 Str. 1162. (tc) Ratcliffe's case, S Co. 39.

1 Hawk. P. C. c. 41. s. 14. R«z v. (v) Id. ibid.

Sweeting, 1 East. F. C. c, 11. s. 6. (v) Hicks v. Gore, 3 Mod. 84. I

p. 457. Hawk. P. C. c. 41 . s. 1 1.

CHAP, vin.] Of Clandestine Marriages, 26 G. 3. c/33. 579

committed to her care«(x) It has been said, that there must be a
continued refusal of the parent or guardian ; and that if they once
agree it is an assent within the statute, notwithstanding any sub-
sequent dissent : {y) but this was not the point in judgment ; and -
it has been observed, that it wants further confirmation. (z)

It seems that it is no legal excuse for this oifence that the de-
fendant, being related to the lady's father, and frequently invited
to the house, made use of no other seduction than the common
blandishments of a lover, to induce the lady secretly to elope and
marry him, if it appear that the father intended to marry her to
another person, and so that the taking was against his con-
sent, (a)

Though the statute only gives authority to the star-chamber Of the pro-
and justices of assize, to hear and determine the offences men- ?f^°fi^ ^^^
tioned in it, yet it is settled that an information or indictment will ***^ *
lie thereon in the court of King's Bench ; for, as there are no nega-
tive words, the jurisdiction of that court is not excluded. (6) It
seems also that an information by the master of the crown office
will lie for this offence, as at common law ; as the statute does not
create any new offence, but only aggravates the punishment, (c)
It is agreed that an indictment will lie by the rule of the coQimon
law, upon the general prohibitory clause contained in the second
section of the statute, on the ground that where a thing is pro-
hibited to be done by statute, and a penalty annexed to it by a
separate substantive clause, the prosecutor is not bound to pursue
the latter, but may indict on the prior general clause, as for a mis-
demeanor. (cQ And the prohibition being general, the want of a
corrupt motive is no answer to the criminal charge, (e) It seenis
that if an indictment or information upon this statute state, that
the defendant " being above the age of fourteen'years, took one A.,

then being a virgin unmarried, possessed of moveable goods, and

seised of lands of great value, out of the custody of her mother,

&c." the word, being is a sufficient averment of the facts which
follow. (/)

The sixth section of the statute provides, that a female above 4&5Ph.&M.
the age of twelve, and under sixteen, consenting to a contract of ^•^•■•^- '^
matrimony, contrary to the statute, shall forfeit all her lands to seating to an
her next of kin, during the life of her husband : so that as these uniawfal con-
stolen marriages, under the age of sixteen, were usually upon mer- ^^^^i^ds^^'^
cenary views, the statute, besides punishing the seducer, wisely during her
removed the temptation. husband's Ufe.

Many of the provisions of the Marriage Act, 4 Geo. 4. t, 76., 4 G. 4. c.76.
have been already stated. (A) The twenty-first section of the sta- J^^fcmniring *

(x) 1 East. P. C. c. 11. s. 6. p. 457. (c) 1 Hawk. P. C. c. 41. s. 8. But

{y) Calthorpe v. Axtell, 3 Mod. 169. qu. how far this is an ofience at com-

(s) 1 East. P. C. c. 1 1 . s. 6. p. 457. mon law, and see ante^ 569.

{a) Rex 0. Twisleton and others, 1 (d) Moor's case, % Mod. ISO. 1 East

Lev. S57. S. C. 1 Sid. 387. 8 Keb. 32. P. C. c. 1 1. s. 9. p. 459. See the prin-

1 Hawk. P. C. c. 41. s. 10. ciple stated an^, 47.

(d) 1 Hawk. P. C. c. 41. s. 7. The {e) 1 EasLt^M.

court of Star-chamber was dissolved (/) Rex v. Moor, 8 Lev. 179. S. P.

by 16 Car.'l. c. 10. s. 3. Jarisdiction Rex «. Boyal, 2 Burr. 838. 1 Hawk.

is given to the justices of assize by 4 P.C.'c. 41. s. 9.

& 5 Ph. & M. c. 5. s, 5. (A) AnXe^ 194, ei nqu.

2p2

580

matrimony in
any other
place than a
church, &c.
or at an im-
proper time,
or without
banns or li-
cence, or not
being in holy
orders, to be
guilty of
felony, and
transported
for fourteen
yean.

12G.3. c. ll.
Marriages of
the royal fa-
mily not to
be had with-
out the con-
sent of the
king, Sue,

Except under
particular cir-
cumstances.

And persons
solemnizing
or assisting at
marriages
without the
consent,
where such
consent is ne-
cessary, incur
A prsmonire.

Of Clandestine Marriages, 26 6. 3. c. 33. |^book uf .

tute provides for the punishment of such persons a0 shall unduly
solemnize matrimony in improper places, without publication of
banns, or a proper licence of marriage; or shall solemnize matri-
mony falsely pretending to»be in holy orders. It enacts, " that if
'^ any person shall after the first day of November, 1823, solemnize
^ matrimony in any other place than a church or such public chapel
' wherein banns may be lawfully published, or at any other time
' than between the hours of eight and twelve in the forenoon, unless
* by special licence from the Archbishop of Canterbury; or shall
^ solemnize matrimony 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; or if any person
' falsely pretending to be in holy orders, shall solemnize matri-
' mony according to the rites of the church of England, every
^ person knowingly and wilfiilly 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 years,
' according to the laws in force for transportation of felons : pro-
^ vided that all prosecutions for such felony shall be commenced
' within the space of three years after the offence committed."
The act does not extend to the marriages of any of the royal
family ;(i) nor to any marriages amongst Quakers or Jews, where
both the parties, to any such marriage, shall be Quakers or
Jews.(a) And it extends only to that part of the united kingdom
caUed England.{k)

The statute 12 Geo. 3. c. 11. confirms the prerogative of the
crown to superintend and approve of the marriages 6f the royal
family t(/) The first section enacts, " that no descendant of the
body of King George the Second, male or female (other than the
issue of princesses who have married, or may hereafter marry,
'^ into foreign families ) shall be capable of contracting matrimony
'^ without the previous consent of his majesty, his heirs or sue-
'^ cessors, signified under the great seal, and aeclared in council;
^* (which consent, to preserve the memory thereof, is hereby
'^ directed to be tet 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, with-
'^ out such consent first had and obtained, shall be null and void
'^ to all intents and purposes whatsoever." Provision is then made
for a marriage, without the royal consent, of any such descend-
ant, being above twenty-five years of age, after notice to the privy
council, 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, (m) The third sec-
tion of the statute enacts, ^' that every person who shall know-
'^ ingly or wilfully presume to solemnize, or to assist, or to be
^' present at the celebration of any marriage, with any such de-
'^ scendant, or at his or her making any matrimonii contract,
'^ without such consent as aforesaid first had and obtained, except
'' in the case above mentioned, shall, being duly convicted thereof^

(0 S. 30.
(ff) S. 82.
(Ar)S.S8. And

provisions of this act, ante 194, ei$equ,
(I) 1 East P. C. c. IS. s. 7. p. 47S.
further as to the (m) S. S.

CHAP. V111.3 6 Jnne, c. 16. 4f 9 Gr. S. c. II. 581

*' incur and suffer the pains and penalties, ordained and provided
'* by the statute of provision and praemunire made in the sixteenth
" year of the reign of Richard the Second."

It may be useful to notice some Irish statutes^ relating to the ^^ sutuua
subject of this Chapter. The 6 Anne, c. 16. makes persons, allur- 90)2^0.^11.*
inSf &c. and marrpng any female having substance, or being a
heiress, &c. within the age of eighteen years, liable to imprison-
ment for three years, and incapable of taking any benefit from the
estate, real or personal, of such female. It provides also for the
management 01 the estate during the marriage, the allowance of
the woman out of the income, in case she survives, and the main-
tenance of the children : and directs that, after the death of the
woman, the estate shall go to such person as it would have done if
the act had not been made. And, by the same statute, females
persuading the son of any person, having lands of the yearly value
of fifty pounds, or personal estate of the value of five hundred
pounds, or persuading the son of any person deceased to contract
matrimony without the consent of parents or guardians, if such
matrimony be had before such son attain the age of twenty-one
years, are disabled from demanding dower or jointure, or other
provision, out of the real or personal estate of such son, made to
or in trust for her by any deed, will, or other settlement. Acces-
sories, procurers, &c. are to be imprisoned three years : and the
clergyman celebrating the marriage is to be deprived of all his
livings; to be incapable of any spiritual preferment; and trans-
ported in like manner as foreign regulars.(fi)

The 9 Geo. 2. c. 11. enacts, that persons of full age marrying,
or contracting to marry, persons under the age of twenty-one,
without the consent of the father, guardian, or lord chancellor,
shall forfeit £500, if the estate of l^e person married is of the
value of £10,000; and shall forfeit £200, if the estate of the
person married is under £10,000 : and shall suffer a year's impri-
sonment, (o)

(n) ft Ev. Col. Stat. 341. 913, 916. The forfeitures are to be

(o) Id, ibid, referring to 2 Gabbett, recovered by popular action.

582

CHAPTER THE NINTH.

OF KIDNAPPING, AND CHIJ.D-STEAXJN6.

SECT. I.

Of Kidnapping. •

Carrying away Thb stealing and carrying away, or secreting of any person^ some^
or Becreting times caUed kidnappings is an oflfence, at common law, puniiih-
43^E^?c°i3. able by fine and imprisonment, (a) ITie statute 43£Iiz. c. 13.
as to offences relates to an offence of this nature, and makes a particular species
?n S^fow"* ^f ^^ highly penal. After reciting that many of her Majesty's
northern subjects, dwelling within the counties of Cumberland^ Northum-

counties. berUmd^ fFissimoreland, and the bishopric of Durham^ had been

taken out of those counties, or to other places within the counties,
as prisoners ; and kept barbarously, and cruelly, until redeemed
by great ransoms ; it enacts, that those who shall carry any such
subjects, against their wills, out of those counties, or to any
other place within those counties, or detain, force, or imprison
them, to ransom them, or make prey of their persons or goods,
or who shall be privy aiding or assisting thereto, and shall be
convicted, &c. shall be adju^d to be felons ; and shall suffer
death without benefit of clergy.
Forcible ab- The forcible abduction or stealing and carrying away of any
penwu ^and- P^^^on, by sending him from his own country into some other, or
sending' them to parts beyond the seas, whereby he is deprived of the friendly
unto other assistance of the laws to redeem him from such his captivity, is
countries. properly called kidnapping, and is an offence of a very aggravated
description. Its punishment at common law is, however, no more
than fine and imprisonment ^ though, as has been remarked con-
cerning it, the ofiience is of such primary magnitude that it might
well have been substituted upon the roll of capital crimes, in the
place of many others, which are there to be found, (i)

(a) 1 East P. C. c. 9. s. 3. p. 4S9« of the punishment before the 66 O. 3.
4S0. Rex V. Grcj, T. Raym. 473. c. 138.
Comb. 10. The pillory was also part (p) I East P. C. c. 9. s. 4. p. 430.

ti

CHAP. IX. $ 1.] 0/ Kidnapping. 583

<

The 31 Car. 2. c. 2. (the celebrated Habeas Carpus act) makes 31 Car. 2. c. 2.
provision accainst any inhabitant of Great Britain bein? sent pri- ■• ^?: "^^
soner to foreign countries. The twelfth section enacts, that no goQg prisoners
subject of this realm, being an inhabitant or resiant of England, out of Eng-
Wales, or the town of Berwick upon Tweed, shall be sent pri- ^°^» ^^\ ,
soner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into ^leliy d^bi-
parts, garrisons, islands, or places, beyond the seas, within or licytohoid
without the dominions of his Majesty. Such imprisonment is ?^*^®' "°*^q£^
then declared to be illegal ; and an action for false imprisonment praemunire,
is given to the party, with treble costs, and damages not less than &e.
five hundred pounds. 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 conmiit, detain, imprison,
** or transport, any person or persons, contrary to this act, or be
^' any ways advising, aiding, or assisting, therein," being law-
fully 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 praemuiiirej 16 R. 2., and shaU be incapable of any pardon
from the King of such forfeitures or disabilities. There are some
exceptions in the act relating to the transportation of felons : and
the sixteenth section provides, that oiFenders may be sent to be
tried where their offences were committed, and where they ought
to be tried. The seventeenth section enacts, that prosecutions '
for offences against the act must be within two years alter 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.

The statute 11 and 12 W. 3. c. 7- s« 18. relates to the forcing n & 12 w.3.
men on shore, or refusing to bring them again to their own coun- c 7. s. is.
try, by masters of merchant vessels. It enacts, " that in case Masters of
'^ any master of a merchant ship or vessel shall, during his being mIs forcin^^
^^ abroad, force any man on shore, or wilfully leave him behind men on sbore,
^' in any of his Majesty's plantations, or elsewhere, or shall refuse jhemTehma
'^ to bring home with him again all such of the men which he &<.. uabie to'
^^ carried out with him as are in a condition to return, when he three months^
** shall be ready to proceed in his homeward-bound voyage ; every jjj^™^**'
^^ such master shall, being thereof legally convicted, si^er three
^^ months' imprisonment, without bail or mainprize.''(c) And by
58 G. 3. c. 38. 8. 1. offences under this act maybe prosecuted by
indictment or informafion, at the suit of the attorney-general in
B. R., and the offence shall and may be alleged to have been
conlmitted at Westminster ; and the court is authorized to issue
a commission or commissions to examine witnesses abroad ; and
the depositions shall be received in evidence on the trial of such
indictment or information.

(c) This act was made perpetual' by 6 G. 1. c. 19. s. 3.

58^

Of Child Stealing.

[book III.

SECT. II.

54 G. 3. c. 101.
subjects per*
SODS taking
away, &c. any
child under 10
years old, or
receiving and
harbouring
such child, to
the punish-
ment of per-
sons convicted
of grand lar-
ceny.

S. 2. The act
is not to ex-
tend to the
fathers of ille-
gitimate child-
r<;n.

cc

a

S. 3. Act not
to extend to
Scotland,

Of Child Stealing.

The statute 54 Geo. S. c. 101. reciting that the practice of cany-
ing away young children, by forcible or fraudulent means, from
their parents, or other persons having the care and charge or cus-
tody of them, commonly called child stealing, had of late much
prevailed and increased, enacts, '^ that if any person or persons
shall maliciously, either by force or fraud, lead, take or carry
away, or decoy or entice away, any child under the age of ten
^^ years, with intent to deprive its parent or parents, or any other
'* person having the lawful care or charge of such child, of the
^^ possession of such child, by concealing and detaining such child
*^ from such parent or parents, or other person or persons having
'^ the lawful care or charge of it ; or with intent to steal any article
of apparel or ornament, or other thing of value or use, upon or
about the person of such child, to whomsoever such article may
belong ; or shall receive and harbour with any such intent as
aforesaid any such child, knowing the same to have been so by
force or fraud led, taken or carried, or decoyed or enticed away
as aforesaid ; every such person or persons, and his, her, and
'^ their counsellors, procurers, aiders, and abettors, shall be
^^ deemed guilty of felony ; and shall b^ subject and liable to all
'' such pains, penalties, punishments, and forfeitures, as by the
"laws now in force may be inflicted upon, or are incurred by,
" persons convicted of grand larceny."

The second section of the statute provides, ^' that nothing in
" this act shall extend, or be construed to extend, to any person
" who shall have claimed to be the father of an illegitimate child,
'^ or to have any right or title in law to the possession of such
" child, on account of his getting possession of such child, or
" taking such child out of the possession of the mother thereof,
^' or other person or persons having the lawful charge thereof."

It is also provided by the third section, that the act shtdl not
extend to Scotland.

n

585

CHAPTER THE TENTH.

or ATTEMPTS TO MURDBR ; OF MAYHBM, OR MAIMING ; AND OF
DOING OR ATTEMPTING SOMB GREAT BODII.T HARM.

Attempts to commit murder appear to have been considered as Offences at
felonies in the earlier ages of our law : but that doctrine did not common Uw.
long prevail ; and such attempts became^ and still remain, at com-
mon law, punishable only as high misdemeanors, (a) Where an
indictment is preferred lor an assault with intent to murder, it
seems that the intent as laid must be fully established, in order to
support the indictment : thus, where a defendant was so charged
in the first count of the indictment. Lord Kenyon, C. J., being
of opinion, upon the facts given in evidence, that if death had
ensued it would only have been manslaughter^ directed the jury to
acquit the defendant upon that count, (i)

Mayhem, or the maiming of persons, was probably at one time
an offence at common law, of the degree of felony ; as the judg-
ment was membnim pro membro,{c) But this judgment after-
wards went out of use ; partly because the law of retaliation is at
best an inadequate rule of punishment ; and partly because, upon
a repetition of the offence, the punishment could not be re-
peated.(fl{) The offence^ therefore, appears to have been con-
sidered, in later times, as in the nature of an aggravated trespass;
and the only judgment which now remains for it at common law
is fine and imprisonment, (e) It is^ however, a misdemeanor of
the highest kind, and spoken of by Lord Coke as the greatest
offence under felony. (/)

(a) Staund. 17. 1 East. P. C. c. 8.
s. 5. p. 411. Rex r. Bacon, 1 Lev.
146. 1 Sid. SSO. where the defendant,
having been convicted for lying in
wait to kill Sir Harbottle Grimstone,
the Master of the Rolls, was sen«
tenced by fine and inaprisonment, the
findin? surety for his good behaviour
for life, and acknowledging his of-
fence at the bar of the Court of Chan-
cery. And see two precedents of in-
dictinents at common law, for misde-
tneanors in attempting to murder by
poison, 9 Chit. Crim. L. 796.

(b) Rex V. Mitton, Adjourned Sit-
tings at fFesiminsler, Oct. 1788. 1
East. P. C. c. 8. s. 5. p. 411.

(c) 3 Inst. 118. 1 Hawk. P. C. c. 55.
s. 3. 4 Blac. Com. 206.

(d) 4 Blac. Com. 806.

(e) Id, ibid, 1 Hawk. P. C. c. 55. s. 3.
1 East. P. C. c. 7. s. 1. p. 393. But it
is observed, that perhaps mayhem by
castration might have contmued aa
offence of higher degree, as all our
old writers held it to be felony. 4
Blac. Com. «06.

(/) Co. Lit 127 B.

586 Of Attempts to Murder^ Maiming, Sgc. [book hi*

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. (g) Therefore the cutting off, or disabling, or
weakening a man's hand or finger, or striking out his eye or fore-
tooth, or depriving him of those parts, the loss of which, in all
animals, abates their courage, are held to be maims : but the cut-
ting off his ear, or nose, or the like, are not held to be maims at
common law ; because they do not weaken a man, but only dis-
figure him. (A) In order to found an indictment of mayhem the
act must be done maliciously, though it matters not how sudden
the occasion, (i)
A person It is laid down that, by the common law, if a person maim

"If nia*b^'™" himself in order to have a more specious pretence for asking cha-
puniahed. rity, or to prevent his being impressed as a sailor, of eiilisted as
a soldier, he may be indicted; and, on conviction, fined and
imprisoned. (A) For as the life and members of every subject are
under the ssifeguard and protection of the King ; so tibey are said
to be in manu regis, to the end that they may serve the King and
country when occasion shall require. (/)
No accessories It should seem that there can be no accessories before the fact
m mayhem, j^ mayhem, at common law ; though there appears to have been
some difference of opinion, or rather misapprehension, upon the
subject, (m) For, supposing the offence to be in the nature of an
aggravated trespass only, the rule will apply, that in crimes under
the degree of felony there can be no accessories, but that all
persons concerned therein, if gtiilty at all, are principals, (li) It
does not appear to have been any where supposed, that there can
be accessories after the fact in mayhem, (o)
Offences by Attempts to murder, maiming, and the doing or attempting

sututes. great bodily harm, have been made highly penal by the enact-

ments of several statutes, which may be mentioned in the order
of time in which they were passed.
5 Hen. 4.0.5. The statute 5 Hen. 4. c. 5. reciting that offenders did daily
CuttiDg beat, wound^ imprison, and maim divers of the King^s Uege

^°^'out people, and after purposely cut their tongues, or put out their
eyes, made eyes, enacts, '^ that in such case the offenders that so cut tongues,

(g) Staand. P. C. 3. Co. Lit. 186. <' dieted, fined, and ransomed.**
S Inst. 62, 118. 1 Hawk. P. C. c. 55. (/) Co. Lit 127 a. Bract, lib. I.

