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2. Smuggling, felonious; under some circum. stances capital ;

2. Smuggling, or the offence of importing goods without paying the duties imposed thereon by the laws of the customs and excise, is an offence generally connected and carried on hand in hand with the former. This is restrained by a great variety of statutes, which inflict pecuniary penalties and seizure of the goods for clandestine smuggling; and affix the guilt of felony, with transportation for seven years, upon more open, daring, and avowed practices: but the last of them, 19 Geo. II. c. 34, is for this purpose instar omnium; for it makes all forcible acts of smuggling, carried on in defiance of the laws, or even in disguise to evade them, felony without benefit of clergy: enacting, that if three or more persons shall assemble, with fire arms or other offensive weapons, to assist in the illegal exportation or importation of goods, or in rescuing the same after seizure, or in rescuing offenders in custody for such offences; or shall pass with such goods in disguise; or shall wound, shoot at, or assault, any officers of the revenue when in the execution of their duty; such persons shall be felons without the benefit of clergy (2). As to that branch of the statute, which required

Geo. III. c. 50, upon goods prohibited boat in his Majesty's navy, or employto be exported.

ed as aforesaid, (first causing a gun to By 4 Geo. IV. c. 69, § 24, all pro- be fired as a signal), to fire at or into hibitions against the exportation of such vessel or boat; and such captain, tobacco-pipe clay are removed, and the master, or other person acting in his same is thereby declared free.

aid or assistance, or by his direction, (2) The statute now in force upon shall be and he is hereby indemnified this subject is the 3 & 4 W, 4, c. 53, and discharged from any indictment, by sect. 1, of which all prior existing penalty, action, or other proceeding for statutes relating to the same subject so doing. are consolidated into one act.

It has been held, with reference to a By sect. 8, in case any vessel or boat similar enactment in a former statute, liable to seizure or examination under 56 Geo. III. st. 2, c. 104, § 8, that if any act or law for the prevention of a Custom-house vessel chase a smugsmuggling, shall not bring to on being gler, and fire into her, without hoisting required so to do, on being chased by such a pendant and ensign as the law. any vessel or boat in his Majesty's requires, the returning the fire is not navy, having the proper pendant and malicious; Rer v. Reynolds, R. & R. ensign of his majesty's ships hoisted, C. C. 465. or by any vessel or boat duly employed By sect. 53, no person shall, after for the prevention of smuggling, hav- sunset and before sunrise, between ing a proper pendant and ensign hoist- 21st September and 1st April, or after ed, it shall be lawful for the captain, the hour of eight in the evening, and master, or other person having the before the hour of six in the morning, charge or command of such vessel or at any other time in the year, make, or

any person, charged upon oath as a smuggler, under pain of death, to surrender himself upon proclamation, it seems to be

aid or assist in making, any signal in signal as aforesaid, the burthen of proof or on board or from any vessel or boat, that such signal so charged as having or on or from any part of the coast or been made with intent, and for the purshore of the united kingdom, or within pose of giving such notice as aforesaid, six miles of any part of such coasts or was not made with such intent, and for shores, for the purpose of giving any such purpose, shall be upon the defennotice to any person on board any dant against whom such charge is made smuggling vessel or boat, whether any or such indictment is found. person so on board of such vessel or By sect. 55, it shall be lawful for boat be or be not within distance to any person whatsoever to prevent any notice any such signal; and if any per- signal being made as aforesaid, and to son, contrary to the true intent and enter and go into and upon any lands meaning of this act, make or cause to for that purpose, without being liable be made, or aid or assist in making, or subject to any indictment, suit, or any such signal, such person so offend- action for the same. ing shall be guilty of a misdemeanor ; An indictment for this offence and it shall be lawful for any person charged it to have been committed on to stop, arrest, and detain the person the 9th March, but did not state it to or persons who shall so offend, and to have been committed between the 21st carry and convey such person or per- September and the 1st April; but the sons so offending before any one or day was proved as laid, and the objecmore of his Majesty's justices of the tion was held no ground for arresting peace residing near the place where the judgment; Rex v. Brown, M. & M. such offence shall be committed, who, N. P. C. 163. if he sees cause, shall commit the All that it is necessary to prove in offender to the next county gaol, there support of an indictment for this to remain until the next court of oyer offence is, that the defendant made a and terminer, great session, or gaol signal by lighting a fire or otherwise, delivery, or until such person or per- or was present aiding or assisting in sons shall be delivered by due course so doing on the sea-shore, &c. as stated of law; and it shall not be necessary

