Page images

to answer the offence according to law ; which order the clerks of priry council shall cause to be published in two successive London Gazettes, and to be transmitted to the sheriff of the county where the offence shall be committed, if committed in any county ; [and if not within any county, but within the limits of any port, or within four leagues of the coast, to be transmitted to the sheriff of any county near to the place where such otience shall be committed. 24 Geo. 3. sess. 2. C. 47. %. 12.] which sheriff shall, within fourteen days after the receipt thereof, cause the same to be proclaimed, within the hours of ten in the morning and two in the afternoon, in the market places, upon the market days, of two market towns in the same county in which or near to the place where such offence shall hare been committed ; and a true copy of such order shall be affixed upon some public place in such market towns : And in case such offender shall not surrender himself pursuant to such order, he so neglecting, or escaping after such surrender, shall, from the day appoioted for his surrender, be attainted of felony, and suffer death without benefit of clergy. And it shall be lawful for the court or King's Bench, or the justices of oyer and terminer, or general gaol delivery, or great sessions for the county, to award execution against such oftender, in such manner as if he had been convicted and attainted in the said courts. 19 Geo. 2. c. 34. 8. 2. 19 Geo. 3. C. 69. 8. 23. and 24 Geo. 3. sess. 2. c. 47. s. 12.

And all persons who shall, after the time appointed for the sur-JIarbouring Tender of any person so charged shall be expired, harbour or such offenders succour such person, koowing him to have been so charged, and after the time to have been required to surrender himself by such order, and

render expiredt, not to have surrendered pursuant to such order, being pro- transportation. secuted for the same within one year after the offence committed, and convicted thereof, shall be guilty of felony, and be transported as a felon for seven years ; and it such oftender shall be found at large within Great Britain before the expiration of the said term, without lawful cause, lie shall suffer death without benefit of clergy. 19 Geo! 2. c. 34. s. 3. 19 Geo. 3. c. 69. s. 23. and 21 Geo. 3. sess. 2. C. 47. s. 13.

Nothing herein shall hinder any judge, justice of peace, magistrate, officer, or minister of justice whatsoever, from apprehending and securing ench offender, against whom such information shall be given, and for requiring whose surrender such order in council shall be made, by the ordinary course of law ; and in case such offender shall be taken before the time shall be expired within which he is to surrender, then no further proceed. ings shall be had upon such order in council, but be shall be brought to trial by course of law. 19 Geo. 2, c. 31. $. 4. 19 Geo. 3. c. 69. s. 23. and 24 Geo. 3. sess. 2. c. 47. s. 14.

And for the more speedy and impartial trial of offendersoffences made felony by 19 Geo. 2. C. 3+, or any other act relating to the customis or ekcise, or by 24 Geo. 3. sess. 2. c. 47. may be tried in any county in England. 19 Geo. 2. c. 31. 8. 5. and 21 Geo. 3. $(58.2. c. 47. s. 17.

Reward for an- And by the same act 19 Geo. 2. c. 34, every person who shall fenders against apprehend or discover, so that he may be taken, any person 19 Geo. 2. c. 34. in England so advertised as aforesaid *, who shall not have sur

rendered himseli within forty days as aforesaid, and cause him
to be brought before the lord chief justice of the King's Bench,
or any of the justices of the said court, or any justices of peace
for London or Middiesex i who is to commit such person to the
prison of Newgate for such felony), shall receive for every such
person so apprehended 5001. to be paid within one month after
execution, by the commissioners of customs or excise, who are
to receive the applications of all who are concerned in such disco.
vering or apprehending, and determine who are entitled to the
reward, and their proportions thereof; and if any such offen.
der against whom no such order of council is made, shall him.
self so deliver or apprehend any other offender against whom
$uch order is made, he shall be discharged of his own offence,
and all other like offences before committed for which no pro.
secution is then commenced, and shall also have his share of
the reward ; and if any person be grievously maimed or
wounded in the apprehending or pursuing such offender, he up
on application to the commissioners of the customs or excise, shall
receive 501. above any other reward that he may be entitled
to as an apprehender by this act; and in case any person shall
be killed in the apprehending or pursuing such offender, his
executors or administrators upon application to the commis-
sioners of the customs or excise, and laying sufficient proof be-
fore them, shall receive 100l. s. 10.

