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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

av or Viva voce evi“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- acer. “ 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 the trial of any suit or information, on account of as witnesses.

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

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

aný Powers, &c., of

y 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

rines unless on “ 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 for the preven

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 revealed 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

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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 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 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. 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. Řuss. and Ry. 465. ride with, to defend themselves, are

(k) Hutchinson's case, 1784, 1 Leach not offensive weapons; and on its 342.

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. 1 Leach 342. note (a).

(p) Franklin's case, 1 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, note (a) 28. and Rex v. Smith, Mich. 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 thc authority of Ince'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 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 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 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 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)

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

ral a special verdict upon this case : (6) 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, I Leach 343.

126

CHAPTER THE ELEVENTH.

OF HINDERING THE EXPORTATION OF CORN, OR PREVENTING ITS

CIRCULATION WITHIN THE KINGDOM.

the exportation of corn by violence.

many rith intercommitted

The 11 Geo. 2. c. 22. s. 1. recites that persons had assembled in great numbers, committed great violences, and done many injuries, with intent to hinder the exportation of corn, whereby many of his Majesty's subjects had been deterred from buying corn and grain, and following their lawful business therein, to their great loss and damage, as well as to the great damage and prejudice of the farmers and landholders of this kingdom, and of the nation in general. It then enacts, “ that if any person or “ persons shall wilfully and maliciously beat, wound, or use any “ other violence to or upon any person or persons, with intent to “ deter or hinder him or them from buying of corn or grain in “ any market, or other place within this kingdom; or shall unlaw“ fully stop or seize upon any waggon, cart, or other carriage, or “ horse loaded with wheat, flour, meal, malt, or other grain, in or “ on the way to or from any city, market town, or sea-port, of " this kingdom; and wilfully and maliciously break, cut, separate, “ or destroy, the same or any part thereof, or the harness of the “ horses drawing the same; or shall unlawfully take off, drive " away, kill, or wound, any of such horses; or unlawfully beat or “ wound the driver or drivers of such waggon, cart, or other “ carriage, or horse, so loaded, in order to stop the same; or shall “ by cutting of the sacks, or otherwise, scatter or throw abroad “ such wheat, flour, meal, malt, or other grain; or shall take or “ carry away, spoil or damage, the same, or any part thereof;" such offenders, being convicted before two justices of the peace of the county, &c. in which the offence is committed, or before the justices of the peace in open sessions, (who are thereby authorized and empowered summarily and finally to hear and determine the same,) shall be sent to the common gaol, or to the house of correction, there to be kept to hard labour for any time not exceeding three months, nor less than one month; and shall by the same justices be also ordered to be once 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 such offence shall be committed, at the market-cross or market-place there, between the hours of eleven and two o'clock.

By the second section of this statute, “ if any person or persons “ so convicted, shall commit any of the offences aforesaid a second

Persons com

8 these offences a se

“time; or if any person or persons shall wilfully and maliciously cond time, or « pull, throw down, or otherwise destroy, any storehouse or gra- les

destroying

granaries or “ nary, or other place where corn shall be then kept in order to be the corn “ exported; or shall unlawfully enter any such storehouse, gra- therein, or

entering any nary, or other place, and take and carry away any corn, flour,

9 vessel, &c. “ meal, or grain therefrom; or shall throw abroad, or spoil the and spoiling “ same, or any part thereof; or shall unlawfully enter on board grain intended “any ship, barge, boat, or vessel, and shall wilfully and mali“ ciously take and carry away, cast or throw out therefrom, or felony. “ otherwise spoil or damage, any meal, flour, wheat, or grain, “ therein intended for exportation ;" every such offender being convicted, shall be adjudged guilty of felony, and transported for seven years; and if such 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. l. recites that persons had as- Persons using sembled themselves in great numbers, and committed great vio

ndommitted creat pic violence to

deter others lences, with intent to hinder the passage of corn and grain from from buying place to place, whereby the necessary circulation of corn and corn within grain within the kingdom might be prevented: and then enacts the

• the kingdom,

or stopping any “ that if any person or persons shall wilfully and maliciously beat, corn, breaking “ 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 carrying corn,

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

drivers, or “other grain, in or on the way to or from any city, market-town, can “ or place in this kingdom; or shall wilfully and maliciously taking corn,

break, cut, or destroy, any waggon, cart, or other carriage, to be impri“ wherein any such wheat, flour, meal, malt, or other grain, shall so “ be loaded, or the harness 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 "waggon, 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 offenders 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 aforesaid a second mitting these

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. (a) Section 3, provides that attain- for the same offence by any other law der shall not work corruption of or statute. Sections 5, 6, 7, and 8. blood, loss of dower, or disinherit- relate to actions by persons against ance: and by section 4 no person, who the hundred for damages done to their shall be punished for any offence by properties by offenders against the virtue of this act, shall be punished act.

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