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or rabbits, in any land (whether open or enclosed); or on any public road, highway or path, or the sides thereof; or at the openings, outlets or gates from any such lands into such roads ;-or shall, by night, be in such places, with any gun, net, engine or other instrument, for the purpose of taking or destroying game :-he shall be liable to imprisonment, for the first offence, for any period not exceeding three months, with hard labour; and, at the expiration of such period, to be bound over to his good behaviour by sureties for a year; or, in default of such recognizance, to be further imprisoned for six months, or until such sureties are found (o). For a second offence, such person shall be liable to imprisonment for six months, and then to be bound in sureties for two years; and in default thereof, to be further imprisoned for one year, or until such sureties are found (p). And if he shall offend a third time, he is guilty of a misdemeanor; and he is then liable to penal servitude for not more than seven nor less than three years, or to be imprisoned, with hard labour, for any time not exceeding two years (9). It is moreover provided, that when any person shall be found committing such offence, it shall be lawful for the owner or occupier of the land; or for any person having a right of free warren or free chase therein; or for the lord of the manor; or for the gamekeeper or servant of such persons or their assistants ;-to seize and apprehend any person so offending ; and in case he shall assault or offer violence with an offensive weapon, towards any person so authorized to apprehend him, he is guilty of a misdemeanor; and he is, in that case, liable to penal servitude for not more than seven nor less than five years, or to be imprisoned, with hard labour, for any term not exceeding two years (r).
(0) 9 Geo. 4, c. 69, s. 1.
& 17 Vict. c. 99; 20 & 21 Vict. c. 3.
(7) 9 Geo. 4, c. 69, s. 1; 7 & 8 Vict. c. 29; 16 & 17 Vict. c. 99; 20
It is further enacted that if three or more persons shall, by night, unlawfully enter any lands or roads, for the purpose of taking or destroying game or rabbits (any of them being armed with any gun or other offensive weapon), each of such persons shall be guilty of a misdemeanor: and they shall severally be liable to penal servitude for any term not more than fourteen years, nor less than five years; or to be imprisoned, with hard labour, for not more than two years (s).
XII. Lastly, under the general head of vagrancy and other disorderly conduct, may be classed a variety of offences against the public economy.
The civil law expelled all sturdy vagrants from the city (t). And, in our own law, idle persons and vagabonds,—whom our antient statutes describe to be “such as wake on the night “ and sleep on the day, and haunt customable taverns “ and alehouses, and routs about; and no man wot from “ whence they come, ne whither they go;” are more particularly described by statute 5 Geo. IV. c. 83, and are there divided into three classes, idle and disorderly persons, rogues and vagabonds, and incorrigible rogues (u). These
& 21 Vict. c. 3; 26 & 27 Vict. c. 47. (See Cureton v. The Queen, 1 B. & Smith, 208.)
(3) 9 Geo. 4, c. 69, s. 9; 9 & 10 Vict. c. 24; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47. See the following cases as to the construction of 9 Geo. 4, c. 99, s. 9: R. v. Dowsell, 6 Car. & P. 398; R. v. Gainer, 7 Car. & P. 231; R. v. Kendrick, ibid. 184; R. v. Davis, 8 Car. & P. 759; R. v. Fry, 2 M. & Rob. 42; Fletcher v. Calthrop, 6 Q. B. 880; R. v. Jones, 2 Cox's Cr. C. 185; R. v. Merry, ibid. 240; R. v. Whitaker and
17 L. J. (M. C.) 127; R. v. Uezzell and others,
20 L. J. (M. C.) 192.
(t) 4 Bl. Com., p. 169, citing Nov. 80, c. 5.
(u) The statute particularly defines the persons who are to come within one or other of these three general appellations, but the enumeration is too long for insertion. By other Acts, also, persons committing particular offences of various kinds are to be deemed idle and disorderly persons, &c., within the statute of Geo. 4, and may be punished accordingly. See 1 & 2 Vict. c. 38; 29 & 30 Vict. c. 113, s. 15; 34 & 35 Vict. c. 112, s. 15; 36 & 37 Vict. c. 38.
are all offenders against the good order, and blemishes in the government, of any kingdom, and they may be proceeded against under the 4th section of the above statute ; and, if convicted, may be punished as follows (y); that is to say,-“ idle and disorderly persons," with one month's imprisonment, and hard labour : “rogues and vagabonds” with three months' imprisonment, and hard labour: while “ incorrigible rogues,” may be committed to the next sessions of the peace, and kept to hard labour in the interim: and may be further punished, if convicted at the sessions, with imprisonment and hard labour for one year, and with whipping, except in the case of females (a).