And if any offender shall before order for his surrender, discover two or more accomplices to the commissioners, and cause them to be apprehended, so as two be brought to justice and convicted, the offender so discovering shall receive 50!. for every offerder discovered and convicted, and be discharged of his offence, and all and other like offences before committed, for which no prosecution is then commenced. s. 11.

In the construction of the first section of the above act 19 Geo. 2. c. 34, the following points have been determined :

* That is, for offences made felony by the act 19 Geo. 2. c. 34, only; for although ihe 24 Geo. 3. sess. 2. c. 47, hath in regard to the felonies thereby created, adopted all the provisions of 19 Geo. S. in nearly the same words as to the proclaiming and surrender of offetiders ; yet it does not contain any rewarding clauses as above ; which is rather singular, if it was, as it seems to have been, the intention of the legislature to place offences under both acts exactly upon the saine footing; for the above clauses of 19 Geo. 3, appear to be still in force in respect to offenders against that act, by the express words of 19 Geo. 3. c. 69. s. 23, whereby it is declared, that all and every the methods, orders, directions, rules, proclamations, penalties, punishments, rewards, matters, and things, provided, ordered, settled, directed, imposed, given, and required by 19 Geo. 2. relative to the surrender, proclaiming, apprehending, barbouring, and punishing such offenders, sball and may be exercised, practised, applied, used and im. posed, in regard to all persons that offend, or shall in future offend against 19 Zeo. 2.

1. Armed with fire-arms or other offensive weapons] These weapons must be such as are calculated for the purposes of of. fence; therefore where one man had only a common horsewbip, although all the rest of the gang had fire-arms; the attorney general declined to argue the point, and the prisoner was discharged. 2 Strange, 1866.

So also an hatchet has been thought no offensive weapon within this act, where it was only caught up accidentally upon the

spur of the occasion, and during the burry and hiat of an affray, and belonged to the prisoner in the way of his business. Leach's Cr. L. 314.

But it is impossible for the law to draw a precise line which will hold in all cases as to what shall or shall not be called an ofensive weapon; it must greatly depend on the circumstances of the case ; for it would be going a great deal too far, to say that nothing but gms, pistols, daggers and instruments of war should be considered as offensive weapons ; bludgeons, clubs, and any thing not in common use ; pokers, shovels, tongs, and the like, and even a common walking stick, may be offensive weapons, according to the circumstances which accompany the use of them ; it is therefore a question of fact for the jury, whether the instrument was carried for the purposes of offence or not. Leach's Cr. L. 314.

2. Assembled in order to be aiding] Under these words it has been laid down, that there must be a clear, premeditated assembling, for the express purpose of landing the goods, or doing the several acts mentioned in the statute; it not seeming to be the intention of the act to include persons, who upon a sudden alarm join in an attempt to seize or rescue. Hutchinson's Case, Leach's Cr. L. 314.

3. Or if any person shall have his face blacked] It seems to have been said in Ilutchinson's case, that this branch of the act apparently has no regard to the number of persons, nor tu their being armed with otfensive weapons; and that therefore an individual passing disguised with uncustomed goods, would in all probability be deemed within the penalties of the act. Leach's Cr. L. 313,

And in the construction of the surrender clanse, the following points were holden in the case of John Hervey:

1. That it is necessary to suggest the several facts and the proceedings which are required in the act, on the roll, in order to ground a prayer for execution ; for they are the several steps which the act requireth to be taken by the crown, in order to bring the prisoner under an attainder; and he may traverse all or any of them; for this is a general law*, and the offender will

And not like the case of a special atta inder by act of parliament, in which the facts are settled, and the person named, and the only question is, whether the prisoner is the identical person attainted or not; and in which case a transcript of the special act of attainder is sufficient whereon to ground a prayer for execution. 4 Bacon's Abr. 567Foster's Cr, L. 56.

not be affected, unless the several requisites mentioned in the act have been complied with in his particular case ; and if he traverseth all or any of them, the onus probundi lieth on the crown. Foster's Cr. L. 55, 56.