in the indictment. It need not be to prove on any indictment or informa- proved that any smuggling vessel was tion that any vessel or boat was ac- in fact within sight, or actually on the tually on the coast; and the offender coast, at the time ; and it is for the deor offenders, being duly convicted fendant to prove, if he can, that the thereof, shall, by order of the court, fire, &c. was not lighted with the inbefore whom such offender or offen- tent charged in the indictment; Archb. ders shall be convicted, either forfeit Cr. Pl. 468, 469. The quarter sesand pay the penalty or forfeiture of sions have cognizance of this offence ; 1001., or, at the discretion of such Rer v. Cock, 4 M. & S. 71. court, be sentenced or committed to By sect. 58, if any persons to the the common gaol or house of correc- number of three or more, armed with tion, there to be kept to hard labour,

fire-arms or other offensive weapons, for any term not exceeding one year.

shall, within the united kingdom, or By sect. 54, in case any person be

within the limits of any port, harbour, charged with or indicted for having or creek thereof, be assembled in order made or caused to be made, or been to be aiding or assisting in the illegal aiding or assisting in making, any such landing, running, or carrying away of


expired; as the subsequent statutes (6), which continue the original act to the present time, do in terms continue only so

(b) Stat. 26 Geo. I. c. 32; 32 Geo. II. c. 18; 4 Geo. III. c. 12.

343 n.

any prohibited goods, or any goods and evidence, as to the kind of arms, liable to any duties which have not does not seem material; if it is proved been paid or secured, or in rescuing or that the parties were armed either with taking away any such goods as afore- “ fire-arms,” or such other “ offensive said, after seizure, from the officer of the weapons as are within the meaning customs or other officer authorized to of the statute, it would seem to be sufseize the same, or from any person or

ficient; Archb. Cr. Pl. 469, 470. Not persons employed by them or assisting only guns, pistols, daggers, and other them, or from the place where the instruments of war, but also bludgeons, same shall have been lodged by them, clubs, and other things commonly used or in rescuing any person who shall as weapons, are within the meaning of have been apprehended for any of the the Act; Rer v. Cosans, 1 Leach, 342, offences made felony by this or any act

See Rer v. Hutchinson, 1 relating to the customs, or in the pre

Leach, 342. But a common whip has venting the apprehension of any per

been held not to be an offensive weason who shall have been guilty of such pon ; Rex v. Fletcher, 2 Str. 1166 ; offence, or in case any persons to the

and bats, which are long poles used by number of three or more, so armed as smugglers to carry tubs, have been also aforesaid, shall, within the united king- held not to be offensive weapons within dom, or within the limits of any port, the meaning of the repealed statute harbour, or creek thereof, be so aiding 6 Geo. IV. c. 108, § 56; Rer v. or assisting, every person so offending, Noakes, 5 C. & P. 396. And so, even and every person aiding, abetting, or of a hatchet, if caught up suddenly and assisting therein, shall, being thereof accidentally, in the heat of an affray ; convicted, be adjudged guilty of felony, Rer v. Rose, 1 Leach, 342 n. and suffer death as a felon.

To bring a case within the statute, Three persons at the least, must be it must appear that the parties had depresent to constitute the offence of liberately assembled for the purpose assembling armed for the purpose of charged in the indictment; but that running, or assisting to run, uncus

purpose may be proved, either extomed goods.

pressly, by the evidence of an accomIt is not necessary that all should be plice, or the like; or impliedly, by eviarmed; if some are armed, with the dence of circumstances from which the knowledge of the others, and those jury may fairly presume it; Archb. Cr. others are present aiding and assisting, Pl. 470. it will be sufficient; Rer v. Smith, R. Reasonable proof must be given that & R. C. C. 368. But the fact that the goods were uncustomed; but cirsome of the party are armed must be cumstantial evidence, from which the known to those who are unarmed, or jury may fairly presume it, will be the latter cannot be convicted; Rer v. sufficient; Rer v. Shelley, 1 Leach, Southern, Id. 444. These cases were decided upon the repealed Poaching By sect. 60, if any person, being in Act, 57 Geo. III. c. 90; but they company with more than four other seem safe guides for the construction of persons, be found with any goods liable the statute now referred to.

to forfeiture under this or any other A variance between the indictment Act relating to the revenue of Customs

340 n.

much of the said act as relates to the punishment of the offenders, and not to the extraordinary method of apprehending

or Excise, or in company with one other returning the fire is not malicious ; person within five miles of the sea- Rer v. Reynolds, R. & R. C. C. 465. coast, or of any navigable river leading It must be shewn that the vessel was at therefrom, with such goods, and carry- the time belonging to his Majesty's ing offensive arms or weapons, or dis- navy, or employed in the service of the guised in any way, every such person Revenue; which, it seems, may be shall be adjudged guilty of felony, and done by parol evidence; Archb. Cr. shall, on conviction of such offence, be Pl. 471; and that she was within one transported as a felon for the space of hundred leagues of some part of the seven years.