8.1. 4 Blac. Com. 205. * 1 East. P. C. fol. 6. Pasch. 10 Ed. 1. cor. R^.

c. 7. 8. 1. p. 393. Rot 36. Northt.

{h) 1 Hawk. P. C. c. 55. s. 2. 4 (m) Lord Hale states, that there are
Blac. Com. 205, 206. 1 East. P. C. no accessories before id mayhem, hot
c. 7. 8. 1. p. 393. 4 Bac* Ab. t^aiA^m that the? are in the same de^^ree as
(A.) principals, 1 Hale 613. Hawkins, on
({) 1 East. P. C. c. 7. 8. 1. p. 393. the contrary , sa^s, that it seems there
{iy 1 Hawk. P. C. c. 55. s. 4. and may be accessories before the &€t in
Co. Lit 127 a. where Lord Coke says, mayhem. 2 Hawk. P. C. c 89. s. &•
*' In my circuit, atmo 1 JacoH regU^ In 1 East. P. C. c. 7. s. 7. p. 401. there
** in the county of Leicester, one is a learned arj^ument, to shew thai
" Wright, a young, strong, and. lustie the latter opinion proceeded oa a mis-
rogue, to make himself impotent, take,
thereby to have the more colour to (n) AnU^ 31.
'* heg^e, or to be relieved without (o) 1 Hawk. P.C. c. 56. s. IS. and
" putting himselfto any labour, caused 8 Hawk. P. C. c. 89. s. 6. 1
** his companion to strike off his left P. C. c. 7. s. 7. p. 401.
*' hand I and both of them were in*

felony.

4(
<«

CHAP. X.] Cooentty Actt 22 and 23 Car. 11. e.\.

m

it

(t

or put out the eyes of any the King'a liege people, and that
duly proved and found that such deed was done of malice. pre«
pensed, they shall incur the pain of felony/' The words ^' of
malice prepensed," are explained to mean voluntarily and of
tsetpurpose^ however sudden the occa8ion«(p) This statute was
intended to put a stop to a cruel practice of cutting the tongues,
or putting out the eyes of per^ns beaten, wounded, or robbed, in
order to prevent them from giving evidence against the offenders 3
and it appears to have had the desired effect. (9)

Next m order of time is the statute 37 Hen. 8. c. 6. the fourth 37 Hen. 8.c.6«
section of which, amongst other provisions, enacts, that " if any J®™*'" *^"*"

tc 1- • 1 Mv 1 1 — TLii 4, ting off cars

^^ person or persons maucioualy, willmgly, or unlawfully cut or arc to forfeit
cause to be cut off the- ear or ears of any of the King's sub- treble da-
jects, otherwise than by authority of the li^w, chance medlev, Myl'flne of
'^ sudden affray or adventure/' every such offender shall not only > 10/.
forfeit to the party grieved treble damages, to be recovered by
action of trespass, but shall also forfeit to the King for every
such offence 10/. in the name of a fine.

. A more severe and effectual^ statute, 22 and 23 Car. 2. c. 1. 23 ft 23 Car. 2.
was afterwards passed, upon the subject of malicious maiming. xcO^Miai^^
It IB usually called the Coventry act; having been occasioned by cioua maiming
a violent attack upon Sir John Coventry in the street, and slit- made felony
ting his nose, in revenge, (as was supposed) for some obnoxious jj^of^der^r
words uttered by him in parliament, (r) The seventh section
enacts, '^ that if any person or persons, on purpose and of malice
^^ forethought, and by lying in wait, shall unlawfully cut out or
^' disable the tongue, put out an eye, slit the nose, cut off a nose
^' or lip, or cut off or disable any limb or member of any subject
^' of his majesty, with intention, in so doing, to maim or dis-
^' figure, in any the manners before mentioned, such his majesty's
^^ subject; that then and in every such case, the person or per-
sons so offending, their counsellors, aiders, and abettors, (know-
ing of and privy to the offence as aforesaid) shall be and are
hereby declared to be felons, and shall suffer death, as in cases
of felony, without benefit of clergy." But by the subsequent
section, no attainder of such felony is to extend to corrupt the
blood, or forfeit the dower of the wife, or the lands, goods, or
chattels of the offender.*

Several points have been holden upon the construction of this Conatnictioii
statute, which may be considered, as they rdate, 1. to the *' pur- Sj^oac*'*^
"pose and malice forethought;" 2. to the lying in wait; 3. to ^^ *'* *
the kind of maiming or disfiguring ; and, 4. to the intention to
maim or disfigure. It is not thought necessary to state them
much in detail, as offences against this act appear to be included

<c

(C

(p)S lost. 62. And as to the mean-
ing of the word moHcCy see anle, 48S,
et Mequ,

(q) 8 Inst. 68. where the learned
wrjiter 8>^te3,,that this, law did so ter-
rify oflfbnders, that there appeared to
haye been hardly any prosecutions for
the offence ; and he observes,. '* Of all

sta^tc^ those are ^o be preferred,

which prevent offeq^eOi before they

««

«•

*' be done, before those which punish
** them after they be done. And there*
"fore, in the making of ibis law,
*^ there was talutaria ieveriioi et beata
" teeurUair

(r) 4 Blac. Com^ 807* And see fw
the history of this transaction, Burnet
Hist., Vol. I. p. 869« fol. and 7 Humeri
Hist .468« .469.

583 OfAUempts to Murder , Maimingy 4f^- [book, iu-

in the tnore general provisions of a recent statute, 43 G. 3. c. 56.
which will be presently mentioned.
As to the pur- With respect to the '^ purpose and malice forethought," it may
^^^J^^ be obsenred, that it must be substantiated by proving a deliberate
thought. and premeditated design to do a personal injury to another, of the

sort described in the statute. (£) It does not, however, seem ne-
cessary, that the malicious intention should be directed against
any particular individual : for if it be conceived against all per-
sons who may happen to fall within the scope of the perpetrator's
design, the particular mischief done to any one will be connected
with the general malignant intent, so as for the statute to attach
upon the offenders. (^ And it seems clear that, if a man striking
another, with such an evil intent as would make him guilty of
mayhem if the person struck at should be maimed, happen to miss
that person and strike a third person, and maim him, he will be
equally guilty, (w)
As to the ly- Jn order to satisfy the words ^^ lying in wait," it seems that
inginwait. there must be some deliberate v^atching for an opportunity to
effect the evil purpose. But it is not necessary that the party
should place himself in any particular concealment, and then rush
out of his lurking place to do the mischief. If, sifter having
formed the intention, he takes a convenient opportunity of doing
the premeditated deed, and does it with deliberation, it is a lying
in wait ; though he do not take any particular length of time, or
use any extraordinary degree of preparation. («/) Thus, where
the prisoner with many other persons, supposed to be a gang of
thieves, beset the prosecutor as he was passing along the street
with his master's cart loaded with sugar, and after he had received
several severe wounds from some of them, and there had been
repeated exclamations by several of them of ^^ Damn you, where
'^ are your knives?" the prisoner made a stroke at him with a
large knife, and gave him a dreadful wound on the face, but it ap-

E eared that the cart was not robbed^ and the prosecutor said, that
e could suppose no other cause for this cruel treatment, than that
it was intended by way of revenge against him, for having de-
tected and beat off some thieves who had made an attempt to rob
the cart, near the same place, on the preceding evening, the case
was left to the jury upon the question of Ijring in wait. And the
learned Judge desired them to consider whether the fact were de-
liberately and intentionally done by lying in wdt for that puipoee,
on the account suggested, or from any other malicious and deli-
berate motive ; or whether it were a sudden violent impulse of
rage, not in the previous contemplation of the parties ; in which
latter case, it was not within the statute : but he laid stress on
the expression uttered by some of the gang — •* Where arc your
'' knives ?" as explanatory of a previous design to do such a
mischief, (jr) In another case, where a gentleman, having de-

(«) I Bast. P. C. c. 7. 8. S. p. S94. (n) 9 Hawk. P. C. c. 83. s. 16. mod
citiBg 1 MS. Sum. 188. And see as to see ante, 453, et $equ,
malice aforethought, ante, 488, etieq. (w) By Byre, B. in Rex o. Mills, I

(0 1 East. P. C. c. 7. s. 4. p. 396. Leach 859.
Rex r. Garrol and King, pat. 589. (*) Rex «. Mills, I East P. C c 7.

s. 5. 1 Leach 859.

CHAP. X.] Coventry Act, 2S and 23 Car. IL c. 1. ^9

tected a boy in picking his pocket, had seized him, and was
carrying him along the street, and the prisoner, who was lurking
thereabouts, came up to them, and after walking for some little
time, sometimes before and sometimes after them, at last struck
the gentleman a severe blow across the face with a knife, saying,
** Damn you^ Sir, let the boy go ;" the two Judges who inclined
most to a strict construction of the words *' lying in wait," &c.
yet were of opinion that the circumstance of the prisoner passing
before the gentleman, and waiting till he came up, and then
giving him the wound, was a lying in wait within the statute, (y)

But if the mischief be done in a sudden attack, without any
premeditated design against the person, there will not be a lying
in wait within the statute. Thus, where the prisoner was stealing
turnips in a field, and, being found by the servant of the owner
of the field in the very act of taking them, struck the servant im-
mediately, with a sharp instrument, and slit his nose ; it was
holden that this was not an offence within the statute : all the
Judges holding that there was not sufficient evidence of a lying in
wait ; and some of them considering that the having the instru-
ment, and using it, was with intent to escape, and not to murder
or maim.(z) And the lying In wait must be with the view, and
for the purpose, described in the statute. Thus, where the com-
mander of a press-gang maimed a man, whom he casually met,
and who resisted being pressed, and against whom it appeared
that he had an old grudge ; though the jury found that the wound-
ing was of malice aforethought, yet the Judges, upon a reference
to them, were of opinion that there was no lying in wait, so as to
bring the offence within the intent and purview of the statute, (a)

The maiming or disfiguring must also be of such a nature as As to the
the statute describes. TTbus, where a husband, who had lived a Y^'^^ °^™fi-™"
long while separate from his wife, visited her again, and, having gunng.
persuaded her to let him sleep with her, took an opportunity,
during the night, and while she was £v$leep,. to make a wound
across her throat, about three inches in length, with a razor,
which he had procured, and concealed for the purpose ; it was
ruled that the offence was not complete, there not being such a
maim as the act requires. (Z») But it has been decided that a large
transverse wound across the nose, so wide and deep as to render
the bone visible, is a slitting of the nose, within the statute,
although the nostril be not thereby perforated, (c) And in another
case, where there was a deep cut across the nose, which separated
the flesh, and went quite through into the nostril, an objection

(y) Bex V. Carrol and King, 1 East
P. C. c. 7. s. 3. p. 894, 895. and id,
s 5. p. 897. citing MS. Gould, J.

(z) Rex V, Tickner, reserved for the
opinion of the twelve Judges, from
the Old Bailey Sess. 1778. 1 Hawk.
P. C. c. 55. s. 12. 1 Leach 187. 1
East P. C. c. 17. s. 6. p. 398.

(a) Ilex V. Mackey and Arrigoni,
Kingsion Spr. Ass. 1778. 1 East P. C.
c. 7. s. 6. p. 399.

(b) B«x V, Lee, Old Bailey 1768,
cor. Parker, C. B. 1 Hawk. P. C. c.
55. s. 10. The same case is reported
in I Leach 51. But the grounds on
which the court ruled that the offence
was not within the statute are not
there stated.

(c) Rex t;. Carrol and King, 1 Leach
55. 1 East P. C. c. 7. 8. 3. p. 394,
395.

590

As to the in-
tention to
maim or dis*
fignra«

Of aiders and
abettors.

Of tbe indict <
ment.

9 Anne, c. 15.
Attempting to
kiU, assault-
Ingy &c. a

{mvy counsel-
or, felony
witliout
clergy.

9 6. 1. c. 22.
Maliciously
shooting at

Of Attempts to Murder, Maiming, 8fc. £book ni.

that the node could not be said to be slit because the edge of it
Wd& not cut through, was overruled. ((/)

The words in the statute ace ^^ with intention in so doing to
" maim or disfigure :*' but these words have been considered as
merely auxiliary to the preceding words, *' on purpose and of
*^ malice aforethought," confining the crime to an intended vio-
lence, (e) So that it has been ruled, that if a man attack another,
of malice aforethought, in order to murder him with a bill, or any
other such like instrument, which cannot but endanger the maim-
ing him, and in such -attack happen not to kill, but only to maim
him, he may be indicted on this statute : and that it shall, m such
case, be len; to the jury, upon the evidence, whether there was a
design to murder by maiming, and, consequently, a malicious
intent to maim as well as to kill ; in which case the offence is
within the statute, though the primary intention was murder.(/)
Hiis statute of 22 & 23 Car. 2. expressly extends to counsel-
lors, aiders, and abettors, knowing of and privy to the offence : it
includes, therefore, all accessories before. But in a case where
it appeared that one of the prisoners, though present at the fact,
and guilty of a trespass and assault, was nevertheless altogether
ignorant of any intention to maim or disfigure, the court directed
that he should be acquitted in the first instance, before the guih
or innocence of the perpetrator was ascertained, (j^)

An indictment upon this statute must pursue the words of it,
and allege the offence to have been committed '^ on purpose, of
'^ malice aforethought, and by lying in wait ;" and state that the
act was done with the intent mentioned in the statute. But as
the words of the statute are in the disjunctive, an averment either
that the act was done with intent to maim, or with intent to dis-
figure, according to the subject matter, seems to be sufficient. (A)
The next statute in the order of time is the 9 Anne, c. 16,
which was passed for the more especial protection of privy coun-
sellors in the execution of their office ; and was made on the occa-
sion of Mr. Secretary Harley being stabbed by Anthony de Gutr-
card, who was at the time under examination before the privy
council. It enacts, ^' that if any person or persons shall unlaw-
^^ fully attempt to kill, or shall unlawfully assault, and strike, or
** wound any person being one of the most honourable privy coun-
cil, when in the 'execution of his office of a privy counsellor,
in council, or in any committee of council, that then the person
^' or persons so offending, being thereof convicted in due form of
*' law," shall be felons, and suffer death without benefit of clergy.
The statute 9 G. 1. c.22. relates to the offence of wilfully and

{(i) Rex V. Coke and Woodbum, 6
St. Tr. 212, ettequ.
■ (tf) 1 East P. C. c. 7. 8. 6. p. 399,
400.

(f) Rex V. Coke and Woodbum,
ante, note (iQ, 1 Hanvk. P. C. c. 55.
s. 6. 4 Bac, Ab. Maihem (B). 4 Blac.
Com. 206. note (Ar). 1 East P.C.
C.7. s. 6. p. 400. 10 wbich last book
it is said, that on the conference of

the Judges on another case (CarrolX
ante, note (jc) ) Willes, J. and Eyre, B,
expressed some dissatisfaction with
this case; and thought at least that
the construction ought not to be car-
ried further.

(g) Rex V, Mackey and Arrigoni, 1
East v. C. c. 7. s. 6. p. 399. and s. 7.
p. 401.

{h) 1 East P. C. c. 7. 8. 8. p.40li. '

cBAi^. X.] Bla^k Act, 9 G. 1. c. S3 591

maliciously shooting at any person in any dwelling-house, or other any person, fe-

place; an offence of which the probable consequence may be JSenry**^^'*^

either the killing or maiming such person. It enacts, tiiat if any

person or persons ^' shall wilfully and maliciously shoot at any

'^ person in any dwelling-house, or other place :" or shall by ^ft,

or promise of money, or other reward, procure any subject to join

him or them, in any such unlawful act ; every person so offending,

and being convicteo, shall be adjudged guilty of felony, and suffer

death without benefit of clergy.

This statute contains enactments concerning many other of- Constmction
fences besides that which has been above set forth, and is com- o^t*>*«»^'^*«»
inonly called the Black Act ; a part of it relating to offences
committed by persons in disguise, or having their faces blacked :
but it is settled that it is not necessary for the completion of the
offence now under consideration that the offender should have his
face blacked, or be in any other manner disguised, (t)

It has been determined that this statute extends not only to the It extends xo
person or persons who actually shoot at another, but also to every 5^5^^^i«i^ff

Erson who is present, aiding and assisting, to commit the o^•
ice.: for as the statute creates a new felony, the consequences
incidental to a felony at common law follow of course : and the
rule attaches, that every person present, aiding and assisting, is a
principal in the second degree. (A) An objection, therefore, which
was taken in a prosecution upon this statute, that three persons could
not be guilty of the same act of shooting, and that, as the indict-
ment charged the act to have been done by three, one only could not
be convicted, (/) does not appear to be well founded : for, as has
been observed upon this case, if it is settled that under a charge
for doing an act a person may be convicted as a principal in the
second degree, there is no inconsistency in alleging an act to be
done by several which could, in its immediate operation, be only
committed by one ; and the legal construction of the averment is
only that they have done such acts as subject them to be punished
as principals in the offence, (m) And in a subsequent case, where
the indictment charged that the prisoner, and divers others un«
known, shot at the prosecutor ; and, in a second count, that a
person unknown shot at the prosecutor, and that the prisoner was
present, aiding, &c. ; and upon the evidence, it appeared, that the
shot was probably not fired by the prisoner; Ashurst, J. told the
jury, that if they were of opinion that the prisoner and the other
persons were in a confederacy together to make an attack upon
the house of the prosecutor's master, and came armed with an
intention to oppose all resistance, and that, in the prosecution of

(i) Arnold^s case, 8 St. Tri. SIS. 1 was not formally detiermined, the pri-

Hawk. P. C. c. 55. Of Shootings S^e. s. soner having been convicted of an-

4. 1 East. P. C. c. 8. s. 6. p. 418. other capital offence at the same

(k) Coalheavers* case, 0. B. 1768. time: but the opinion of the Judges

Cas. Cr. L. 61. I Leach 64. 1 Hawk^ was probably against the objection:

P. C. c. 55. Of Shooting, ^c. s. 11. and Buller, J. m Rex v. Young, 3

1 East. P. C. €.8. s. 6. p. 413.; and T. R. 105. speaks of the case as having

see ante, 81., et 9equ, 88. been so decided.

(I; Rex V. Gibson, Mutton and (m) 5 Evans* Col. Stat. CI. 6. p.

