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came in to

at the same

done so.

traverse, and all other court fees, he endeavoured to be tried verse. And if, under the commission of gaol delivery: but his trial under this before he commission was opposed by the officers of the court, on the plead he had ground that by omitting to enter his traverse he had not per- given notice formed the condition of his recognizance. The learned Judge that he would entertaining some doubts whether, as the defendant was in cus- time try his tody, he could refuse to try him, directed him to be tried, as in traverse, he the case of any common gaol traverse: but, in order to settle the might have practice in future, he afterwards submitted the matter to the Judges for their consideration. They were unanimously of opinion, 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 entering his traverse, either on an agreement with the prosecutor, or on giving him proper notice of his intention so to do. And they likewise agreed, that if before he had come in to plead he had given the prosecutor ten days' notice that he would at the same time try his traverse, he might have done so.(t)

battery only.

Punishment.

As every battery includes an assault, (u) it follows, that on an Verdict of indictment of assault and battery, in which the assault is ill laid, guilty of the if the defendant be found guilty of the battery, it is sufficient. (w) This offence is punishable as a misdemeanor: and the punishment usually inflicted is fine, imprisonment, and the finding of sureties to keep the peace.(x) But as the offence, though undoubtedly in some degree concerning the public, principally and more immediately affects an individual, the defendant is frequently permitted by the court to speak with the prosecutor, after conviction and before any judgment is pronounced; and if the prosecutor declares himself satisfied, a trivial punishment, generally a fine ofa shilling, is inflicted.(y)

SECT. II.

Of Aggravated Assaults.

ATTEMPTS to murder, or do some great bodily harm, (a) and assaults with intent to ravish, (b) or to commit an unnatural crime, (c) have been already noticed. Also assaults occurring in the obstruction of officers executing process (d) in effecting a rescue, (e) in the obstruction of revenue officers,(ƒ) and in the hindering the

(t) Rex v. Fry, cor. Nares, J. South-
ampton Ass. and considered of by the
Judges, Hil. T. 1776, 1 Leach 111.
(u) Ante, 605.

(w) 1 Hawk. P. C. c. 62. s. 1.
(x) 4 Blac. Com. 217. 1 East. P. C.

c. 8. s. 1. p. 406. aud c. 9. s. 1. p. 428.

(y) Ante, 136.
(a) Ante, Chap. x.
(b) Ante, 563, 564.
(c) Ante, 568.

(d) Ante, 360, et sequ.

(e) Ante, 271, 362, 383, et sequ.
(ƒ) Ante, 117, et sequ.

5 & 6 Edw. 6. c. 4. s. 2. Smiting, or laying violent hands in a church or church-yard.

exportation or circulation of corn, (g) 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 aggravation 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. The statute 5 and 6 Edw. 6. c. 4. relates to disturbances in churches and church-yards; and the second and third sections of the statute make particular provision for the punishment of assaults committed in those places. The second section enacts, "that if any person or persons shall smite, or lay violent hands upon any other, either in any church or church-yard," every person so offending shall be deemed excommunicate. The third section enacts, "that if any person shall maliciously strike any person with any weapon in any church or church-yard, or shall "draw any weapon in any church or church-yard to the intent to "strike another with the same weapon," every person so offending shall be adjudged to have one of his ears cut off; and, if he tent to strike. 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.

S. 3. Striking

with a weapon

in a church or

church-yard, or drawing

one with in

Indictment upon 5 and

Edw. 6. c. 4.

33 Hen. 8. c.

12. Malicious

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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.(h)

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 formam statuti.(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.(k)

Contempts against the King's palaces have always been looked upon as high misprisions; and, by the ancient law before the conKing's palaces, quest, fighting in the King's palaces, or before the King's Judges,

striking in the

(g) Ante, 126, et sequ.

(h) Ante, 279. And see ante, 278, 279, the statute cited more at length. (i) Rex v. Perchall, 2 Leon. 188. Rex v. Penhallo, Cro. Eliz. 231. And in Rex v. Cholmley, Cro. Car. 464, 465, all the Judges, except Jones, J. held that the indictment could not be good for a battery at common law, because it concluded contra formam

statuti. But, according to more recent decisions, it seems that such a conclusion would now be considered as mere surplusage, 1 Stark. 217. Rex v. Mathews, 2 Leach 585. Hawk. P. C. c. 30. s. 9.

(k) Rex v. Cholmley, Cro. Car. 464, 465. 2 Hale 171. 1 East. P. C. c. 8. s. 4. p. 411.

CHAP. XI. § 2.]

In Courts of Justice.

was punished with death.(/) The statute 33 Hen. 8. c. 12. by which enacts, that all malicious strikings by which blood is shed, against blood is shed. 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, with solemn and due circumstance, is prescribed by theparticular 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.()

striking in the King's courts

weapon, or

of justice.

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, whether the court of chancery, exchequer, king's bench, or common pleas, or before Justices of assize or oyer and terminer, is made 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. (p) So that, though striking in the King's palace is not punished with the loss of the 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. (q) And a party is liable to a similar punishment, if, in the same courts, and within their view, he

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21. s. 3.