(y) We may remark here, that two classes of offenders seem to be now punishable under the Act of Geo. 4, who were formerly treated by our law with much more severity. 1. Idle soldiers and marines, or persons pretending to be soldiers or marines, wandering about the realm. were deemed under the statute 39 Eliz. c. 17, (repealed by 52 Geo. 3, c. 31,) to be ipso facto guilty of a capital felony. 2. Outlandish persons calling themselves Ægyptians or Gypsies. Against these, provisions were made by 1 & 2 Ph. & M. c. 4, and 5 Eliz. c. 20; by which if the gypsies themselves, or if any person, being fourteen years old, who bad been seen or found in their fellowship, or had disguised himself like them, remained in this kingdom one month, it was felony; and we are informed by Sir M. Hale (1 Hale, P. C. 671), that at one Suffolk assizes no less than thirteen gypsies were executed upon these statutes. But they are now repealed by 23 Geo. 3, c. 51, and 1 Geo. 4, c. 116. (See also 19 & 20 Vict. c. 64.) Blackstone remarks (rol. iv. p. 165), as to gypsies, that "they “ are a strange kind of common“ wealth among themselves of wan
dering impostors and jugglers, who “ were first taken notice of in Ger
many about the beginning of the “ fifteenth century, and have since
spread themselves all over Europe. “ Monster, who is followed and re“ lied upon by Spelman and other “ writers, fixes the time of their first “ appearance to the year 1417; under
passports, real or pretended, from “ the Emperor Sigismund, king of “ Hungary. And Pope Pius the se“ cond, (who died A.D. 1464,) men“ tions them in his history as thieves “ and vagabonds, then wandering “ with their families over Europe “ under the name of Zigari ; and “ whom he supposes to bave mi“ grated from the country of the • Zigi, which nearly answers to the “ modern Circassia. In the com
pass of a few years they gained “such a number of idle proselytes “ (who imitated their language and " complexion, and betook them“selves to the same arts of chiro
mancy, begging and pilfering), " that they became troublesome, and
even formidable, to most of the "states of Europe. Hence they “ were expelled from France in the
year 1560, and from Spain in 1591. “ And the government in England “ took the alarm much earlier; for “ in 1530 they are described by “ statute 22 Hen. 8, c. 10, as out“ landish people calling themselves “ Egyptians, using no craft nor feat “ of merchandize, who have come “ into this realm, and gone from “shire to shire, and place to place, “ in great company, and used great “ subtle and crafty means to deceive “the people; bearing them in hand, " that they by palmestry could tell “ men and women's fortunes; and “so, many times, by craft and sub“ tilty have deceived the people of
“their money; and also have com“mitted many heinous felonies and “ robberies." Much more recent information, however, as to the origin and history of the Gypsies, will be found in the work of Mr. Borrow, called “ Zincali,” published in 1841.
(a) By 5 Geo. 4, c. 83, s. 13, houses of reception for travellers, may be searched for vagrants, &c., and the suspected parties may be carried before a magistrate. See also 34 & 35 Vict. c. 112, ss. 11, 16.
OF THE MEANS OF PREVENTING OFFENCES.
[We are now arrived at the fifth general branch or head, under which we were to consider the subject of this Book of our Commentaries (a): viz., the means of preventing the commission of crimes and misdemeanors: and really it is an honour, and almost a singular one, to our English laws, that they furnish a title of this sort; since preventive justice is, upon every principle of reason, of humanity and of sound policy, preferable, in all respects, to punishing justice (6); the execution of which, though necessary, and in its consequences a species of mercy to the commonwealth, is always attended with many harsh and disagreeable circumstances.
This preventive justice chiefly consists in obliging those persons, whom there is a probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen: and that, by their finding pledges, or securities, for keeping the peace; or for their good behaviour (c).
By the Saxon constitutions these sureties were always at hand, by means of King Alfred's wise institution of decennaries or frank pledges; wherein, as has more than (a) Vide sup. p. 2.
They have reference chiefly to con(6) Beccar, ch. 41.
victs holding licences under the (c) The 34 & 35 Vict. c. 112, is Penal Servitude Acts; the better entitled “ An Act for the more identification of criminals; and the effectual Prevention of Crime," but punishments of persons twice conits provisions scarcely come within victed of crime. the scope of the present chapter.