Wiggs, 1785. 1 Leach 359. 1 East 399| note (18) and see ante^ 88.
P. C. c. 8. s. 7. p. 413. This objection

«93

Of Attempts to Murder, Maiming, %c. {^&ooii in.

' thatt {mrpofie, the pHsotier or ^ny &/ his associates, shot at the* pro-
Becolor^ they should fiiid the prisoner guilt jr. (w) ' '
The shooting The wofds of the statute are, ^^ if any person 'or* persons shall
must be m^- « wilfully and fnaliciously shoot, &c. ;" thereby making* malice an
"*^' essential ingredient in the offence. No act of shooting; therefore,

will amount, under this statute, to a capital ofience, unless it be
accompanied with such circumstances as, in construction of law,
would have amounted to the crime of murder, if death had en-
sued : and it follows, that neither an accidental shooting, nor a
shooting in a transport of passion, excited by such a degree of
provocation as would have reduced the homicide, if it had ensued,
to the offence of manslaughter, are within the meaning of the sta-
tute, (o) •
And the in- It has been said, that upon an indictment on this statut^f, it is

bT^d^a"" h ^®^^^8^n^ *^ shew that the instrument was loaded with gunpowder,
a buUct* &c? ^°^ *'so ^^^ ^ bullet, slug, or other deadly substance ; but that
andbeieveUed it is sufficient if Such facts appear from the general circumstances
at the party, of the case, (p) In a case where it did not appear whether the
wounds which the prosecutor had received in his neck and chin
were given by the wadding, or by a ball from a pistol, except that
the prisoner, who was endeavouring to effect an esc^e at the time,
exclaimed with an oath; '^ Let me pass, or I will blow your brains
out,'' and immediately fired, and the prosecutor said, that he appre-
bended the wounds must have been given by a ball, from the sen^
sation he felt at the time, and because it took him ip one place,
and another witness said, that the report was very strong, for so
small a pistol ; it was contended that there was not sufficient evi-
dence that the pistol was loaded with a leaden bullet. But the txiurt
thought that there was sufficient evidence of that fact to ga to the
jury : and the jury found the prisoner guilty, (y) It is necessary
also that the shooting should be with an instrument leveQed at
the party. So that where the prosecutor, who was landlord of
the premises occupied by the prisoner, had come in the night to
bi^g provisions for a man whom he had put into poMession. W the
prisoner's goods under a distress for rent, and had got over the
pales of the garden for that purpose, but, upon being met by the
prisoner and severely beaten, was making his retreat, in the dark,
over another part of the pales, more than five yards' distance from
the place at which he entered, when the prisoner levelled a gun ad
the place where the prosecutor got into the garden, and immedf-
ately fired it off; the gun being thus fired in a different direction'
from that in which the prosecutor was going, the court held thut
it was not a shooting at the prosecutor within the meaning of the
statute, (r)

(ii> Wells's case, Keni Spring Ass.
1786. 1 BasL P. C. c. 8. s. 7. p. 414.
The jury found the prisoner guilty ;
and upon reference to the Judges,
they were all of opinion that the di-
rection was right, and the conviction
E roper. And they said, that the Coal-
eavers' case, (anir, 28. and 591. note
(k) was good law.
(0) Gastineauz*8 case, 1 Leach 417.

1 Hawk. P. C. c. 55. Of Sk&0tutg^^e.
s. 7. 4 Blac. Com. S07. note (i) 1
East. P. C. c. 8. s. e. p. 4tt.

(p) 1 Hawk. P. C. c. 55. O/ShB&f-
ing* ^c, s. 9. citing Hexv. ElIiott^<Md
Bailey, 1787.

(^ Weston*s case, 1 Leach 247.

(r) Empson^s case, 1 Leftch 2t4. I
Hawk, P. C. c. 55. Of Sh&piimf, «Fr.
s. 10. • •

CHAP. X.] Black Act,9G(^. h c. 22. ^ 26 Geo. 8. c. 19. MS

An objection was taken, upon an indictment on tfais statute, The sTiootinr
that the prisoner having fired at the party within his own house,' ^^y ^ ^^ ^°*
was not within the meaning of the statute : but it was overruled* («) £^m! ^^^

The words oi the statute '^ wilfully and maliciously *' have been of the ladict-
considered as so far descriptive of the offence, that an indictment, menu
where the act was laid to be done '^ unlawfiiUy, maliciously, and
feloniously," the word wilfully being omitted, was held to be in-
sufficient. (0 It seems that if the indictment be for shooting '' in'
a dwelling house," and state the name of the owner of the house;
it will be necessary to prove the name as stated : as in a case
where the prisoner was indicted for shooting in the dwelling
house of James Brewer and t/ohn Sanby^ and it appeared upon
the evidence that the names were in fact John Brewer and James
Sanby^ the variance was ruled to be fatal, {u)

By the fourteenth section of the statute the offences described The trial may
in it may be *' tried and determined in any county in England, in JjJ°t"*iJ
^^ such manner and form as if the fact had been therein com- En^iLuu
*^ mitted;*' and it has been holden, that it is not necessary for the'
King to grant a special commission for such trial ; but that a pri-
vate prosecutor may prefer his indictment in such county in Eng-
land as may appear to him to be most conducive to the ends of
justice, {w) He cannot, however, exercise this right for the pur-
poses of injustice and oppression, as the statute expressly gives it'
for the better and more impartial trial, of the indictment, (or)

The fourteenth section also provides, that no attainder for any Attainder not
of the offences made felony by the act shall work corruption of ^ ^?^^ ^^
blood, loss of dower, or forfeiture of lands or chattels. Wood^Vc.

The statute 26 Geo. 3. c. 19. was passed for the purpose of re- 26 Geo. 2. c.
pressing the enormities occasionally practised upon persons ship-' 19. mahea th«
wrecked. The first section enacts, " that if any person or persons' ^*^^^^, ^^
'^ shall beat or woimd, with intent to kill or destroy, or shall ^i^M^iSiip.
'^ otherwise wilfully obstruct the escape of any person endeavour-' wrecked with

(a) Harrises case, I Basl. P. C. c. 8. said, that perhaps the averment was

s. S. p. 416, 1 and Addeod. zviii. not necessary to the validity of the in-

(I) Davis'scase,! Leach 49S. lEast. dictment, as the statute says, **who
P. C. c. 8. s. 8. p. 414, 415. The point ** shall maliciously shoot at any per-
was reserved for the consideration of *'son in any dwelling house, or other
the Jttdges, and was very much de- ^^ place i** but that as the averment was
bated. Some of the Judges thought made, it must be proved as slated,
that the mordwilftd was implied in the However, in two subsequent cases of
word muUeioui : bu t a great maj or ity indictmeots for robbing i n the d wel I ing •
were clearly of opinion, that as the houses of particular persous who were
Legislature had, by the special pen- named, the convictions were held to
ning of the act, used both the words, be proper ; though in one of them it
^^wUfmliy and maUcioutlyC^ they must did not appear who was the owner of
be understood as a description of the the house, and in the other the Christ-
offence ; and thev thought that they ian name of the owner of the house
were bound by former precedents in could not be proved. Fye*s case, /Far-
analogous cases. And see the cases wiek^ 1790. ror. Thomson, B. 1 £ast.
Gollccled in note (a) to this case, 1 P. C. c. 16. s. 168. p. 785.; and John-
Leach 494, as to the rule that though stone's case, 1793, cor. Asbhurst, J.
an indictment need not recite a gene- 1 Bast P. C. c. 16. s. 168. p. 786.
ral penal statute, it must bring the (w) Mortises case, 1 Leach 73. 8
fact within the «J7»*eM prohibition of it. Blac. R. 733. 1 East. P. C. c. 8. s. 9.

(tt) Durour's case, i Leach 351. 1 p. 415.

Saat.P.C.c.a.8.S.p.415. Thecourt. (x) Id.iM.

VOL. I. 2 Q

V9Z

Of Atiempu to Af&rder; Maimng, -f

The shootiBfl:
most b^ v^'

Cl«ttf.

And the in-
liniment mmt
be lo^ed with
a buUet, &c.
and be levelled
at the party.

^biog or
^tting were
gy committed
^t if 4feath
]iad endued, it

WOlm'BOt

IMreteete
laiir jkg» the

Eartychaiged
I to be ac-
quitted.

thai; purpose, the ptisoiier or 4tny of h£3 assbt^^ A. e. any ahip
sectilor^ they should fiiid the prisoner guHf-V >^b shall be in
llie words of the statute are, " if an;v^^ iacd, or cast on
** wilfully and maliciously shoot, &c. ^'yf^ fi&) or the wreck
essential ingredient in the offence. ^ / / 4t out any false light
twill amount, under this statute, t /// or vessel into danger ;
accompanied with such circums*;// ^ ; shall be deemed guilty
would hare amotmted tothe ' '^^ ' yied thereof^ shall suffer
sued : and it follows, that r' // jenefit of clergy.'' (y)

Bhooting in a transport fy . / ^«^ is commonly called lard
{provocation as would hp \ ' «• divers cruel and barbarous out-
to the offence of manp' ;- wantonly committed, in divers parts
tute. (o) • '' -«pon the persons of his Majesty's sob-

It has been sa)' client to murder, or to rob, or to nudm, dis-
necessary to shc^ or to do other grievous bodily harm to such
and also with y^ibat if any person or persons shall, either in
it is sufficie^ '. ^plandy wilfully, maliciously, and unlawfiilly , «Aoof
of the ^'^j^% Afajesty 's subjects, or shall wilfully, maliciously,
woundp^r^'^Ot^^y^ present, point, or level any kind of loaded fire-
were ^^;|^^^y of nts Majesty's subjects, and attempt by drawing
the/^^^^^{?r in any other manner, to discharge the same at or
^0$^i» or their person or persons, or shall wilfully, maH-
" ^i^/^iuid unlawfully stab or cut any of his Majesty's aubjects,
^^inUnt in so doing, or by means thereof, to murder, or robf
^^fimm, disfigurej or disable, such his Majesty's subject or
^^bjtKita, Or with intent to do some other grievous bodUjf Aartn
f(0 such his Majesty's subject or subjects. Or with intent to ob-
(i^tx'B^t, resist, or prevent the lawful apprehension and detainer of
ffOtkt person or persons so stabbing or cutting, or the ia?rfui
a apprehension and detainer of any of his, her, or their aceom-
tf plices, for any offences for which ne, she, or they may respect-
'^ ively be liable by law to be apprehended, iniprisoned, or detained,
<< or shall wilfully, maliciously, and unlawfully administer to, or
^' cause to be adnunistered to, or taken by, any of his M^eety's
'^ aubjects^ any deadly poison, or other noxious and destmstive
^^ substance or thing, with intent such his Majesty'^ subject or
^' subjects thereby to murder, the person or persons so offendbig^
** their counsellors, aiders, and abettors, knowing of and^priry to
^' such offence, shidl be, and are hereby declared ta he fd&n^maA
^^ shall w&x death, as in cases of felony, without benefit of d^gy:
'^ Providso always, that in case it shall apbear on the trial of
^' any person or persons indicted for the wilfiuly^ maliciooaly, and
'^ unlawfully shooting at any of his Majesty's subiecte^ cr for wil-
'^ fully, maliciously, and unlawfully presenting, pointing, or level-
'^ ling, any kind of loaded fire-arms, at any of his Majesty'^ sub-
^^ jects, and attempting by drawing a trigger, or in any other
^' manner, to discharge the same at or against his or their person
'^ or persons, or for the wilfully, maliciously, and unlawfully stal>-
'^ bing or cutting any of his Majesty's subjects, with such intent
as aforesaid ; that such acts of stabbing or cuiti7tg,{ty'were com-

€(

(g) Bvs.18. theaaisnoltocsilend
to Scotland.

(a) Bither the words '« of stabUa;
•« or ciilliog'^ thoiiM have h§m ow^

't "Tt

^

^. X.3 LawJU JcU tmpToptrfy perfamied.

< under mei €ireumsiamoe$ as^ thaij if defUh had turned

m, the same would noi, in km, have atnounied tot/a .. ]

^mrdetf that then, and in erery sach case, the persow or t - m

ndicted shail be deemed and taken to be not guUty |

'^^ ^ whereof they shall be so hidicted^ bat be thereof \

^ o. 4. c. 126. recites the title of the 43 Geo. 9. Offences la

/^^ <& *cy of making similar provisions in Scotland, SeoAiil

-. "'n*. ^me of the said crimes; and then enaetSj

*" ^ -1 ^ ^ , 1825, ** if any person shall, within Scot^ ShooUaflr^ en^

■ *^\ ^ piously, and iinlaTPfvill]|r shoot at any of his ^» ^S^^

^ '^ ^^^ .IS, or shall wilfntty, maliciously, and unlawfiilly ^atl^ do '*

^c, or level any kind of loaded fire arms, at any of his anj AfrietoM-
^ s subjects, and attempt, by drawing a trigger, or in any ^^^iS^'
« manner, to discharge the same, at or against his or their tering pofaon!
^.erson or persons, or shw wilfully, maliciously, and unlawfully

* stab or cut any of his Majesty's subjects, with intent in so doing,
*' or by means thereof, to murder or to nudm, disfigure or disable,
** snoh his Majestjr's subject or subjeete, or with intent to do some
^^ other grievous bodily harm to such his Majesty's subject or
^^ subjects ; or shall wilfuUy, maliciously, and aniawfiilly admi-
^ nister to, or cause to be adminbtered to, or taken, by any of his
** Majesty's subjects, any deadly poison, or other noxious and de-
^' structive substance or thing, with intent thereby to murder or
^' disable such his Majesty's subject or subjects, or with intent to
'^ do some other grievous bodily harm to such his Majesty's sub-
^' ject or subjects, such person, being lawfully convicted of any of
'^ the aforesaid acts, shall be held guilty of a capital crime, and
** receive sentence of death accordingly." Death.

The second section enacts, that << if any person in Seoiland ThroMsif^*
« shall, firom and after the said first day of Jilly, wilfully, malt- S|'c"'2itrto-
^ ciously, and unlawfully throw at, or otherwise apply to, any of tent to do anj
'^ his Majesty's subject or subjects, any sulphuric acid, or other gneyousbo-
^^ corrosive substance, calculated by external application to bum or g^g^^ ^
*^ injure the human frame, with intent in so doing, or by means
^' thereof, to murder or maim, or disfigure or disable, such his
^^ Majesty's subject or subjects, or with intent to do some other
'^ grievDua bodily harm to such of his Majesty's subject or subjects,
^ and where, in consequence of such acid or other substance being
** BO wilfully, maliciously, and unlawfully thrown or applied, with
'^ intent as aforesaid, any of his Majesty's subjects shall be mainted,
'^ disfigured, or disabled, or receive other grievous bodily harm,
*^ such person being thereof lawfully convicted, shall be held to be
^^ guilty of a capital crime, and shall receive sentence of death ac- Deatb.
«< cordin^ly : provided always, that if it shall appear upon the Proriao if
^' trial of any person accused of any of the aforesaid offences, that ^^^ >m^

itied«aadtha

ted, or words to the following effect late Mr. J. Grose*a copy of the MS.

shoakl have been inserted in their Summary, which has been communi-

stead >— ** Of shooting; at, presenting, cated to the Author, it appears, that it

** pointing, or IcTellingand attempting was the opinion of tj[iat learned Judge,

** to discharge such fire-arms as afore- that the words ** of stabbing or cut-

«««iid, oi* Mici acts of stabbing or *' ttag^ should bavt been emitted.
•' euttinf ." Frdm a MS. not* in the

2q2

t

m

acts done
woald not
have amount-
ed to murder.

Construction
of the statute^
43 Geo. 3.

Shooting.

Of Attempts to Murder J Maiming^ 8sc. [book hi

^^ under the circumstances of the case^ if death had ensued, the acts
^^ done would not have amounted to the crime of murder^ sUch
^^ person shall not be held guilty of a capital crime, or be subject-
^^ to the punishment aforesaid ; and provided further^ that nothing
^' contained in this or any othei^ statute, enacting a capital punish--
'^ ment, shall be held to affect the power of the prosecutor to
^^ restrict the pains of law.*'

. This statute, 43 Geo. 3. c. 58., is more extensive in its applica^
tion than the 22 and 23 Car. 2. c. 1. (the Coventry act) which has
been before mentioned, (a) as it does not make any lying in wait
necessary to the completion of the offence : (b) nor need the inten -
tion of the offender be confined to a purpose of maiming or dis-'
^figuring the party-; (c) as the words of the statute expressly
include an intent to ^^ disable, or do grievous bodily harm..'' It
was decided by all the Judges, except Wood, fi., who differed,-
that this statute did not extend to offences committed upon the-
seas, out of the body of any county in JEngland or Ireland ; the'
words of the statute extending only to the offences therein men-
tioned, if the same were committed either in England or Ireland,(/)
But the act 1 Geo. 4. c. 90. s. 2. enacts, ^^ that all and every the
'^ crimes and offences mentioned in. the 43 Geo. 3. c. 58. which
^^ 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 liable to the
^' same punishments respectively as if they had been committed
'^ upon the land, in England or Ireland ; and 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 28 Hen. 8. c. 15."

Shooting is within this statute of 43 Geo. 3., though the instru-
ment be loaded with powder and paper only, if it be fired so near
the person, and in such a direction, as to be likely to kill, &c. In
a case where the prisoner was indicted for shooting at the prose- -
cutor with a loaded pistol, and Le Blanc, J. had told the jury^
that if it was loaded with powder and paper only, but fired so uear^
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; and the jury had convicted, saying, they
were satisfied that the pistol was loaded with some other destruc-
tive material besides powder and paper, there was a petition to the
crown, on the ground that the pistol was loaded with powder and
paper only : and the opinion of the Judges being asked, whether if
that were so the direction was right, they held that it was. (d)
But to constitute the offence of attempting to discharge loaded
fire arms, they must be so loaded as to be capable of doingthe
mischief intended. So that if part of the loading has fallen out,
though without the prisoner's knowledge, and that which remains
18 inadequate to effect the mischief, the case is not within the act.
And it seems, that a case is not within the act if there is not such

(a) AnU^ 587, el teq,

{b) Jnte, 588.

(c) Anie^ 590.

(f)KcjL V. Amarro, Mich. T. 181 4,

Russ. and Ry. 886.

