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CHAP. X.] Of resisting and evading the Revenue Laws.

121 “vour 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 offending shall forfeit for every such offence the sum of "two hundred pounds."

The 56th section enacts that if any persons to the number of Sect. 56. “ three or more, armed with fire arms or other offensive weapons persons armed “shall, 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 assembled to

ing and assisting in the illegal exportation of any goods prohi- legal export “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- of prohibited or “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 relanding " illegal carrying of any goods from any warehouse or other place goods shipped

as shall have been deposited therein for the security of the or in the rescu“ home-consumption duties thereon, or for preventing the use or ing any such

consumption thereof in the United Kingdom, or in the illegal goods, to be "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 bave 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 57th section enacts “that if any person shall maliciously Sect. 57. “shoot at or upon any vessel or boat belonging to his Majesty's

ing at any boat navy, or in the service of the revenue in any part of the British belonging to

or Irish channels, or elsewhere on the high seas, within one the navy or in “ hundred leagues of any part of the coast of the United King, the revenue,

dom, or shall maliciously shoot at, maim, or dangerously wound or shooting ut any officer of the army, navy, or marines, being duly 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, deemprevention of smuggling, in the due execution of his office or ed guilty of feduty, every person so offending, and every person aiding, abet- lony. ting, or assisting therein, shall, being lawfully 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

Any person in with more than four other persons, be found with any goods

company with "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 found with

goods liable to

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Persons shoot

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Sect. 58.

arms or dis

66 that

or any

forfciture, or

person within five miles of any navigable river, carrying offensive in company

“ arms or weapons, or disguised in any way, every such person with one other person carrying

“ shall be adjudged guilty of felony, and shall, on conviction of

“such offence, be transported as a felon for the space of seven guised, to be deemed guilty

years; and if such offender shall return into the United Kingof felony.

“ 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.” Sect. 59.

The 59th section enacts “ that if any person shall by force or Persons assaultingofficers

“ violence assault, resist, oppose, molest, hinder, or obstruct any by force or vio- “ officer of the army, navy, or marines, being duly authorized lence may be

" and on full pay, or any officer of customs or excise, or other transported, &c.

person acting in his or their aid or assistance, or duly employed “ for 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 correction 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.” Sect. 78.

The 78th section enacts any indictment or information Indictments for offences

“ which shall be found or prosecuted for any offence against this against this act

other act relating to the revenue of customs, shall and may be enquir- “ may be enquired of, examined, tried, and determined, in any ed into 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 information

« shall be tried.” Sect. 102. The 102d section enacts that if any goods shall be seized for Onus probandi

“ the non-payment of duties, or any other cause of forfeiture, and as to payment of duties, &c.,

any dispute shall arise whether the customs, excise, or inland to lie upon the “ duties have been paid for the same, or the same have been law

fully imported, or concerning the place from whence such goods ing the goods seized.

“ were brought, then and in such case the proof thereof shall lie

owner, or claimer of such goods, and not on the officer

- who shall seize or stop the same.” Sect. 104.

The 104th section enacts “that in case of any information or Averment of

“ proceedings had under this or any other acť relating to the certain matters to be sufficient, revenue of customs, the averment that the commissioners of until the cun- “his Majesty's customs or excise have directed or elected such trary is proved. « 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."


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person claim

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The 105th section enacts “ that if upon any trial a question shall Sect. 105. “ arise whether any person is an officer of the army, navy, or

Viva voce evi

dence may be “marines, being duly authorized and on full pay, or an officer of given that a “ customs or excise, evidence of his having acted as such shall be party is an of“ deemed sufficient, and such person shall not be required to pro“ duce his commission or deputation unless sufficient proof shall “ be given to the contrary; and every such officer, and any per- Share of penal“son acting in his aid or assistance, shall be deemed a competent ty not to dis« witness upon

qualify officers the trial of any suit or information, on account of

as witnesses. seizure or penalty as aforesaid, notwithstanding such officer “ or other person may be entitled to the whole or any part of such “ seizure or penalty.