And it seems that the market towns, at which the offender is proclaimed, should be set forth in the suggestion by name; for otherwise the prisoner cannot give a particular answer to that part of the suggestion, nor come properly prepared with his proofs when the issues shall be tried. Foster's Cr. L. 56.

And every law introducing a capital punishment ought to be strictly pursued. 1 Wilson, 165.

2. But if the prisoner would take advantage of the insuffici. ency of the suggestion, as for instance, because the names of the market towns, at which it is enacted the offender shall be proclaimed, are not set forth, he must demur ; he cannot take advantage of it on motion. Foster's Cr. L. 56.

3. That if the prisoner pleads he must do it instanter and ore tenus, as is done in indictments ; fur there can be no inconveni. ence in pleading instanter, if he intends to put the proof of all the matter suggested on the roll upon the crown. Foster's Cr. L. 56.

4. That the prisoner is not intitled to a copy of the sug. gestion. Foster's Cr. L. 56.

5. That the words near to the place where such offence shall have been committed,' are restrictive of the sheriff's power, and that the proclamation must be made in the market towns near the place, and not at remote towns, * nor at towns even comparatively remote ; for though it does not mean at the very next market towns, it would be very dangerous to leare matters of this sort to the discretion of the sheriff merely. Fos. ter's Cr. L. 5.

6. That the proceedings at the trial shall be in the same form and manner, as before justices of gaol delivery. Foster's Cr. L. 57.

And it seems that after a prisoner has been arraigned upon the suggestion, the attorney general may, if he chooses, pro. ceed agaiut him on the indictment only; in which case the court will order a noli prosequi to be entered on the suggestion. Cossan's Case, 0. B. 1785. No. 492. 600.

Note. It is also felony without benefit of clergy by 27

Geo. 3. c. 32, to counterfeit the stamp thereby direct. ed to be used in marking of condemned goods, see p. 478 supra.

* It appeared in this case, that one proclamation was fixed up in a town about 60 miles distant ; another in a town 42 miles distant ; and a third in a town only 5 miles distant from the town where the offence was charged to be cominiited, and that there were five or six towns pearer than 30 miles, particularly one only 5 miles distant, and any. bber only s.

Snares. See Game.
Snuff. See Excise (Tobacco and Snuff).
Soap. See Excise (Soap).
Sodomy. See FELONY (without clergy, $ buge



Lit. 71.

A SOLDIER (from the German word sold or sould, signifying a stipend) is a man hired for pay to serve in war. Ba. con's Abr. tit. Sold.

The ancient method of raising soldiers was in this manner, A knight or an esquire, who had revenues, farmers and tenants did covenant with the king by irdenture, inrolled in the Er. chequer, to serve him in war for a certain term, with a cer. tain number of men, whose names were set down in a list. Co.

And there are divers regulations concerning the levying of soldiers in some ancient statutes; but, as these were adapted to the ancient method of raising soldiers, which has been long discontinued, it is now unnecessary to give any account of such regulations. And more especially as the rules under which the regular forces are at this time raised, depend upon' some mo. dern acts of parliament, and principally upon one which is pas. and annually, intituled An act for punishing mutiny and desertion, and for the better payment of the army and their quarters.

Such of these regulations as give jurisdiction to justices of the peace and other civil officers, are therefore comprised under the following heads :

1. Articles of war and courts martial. II. Inlisting soldiers. III, Soldiers privileged from arrests.

* His majesty's marine forces whilst on shore are also regulated by an annual act which passes for that purpose; the provisions whereof are the same as those contained in the mutiny act, except in some few particulars occasioned by

those forces being subject to the jurisdiction of the admiralty, where these variations occur, it will be muark

Vol. IV.


« PreviousContinue »