{d) Rex V. KitchM, Mich. T. 1S05.
MS. Bayley, J., an4 Russ. and By- ^^

J"

CAkP. .x] Lord EUenbarough's Act, 43 Geo. 3. c. 58. Sd7

a loading at the time as is likely to produce a discharge, though it
is possible it may produce it. The prisoner was indicted for
attempting to discharge a loaded blunderbuss at J. S. The evi-*
dence was, that it haa been loaded and primed a fortnight before^
and that the prisoner levelled it at J. S., and drew the trigger ;
that the flint struck fire in the pan, but that nothing caught fire
there. The blunderbuss was afterwards discharged without any
fresh priming : but powder might in the interim have been shaken
through the touch-hole from the barrel into the pan. The pri-
soner was convicted : but the jury found that the blunderbuss was
not primed at the time. Upon a case reserved, a great majority of
the Judges considered this equivalent to a finding that the blunder-
buss was not so loaded as to be capable of doing mischief by hav--
ing the trigger drawn ; and if not, that it was not loaded within
the meaning of the act; and a pardon was recommended. (/) In a
case prior to this decision it appeared, that the prisoner had a
loaded gun ; but that, in his struggle with the prosecutor, it was
probable all the powder had fallen out : he afterwards levelled it
at the prosecutor, and drew the trigger. Abbott, J. told the jury^
that if they thought the powder was all out before the prisoner
drew the trigger, the gun t^ould not be considered as loaded at the
time; and on that ground^ though with reluctance^ the prisoner
was acquitted, (n)

The words "stab or cut'* in the statute relate only to such As to the
wounds as are made by an instrument capable of stabbii^g or cut- J^"** "5^^
ting ; stabbing being properly a wounding with a pointed instru- <*'c"*'
ment, and cutting being a wounding with an instrument having a
sharp edge. And if the indictment be for cutting, evidence of a
stab will not support the charge ; for, as the statute uses the words
in the alternative, " stab or cut," so as to distinguish between
them, the distinction must be attended to in the indictment, (t)
And though a striking over the face with the sharp or claw part of
a hammer has been holden to be a sufficient cutting within the
act ; yet it would have been otherwise, if the striking had been
with the blunt end. {e) A blow with a square iron bar, which in-
flicted a contused or lacerated wound, has been holden not to be a
cutting within the act. (/) And where a similar wound was given
on the head, by a blow with the metal scabbard of the sword of a
member of a corps of yeomanry cavalry (the sword being' in the
scabbard at the time), it was ruled not to be a cutting within this
statute, (a) And it was ruled, that a blow with the handle of a
windlass was not a cutting within the act, though it made an inci-
sion, {g) But if a cutting is inflicted, the case is within the sta-
tute, though the instrument be not intended for cutting, nor
ordinarily used to cut, but generally used to force open drawers,

(/) Rex V. Carr, Hil. T. 1819, MS. Russ. & Ry. 104.
Bayley, J., and Russ. & Ry. 377, (f ) Adams's case, eor. Lawrence, J.

(n) Aooo. 1817, MS Bayley, J. Old Bailey, Jan. Sess. 1808.

(t) Rex V. M'Dermot, East. T. 1 8 1 8, (a) Rex v. Whitfield, cor. Bajley, J.

M^r^Payiey, J. aadUu^. & Ry.356. Salop Sum. Ass. 18«e. MS.

- (e) AtkiiisoQ*!^ case, Titrk Spr. Ass. - (g) Anon. eor. Dallas, C.J. andBbr-

East. T. 1806, 4 Blac. Com. 208. (ed. ton, J. at Cheuier^ 5 Evans*s Col. Slat.

1809,) note (I). MS. Bayley, J. and Fart Y. CI. iv. p. 334. note (2).

0^ Of Attmtpt$ to Murder^ MHming, %c. [book m,

^OOTB, &c. ; and though the intention was not to cut but to iniict
some other mischief. The prisoner was indicted for cutting and
stabbing. It appeared that ne was seized for a robbery ; and, in
order to escape, struck the prosecutor on the head .wiUi an iron
crow, which cut out a part of his skull. The instrument was sharp
at one end so as probably to cut. A case was reserved, because
this was an instrument to force open doors, drawers, &c. and not
to cut ; and because the prisoner meant to break or lacerate the
head, not to cut it : but the conviction was held right, (r)

Cutting a child's private parts, so as to enlarge them for the
time, may be considered as doing her grievous bodily harm ; and,
as done with that intent, though the hymen is not injured, the
incision is not deep, and the wound eventually is not dangerous.
The prisoner cut a female child, ten years old, in her private parts,
probably to enlarge them to admit his entrance, but he was mter*
rupted and fled : the wound was small, but bled a good deal ; and
when a surgeon saw it four days afterwards, he found it near atfi
inch in length, not deep nor dangerous, because below the hymen |
but, if it had entered the hymen, it would have been dangerous*
Graham, B. left it to the jury to say, whether this was not a griev-
ous bodily injury ; and if so, then, though there might have been an
ulterior intention to commit a rape, yet if there was an intent to
do grievous bodily harm, the case was within the act : and that
the intention might be inferred from the cutting. The jury found
the prisoner guilty ; and the Judges held the conviction rights («)
Of the tatent. The cutting must be expressly laid with the intent stated in tin
act ; as it has been holden that an indictment for cutting with
intent to do some grievous bodily harm, without saying, ^' in so
'^ doing, or by means thereof/' was not sufficient. (A) Tints if
the intent be to prevent the {prisoner's lawful apprehension, and be
so found by the jury, an indictment stating a dififerent intent will
pot be supported. A sexton and others suiprised two body
stealers, and attempted to take them : one of them cut the sextcm's
assistant with a sabre ; and was indicted on this statute for cuttings
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 faeem
within the act unless the apprehension would have been lawful^
and that if the cutting was to resist or prevent a lawful apprehnn^i'
sion^ 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 supportod. (a) If the intent
laid be to disable, it will be understooa as of a permanent dis-
ability, and not merely one which may be temporary, as a disability
until an offender likely to be apprehended may escape. The pn«-
soner had broken into a shop in the night ; and, in order to prevent
a watchman apprehending him there, gave the watchman two

(r) Rex V. Hayward« Mich. T. 1805, ton, J. at Ckegter^ b Evsbs*$ Col. SfmJL

MS. Bajlej, J., and Ruas. & Ry. 78. Part V. CI. iv. p. SS4. note (3).

(t) Rex V. Cox, East T. 1818, MS. (m) Rexv.DufBaandMarabail,

Bailey^ i-* and Buss. & Ry. 862. T« iSlS, MS. Bayl^« J.,

(S) jiit0n, edr. Mlss;C. J* sod Bur* Ry. 365.

« i

aiip. x»] Loftd EUenboraugh'a Act, 4S Geo. S. c. 58. Sff^

•

^vere cuts with the sharp part of a crow bar. The indictment
as for cutting, with intent to murder, maim, and disable ; and
lere was no count charging the prisoner with the intent of pre-
mting his own lawful apprehension : and the jury found, that he
it with intent to disable till he could effect his own escape. Upon
case reserved, ten Judges (Graham, B. and Garrow, B. being
)sent) held the conviction wrong ; for, by the finding of the junr^
le prisoner intended to produce only a temporary disability, till
i could escape, not a permanent disability. (&)
But although the intent laid be that of doing grievous bodily
irm, and upon the evidence it appears that the prisoner's maia
id principal intent was, to prevent his lawful apprehension, yet
i may be convicted, if in order to effect the latter intent he also
tended to do grievous bodily harm. The prisoner was engaged
poaching, and had fired his gun at one ox three keepers, mio,
ing on the watch for poachers, suddenly sprung up, and were
shing forwards to seize him. The jurv were of opinion, that the
isoner's motive was to prevent lus lawful apprehension; but
at, in order to effect that purpose, he had also the intention of
ing the keeper some grievous bodily harm. Upon objection
ken, the learned Judge was of opinion, that if both intents ex*
ed, the question, which was the principal and which was the
bordinate intention, was immaterial; and, upon the point being
bmitted to the consideration of the Judges, it was holden, that
both the intents existed, it was immaterial which was the prin*
)al and which the subordinate one; and that the conviction was
srefore proper, (c)

Where the offence is charged to have been committed with Ricketu's
«nt to obstruct, &c. a lawful apprehension, it must be shewn S?'""^!^
it the offender had some notification of the purpose for which he woanding^U -
s apprehended before he inflicted the wound. Upon an indict^ charged to bo
;nt on this statute, it appeared that, in the morning of the day ^^^T^u^
:ntioned in the indictment, the prisoner stole some wheat from gtract, &c. a
outhouse belonging to one Spilsbury ; and that, the wheat being lawful apj^re*
)n after found concealed in an adjoining field, Spilsbury, Webb, ^"'j^p*.^
d others, watched near the spot, expecting that the thief would that the of «
ne to carry it away, and that they should thus be able to dis- fender htA
ver and apprehend him. In the course of the day the prisoner J^J^n'^f \he
i another man walked into the field, and lifted up the bag con- purpose for
oing the wheat. They were immediately pursued ; and Webb which ^^^
zed the prisoner, without desiring him to surrender, or stating *PP«**«^*^-

what reason he was apprehended. A scuffle ensued, during
ich, before Webb had spoken, the prisoner drew a knife, and
; him across the throat. Upon these facts Lawrence, J. held
tt, as Webb did not communicate to the prisoner the purpose
which he seized him, the case did not come within the statute;
if death had ensued, it would only have been manslaughter*
t he said, that if a proper notification had been made before the
:ting, the case would have assumed a different complexion. The
saner was accordingly acquitted, (t)

>) Rex 0. Boyee, Trinv T. 1884, (e) Rex v. Gillow« Eaal. T« 1825.

. Baykf , J., and Rft. AflUod. Cf. Ey. & Mood. C. G. 8s».

. 89. {i) Rex «. RidbotlB, ^on^^rSum*

000 Of Attempts to Murder, > M^unmgj: ^6. [book. iir«

Evidence of . In a Case where a point was made, triiether - the dhootinir wHk'

two distinct - . . . r 7 . o.

acts ot maii- wbich the pridoner was charged was by accident or design,' it

cious shooting held, that proof might be giren that the prisoner at another time

*^°t*''f*th*' ^^^^ intentionally at the same person. Pearce, the prosecutor,

transition, ^^^ ^^^ ^ gamekeeper, proved that he met the prisoner sporting

and to sheir upon his manor, and remonstrated with him for so doing ; and pro-

S*V^ r**^' posed that the prisoner should go with him to the steward ; sayings

chu-g^ was ^'^^^ ^ ^^^ steward would pardon him he should have no obfection.

not accidental. The prisoner assented to go with him, and thef walked together

until they came near to the gamekeeper's horse, which waiS'about

sixty yards off, when Pearce went on before him tovmrds ihe hoiee;

.and when he was at a short distance from the prisoner^ the ^risosier

fired at his back, but said nothing. Pearce attevipted toi tacn

jound, and saw the prisoner running, and attempted to rait alter

him ; but his back seemed to be broken, and he could not follow*

He then turned back to the horse ; and, after getting upon il^.waa

making his way home to a place about two miles oS, and had-^ti

about half a mile on the road, at a place where there wa« a liedge

on each side, when he saw the prisoner again in the lowest part of

one of the hedges ; and the moment he looked round at turn the

prisoner again fired his gun, the discharge from which beat out one

of Pearce's eyes and several of his teeth, but did not cause him to

fall from his horse. Between the first and second firing waa 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 thia

case, as it seemed to him to be one continued transaction, in the

prosecution of the general malicious intent of the prisoner* Upon

another ground also the learned Judge thought such evidence

? roper. The counsel for the prisoner, by his cross-examination of
earce, had endeavoured to shew, that the gun might have gone
off the first time by accident ; and, although the leaned 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 considerati(m of the
Judges, who were, of opinion, that the evidence was properly
received, and the prisoner rightly convicted, (e)
D^n's It is also necessary, in proceeding upon the same clause of the

case.— statute, to shew that the person apprehendins: acted under proper

Where the . i ^ n* » ^ ^. ^^K. j ^i. a. <•.!. •

wounding is .authority. I'or, in a case where it appeared that the prisoner

charjfed to be having previously cut a person on the cheek, several others, who

done with the ^ere uot present when the transaction took place, went to his

struct, &c. a ^oM&e to apprehend him, without any warrant, and that upon their

lawful appre- attempting to take him into custody, he inflicted the wound upon

hensloo, it is which the indictment was founded; Le Blanc, J. was of opinioD,

she^t^at the ^^^^ ^^ prosecution could not be sustained. He said, that to con*

penon appre- stitute an offence within this branch of the statute, there must be

bending acted ^ resistance to a person having a lawful authority to apprehend

under proper . r o j rr

AnthoritjT. ^, igji^ ^^^_ Lawrence, J. 8 Campb. . (e) Rex v. Yoke, Mich. T. isas,

68. The Drisoiner. was afterwards found Ross, ft Ry.5dLl.

pu lit J otiarceny in stealing the wh^t

HAt^v Ki] Lord MUef^rougk'e Act, 4S Geo. 3. c. 58. 601

le priflotter, in order to which the party must either be present
iien the oifience is committed, or he must be armed with a war-
iiit ; and that this branch of the statute was intended to protect
licers, and others armed with authority, in the apprehension of
ersons guilty of robberies or other felonies. (A*)

In a case, where the intent charged in three of the counts was, Where the in*
n intent to present a lawful apprehension ; and, in the fourth, an tcntigto^^ ,
itent to do the prosecutor some grievous bodily harm ; and, from aSy^iSn, it
3Le nature of the facts, the case turned upon the last count only, a isininiat«ial
oint was made on behalf of the prisoner, that no grievous bodily o^/bodif™'^"
arm was done, as the cut was upon the wrist, and did not appear harm be done,
o haT6 been dangerous, as it got well in about a week : and the ^^ ^ ^.
prisoner's 'coonsel relied upon a doubt expressed by Bayley, J.,(p) j^ sufficient!
vhether the injury done was a grievous bodily harm contemplated '
>y theact^ the wound not being in a vital part. Another objec- ^^dintto
ion was ako' takm upon the facts; from which it appeared, that night in an
he p^isb^r having been apprehended by one Headley, in an attempt to
Lttempt to break into his stable in the night, and taken into foB^"maVhe
tieadley's house, threatened Headley with vengeance, and endea- detained with-
retired to barry his threats into effect with a knife which had been *^"^^"*"*
aid before him, in order that he might take some refreshment ; be carried*"
ind, in so doing, cut the prosecutor Cambridge, one of Headley's before a ma-
servants, who, Tnth Headley, was trying to take away the knife ; gist»t««
the act happening in that struggle, and perhaps not designedly as
against Cambridge. Upon these facts it was objected, that there
^as no evidence of malice against the prosecutor Cambridge, but
against Headley only ; and that upon this statute general malice
was not sufficient, as in the case of murder, and that malice against
the particular individual was necessary, (y) A further objection
was made, that the prisoner was not lawfully in custody, there
being no warrant ; and an attempt to commit felony being only a
misdemeanor. The junr who found the prisoner guilty stated,
that the thrust was made with intent to do grievous bodily harm
to any body upon whom it might alight, though the particular cut
wan not calculated to do so. Upon the case being submitted to
the consideration of the Judges, they were of opinion that, if there
was an intent to do grievous bodily harm, it was immaterial whe-
ther grievous bodily harm was done ; that general malice was
sufficient under this statute, without any particular malice against
the person cut ; and that, as the prisoner was detected in the night
attempting to commit a felony, he might be lawfully detained
without a warrant until he could be carried before a magis-
trate, (r)

A reported case upon this act states the following circumstances. Akenhead's
The prosecutor and some other men had got hold of a woman, As^t^he
who, as they conceived, had been using another person ill, and words '^griey-
said, that she deserved to be ducked in a trough which was near: ** J"» ^^j}^7
but it did notappear that they intended to duck her. The prisoner, thc^rtof*'

* • • • • •

(k) Eez r. Dyson, eer. Le Blanc, J« (q) Curtis o. the Hundred of Godky,

York Spr. Ass. 1816, 1 Starkie N. ?< R. S B. & C. 248. was cited, a case appa .'

«4(l. the Black act. "^ ^'

(p) Rex V. Akenhead, Holt^ N. P. C' (r) Rex v. EnnU East. T. 1 S95, By.

470. P^tt, p. SOS. & Mood; C. C. 9S. ^

60S

Injury con-
templated by
the itatute.

Principals
aiding, &C

Of Attempt to Murder, Maiming, ^c. f boos, ra

who was at some distance at the time, on being informed tbt
they were using the woman ill, exclaimed, ^^ I have g^ot a good
^' knife,'' rushea immediately to the place where she was^ entered
among the crowd, and instantly struck the prosecutor on the
shoulder with a knife. The prosecutor turned round upon him; &
struggle ensued between them ; and in that struggle the prosecAa
received other wounds. After they had fought for some time, tbe
prisoner dropped the knife, and ran away. The wound npon the
prosecutor's shoulder was about seven inches long and two deep;
and the lap of one of his ears was cut. There was likewise a
slight wound on the gland of his neck, and a cut on hia left ann.
Upon this evidence the counsel for the prisoner objected^ that the
first count of the indictment, which stated an intent to mozdez^
&c. and the second count, which stated an intent to maimj dis-
figure, and disable, could not be supported ; and that the only
question was upon the third count, which stated an intent to do
some grievous bodily harm. And upon 4his question lie sub-
mitted, that the wounds were not of that kind firom which gnevo^M
bodily harm could ensue ; that the transaction was a scuffle ia
which a knife was used accidentally, without any settled design to
<^ maim, disfigure, or disable," or to do '^ other grievous bodily
^' harm" to the prosecutor ; and also that the wounds were not
inflicted in a part of the body which could produce such a conse-
quence. Bayley, J. entertained some doubts on the case ; whkJi
appear to have proceeded, principally, on the grounds that the
wounds were not in a vital part ; that it was questionable whether
the injury done was a grievous bodily harm contemplated by tbe
act ; and whether, if death had ensued, the crime would have been
more than manslaughter. And, taking all the circumstances oC
the case into consideration, he directed the jury to acquit the pri-
soner, (d)

If several are out for the purpose of committing a felony, and
upon an alarm run different ways, and one of them maim a pursuer
to avoid being taken, the others are not to be considered principds
in such act. The two prisoners. White and Richardson, were
breaking into a house in the lower division of Lamb's Conduit
Street ; but, upon alarm and pursuit, Richardson ran into Qimond
Street, and White towards the Foundling. Randal seized White
just by the house they were breaking into, and White cut him
with an iron'crow. Graham, B. told the jury> that if the prisoners
came with the same illegal purpose, and both determined to resist,
the act of one would fix guilt on both ; and that it might be part
of the plan to take different ways to divide the force against them.
The jury foimd both the prisoners guilty : but the Judges thcnigfat
that the conviction as to Richardson was wrong, (a)

But where a party is present, aiding, &c. it is not neoessaiy that
his should be the hand by which the mischief is inflicted. He
first three^counts of an indictment alleged, in the usual fonn, that
J. T. did shoot at A. B., and went on to state that M. and N.
were present aidiiig and abetting ; the second and third counts

(4) Bex V. Akenhead, JV^«rfAif«i»«r- HiKT. 1806, MS. Bayley, J^aajKaB.
imtd. 1S16, 1 HoU*8 N. P. B. 469. & By, 99« Jnie, SS.

(a) Bax V. White and RicbardaoB,

CHAP. X.] Lard EUenharougk'B Act, 43 Geo. S. e. 58. 603

vaiying from the first only in the allegations of the Intent : the
three last counts (varying in like manner as to the intent) stated,
that an unknown person shot at A. B., and that the said J. T. and
M., and N., were present aiding and abetting the said unknown
person, the felony aforesaid, in manner and form aforesaid, to do
and commit, and were then and there knowing of and privy to
the committing of the said felony^ against the statute, &c., but
did not charge them with being feloniously present, &c« The jury
found J. T. guilty ; but stated, in answer to a question put to
them, that they aid not find that J. T. was the man who fired at
A. B. Upon which an objection was taken in arrest of judgment,
that the tnree last counts were defective,- on account of the omis-
sion of the word fehniotufy s and that no judgment could be en-
tered on the three first counts, as the jury had negatived that J. T.
was the man who fired. The learned Judge overruled the objec-
tion, which he considered as founded upon a supposed difference in
the act of shooting, ftc, and being present, &c., at the act; ' '
whereas the statute had made no such distinction. And he held
the plain meaning and necessary construction of the statute to be,
that if parties are present, &c., knowing, &c., the charge of felo-
niously shooting applies to every one of them. He reserved the
point however for the consideration of the Judges; who were all
of opinion that the conviction was right, (b)

It has been suggested, that where an ine£Eectual exchange of sbootiflgia«
shots takes place in a deliberate duel, both the parties may be ^^*^^
guilty of the offence of maliciously shooting within this statute ;
and the seconds be also guilty as' principals in the second degree i
but this is mentioned as not having been any where expressly
decided. (/)

This Chapter may be concluded with the mention of the Irish Conspiring or
statutes, 36 Geo. 3. c. 27. and 38 Geo. 3. c. 67.; by the former £^,^3^15?**
of which the conspiring to murder any person, and by the latter /rebmd.
of which, the proposing, soliciting, encouraging, persuading, or
endeavouring to encourage or persuade to murder, are made capital
felonies, (m)

(*) Rex V. Towle and others, Mich. (/) 3 Chit Crim. L. 848. note (w).
T. 1816. Riiss. & Ry. 914. S. C. S (m) 5 Evans's Col. jStat. Party, CI.
Bfarsh 466. And see ante, 22^ 88. iy. No. 19. in the note.