(0) 1 Hawk. P. C. c. 21. s. 2. where it is said, that the instance given in 3 Inst. 140. of a person's hand being cut off for striking in the Tower, is not warranted by the record. The punishment of cutting off the hand is undoubtedly one of great cruelty; and it is therefore a satisfaction to be able to speak of it as of rare occurrence in the history of the administration of our criminal laws, even in the more barbarous ages. It is said, that not more than ten cases of the kind occur in our books. In the year 1541 (33 Hen. 8.) the sentence of Sir Edmond Knevet to undergo this punishment, gave occasion to a display of loyal devotion, which cannot but be read with interest. Sir Edmond being

brought in to undergo his sentence,
desired that the King of his benign
would pardon him of his right
grace
hand, and take the left: for (quoth
"he) if my right hand be spared, I

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may hereafter do such good ser"vice to his grace as shall please him "to appoint. Of this submission and "request the justices forthwith in"formed the King, who, of his good"ness, considering the gentle heart "of the said Edmond, and the good

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report of lords and ladies, granted
"him pardon, that he should lose
"neither hand, land, nor goods, but
"should go free at liberty.'
Sir Edmond Knevet, 11 St. Tri. (Harg.
Ed) 16.

(p) 3 Inst. 140.
(7) Staundf. 38.

Rex v.

4 Blac. Com. 125.
3 Inst. 140, 141.
1 Hawk. P. C. c. 21. s. 3. 4 Blac.
1 East. P. C. c. 8. s. 3.
Com. 125.
p. 408.

Lord Thanet's

case.

Noli prosequi entered by the

attorney-ge

neral as to the judgment of amputation,

&c.

Rescuing a prisoner from

such courts without striking.

strike a juror or any other person, either with a weapon, or with hand, shoulder, elbow, or foot: but he is not liable to such punishment if he make an assault only, and do not strike.(r) And one who is guilty of this offence cannot excuse himself by shewing that the person so struck by him gave the first assault.(s)

In a case of modern occurrence, the three first counts of the information set forth a special commission for the trial of Arthur O'Connor and others for high treason; and that, pending the sessions, after the acquittal of O'Connor, and before any order or direction had been made by the court for his discharge, the defendants, in open court, &c. made a great riot, and riotously attempted to rescue him out of the custody of the sheriff, to whose custody he had been assigned by the Justices and commissioners; and, the better to effect such rescue and escape, did, at the said sessions, in open court, and in the presence of the said Justices and commissioners, riotously, &c. make an assault on one J. R., and did then and there "beat, bruise, wound," and ill treat the said J. R., and thereby impede and obstruct the said Justices, &c. There were two other counts in the information; the one for riotously interrupting and obstructing the Justices in the holding of the session, and the other for a common riot. (t) Two of the defendants having been found guilty generally, considerable doubt was intimated by Lord Kenyon, whether the court were not bound to pass the judgment of amputation, &c. for the offence, as laid in the three first counts; and the matter stood over for consideration. But before the defendants were again brought up to receive judgment, the attorney-general said, that he had received the royal command and warrant under the sign manual, whereby he was authorised to enter a noli prosequi, as to those parts of the information on which any doubt had arisen, or might arise, whether the judgment thereon were discretionary in the court, and pray judgment only on such charges as left the judgment in their discretion: 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.(u)

A person who rescues a prisoner from any of the courts which have been mentioned, without striking a blow, is punished with perpetual imprisonment, and forfeiture of goods, and of the profits of lands during life; for this offence is in its nature similar to the other but as it differs in this, that no blow is actually given,

(r) Staundf, 38. 3 Inst. 140, 141. 1 Hawk. P. C. c. 21. s. 3. 4 Blac. Com. 125. 1 East. P. C. c. 8. s. 3. p. 408.

in

(s) 1 Hawk. P. C. c. 21. s. 4.
(t) See the precedent of this
formation, 2 Chit, Crim. L. 208, et
sequ.

(u) Rex v. Lord Thanet and others,
B. R. Trin. 39 G. 3. 1 East. P. C. c.
8. s. 3. p. 408, 409, 410. In Rex v.
Davis, Dy. 188 a. 188 b. and the notes
thereto, are various instances of the
judgment having been executed to
the full extent. One of them is re-

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the amputation of the hand is excused. (w) And, for the like reason, an affray or riot near the said courts, but out of their actual view, is punishable by fine and imprisonment during pleasure, but not with the loss of the hand. (x)

courts.

Though an assault in any of the King's inferior courts of jus- Inferior tice would not subject the offender to lose his hand ; (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 behaviour in those courts, is punishable with a fine, by the Judges there sitting.(z)

It is said that, in order to warrant the higher judgment, the Indictment. offence 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, the indictment ought expressly to charge a stroke; though it does not appear whether any technical word be necessary to be used for that purpose.(b)

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The statute 9 Anne, c. 16. makes the assaulting and striking a privy counsellor, in the execution of his office, highly penal. It enacts, "that if any person or persons shall unlawfully attempt "to kill, or shall unlawfully assault and strike or wound any person, being one of the most honourable privy council of her 66 Majesty, her heirs, or successors, when in the execution of his "office of a privy counsellor, in council, or in any committee of "council," the person or persons so offending, being convicted, shall be felons, and shall suffer death, as in cases of felony, without benefit of clergy.

9 Anne, c. 16. Assaulting and privy counsellor, in the execution of

striking, &c.

a

his office.

members of
parliament:
c. 6. as to as-
saults upon

and 5 Hen. 4.

the servants of members

The statute 11 Hen. 6. c. 11. enacts, "that if any assault or 11 Hen. 6. c. "affray be made to any lord spiritual or temporal, knight of the 11. As to assaults upon shire, citizen, or burgess, come to the parliament, or to the lords and "council of the King, by his commandment, and there being and "attending at the parliament or council," that then proclamation shall be made for three several days in the most open place of the town, where the assault or affray shall be made, that the offender yield himself before the King in his bench within a quarter of a if it be in the time of the term, otherwise at the next day year, in 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 the party grieved his double damages, and 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 of an aggravated nature, on account of the respect and reverence due to the sacred character of such person, as the minister and

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of parliament.

Assaulting a
clergyman.
9 Edw. 2. c.3.

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