The 106th section enacts “ that in all cases where any power, Sect. 106. “ authority, or protection is given or granted by this act to any this act not to

, ., “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 cers of army,

officers, unless such officer or officers shall be on full pay and navy, or ma“ employed for the prevention of smuggling under the proper full pay, 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 tion of smug“ excise; and such officer or officers shall be deemed to be duly gling. “ authorized for the purposes 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 As to malicious malicious shooting at any vessel, &c., or any officer, &c.; and it shooting at a may be here mentioned, that upon a clause in 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 vessel 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 customis, &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 signal-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 Treasury, Admiralty, Customs, or Excise, gave the power, if the vessel had a pendant and ensign hoisted of such description as his Majesty by any order in council, or by royal proclamation under the great seal, should direct ;-but there had been no proclamation, nor was any order in conncil proved; though, after the trial, an order in council was discovered which required certain particulars in the pendant and ensign which this ship's pendant and ensign had not. Upon a case reserved, eleven Judges (Best, J., being absent) were clear that as the custom-house vessel had not complied with what was required to make her shooting legal, the


smuggler's firing was not in law malicious; and a pardon was recommended. (a)

With respect to the 56th section which relates to offences committed by persons, to the number of 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 hatchet deemed an accidentally, during the hurry and heat of an affray, was not offensive wea

armed with an offensive weapon within the meaning of that pon.

act; (l) 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 offensive weapons; and that, from the preamble of the statute, the weapons must be such as the law calls 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 guns, pistols, daggers, and instruments of war, should be so considered; and that bludgeons properly so called, clubs, and any thing that was not in common use for any other


but weapon, were clearly offensive weapons within the meaning of the Legislature. (n) In a case upon a former statute, 9 Geo. 2. c. 35. s. 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, unlawfully 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. very large club sticks, such as people MS. Bayley, J. Russ. and Ry. 465. ride with, to defend themselves, are

(k) Hutchinson's case, 1784, 1 Leach not offensive weapons; and on its 3.12.

being left to the jury, the prisoner was (1) Rose's case, Old Bailey, May acquitted. I Leach 342, 343. note (a). 1784, before Willes, J. and Perryn, B. (0) Fletcher's case, I Leach 23. i Leach 342. note (a).

(p) Franklin's case, I Leach 255. (m) Ince's case, Old Bailey, Feb. S. C. Cald. 244. And this

appears to 1785. By Gould, J. Perryn, B. and be the correct doctrine, see ante, 22, Mr. Recorder. I Leach 342. Bote (a) 28. and Rex v. Smith, Micb. T. 1818. (n) Cosan's case, Old Bailey, May Russ. and Ry. 368. post. Book II

. 1785. lo this case it was contended, Chap. xxxix. upon the authority of lace's case, that.

as a walking stick. An indictment was for assaulting with an offensive weapon, viz. a stick, with intent to rob; and 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 make it bleed; and two of the prisoner's comrades afterwards came up and beat the prosecutor on the head with similar sticks. Holroyd, J. told the jury, that as the prisoner had used the stick as a weapon of offence, he thought it ought to be considered as an offensive weapon; and the jury having convicted the prisoner, the Judges agreed with Holroyd, J., and held the conviction right. (a) From a case upon the same repealed statute, where the indictment was for assaulting with a certain offensive weapon called a wooden staff, and the evidence proved a violent blow with a great stone, as it was holden that the conviction of the prisoner was proper, it appears to follow that both a wooden staff and a great stone were considered as offensive weapons, within the meaning of that statute. (b)

As to the assembling, it may be mentioned that upon the re- As to the pealed statute 19 Geo. 2. c. 34. it was determined, that it must be assembling. deliberate, and for the purpose of committing the offence described 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 Legislature had in view could be extended to such a case. And the Court said, that the words of the statute manifestly alluded to the circumstance of great multitudes of persons coming down upon the 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 any county in officers of the customs and excise should be tried in any county

England. in England, in such manner and form, as if the offence had been therein committed, it was decided that the provision extended only to revenue officers qua officers : and a defendant having been found guilty, on an indictment, of a common assault on the prosecutor, who was an excise officer, the Court of King's Bench arrested the judgment, though the prosecutor was described to be an excise officer, the offence being laid in Surrey, and the venue in Middlesex. (r)

(6) Rex v. Johnson, Mich. T. 1822. The court offered the Attorney-GeneRuss. and Ry. 492.

ral a special verdict upon this case : (b) Sherwin's case, Oakham, 1785, but he declined to take it, and the 1 East P. C. c. 8. s. 13. p. 421. The prisoners were acquitted. This conground upon which the Judges held struction of the statute as to the asin this case, that the evidence was suf. sembling being deliberate, and for the ficient to maintain the charge in the purpose of committing the offence, is indictment, was that the weapon laid stated to have been adopted by Willes, in the indictment, and the weapon J. and Hothain, B. in Spice's case, Old proved, produce the same sort of mis- Bailey, December 1785, and by Heath, chief, viz. by blows and bruises; and J. in Gray's case, Old Bailey, July in that the description would have been the same year. i Leach 343, note (a) sufficient in an indictment for murder. (r) Rex v. Cartwright, 4 T. R. 490.

(9) Hutchinson's case, 1 Leach 343.

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