V , »

604

CHAPTER THE ELEVENTH.

OF COMMON AND A66BAVATBD ASSAITLTS^

Deflnitloii of
an assault*

No words will
amoant to an
assault.

Ofabatteiy.

SECT. I.

Of Common Assaults.

An assault is an attempt or offer^ with force and violence, to doi
corporal hurt to another ; as by striking at another with a stick or
other weapon, or without a weapon, though the party strikkg
misses his aim. So drawing a sword or bayonet, or ereo hoUiof
up a fist in a menacing manner, throwing a bottle or ^lass with
intent to wound or strike, presenting a gun at a person who £
within the distance to which the gun will carry, pointing a pitch-
fork at a person who is within reach, or any other similar act,
accompanied with such circumstances as denote at the time ao
intention, coupled with a present ability, of using actual violeoce
against the person of another, will amount to an assault, (a)

But it appears to be now quite settled, though many ancient
opinions were to the contrary, that no words whatsoever, be they
ever so provoking, can amount to an assault, [b) And the words
used at the time may so explain the intention of the party as to
qualify his act, and prevent it from being deemed an assault : as
where A. laid his hand upon his sword, and said, ^^ If it were not
^' the assize time, I would not take such language from you," it
was holden not to be an assault, on the ground that he did not
design to do the other party any corporal hurt at that time, aod
that a man's intention must operate with his act in constitutii]^
an assault, (c)

A battery is more than an attempt to do a corporal hurt to
another : but any injury whatsoever, be it ever so small, being
actually done to the person of a man, in an angry or reve^gefu^

(a) 1 Hawk. P. C. c. 62. 8. 1. ] Bac. $ault and Battery, I.
Ab. Jtfault and Battery (A). 3 Blac. {b) 1 Hawk. P. C. c. 62. s. i., jittc.

Com. 120. 1 Burn. Just. A9$ault and Ab. A»$ault and Battery (A)..
Battery, I. 1 East. P. C. c. 8. s. 1. p. {c) Turberville «. Savage* J Mod^l.

406. Bull. N. P. 15. Selw. N. P. ^f- S. C. 8 Keb. 545.

HAP.xi. $L] Of Common AsaatUts, ^c. 6Q5

» i_

r rude^ or insolent manner, such as spitting in his face, or in any ^

^aytouchii]^ him in anger, or violently jostling him out of the
^ay, is a battery in the eye of the law,(d) For the law cannot
raw the line between different degrees of violence, and, there-
ore, totally prohibits the first and lowest stage of it; every man's
lerson being sacred, and no other having a right to medole with
t in any the slightest manner, (e) It should be observed that
ivery battery includes an assault. (/*)
The iiyury need not be effected directly by the hand of the Theinjniy
rypjMirty. Thus there may be an assault by encouraging a dog to d^t°ftt)m
' "^bite ; by riding over a person with a horse ; or by wilfully and the hand of
violently driving a cart, &c. against the carriage of another person, ^e i»rty a»-
and thereby causing bodily injury to the persons travelling in it,{g) ** ^^'
^,.^r.And it seems that it is not necessary that the assault should be
immediate ; as where a defendant direw 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 Lis eye, it
was adjudged that this was actionable as an assault and battery. (A)
And the same has been holden where a person pushed a drunken
man against another, and thereby hurt him : (t) 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. (A)
There may be an assault also by exposing a person to the in- Assault by ex-
: clemency of the weather. Thus, in a case where an indictment JS^^to rtT*
. against a mistress for not providing sufficient food and sustenance inciemetfcy
;' for a female servant, whereby the servant became sick and ema-. of thewea-
ciated, was ruled to be bad, because it did not allege that the ^^''
servant was of tender years, and under the dominion and control
• of her mistress ; it was suggested that the indictment also charged
. that the defendant exposed the servant to the inclemency of the
, weather ; and it was holden that such exposure was an act in the
nature of an assault, for which the defendant might be liable,
whatever was the age of the servant. (/)

If a master take indecent liberties with a female scholar without Assault hj In-
her consent, he is liable to be punished for an assault; though Jj^^*^
she did not resist. A master took very indecent liberties with a males,
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,

(d) 1 Bac. Ab, Js8. 4 Bat. (B.) 1 (t) Short v. Lovejoj, cor. Lee, C. J.
Hawk. P. C. c. 62. s. ^. 1752. Bui. Ni. Pri. 16.

(e) 4Blac. Com. ISO. (k) Id. ibid,

(/ ) Termes de la ley, B alter jfy I (/) Rex v. Ridley, cor, Lawrence,

Hawk. P. C. c. 69. s. 1. 1 Bac. Ab. J. Salop Lent Ass. 1811. 2 Caaifib.

A»$. b;Batt.X^), 650, 653. The counsel for the pro-

(g) See the precedents for assaults secution admitted that they could not

of tliis kind in Cro. Circ. Comp. 65. prove this charge in the indictment to'

3 Chit. Crim. L. S83, 884, 825. 9 any extent ; and the defendant was «

Starkie, S88, 389. accordindy acquitted. That nefpli- .

(Jk) Scott V' Shepherd, 8 Blac. Rep, geoceaaa harsh usa^e may be a means

892, by three juc^es ; Blackstone^ J. of committiDg murdefy see ante, 426.
eenira, 3 Wils. 403. S. C. . ^

006 Of Common A$$auU$. [bmkol

fUid alflo of a coBunon assault; and the Judges thoo^t tbefiadhf
aa to the latter clearly ri^t.(a) And ini3ung a feaaak
Btr^ naked, under pretence that the defendant, a ssfsdii
titioner, cannot othenrise judge of her illness, if fae ~
off her clothes, is an assault* A girl of sixteen was taken by fatf
parents to the defendant, a German cpiaek, on account ei iis hy
which she was afflicted ; he said he would cure her, and bid ha
come again the next morning : she went accor&igly the dcsI
morning byherseff, and he told her she must strip naked; she
said she would not. He said she must, or he could not do any good.
She began to untie her dress, and he strifvped off aU ber ckidies;
she did nothing ; he pidled off ei>ery thkig ; she told him ahe £d
not like to be stripped in that manner. When she waa naked^ he
rubbed her with a liquid. The case was left to the jvtry te
sider whether the defendant believed that stripping the ^hrl
assist his judgment, or whether he did not strip her WMitoidy
without thinking it necessary ; and they were told that the mddng
her strip and pulling off her clothes nught under the latter cir-
cumstances justify a verdict for an assault. The jiny ibimd the
defendant guilty ; and, upon a case reserved, it was held that ike
conviction was right. (6)
An aiiaiili An utUawJiii (mprisanmeni is also a» assault ; for it is a wrong

xBfty ^ ^7"* done to the person of a man, for which, besides the private aatis*
^|^][^^* &ction given to the individual by action, the law also demands
public vengeance, as it is a breach of the king's peace, a loss
which the state sustains by the confinement of one of ita membeis,
and an infringement; of tiie good order of society.(m) To eon*
'stitute the injury of false imprisonment, there must be an unlaw*
fed detention of the person. With respect to the detention, k
may be laid down that every confinement of the person, whether
it be in a common prison, or in a private house, or by a fofc3Ue
detaining in the public streets, will be sufficient, (ti) And such
detention will be unlawful unless there be some sufficient antho-
rity for it, arising either from some process from tiie courts of
justice, or from some warrant of a le^ officer, having pewter to
commit under his hand and seal, and expressing the cause of sadi
commitment ; or arising from ^ome other special' cause sanotaoned^
for the necessity of the thing, either by common law or by act of
parliament, (o) And the detention will be unlawfiil, though the
warrant or process, upon which it is made, be regular, in case
they are executed at an unlawful time, as on a Sunday; or in a
place privileged from arrests, as in the verge of Uie king's
court. (/») Especial provision is made concemmg the arrest of

(a) Rex V, Nichol, Mirh. T. 1807. sonment as amounts- to Kidnapping,
IIS. Bajley, J., and Rosb. & Ry. ISO. &c. see anle, -689, #1 tefu.

(b) Rex V. Rosinski, East. T. 1S94. (») 8 Inst. 589. 4Coni. Dig. Imfri^
MS. Baylej, J., and Ry. & Mood, f omRtfnl. (6). 8 Blac. Com. 197.

C. C. 19. (o) 8 Blac. Com. 1S7.

(m) I Hawk. P. C. e. 60. s. 7. 4Bl8c. (p) 14. ibid. S9 Car. S. e. 7. Andten

Com. SI 8. And see preeedeots*of in- further as to unlawful imprinoniaents,

dretmenls for ASMults and false im- 4 Com. Dig. ImpriM&nmenU (H).'S Bm.

prieonraent Gro. Circ. Comp. 61,99. kh* TrewprntB \py%. SMw. N.F. im>

S aiark. S85, 886. 8 Chit Crira. L. pHfMMteirf.
SS5| #f Hfu. As to suck false 4mpri-

2

n

CHAF. xx. ( 1.3 B^ Vnlauifki Inqyrisonment. 007

^ foreign ambassadors, or other foreign pnMie ministers, aoid their
3 domestics, or domestic servants, by the statiite 7 Anne, c. 12.
' which makes any process against them, or their goods and chat-
tels, altf^ether void; and provides, that the persons prosecuting,
sofidting, or executing, such process, shall be deemed violators
of the hw of nations, and distarbars of the jmbHc repose; and
shall snfier such penalties and coiporal punishment, as the Lord
Chancellor^ and the two Chief Justices, or any two of thena, shall
think fit. But no trader within the description of the bankrupt
laws, who shall be in the service of any ambassadOT, or public,
minister, is to be privileged or protected by this act; nor is afty
one to be punished for arresting an ambassador's servant, unless
the name of such servant be registered in the office of one of the
principal secretaries of state, and by him transmitted to the
sheriffs of London aad Middlesex, or their undersherifiii or depu-
ties. (7)

It has been supposed that every imprisonment includes a bat- Eveiyiinpri-
tery :(r) but this doctrine was denied in a recent case, where it *°^*'j!,??^
was said by the court that it was absutd to contend that every battery. ^
imprisonment included a battery. («)

Whether the act shall amount to an assault must^in every case, The intention
be collected from the intention. Thus, in an action for an assault, withwiiich
where it appeared that the defendant and another person were J^'JSiriJiHn*
fighting, when the plaintiff came up and took hold of the defendant theioquiry
by the fcoUar, in order to separate tiie combatants, upon which whether it
the defendant beat the plaintiff, it was objected to the counsel for JJ^JJ^St*^
the plaintiff, who offered to enter into this evidence, that it ought
to have been specially stated in the replication to the plea of son
assault demesne : but the objection was overruled, oh the ground
that tile evidence was not offered by way of justification, but for
the purpose of shewing that there was not any assault, and that it
was the quo animo which constituted an assault, which was matter
to be left to the jury.(/) So to. lay one's hand gently on another
whom an officer has a warrant to arrest, and to tell the officer
that this is the man he wants, is said to be no battery, (te) And
if the injury committed were accidental and undesigned, it will
not amount to a battery. Thus, if one soldier hurts another by
discharging a gran in exercise, it will not be a battery, (t;) And it
is no i>attery if, by a sudden fright, a horse runs away with his
rider, and runs against a man.(tcr) So where upon an indictment

(9) See as to the occasion of passing Ab. A%t, tf BatL (B).

this act, 3 Blac. Com.^M, S65, 25S.; (v) Weaver v. Ward, Hob. 134. S

and, as to the construction of it, the Roll. Ab. 648. 1 Bac. Ab. JȤ, ^ BaU.

cases collected in 2 Bfsns*8 Col. Stat. (B). But if the act were done without

Part I v. Ct. lit. No. 91. sufficient caution, the soldier would

(r) Bull. N. P. c. 4. p. 99,i and the be liable to an action at the suit of

opinion was adopted b J Lord Ken jon, the party injured; for no man will

in Oxiey v. Flower and another, 8 be excused from a trespass, unless it

Selw. Bf. P. ImprUonmem^ I. be shewn to have been caused by

(«)£mfflett V. Lyne, 1 New Bep. inevitable necessi ty, and entirely wilh-

%5&. out hb fault. Dickenson v. WatsoUt

(I) Griffin v. Parsons, Glouee$ier Sir T. Jones, le05. Underwood v Hew*

Lent Ass. 1754. Selw. N.P. M». 4 son, 1 Str. 686. 2 Bkc R. 8D6. Selnv.

Bait. 83% Note (I) N. P. Jm. t$ BaU. 9^

(a) 1 Hawk. P. C. c. 08. s. 8. 1 Bac ip) Gibbous «. Fppper» 4 Mod. 406»

608 Of Common As$auUi. [book, in*

for tlirowing down skins into a man^B yard^ being a public wnjf
by wliich a person's eye was beaten out, it vppeared bv the en-
denee^ that the wind blew the skin out of the way^ and that the
injury was caused by this circumstance, the defendants were ac-
quitted, (jr) It seems also that if two, by consent, play at cudgels,
and one happen to hurt the other, it would not amount to a bat*
tery, as then: intent was lawful and conunendable, in promoting
courage and activity, (y)
Cases where Iii some cases force used against the person of another may be
the force used justified, and will not amount to an assault and battery. Thus, if
fied^ and^wiil ^° officer having a warrant against one who will not suffer himself
not amount to to be arrested, beat or wound him, in the attempt to take him ; or
an assault. jf a parent, in a reasonable manner, chastise his child ; or a master
his servant, being actually in his service at the time ; or a school-
master his schola^; or a gaoler his prisoner ; or if one confine a
friend who is mad, and bind and beat him, &c. in such a manner
as is proper in such circumstances; or ijf a man force a sward
from one who offers to kill another therewith ; or if a man gently
lay his hands upon another, and thereby stay him from inciting a
dog against a third person; no assault or battery will be com-
mitted by such act8.(2) So if A. beat B. (without wounding him,
or throwing at him a dangerous weapon,) who is wrongfully en-
deavouring, 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.'8 laying
his hands gently upon him, and disturbing him ; or if a man beat,
wound, or maim, one who is making an assault upon his own
person, or that of his wife, parent, child, or master ; or if a man
fight with, or beat, one who attempts to kill any stranger ; in
these cases also it seems that the party may justify the assault
and battery.(a) It has been holden that a master may not justify
an assault in defence of his servant, because he might have an
action for the loss of his service :(&) but a different opinion has
been entertained on this point ;(c) and in a modern case Lord
Mansfield said, ^^ I cannot say. that a master interposing, when
^' his servant is assaulted, is not justifiable under the circum-
*^ stances of the case ; as well as a servant interposing for his

But if the horse running against the the plaintiff and defendant foaght
man were occasioned by a third per- together by consent, the fighline itself
son whipping him, such third person being unlawful : and the case of Mat-
would be the trespasser. 1 Bac. Ah. thew v. OUerton, Comb. 818. is abo
jiit, ^ Bati, (B). And, upon the prin- referred to as an authority, that if oae
ciples which have been before men- license another to beat biro, siich li-
tioned, such an act in a third person, cence is no defence, becaaae it a
causing death to any one, may, under against the peace. And see axle, &87,
certain circumstances, amount to fe- ei tequ, as to the criroinaiity of soane
lony. yinte, 5S6. games or sports

(jr) Rex ^. Gill and another, 1 Str. (z) 1 Hawk. P.C. c. 60. a. 8S.| I Bac

190. Ab. J$». 8f Bmti. (C).

(y) 1 Bac. Ab. Ju. ^ Baii. (B). refer- (a) 1 Hawk. P. C. c 60. a. tS. and

ring to Dalt. c. 92. Bro. Coron. 290. the numerous authorities thetm cited.

But IB the notes to Bac. Ab. ub. tvp. 1 Bac. Ab. J$$. if BmU. (C).

the case of Boulter v. Clark, yfkingdMt (b) Leward v. Baaeley. I Ld. Bays.

Ass. cor. Parker, C.B. Bnl. N.P. 16. 6S. 1 Sal^.407. Bull. N.P. 18.

is referred to, in which it was ruled (e) I Hawk. P.C. c.60«t. 94.
that it was no defence to allege that

CHJTP. XI. § 1.] When Justifiable. 609

!' master: it rests on the relation between master and servant.*' (d)
It is said, that a servant may not justify beating another 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 the
like reason a tenant may not beat another in defence of his land-
lord, (e) A wife may justify an assault in defence of her husband, (f)
« It has been holden that a defendant may justify even a maihem,
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 at 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. (§^)

It should be observed, with respect to an assault by a man on Where there
a partv endeavouring to dispossess him of his land, that where ».» trespaw
the injury is a mere breach of a close, in contemplation of law, tual violence
the defendant cannot justify a battery without a request to depart; there must be
but it is otherwise where any actual violence is committed, as it a^qaw to
is lawful in such case to oppose force to force : therefore, if a ^{^ before '
person break down the gate, or come into a close vi et armisy the force is used,
owner need not request him to be gone, but may lay hands on
him immediately; for it is but returning violence with vio-
lence. (A) So if one. come forcibly and take away another's goods,
the owner may oppose him at once, for there is no time to make
a request. (t) But, in general, unless there be violence in the
tre^ass, 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 resist-
ance. (A) Thus, where a churchwarden justified fcdcing oflf the
hat of a person who wore it in church, at the time of divine ser-
vice, the plea stated, that he first requested the plaihtifF to be
uncovered, and that the plaintiff refused. (/) And in all' cases
where the force used is justified, as not amounting to an assault^
under the particular circumstances of the ca^e, it must appear
that it was not greater than was reasonably necessary to accom-
plish the lawful purpose intended to be effected, (m) Therefore,
though an offish ta stnke the defendant, first made by the prose-

(^ Tickel V, Read, Lofft 215. satdi demesne^ and the jplain tiff replied

(e) 1 Hawk. P. C. c. 60. s. 24. that he was possessed ota certain close,

(/) Leward v, Baselej, 1 Ld. Rajm. and that the defendant broke the gate

6fi. * and chased his horses in the close, and

ig) Lane o. Degber?, 11 W. 3. per that he, for the defending his posses-

Treby, C. J. Bnll. N. P. 19. sion, mollUer insultum fecit upon the

(A) Green t^. Goddard, 8 Salk. 641. defendant, the replication was ad-

In a case of this kind, however, it judged to he bad: and that it should

sHouId seem that the violence must be have been moUiter manus impotuit^ as

considerable, and continuing, in order the plaintiff could not Justify an as-

to Justify the application of force by sault in defence of his possession.

the owner, without some previous re- Leward v. Baseley, 1 Ld. Raym. 62.
quest to depart; at least, if the force (i) Green v. Goddard, ihid,
applied be more than would be justi- ' {k) Weaver v. Bush, 8 T. R. 7d. 1

fied under a molliter manut imponuit : Selw. N. P. A89. £f Bat. 39, 40.
for* ta a case of assault and battery, (/) Kawe v. Planner, I Saund. 13.
where the defendant pleaded non at- (m) I East.?. C. c. 8. s. 1. p. 409%

VOL. U 2 R

610

Of Common Assaults,

[book Iff.

If^ictment.

OneindicS
ment may be
preferred for
unulting
twoperBOB*.

Indictment of
two counts,
one for a riot,
and the other
for an assault,
found by the
grand jury a
true bUl as to
the assault,
and ignoranuu
as to the riot,
holden good.

Plea.

Where the de-
fendant has
pleaded and
entered into a
recognizance
to appear, en-
ter, and trv his
traverse, he
cannot be
tried, without
ent^ng his
trarerse, un-
der the gaol
delivery. But
he may with-
draw his plea,
without en-
tering his tra-

cutor^ is a sufficient assault by him to justify the defendant in
striking, without waiting till the prosecutor had actuallf 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 whe-
ther the retaliation by the defendant were excessive, and out of all
proportion to the necessity or provocation received, (n)

The party injured may proceed against the defendant by actioa
and inmctment for the swae assault : and the court in wiuch the
action is brought wilt not compel him to make his election to
pursue either the one or the other ; for the fine to the King, upon
the criminal prosecution, and the damages to the party in the
civil action, are perfectly distinct in their natures, (o)

It appears to have been formerly holden that a person could not
be prosecuted upon one indictment for assaulting two persons^
eacn assault being a distinct ofience.(p) But the case has been
subsequently treated as one which was not well considered ; and
the court said, ^ Cannot the King call a man to account for a
'^ breach of the peace, because he broke two heads instead of
" one ?'* (ff)

In a case where an indictment preferred before the grand jury
consisted of two counts, one for a riot, the other for an assaid^
and the grand jury onfy found it a true bill as to the count for an
assault^ and indorsed ignoramus on the count for a riot, a motion
was made on. the part of the prosecutor to quash it, on the
ground that the grand jury should have found the whole to have
been a true bill, or have rejected the indictment altogether: but
the court held, that as there were two distinct counts, the finding
a true bill as to one count only, and rejecting the other, left the
indictment, as to the count which the jury bad affirmed, just as
if there had originally been only that one count.(r)

Whatever is a legal justification or excuse for an assault or im-
prisonment, such as son assault demesne j the arrest of a felon, &c.
may, upon an indictment, be giv^n in evidence under the general
issue, (s)

A case has been decided, relating to the course of proceedings
where a defendant indicted for an assault has entered into a re-
cognizance to appear, entierj and try his traverse. The defendant
was in the first instance apprehended for an assault, carried before
a magistrate, and admitted to bail, on the condition of his ap-
pearing at the ensuing assizes to answer such indictment as mi^t
be preferred i^^atnst him \ which condition he performed; aiMi a
bill of indictment being found against him at such assizes, he
was arraigned, pleaded ^' Not Guilty,'' and entered into a recog-
nizance to appear, enter j and try his traverse at the then next
assizes. On the d^y before the opening of the commission for the
ne^t assizes, he surrendered himself to prison in discharge of his
bail ; and to avoid paying for the issue^book, the entry of his

(fi) Bull. N. P. 18. 1 East. P. C. c. 1578. 8 Str. 870.

8. s. 1 . p. 406; (q) Ptr Cur. in Rex «« BenAeld and

(o) Jones V. Claj, 1 Bos. and Pnl. Saonders, 8 Burr. 984.

191. 1 Selw. N. P. A9t. t$ Bat. S8. (r) Rex v. Fieldhouse, Cowp. 385.

note (8). 1 Hawk. P. C. c. 68. s. 4. (#) 1 Hawk. P. C. c. 68. s. S. 1

1 Bac. Ab.iAu. ^ Bat. (D). Bac. Ab. Ju. $ Bat. (D). 1 East F. C

CP) Bex 9. Clendon, 8 Ld. Raym. c* 8. 8. 1. p. 40<l. and c.8. s. 1. p.4S8.

CRAF. xf . § 2.] Of Aggravated Assaults. 6 1 1

traverse, and aQ other court fees, he endeavonred to be tried rent. And if,
under the commission of gaol ddivery : but his trial under this ^fore he
commission was opposed by the officers of the court, on the ^i!^ 'he hid
mund that by omitting to enter his traverse he had not per- given notice
fonned the condition of his recognizance. The learned Judge ^^ ^"^
entertaining some doubts whether, as the defendant was in cus- ^^ t^us
tody, he could refuse to try him, directed him to be tried, as in travene, .ha
the case of any common gaol traverse : but, in order to settle the ?*«^* ^^®
practice in future, he afterwards submitted flie matter to the ^^*
Judges for their consideration. They were unanimously of opi-
nion, that the defendant ought not to have been tried, as he had
not performed the condition of the recognizance. But they all
thought that he might have come in and moved to withdraw his
plea of *' Not Guilty," and have pleaded •* Guilty," without en-
tering his traverse, either on an agreement with the prosecutor,
or on giving him proper notice of his intention so to do. And
they hkewise agreed, that if before he had come in to plead he
haa given the prosecutor ten days' notice that he would at the
same time try his traverse, he might have done so.(/)

As every battery includes an assault, (tt) it follows, that on an Vei^^of
indictment of assault and battery, in which the assault is ill laid, g^Xi^y of the
if the defendant be found guflty of the battery, it is sufficient, (w) ^''^'^ only.

This ofience is punishable as a misdemeanor : and the punish- Pnidshment
ment usually inflicted is fine, imprisonment, and the finding of
sureties to keep the peace.(jr) But as the offisnce, though un-
doubtedly in some degree concerning the public, principa&y and
more immediately affects an individiml, the defendant is frequently
permitted by the court to speak with the prosecutor^ after convic-
tion and before any judgment is pronounced ; and if the prose-
cutor declares himsetf satisfied, a trivial punishment, generally a
fine of a shilling, is infficted.(y)

SECT. IL

Of Aggravated Assaults.

Attbmpts to murder, or do some great bodily harm, (a) and as-
saults with intent to ravish, (£) or to conunit an unnatural crime, (c)
have been already noticed. Also assaults occurring in the ob-
Biruction of officers executing process (cQ in effecting a rescue, (f)
in the dbstruetibn of revenue officers,(/) and in the hindering the

(^ Rex r. At» evr. Vares, J. S9uih^ (y) Aniej 136.
mmpten Am. and considered of by the (a) Jnte, Chap. t.
Judges, HiL T. 1770, 1 l4«ch 111. (d) Ante, 6es, 664.

(w; 1 &wk. P. C. c 68. s. r. (lO Anie^ S60, et sequ.

(jt) 4 Blac. Com. 917. 1 East. P.O. (0) Ante, 671, S62, S89, ei seqtt.
c. 8. s. 1. p. 406. and c. 9. s. 1. p. 498. (/) Amte^ Wl^et teqm,

2b2

or drawing
one with in-
tent to strike.

612 Of JggravaUd Assaults, [book iff.

exportation or circulation of com,(§^) have been mentioned in the
course of the Work. The aggravated assaults which remain to be
noticed in this place, are principally such as have been made the
subject of particular legislative provision ; and the peculiar a^^^-
vation appears to arise^ either from the place in which, or the
person upon whom, the assault is committed, or else from the
great criminality of the purpose or object intended to be effected.
5 & 6 £dw. 6. The statute 5 and 6 £dw. 6. c. 4. relates to disturbances in
c. 4. 8. 2. churches and church-yards ; and the second and third sections of
laying violent ^^ Statute make particular provision for the punishment of as-
bandsina saults committed in those places. The second section enacts,
^^^\ ^^ A ** ^^^^ ^ ^^y person or persons shall smite, or lay violent hands
c c -yar . <j upon any otner, either in any church or church-yard," every
person so offending shall be deemed excommunicate. The third
S. 3. Striking Section enacts, ^' that if any person shall maliciously strike any
with a weapon «« person with any weapon in any church or church-yard, or shall
chuTch"va^°' " draw any weapon in any church or church-yard to the intent to
~ J — •'- ' " strike another with the same weapon," every person so offend-
ing shall be adjudged to have one of his ears cut off; and, if he
have no ears, to be marked in the cheek with a hot iron having
the letter F therein, to denote him as a fray maker ; and that he
shall also be and stand excommunicated.

Some points upon the construction of this statute have been
mentioned in a former part of the Work ; where it was stated that
cathedral churches and church-yards are within it ; that it will be
no excuse for a person who strikes another in a church, &c. to
shew that the other assaulted him ; and that churchwardens, and
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 upon those who disturb
the performance of any part of divine service, and turn them out
of the church, are not within the meaning of the statute. (A)

With respect to the indictment upon this statute, it may be
here mentioned, that where it was charged that the defendant
drew his dagger in a church, without stating that he drew it with
intent to stab, the indictment was holden void as to the statute ;
and, upon its being contended that it was good for the assault at
common law, the court held, that it was altogether bad« as the
conclusion was contra fonnam statutL{i) It is clear that the
indictment should allege, either that the party struck with the
weapon, or that he drew the weapon with intent to strike.(A:)

Contempts against the King's palaces have always been looked

upon as high misprisions ; and, by the ancient law before the con-

l^H^TptUaces, quest, fighting in the King's palaces, or before the King's Judges,

Indictment
upon 5 and 6
£dw. 6. c. 4.

33 Hen. 8. c.
12. Malicious
striking in the

(g) Ante, 196 4 el Bequ,

{h) Anlt, S79. And see anie^ 876,
979, the statute cited more at lenglh.

(0 Rex V. Perchall, 2 Leon. 188.
Rex V. Penhallo, Cro. EUz. 231. And
in Rex v. Cholmlej, Cro. Car. 464,
465, all the Jadges, except Jones, J.
held that the indictment could not be
good for a batterT at common law,
Secause it concluded contra formam

itatuti. But, according to more re-
cent decisions, it seems that such a
conclusion would now be consdered
as mere surplusage, 1 Stark. 217.
Rex V. Mathews, 2 Leach 585. 1
Hawk. P. C. c. 30. 8. 9.

{k) Rex V. Cholmley, Cro. Car. 464,
465. 2 Hale 1 7 1 . I Bast. P. C* c. 8.
s. 4. p* 411.

CHAP. XI. § 2.] In Courts of Justice. 615

was punished with death.(/) The statute 33 Hen. 8. c. 12. by which -
enacts, that all malicious strikings by which blood is shed^ against **^°^ " ^
the King's peace^ within any of the King's palaces or houses^ or
any other house at such time as the royal person shall happen to
be there demurrant and abiding, shall be inquired of by the Lord
Steward ; and that the offender shall be punished by perpetual
imprisonment, and fine, at the King's pleasure, and also with the
loss of his right hand. The execution of the latter part of the
sentence, witJbi solemn and due circumstance, is prescribed by the
particular and minute provisions of the statute, (m) It is clear
that, unless the person striking in the King's palace draw blood,
he will not be liable to the punishment under this statute, (n) But
it seems questionable, from the construction of the whole act and
the general tenor of the books, whether striking in a palace,
wherein the King is not at the time actually resident, be within*
.the statute, (o)

Striking in the King's superior courts of Justice in Westmin- Drawing a
ster-hall, or in any other place, while the courts are sitting, whe- weapon, or
ther the court of chancery, exchequer, king's bench, or common iSlff*»*ciwS*
pleas, or before Justices of assize or oyer and terminer, is made' o/jmtke.
still more penal than even 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 the former
contempt against the King's palace, and something more, namely,
the disturbance of public justice, (jo) So that, though striking m
the King's palace is not punished with the loss of thc( offender's
hand, unless some blood be drawn, nor even then with loss of
lands or goods, the drawing of a weapon only upon a Judge or-
Justice in such courts, though the party strike not, is 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. (9) And a party is liable to a similar
punishment, if, in the same courts, and within their view, he

(/) 4 Blac. Com. 124. brought in to auder^o his sentence,-

(m) S3 Hen. 8. c. 18. s. 8. to s. 18. ** desired that the Kin? of his benign

(n) 3 Inst 140. 1 Hawk. P. C c. '* grace would pardon him of bis right

81- B. 3. *' hand, and take the left : for (quoth

(o) 1 Hawk. P. C. c. 81. 8. 8. where '' he) if ray right hand be spared, I

it is said, that the instance given in ** may hereafter do such good ser-

3 Inst. 140. of a pprson*s hand bein^ ** vice to his grace as shall please him

cut off for striking in the Tower, is ** to appoint. Of this submission and

not warranted by the record. The " request the justices forthwith in-

punishment of cutting off the hand is " formed the King, who, of hiHgood-

undoubtedly one of great cruelty ; ** ness, considering the gentle neart

and it is therefore a satisfaction to be *' of the said Edmond, and the good .

able to speak of it as of rare occur- " report of lords and ladies, granted

rence in the history of the adniinistra- " him pardon, that he should lose

tion of our criminal laws, even in the ** neither hand, land, nor goods, but

more barbarous ages. It is said, that ** should go free at liberty." Rex v, •

DOt more than ten cases of the kind Sir Edmond Knevet, 1 1 St. Tri. (Harg.

occur in our books. In the year 1541 Ed ) 16.

(33 Hen. 8.) the sentence of Sir Ed- (p) 3 Inst. 140. 4 Blac. Com. 185.
raond Knevet to undergo this punish- (7) Staundf. 38. 3 Inst. 140, 141.

ment, gave occasion to a display of 1 Hawk. P. C. c. 81. s. 3. 4 Blac.

loyal dcTotion, which cannot but be Com. 185. 1 East. P. C. c. 8. s. 9. .

read with interest Sir Edmond being p. 408.

614 Of AggravcUed Assaults ttpgn Prky £book iit.

strike a juror or any other person^ dther with a weapon, ar wtHi
hjmd, shouldear, elbow, or foot : but he is not lifMe to such p««
i^i^hmeBt if he make w^ assault only, and dp not strike.(r) Aad
one who is guiky of this offence cannot esncuse himself by shew*'
iilg that the person soj^truck by him gave the first aasauk«(«)
LordThaiiet*8 In a case of modem occurrence, the three first counts of tibe
^^; infonnalion set forth a special commission f<K* the trial of Arthur

ente^^^he O'Connor and others for high treason ; and that, pending the sea-
attoraey-ge- sions, after the acquittal of O'Connor, and before any order or
fuTment^of'^ direction had been made by the court for hjs discbiuqie, the de-
amp^tioo, fendants, in open court, &c. made a great rio<^ and riotously at-
&c. tempted 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 escape, did, at the said
sessions, in open court, and in the presenoQ of the said Justices
and commissioners, riotously, &c. make an assault on one J. R«,
and did then and there ^' beat, bruise, wound,* aed ill treat the
aaid J. R., and Uiereby impede and obstruct the said Justices, &c«
There were two other coujnts in the information ; the one for riot-
ously interrupting and obstructing the Justices in the holding of
the session, and the other for a common rk)t.(0 Two of the de-
fendants having been found guilty generaUy, considerable doubt
was intimated by Lord Kenyon, whether the court were not bound
to pass the judgment of amputation, &c. for the offmce, as laid in
the three first counts ; and the m^ttar stood over for considera-
tion^ But before the d^ndants were again brought up to receive
judgment, tiie attorney-general said, that he had received the
royal command and warrant under the sign manual, whereby he
was authorised to enter a noli prosequi,^ as to those parts of the
information on which any doubt had arisen, or might arise, whe-
ther the judgment thereon were discretionary in the 'court, and
pray judgment only on such charges as left the judgment in their
discreticm : and, accordingly, a noli prosequi was entered on the
three first counts ; and on the others the court gave judgment
against the defendants, of fine, imprisonment, and sureties.(ti)
Rescuing a A person who rescues a prisoner from «my of the courts which

^"T°* urta™ ^*^® ^^^ mentioned, without striking a blow, is punished with

^thoat perpetual imprisonment, and forfeiture of goods, and of the pro-

ttriking. fits of huidfi during life ; for this offence is in its nature simjiar to

th^ other : but as it differs in this, that no blow i» actually given.

(r) Raondr. S6. S Inst 140, 1 41. markable for the Mpeedy j

1 Hawk. P. C. c. SI. s. 3. 4 Blac. afinears to have been adoiinislMred

Com. 18S. 1 Bast P. C. c. 8. t. S. ** kichardfum. Chief Justice of C. B.

p. 408. ** at the asstEes at Salifibury, ia liie

(f) 1 Hawk. P. C. c. SI. 8. 4. " sommer of 1SSI« w«i aasaulted by

(I) See the precedent of this ia* " a prisoner eoadenaed there -for fe«

formation, S Chit. Crim. L. 808, €t ** lony, who after his condenmatioa

iCfu, '* threw a brickbat al the aaid Judse,

(u) Rex «. Lord Thaaet aad others, '^ which narrowly misBeds and for tais

B. R. Trin. 39 G. 9. 1 East. P. C. c. *<. an indictinent was iuHaedialeiy

8. s. S. p. 408, 400, 410. In &ex o. «« drawn by Not againsilhiB prisoaer,

DaTis, Dy. ISS a. 188 b. and the.notes '' and his righft baad cat off and fixed

thenetiD, are Tarioos instances of the *' to the dbhet, upon wiiich he was

judgaiept having been executed to *' himself iramodialely iiaaged in the

the fall extent. One of them is re- ** presence of the court.^

CHAP. XI. $ 2.] C^mrneUors, Members (^Parliament, ^c. 615

the amputation of the hand is excused, (w) And, for the like
reason, an affiray or riot near the said courts, but out of thiur
actual view, is punishabk by fine and imprisonment during plea-
sure, but not with the loss of the hand, (or)

Though an assault in any of the King's inferior courts of jus- Inferior
tice would not subject the offender to lose his hand i{y) yet, upon ^^^^
an indictment for such an assault, the circumstances under which
it was committed would, doubtless, be considered as matter of
great aggravation. And any affray, or contemptuous behanour
in those courts, is punishable with a fine, by the Judges there
sitting. (2;)

It is said that, in order to warrant Ae higher judgment, the indktmeiii.
ofEence must be charged to have been committed in the presence
of the King, or of the Justices. (a) And it seems, also, that in
order to warrant such judgment, tixe indictment ought expressly
to charge a stroke; though it does not appear whether any tech-
nical word be necessary to be used for that purpose. (&}

The statute 9 Anne, c. 16. makes the assaulting and striking a 9 Ame, c 16.
privy counsellor J in the execution of his ofBce, highly penal. It ^!S?''*°1*"**
enacts, ^^ that if any person or persons shall unlawfully attempt Xpr^loun^
<' to kill, or shall unlawfully assault and strike or wound any per- teiior, in the
^' son, being one of the most honourable privy council of her ^^!^'^° ^^
'^ Majesty, her heirs, or successors, when in the execution of his
<^ office of a privy counsellor, in council, or in any committee of
'^ counciy the person or persons so offending, being convicted,
shall be felons, and shall suffer death, as in cases of relony, with-
out benefit of clergy.

The statute 11 Hen. 6. c. 11. enacts, '^ that if any assault or n Hen. 6. c.
'^ affiray be made to any lord spiritual or temporal, knight of the ^^* A" ^ ^^
'^ shire, citizen, or burgess, come to the parliament, or to the i^^l^an?'^
^^ council of the King, by his commandment, and there being and members of
^^ attending at the parliament or council," tlutt then proclamation parlinment:
shall be made for three several days in the most open place of the ^g. ^ uTm-
town, where the assault or affray shall be made, that the offender sauits tipoa
yield himself before the King in his bench within a quarter of a ^^® "^^^^
year, if it be in the time of the term, otherwise at the next day of raiSamrat.
m term after the quarter ; and if he do not, that he be attainted
of the deed, pay double damages to the party aggrieved, and make
fine and ransom at the King's will : and that if he come, and be
found guilty, that he shall pay to die party grieved his doable da-
mages, ana make fine and ransom at the King's will. A prior
statute, 5 Hen. 4. c. 6., had made a provision nearly similar for
the punishment of persons who should assault the servants of
members of parliament.

The beating a clerk in orders, or clergyman, is also an assault ABsanldng a
of an aggravated nature, on account of the respect and reverence 5*Sf^^"'
due to the sacred character of such person, as the minister and ^'

(tp) 1 Hawk. P. C. C.81. s.5. 4 (s) 4 Blac. Com. IBS. iHawk.P.C

Blac Com. 1S6. c. 81. s. 10.

(x) 1 Hawk. P. C. c. 81. 8. 6. 4 («) 1 East P. C. c. S. 8. 8. p. 410.

Blac. C«m. 186. dnte^ 8T1 . 1 Hawk. P. C. c. 81 . 8. S.

(^) 3 lost. 141. 1 Hawk. P. C. c (b) 1 East P. C. c. S, 8. 8. referring

81. 8. 10. to iSid. 8U.

616 Of Aggravated Assaults, [book iii-

atnbaBsador of peace. And it may be visited with severe penal-
ties J for, as the statute 9 Edw. 2. c, 3, enacts that, if any per-
son lay violent hands upon a clerk, the amends for the peace
broken shall be before the King, that is, by indictment in the
King's courts ; and, as the assailant may also be sued before the
bishop, that excommunication or bodily penance may be im-
posed ; it appears that a person assaulting a clergyman is subject
to three kinds of prosecution, all of which may be pursued for
one and the same offence, namely, an indictment for the breach
of the King's peace, a civil action for the special damage, and a
suit in the ecclesiastical court.(c)
Assault with Amongst the principal of those assaults, the aggravated nature
m^^robb*^' of which may be said to arise from the great criminality of the
AQd demand-' object intended to be effected, is an assault upon a person with a
ing money by felonious intent to commit a robbery : and nearly allied to this is
-i™**^!!i*u^- a demand of property effected by menaces or force, and with the

force, with in • , <• *^ i • i ^ ' rrn_ fv 1 <• 1

tent to steal, mtent of stealing such property, inese offences are made fel€^-
4 Q. 4. C.54. nies by the late statute, 4 G. 4. c. 64. s. 5. which repeals the

statute 7 G. 2. c. 21. which was an act for the more effectual
punishment of assaults with intent to commit robbery, and then
enacts, " that if any person shall maliciously assault any other
*^ person with intent to rob such other person, or shall by me-
*' uaces or by force maliciously demand money, security for mo-
*^ ney, goods or chattels, wares or m'erchandize, of any other per-
'^ son, with intent to steal the same, or shall procure, counsel, aid
^^ or abet the commission of the said offences, or of any of them ;
*^ every person so offending, being thereof lawfully convicted,
'^ shall be adjudged guilty of felony, and shall be liable, at the
** discretion of the court, to be transported beyond the seas for
** life, or for such term, not less than seven years, as the court
^^ shall adjudge, or to be imprisoned and kept to hard labour in
*^ the common gaol or house of correction, for any term not ex-
'^ ceeding seven years." This section also makes it a felony to
threaten to accuse a person with certain crimes, with intent to
extort money, &c. from such person ; an offence which will be
more properly mentioned in a subsequent part of this Work.(a)

The offences described in the 4 G. 4. c. 54. and applicable to
the present subject, appear to be, 1. A malicious assault upon
any person with intent to rob such person ; and, 2. A malicious
demand by menaces or force of money, &c. of any other person
with intent to steal the same.
As to the word The word " maliciously'* would probably be deemed to be an
*' maiiciousiy" gggential part of the description of either of these offences. By
the repealed statute, 7 Geo. 2. c. 21., any person who should with
an offensive weapon ^^ unlawfully and maliciously " assault, with

(c) 4 Blac. Com. 817. where it is ritual censures for a round compen*

said that the suit in the ecclesiastical sation in money ; perhaps because

court is, first, pro correciione et ta- poverty is generally esteemed by mo«

lute animtB^ by eiyoining penance ; and ralists the best medicine pro toimie

then again for such sum of money as afi/m<e.

shall be agreed unon for taking off the (a) Post. Book Y, cb. iii; Qf Tkremi*

penance enjoinea ; it being usual in «iiif TUtrcatening 'Lettero*
those courts ta exchange their spi-

CHAP. XI. § 2.] With Intent to Rob. 617

intent to rob, &c. was guilty of felony ; and it seems to hare been
admitted, that the proper way of describing such assault, was to
lay it to have been done unlawfully and maliciously y as well as
feloniously. (A)

The words of the statute are ^' shall maliciously assault any other The assault
*' person with intent to rob such other person/' Upon the repealed ^'Jjj the"JI^
act 7 6- B* c. 21. the words of which were not quite so clear upon boq intended
this point, it was decided, that the assault therein described must to be robbed.
be made upon the person intended to be robbed. The prisoner
was indicted for assaulting one John Lowe with an offensive
weapon, with intent to rob him. Mr. Lowe's evidence was, that
between ten and eleven o'clock at night, he was travelling along
the road in a post-chaise, when the chaise suddenly stopped, and
he saw a man with his arm extended toward^ the post'Ooy, and
heard him swear many bitter oaths with great violence, but did
not hear him make any demand of money; and the post-boy
swore, that the prisoner followed the chaise for some time, and at
last presented a pistol at him, and bid him stop, using at the same
time many violent oaths ; that he immediately stopped the chaise,
and the prisoner turned towards it, but perceived that he was pur-
sued, and immediately rode away without Baying or doing any
thing to Mr. Lowe, who was in the chaise. Ine court held, that
this evidence did not support the indictment, which charged an
intent to rob Mr. Lowe, the gentleman in the chaise. Another in-
dictment was then preferred against the prisoner, laying the as-
sault with intent to rob the post-boy: but the same evidence
being again given on the second trial, the court held that it would
not maintain the indictment ; that it was clear that the prisoner
did not mean to rob the post-boy, for when he presented the
pistol to him, and bid him stop, he made no demand upon him,
but went towards the person in the chaise. (/)

A case is reported, which would rather lead to the conclusion, Bnt no actual
that it was atone time considered to be necessary in support of demand of
the offence in the repealed act 7 Geo. 2. of an assault with an of- ^ccssiryupon
fensive weapon with intent to rob, to shew such intention to rob the charge of
by proving an actual demand of money, &c. to have been made by ?^"!\r*'\
the prisoner. The indictment was for assaulting the prosecutor
with a pistol, with intent to rob him ; and, by the evidence it ap-
peared that the prosecutor, a coachman, was driving his coach
along the road, and that the prisoner presented a pistol at him
while he sat on his box, and called out to him to stop ; but did not
expressly make any demand of money. And upon this it is said, that
the court held that the case was not within the meaning of that
act ; that a demand of money or other property must be made to
constitute the offence ; and that though a demand may be made
by action as well as speech, as by a de£^ and dumb man stopping

(Ar) Pegge*8 case, 1 East. P. C. c. 8. strict construction of the statute,

s. \%, p. 420. ; and see Davis^s case, which has the word of reference »uch.

anie^ 593. And in 1 Hawk. P. C. c. 55. s. 4.

(/; Thomas's case, 0. B. 1784. I Thomas's case is cited, and the ex-'

Leach SliO. 1 East P. C. c. 8. s. 11. pression such person relied upon in

p. 418. where it is observed, that per* support of the same construction,
flaps this may he agreeable to the

618 Of Aggranmled j4»$autU, [book uu

a carriage, and putting his hat into it with one hand, and holding
at the aame time a pbtol offensivelv with the other, yet the action
must be plain, and unequivocally unport a demand ; and that in
the case then under consideration, no motion or ofifer to domand
the prosecutor's property was made, (in) But this case was
doubted ; (it) and it was opserved upon it, that the words of the
act 7 G. 2. c 21. were in the digunctivej an4 thatupon pooef of
the prisoner havmg assaulted the prosecutor with a felonious in-
tent to rob him (which was a question for the jury) the case was
brought expressly within the words, as well as the spirit, of that
act. (o) It has been suggested also, upon this case, that as the
prosecutor was a coachman, and the inmctment charged an intent
to rob Mm, it miffht have appeared to the court that he was
not the party intended to be robbed i (/>) and we have seen that it
was considered to be necessary that the assault should be made
upon the person intended to be robbed. (9) Other casesi, however,
appear to put the construction of the repealed act 7 G. 2. in this
matter beyond doubt, and shew that an actual demand of money,
&c. was not necessary upon the clause of that act relating to the
assault with intent to rob. Two men were indicted for a felonious
assault upon tiie prosecutor, with a certain o£Eensive weapon called
a pistol, with a felonious intent to rob him. The evidence was^
that the prisoners rushed out of a hedge upon the prosecutor, who
was the driver of a returning chaise, as he was passing along the
road ; and one of them, presenting a pistol to him, bm him stop,
which he did, but called out for assistance ; upon which one of
the prisoners threatened to blow his brains out it he called out any
more : but he continued to call, and presently obtained assistance,
and took the men, who had made no demand of money. Upon
this evidence the prisoners were convicted and tran8ported.(r) In
a subsequent case, the indictment against the prisoner charged
him with having, with an offensive weapon, feloniously made an
assault upon the prosecutor, with a felonious intent to rob him*
The evidence was that, while the prosecutor and another person
were riding together in the highway, the prosecutor received a
violent blow from a great stone, which was thrown by the pri-
soner from the heclge ; that the prisoner then ran across a field,
and was followed by the prosecutor, who asked him how he could
be such a villain as to throw the stone ; on which the prisoner
threatened the prosecutor^ ran to him, and struck him violently with
a staff, till at length the prisoner was overcome and secured. Tlie
prisoner's face was blacked, and he denied his name : but, on being
questioned afterwards as to his motive, he said he was very poor,
and wanted half a guinea to pay his brewer. He did not a$k for
monev ur goods. Tnis case was submitted to the Judges, upon a
question relating to the form of the indictment, and they hdd the
conviction proper ; but no objection was taken on behalf of jtbe

(m) Parfairs case, 0. B. 1740. 1 (p) 1 Bast. P. C. c 8. 8. 1 1, p. 418.
Leach 19. 1 East P.C. c 8. s. II. p. {q) Thomas's case* mmie^ 617.
41 6» 417. 1 Bawk. P. C. c. 65. s. 3. (r) P ex «. Trusty and Howard, O.B.

(«) 1 East. P. C. c. 8. 8. II. p. 417. 1788. 1 East P. C. c & a. 11. n.418»

(a) IM. ibid. 419.

CBAF. XI. § 2.] tVUh intent to Bob. 619

jpriBoaer, .on the groiiDd of its being necessaiy to prore aa actual
demand ci money, or other property. (/)

The intent to rob is a material port of the first ofienee dea^bed The ki^nt to
in this statute of 4 Geo. 4. c. 54. s. 6., and should he properly al- !jJ**A'5Sl
leged in the indictment. In a case upon the rqpeakd act 7 G. 2. ^^nct^ Zd
c. 21. where the indictment stated the aaaautt to have been aoade ihoiiid bepro*
with a c^rtahi offensive weapon called a woadea atick, with intent |^^^!|!^.
the goods, monies, &e. of the proseeutor, ^' from hts person and ment.
agunst his wiU fekiniottidy to steal, take, and carry away,'' it was
holden to be bad, aa it did not contain a statement of force and
violence. The prisoner was accordingly discharged from this in^
dictment; and a new one was preferred against hmi, lajring tiie as-
sault as before, but stating tne intent to be, the monies of tibe
prosecutor, '^ from his person and against his will, feloniously and
^^ violenify to steal, take, and curry away;'' upon which indict-
ment he was convicted, {a) So, in a case of a commitment for an
offence against the same repealed act, one of the objections upon
which it was moved that the prisoner might be bailed, was, that
the commitment did not charge the d^endant with a felonious
intent to rob, but merely with an intent feloniously to steal, take,
and carry away, (y)

In prosecutions for the second oflfence described in the 4 G. 4. Upon the 2d
c. 6^ .. 5., where the ^ri«ma i. charged vnthdm^nding money, f S^."^,
&c. by menaces, &c. with ut^it to steal, it should seem that an demamdmw^
actual or Repress demand by words is not necessary. In proceed* be prored, it
ing upon indictments framed upon the second cumse of the re- ^^^'or^^
pealed act 7 G. 2. c. 21. for assaulting, and by menaces, or in and press demand
by any forcible or violent manner d&nMmding money, &c« with a oy words is
felonious intent to rob, it was the better opinion, that an express ^^ Mce*M7*
demand of money by words was not necessary ; and that the
fa€:t of stopping another on the highway, by presenting a
pistol at hb breast, was, if unexplained by other circumstances,
sufficient evidence of a demand of money to be left to the jury. It
was observed, that the unfortunate simerer nnderstood the lan-
guage but too well ; and the question was put, ^' Why must courto
^^ of justice be supposed ignorant of that which common experi*
^' ence makes notorious to all men ?"(a^ And in one case upon
that act, the court appear to have considered, that an actual de*
mand was not necessary ; and that whether there was a demand
or not was a fact for the consideration of the jury under all the
circumstances, {b)

But the indictment must aver from whom the money, &c. was The indict-
demanded : and if the indictment be for threatening to accuse, &c. J"*'**^'* * ®'
it must allege who was the person threatened. One account of an y^wAofTuie
indictment stated, that the prisoners, with force and arms, &c. money, &c.
at, &c. malicioudy and feloniously, by menaces, did demand the wasdemanded.

• r ¥ i: A •*.!.•/ aIi. ^-j • t A.\. -J And an indict-

monies of one John Axx, with mtent the said monies of the said meat on this

(I) Shsrwto's case, OmkkMWL, I7S5. (y) R«x o. Remmint, 5 T. &. 1S9.

cor. Qould, J. 1 Bast P. €. e. 8. s. IS. 8 Leach 6S3. 1 Hawk. P. C. c 65.

p. 491. 8. (.

ix) Monteth'8 case. 0. B. 1795. S (a) 1 East P. C c. 8. s 1 1. p. 417.

I^each, 70S. 1 East P. C. c. 8. s. 18. {h) Eex «« JaducMi and fUndall. 1

p. 480,481. L«ach8e9.

620 Of Aggravated Assaults, [book hi.

statute for John Axx^ then and there feloniously to steal, &c. Another
accu»!r'&a ^ count stated, that the prisoners, with force and arms, &c. at, &c.
must state wAo maliciously and feloniously did threaten to accuse the said John
was threat- Axx of the crime of buggery y being a crime punishable by law
^ with death, with a felonious intent to extort money from the said

John Axx, and the said money, then and there, feloniously to
steal, &c. The prisoners being convicted, it was objected in ar-
rest of judgment, that the first of these counts did not state that
any demand of money was made upon John Axx ; that although
the monies of John Axx were alleged to have been demanded, it
was not stated /rom what person they were demanded ; that it was
not inconsbtent with this count to suppose that the menace was
ofiered to the wife, the child, or the servant of the said John Axx,
or that the demand was made on his wife, child,, or servant ; and it
was urged, that a demand of the monies of the said John Axx,
made upon any other person than John Axx, and accompanied
with a threat to any other person, would not -be an offence within
this statute : and even if such a demand upon any other person
were within the act, still it was said that there ought to be a dis-
tinct and precise averment as to the person on whom the demand
was made, that the party accused may know with certainty, the
charge on which he is to be tried. To the last count it was ob-
jected, that it did not state that the prisoners threcUened the said
John Axx to accuse, him of the crime ; and it was submitted, for
reasons similar to those mentioned in the objection to the other
count, that the omission of such a material averment was fatal.

Judgment was respited upon these objections : and the case was
submitted to the consideration of the Judges, who held both the
objections valid ; and the judgment was accordingly arrested (c)
Assault with Another species of aggravated assaults is, where an assault is
mnncnte'^^ made With intent to spoil the garments or clothes of the person
G.i?c.23.*s.il. assaulted. The statute 6 Geo. 1. c. 23. s. 11. provided for the
punishment of this offence ; and the enactment is said to have
been occasioned by the insolence of certain weavers and others,
who, upon the introduction of some Indian fashions, prejudicial to
their own manufactures, made it their practice to de^e them,
either by open outrage, by privily cutting, or by casting aqua
fortis in the streets upon such as wore them, (z) The statute en-
acts, '^ that if any person or persons shall wilfully and maliciously
^* assault any person or persons in the public streets or highways,
" with an intent to tear, spoil, cut, burn, or deface, and shall tear,
'^ spoil, cut, burn, or deface the garments or clothes of such per-
^' son or persons, that then all and every person and persons so
** offending, being thereof lawfully convicted, shall be, and be
'^ adjudged to be guilty of felony : and every such felon and felons
*^ shall be subject and liable to the like pains and penalties, as in
'' case of felony ; and the courts by and before whom he, she,
" or .they shall be tried, shall have mil power and authority of
*' transporting such felons for the space of seven years, upon the
" like terms and conditions as are given, directed, or enacted, by
" this or the act (4 G. 1. c. 11.) therein recited."

{e) Rex V, Duakley and oth'crs, 90.
East. T. 18S5. Ry. & Muod. C. C. {z) 4 Blac. Com. 246.

CHAPvXi. $ 2.] With intent to ^oil Oarments. Gil

Though it is nearly a century since the statute was made, the Conctasctioa
books furnish only one case upon the construction of this section ^^ *^ ■t^tuie.
of it; and a reason for referring that case, in the year 1790, to the
consideration of the Judges, is stated to have been, that it was the
first that had occurred upon the act of parliament, {a)

In that case the prisoner was indicted for an assault of the kind TTiUiams's
mentioned in the statute upon a Miss Anne Porter. The evi- !E^* .
dence, in substance, was, that the prisoner had frequently, before iaten^™iDU8t
the time of the assault, accosted the prosecutrix, and her sister be a tearing.
Miss Sarah Porter, when he happened to meet them, insulting J^'^J^* q^*"
them, and using the most indecent language; that on the day of th?clothes,
the assault the Miss Porters were walking up St. James's street, and ^} «
when he came immediately behind Miss Sarah Porter, muttered J^e^DcnwfiL^
gross language, and, upon her making an exclamation of alarm,
gave h^r a violent blow on the back part of her head ; that the
Miss Porters then ran as fast as possible towards the door of their
own house, which was at a short distance, and while Miss Sarah
Porter was ringing the bell, the prisoner, who had followed them,
stooped down, ftnd struck Miss Anne Porter with great violence
upon the hip ; and that the blow was given with some sharp in-
strument, which tore and cut quite through her clothes, and gave
her a very severe wound. Buller, J., told the jury that in order
to constitute an offence within the statute, it was necessary, firsts
that the assault should be made in a public street or highway ;(ib)
secondly, that it should be made wilfully and maliciously ; thirdly,
that it should be made with an intent to tear, spoil, cut, &c. the
garments or clothes of some person ; and, fourthly, that the gar-
ments or clothes of such person should be actually torn, spoiled,
cut, &c. An4 upon the third point he stated, that if the intent of
the prisoner was to cut both the clothes and the person, and in
carrying such intention into execution the clothes alone were cut,
it would clearly be within the meaning of the act ; or if the inten-
tion was to injure the person only, and not to cut the clothes, yet
if, in carrying such intention into execution, the assault was made
with such an instrument, or under such circumstances as plainly
shewed, that the execution of the intention to injure the person
must unavoidably tear, spoil, cut, &c. the clothes, they might con-
sider whether a person who intends the end does not also intend the
means by which that end is to be attained. The jury found the
prisoner guilty : but the question of intention, and another point
which arose upon the form of the indictment, were submitted to
the Judges for their consideration ; and a majority of them were
of opinion that the case was not within the statute. They thought
liat, in order to bring a case within the statute, the primary in-
tention must be the tearing, spoiling, cutting, &c. of the clothes ;
whereas in the present case the primary intention of the pri-
soner appeared to have been the wounding of the person of the
prosecutrix, (c)

(a) Williams's case, 1 Leach 5S3. the metropolis, p. 317. and in 1 Hawk.

{b) This is also considered as the P. C. c. 54. s. 2.

construction necessarily resulting from * (c) Bailer, * J.- appears to have re-

the words of the act in Fielding^s tained the opinion which he gave to

Treat on the penal laws r^latipg to the jury at the coiisultktion of the

&^ Of Aggravated As^uUg, [book m.

«

The indict- ft shoold be obscrred, however, fhat the other' point, upon the

SSeThZf tlie '^™* ^ *® indictment, is «aid to have been that on which ibe
clo^s irere, judgment, in this case, ultimately turned. The indictment stated,
torn, spoiled, that the prisoner, on the 18M dm^ of Jwmary^ in the year, &c.
^mui^m^i^ made the assault, with intent to tear, spoil, cut, &c. and that on
the auaait the soid 18M doff of January, he did tear, spoi^ cut, &;c. And
was made with all the Judges agreed that it was bad, because it did not allege
^^^ ^ ^^ that the dothes were cut at ike same time that the assault was
made with intent to cut them ; that, for any thing that appeared
to the contrary on the fnct of the indictment, the assault might
have been maae on one part of the day and the tearing the clothes
on another part of the day: and that it should have alleged, after
stating the assault at the time and place mentioned, that the pri-
soner then and there tore> spoiled, cut, &c. the clodies of tiie pro*
8ecutrix.(c2)
2«G.2.c.i9. The statute 26 Geo. 2. c. 19. relating to attempts to kill and
B. 11. ABsauit- destroy persons endeavouring to escape from a vessel in distress^
i^mmiu)? ®" or wrecked, has been already mentioned, (e) A subsequent section
theirdischarge of tiie statute makes the assaidting persons on account of their
of their duty discharging their duty in tiie salvage or preservation of any vessel
of T^Ssln* ^ distress, or of any vessel or goods which may be w nicked,
distress, or of Stranded, &c. an offence to be punished by transportation for
A****** «5°^» seven years. It enacts, *' that if any sheriff^ or his deputy, ju»-
g^^SSi &c. ^^ ^^® ^^ ^^^ peace, mayor, ot other magistrate, coroner, lord of a
^* manor, commissioner of the land tax, chief constable, or petty
'' constable, or other peace oflBcer, or any custom-house or ezdse
^' officer, or other person lawfully authorized, shall be assaulted,
^* beaten, and wounded, for or on account of the exercise of his
^* or their duty, in or concerning the salvs^ or preservation of
^* any ship or vessel in distress, or of any smp or vessel, goods or
'^ effects, stranded, wrecked, or cast on shore, or lying under
^ water, in any of his Majesty's dominions ; then any person or
** persons so assaulting, beating and wounding, shall, upon trial
'' and conviction, by indictment at the assizes, or general gaol
*^ delivery, or at the general or quarter sesskms for the county,
^* riding, or division, where such oflfence shall' be committed, be
^' transported for seven years to some of his Majesty's colonies in
^' America; and shall be subject to such subsequent pftnishment,
'' in case of return before that time, as oAer persons under sen-
^' tence of transportation are by the law subjected unto.''(/)

JndfjeB, Slid to hove thouf^t the case' The pritsner mui ^oMuided to Kev-
within the alatute, upon the astho^ fP^^ sod eight WidictiiieBt» were pre-
rity of Rex v. Coke and Woodburn, lerred against him for this ootn^
(afUe^ 590) He thought the cafie within . ' and others of a siinilar nature, npon
the statute, because he considered the seven other ladies, as for misdemea-
intent of the prisoner to have been to nors at cominon law. Bvideace was
wsvnd tie party by cutting through given apon thrae of tfaoai and being
her clothes, and therefore that ne convicted, he was senleaced to two
most have intended to cut her clothes; years* iraprisonment on each, and at
and that the jury, whose sole province the end ot the six years, to find sure-
it was to find the intent, had expressly ties for his gpod liehavioar for aeiea
sofoondit. Mfiast^ P. C. c 8. S..18. years*
p. 484.. (<?> ^nie, 594.

(d) Williama^s, case, \ £each 529. if)^ Geo. 8. «. 19. s.n. By s. IS.

1 East. P. C. c. 8. 8. la. p. 484, 48^. the act is not to extend'lo SctOeMi.

cffAP. n. $ S.] On Commanders ofShipsf^ Seamen, 6sc. 62S

The II & 12 W. 3. c.7. 8.9* enacts that, '^ if any person shall 11 ft 12W.3.

*' lay violent hands on his commander, whereby to hinder him J*^' ^?J!J??

^' from fighting in defence of his ship and goods, committed to his onthl com-

*' trust,'* he shall be adjudged to be a pirate, felon, and robber; manderofa

and being convicted, shall st&er death and loss of lands, goods, &c. ^^^ «1^^^^

as pirates, felons, and robbers npon the seas, ought to simer.(g') fighting are to

The 3% Geo. 3. c»07* provides for the punishment of persons auffer death,
obstructing seamen, keelmen, casters,, and shipcarpenters, and 33 6. 3. c. 67.
preventing them from pursuing their lawful occupations. TTie ^ ^ ^^^^^u
second section enacts, that if any seaman, keelinan, caster, ship- ««4««iH.^p
carpenter, or other person, shall unlawfully, and with force, pre- them ^id& in-
vent, hinder, or obstruct any seaman, keelman, caster, or ship- *?^^ ^^

' ^ -' ,. A^i'v \£ • •• struct and prcj-

carpenter, from working at, employing himself m, or exetcismg yenttftem^iii
his lawful trades, business or occupation respectively, or shall wil- pursuing their
fully and maliciously assault, beat or wound, or use or commit j?^^^^^^
any bodily violence or hurt to or upon any seaman, keelman, ftc
with the intent to deter, prevent, hinder, or obstruct, such seaman,,
keelman, &c. from working at, employing himself in, or exer-
cising his lawful trade, business, or occupation, respectively,
every seaman, keelman, &c. and other person, being lawfiiDy
convicted of any such offences, upon any indictment, in any court
of oyer and terminer, or general or quarter sessions for the county^
shire, riding, division or district, wherein the oflRence was com-
mitted, shall be committed either to the common gaol for the
same county, &c. there to continue, or to the house of correction
for 'the same county, &c. there to continue, and to be kept to hard
labour, for any term not exceeding twelve nor less than six calen-
dar months.

The third section enacts, that if any seaman, keelman, &c. or s. 3. a subie-
other person, shall be convicted of any of the offences aforesaid, quent offence
in pursuance of this act, and shall afterwards ofibnd again in like ^[ndliuA^^
manner, every such seaman, keelman, &c. and other person so felony,
offending again in like manner, and being lawfully convicted
thereof, upon any indictment, in any court of oyer and terminer,
or general or quarter sessions for the county, &c. wherein the
offence was committed, shall, for such second and every subse-
quent offence^ be adjudged guilty of felony, and shall be trans-
ported to some of his majesty's dominions beyond the seas, for
any space of time or term of years, not exceemng fourteen years,
nor less than seven years.

The act contains a provision that no. person shall be prosecuted Limitation of
by virtue of it for any of those offences, unless the prosecution pn^ecntlonB.
be commenced within twelve calendar months, after the ofibnce
committed. (A)

The 5 Eliz. c. 4. s« 21. enacts, that if any servant, workman, or ^ El».c.4.
labourer, shall wilfuUy or maBcioudy make an assault or affi»y ^i^^i:^^'^,
upon his master or mistress, or upon any other having charge or assaulting
oversight of such servant or labourer, or over the woA wherein ™«t«r» "ni»-
he is hired to work, and shall thereof be convicted before any two *'"** *^
justices, or other head officer as aforesaid, by confession or oath

is) See this statute more at large,, was at first only temporary s But it
tfii/tf, 104, 105. was made perpetual by the 41' Qep. 9^

(A) 93 Qeo. 3. c. 67. s. 8. This act c. 19. s. 4.

634

Of Aggravated Assaults,

[book hi.

l2G. I.e. 34.
8.6. Assault
upon manu-
facturers, for
not comply-

Swith ille-
by^lawB,
Ac.

9 Anne, c. 14.
8.8. Assaults
on account of
money won at
play.

of two witnesses^ he shall be imprisoned for a year or less, by the
discretion of two justices, out of a town corporate, and, in a town
corporate, of the mayor or other head officer, with two others of
the discreetest persons of the same corporation; and if the offence
shall require further punishment, then to receive such other open
punishment, so as it extend not to life or limb, as the justices in
sessions, or the mayor or other head officer, and six or four at
least of the discreetest persons of the corporation, shall think con-
venient for the quality of the offence.

The 12 Geo. 1. c. 34, s. 6. enacts, *' that if any person or per-
'' sons shall assault or abuse any master woolcomber or master
weaver, or other person concerned in any of the woollen manu-
factories of this kingdom, whereby any such master or other
'* person shall receive any bodily hurt, for not complying with, or
^^ not conforming, or not submitting, to any such illegal by-laws,
^^ ordinances, rules or orders, aforesaid,'' (namely, *' by-laws, ordi-
^' nances, rules or orders, in unlawful clubs and societies, made or
" entered into by or between any persons brought up in, or pro-
^' fessing, using, or exercising the art and mystery of a wool-
*^ comber or weaver, or journeyman woolcomber, or joumejrman
" weaver, in any parish or place within this kingdom, for regu-
*' lating the said trade or mystery, or for regulating or setting the
^^ prices of goods, or for advancing their wages, or for lessening
" their usual hours of work ;"(i) ) every person so offending, being
" thereof lawfully convicted upon any indictment to be found
'^ within twelve calendar months next after any such offence
'^ committed shall be adjudged guilty of felony, and shall be
" transported for seven years." This provision is extended by
the eighth section of the statute to *' combers of jersey and wool,
'^ to ^amework knitters and weavers, or makers of stockings, and
*' to all persons whatsoever employed or concerned in any of the
'^ sidd manufactories." And it is also extended by the z2 G. 2.
cx 27. s. 12. to ** journeymen dyers, journeymen hotpressers, and
^^ all other persons whatsoever employed in or about any of the
'' woollen manufactories of this kingdom, and also to journeymen ,
'' servants, workmen, and labourers, and all other persons what-
'^ soever employed in the making of felts or hats, or in or about
*^ any of the manufactures of silk, mohair, fur, hemp, flax, lineu,
'^ cotton, fustians, iron or leather, or in or about any manufactures
'^ made up of wool, fur, hemp, flax, cotton, mohair or silk, or of
'^ any of the said materials mixed one with another."

The statute 9 Anne, c. 14., which was passed for the better pre-
venting of excessive and deceitful gaming, makes provision for
preventing quarrels on account of gaming. Hie eighth section
enacts, '^ that in case any person or persons whatsoever shall
'^ assault and beat, or shall challenge or provoke to fight any other
'^ person or persons whatsoever, upon account of any money won
'' by gaming, playing, or betting at any of the games aforesaid,
" (namely, cards, dice, tables, tennis, bowls, or other game or
'^ games whatsoever ;) ( « ) such person or persons assaidting and

(OThe by-laws, &c. are thus de-
scribed, in toe first section of the sta-
tute.

(j) As to games considered as being
within this statote, see aitte, 407, 408.

CHAP. u. $ 3.] On AccowU ofMan^ toon at Play. 635

'^ beating, or challenging, &c. upon the account aforesaid, shall^
^' being thereof convicted upon an indictment or information, for-
^' feit to her majesty, her neirs, and successors, all his goods,
^' chattels, and personal estate whatsoever, and shall also suffer
^' imprisonment in the common gaol of the county, where such
*' conviction shall be had during the term of two years."

In a case upon this section of the statute, it appeared that Constmetion
the prosecutor and the defendants were gaming together, and ^ ^^^ J^^SjJi
that the defendants proposed breaking up and going away ; that ^^^^ othen.
the prosecutor having lost his money, objected to it, and wanted in this case it
them to play on, complaining that they had won his money, and X,**jTuPP*^f *
would not give him an opportunity of recovering it, upon which gault should
the defendants committed the assault. And it is said that Bui- arise durinr
ler, J. upon this evidence, directed tiie jury to acquit the defend- ^^ *'^® °'
ants ; giving it as his opinion, that the game being over before the ^ ^^°^'
assault began, the assault could not be said to have arisen out
of the game, but to have arisen from what the prosecutor had
said to the defendants ; and that it was necessary, in order to
bring a case within the statute^ that the assault should arise out of
the play, and during the time of playing. (A) But this opinion is
not supported by the judgment of the court of King's Bench in a
subsequent case, where the same point came under consideration.

In the latter case, the indictment against the defendant con- Res v. Darley.
tained three counts, two of which were framed upon the statute, 5iffcreVt*doc*
and the third was for a common assault. After a general verdict trine was esta-
of guilty, it was objected that the evidence did not warrant a Wished, name-
verdict upon the counts framed upon the statute; because it ap- pulton ac-**"
peared that the assault was not committed at the time of the play, cuunt of mo-
out on the day afterwards; and then not on account of the money n^y won at
won at play, but on account of the abusive language which wi*Mnjthe^-
passed between the parties. The opinion of Buller, J. in the tute, though
former case was cited : and it was urffed, in corroboration of that **.*>« not com-

O ' wniffta^l fill

opinion, that the great object of tlie statute was to repress such ^ ^^^^ ^^m

violence upon the spot, and at the very time of the gambling, pUyisoyer.

when it might reasonably be imagined that ruined men, in the

first paroxysm of despair, would be tempted to vent their passion

in this manner. But Lord EUenboiough, C. J. said, that the court

would refer to the learned Judge before whom the indictment was

tried, to know in what manner the case was left to the jury;

whether the assault were in fact made on account of the inoney

won at play the day before, or on account of the ill language which

had arisen afterwards upon the demand of payment being made.

And he said that he could not go the length of the opinion in the

case cited, and consider the words of the act as confined to an

assault committed during the time of play ; as it more frequently

happened that disputes of that sort did not arise till after the play

was over. The learned Judge before* whom the indictment was

tried, Mr. Justice Heath, being afterwards referred to, returned

for answer, that he had directed the jury to acquit the defendant

on the two first counts if they were not clearly satisfied that the

defendant had assaulted the prosecutor on account of the money

{k) Res V. Randall and others, BrUM Sum. Aas. 1 787. 1 East P. C. c. 8.
fl. 17. p. 483.

VOL. I. 2 s

626

Of Aggravated Assatdts.

[book iif.

Sentence may
be passed pur-
suant to the
statute after a
general ver-
dict of guilty,
upon an in-
dictment con-
taining two
counts on the
statute and
one for a com-
mon assault.

Assaulting any
constable, &c.
or other per-
son, in order
to prevent an
apprehension
for felony.

won at play by the prosecutor of the defendant; and that he had
distinctly left it to them to decide whether the assault were on
that account, or on account of the abusive language then used,
and to acquit the defendant on those counts^ if they were of opi-
nion that the assault was on account of the abusive language.

After this answer had been communicated irom the bench^ it
was moved in arrest of judgment^ that, the verdict being general,
there would be inconsistent judgments on the several counts, one
on the special counts on the statute which prescribed a positive
punishment, and the other on the count for the common assault
which was discretionary. (/) But the rule was afterwards aban-
doned, and sentence was passed upon the defendant pursuant to
the directions of the statute, (m)

The statute 1 & 2 G. 4. c. 88. s. 2. enacts, *^ that if any per-
^' son shall assault, beat, or wound any constable, officer, head-
** borough, or other person whomsoever, with intent in so doing,

or by means thereof to obstruct, resist, or prevent the lawAil

apprehension or detainer of any person charged with or sus-

J^ected of felony ; or if any person charged with or suspected of
ielony shall assault, beat, or wound any constable, officer, head-
' borough, or other person whomsoever, with intent in so doing,
or by means thereof, to obstruct. Insist, or prevent his or her
apprehension or detainer ; then and in every or any such case,
^* if the person or persons so offending shall be convicted of a
'^ misdemeanor only, it shall be lawful for the court by or before
'^ whom any such person or persons shall be so convicted as
^^ aforesaid, to order and direct, in case it shall think fit, that
^' such person or persons shall, in addition to any other pains,
'' penalties or punishment to which he, she or they are now sub-
^^ ject or liable, be kept to hard labour for any term not exceeding
^ two years, and not less than six months, (a)

(l\ Upon this point the case of Rex (a) Where a rescue is effected, see

r. Young and others, 3 T. R. 103. the first section of this statute, rnnte^

was referred to. p. 385.
Eex V. Darley, 4 East. 174.

€€

627

CHAPTER THE TWELFTH.

OF MAIMING^ &C. BY THB FURIOUS DRIVING^ &C. OF STAGE

COACHMEN.

The statute 1 G. 4. c. 4. enacts, " that if any person whatever Where anjr
** fihall be maimed, or otherwise injured by reason of the wanton P®"?^*'Jt""
*^ and furious driving or racing, or by the wilful misconduct of wtltonB,nd
^^ any coachman or other person having the charge of any stage furious driv-
*' coach or public carria^, such wanton and fiinous driving or inp* or wilful

^c • '^ •!# 1 • ^ J a. r L I. xu misconduct of

" racmg, or wilful misconduct of such coachman or other person, the coachman
'' shall be and the same is hereby declared to be a misdemeanor, of any public
'* and punishable as such by fine and imprisonment : provided J^io^^Jiriv^'*
^' always, that nothing in this act contained shall extend or be ing, &c. is de-
** construed to extend to hackney coaches, being drawn by two clarcd to be a
" horses only, and not plying for hire as sti^e coaches." misdemeanor.

By a former act, 50 G. 3. c. 48. s. 15. a penalty not exceeding 50 o. 3. c. 48.
10/. nor less than 5/. was imposed upon a coachman who, by fu- Pc«**J*y "P*^'^
riously driving or by negligence or misconduct, shall overturn the driving fu-
carriage, or in any manner endanger the persons or property of riously, &c.
the passengers, or the property of the owners or proprietors of
such carriage ; Unavoidable accidents being excepted.

END OF VOL. I.

2s2

■.'f~l