coast of the united kingdom, and that The evidence necessary to support

the officer was at the time in the army, an indictment upon this section may be navy, or marines, on full pay, and emsufficiently collected from the remarks ployed for the prevention of smugabove made upon sect. 58, and from the gling. He must also be shewn to be words of this section itself; it does not an officer of the Customs, in the due seem very clear, upon the latter branch exercise of his office ; but evidence of of this section, whether both persons his acting as such will be sufficient, must be armed or disguised, or not; without producing his commission or Archb. Cr. Pl. 472.

appointment; see sects. 117 and 118 By sect. 59, if any person shall mali- of the statute. ciously shoot at any vessel or boat be- By sect. 61, if any person shall by longing to his Majesty's navy, or in the force or violence, assault, resist, oppose, service of the Revenue, within one molest, hinder, or obstruct any officer hundred leagues of any part of the of the army, navy, or marines, being coast of the united kingdom, or shall duly employed for the prevention of maliciously shoot at, maim, or danger- smuggling, and on full pay, or any ously wound any officer of the army, officer of Customs or Excise, or other navy, or marines, being duly employed person acting in his or their aid or asfor the prevention of smuggling, and sistance, or duly employed for the preon full pay, or any officer of Customs vention of smuggling, in the due exeor Excise, or any person acting in his cution of his or their office or duty, aid or assistance, or duly employed for such person, being thereof convicted, the prevention of smuggling, in the shall be transported for seven years, or due execution of his office or duty, sentenced to be imprisoned and kept to every person so offending, and every hard labour, for any term not exceeding person aiding, abetting, or assisting three years. therein, shall, being lawfully convicted, By sect. 77, offences against the Act be adjudged guilty of felony, and suffer committed upon the high seas shall, for death as a felon.

the purpose of prosecution, be deemed The shooting at the vessel, and the and taken to have been committed at shooting at or wounding the officer, the place on land into which the of. must appear to have been wilful, and fender shall be brought, or in which he will then be presumed to have been shall be found. malicious, until the contrary is shewn. By sect. 117, persons employed in We have seen, that if a Custom-house the prevention of smuggling, shall be vessel fires upon a smuggling vessel, deemed and taken to be duly emwithout having such a pendant and ployed, without proof of their appointensign flying as the law requires, the ment. VOL. IV.


3. fraudulent bankruptcy, felony without clergy;

or causing them to surrender; and for offences of this positive species, where punishment, though necessary, is rendered so by the laws themselves, which by imposing high duties on commodities increase the temptation to evade them, we cannot surely be too cautious in inflicting the penalty of death (c).

3. Another offence against public trade is fraudulent bankruptcy, which was sufficiently spoken of in a former *volume (d); I shall therefore here barely mention the several species of fraud taken notice of by the statute law: viz. the bankrupt's neglect of surrendering himself to his creditors; his non-conformity to the directions of the several statutes; his concealing or embezzling his effects to the value of 201. ; and his withholding any books or writings with intent to defraud his creditors: all which the policy of our commercial country has made felony without benefit of clergy (e) (3).


(c) See vol. I. p. 317; Beccar. ch. 33.

(d) See vol. II. p. 481, 482.
(e) Stat. 5 Geo. II. c. 30.

By sect. 118, the commissions of rant, committing a bankrupt “ until he officers in the army, &c. need not be shall full answers make to the satisfacproduced evidence upon any trial ; tion of the commissioners, and sign and and such officers shall be competent subscribe his examination," is informal, witnesses, although they may be en- but not defective in substance; In re titled to a reward upon conviction. Leak, 3 Y. & J. 46. As to commit.

And by sect. 122, offences against ment of witnesses by the commissioners, the Act may be tried in any county. see post, 284, n. (10) at the end.

(3) By 6 Geo. IV. c. 16, which By sect. 99, it is enacted, that the states in the preamble, that it is expe- bankrupt or other person swearing dient to amend the laws relating to falsely before the commissioners shall bankrupts, and to simplify the language be guilty of perjury, and suffer the thereof, and to consolidate the same so pains and penalties in force against amended and simplified, in one Act,

that offence. and to make other provisions respect- By sect. 112, any bankrupt neglecting bankrupts, all laws relating to ing to surrender and submit himself to bankrupts are repealed, and all former be examined; or refusing to make disprovisions are reduced into this one covery of his estate and effects; or deAct. The different frauds taken notice clining to deliver up his goods, books, of do not materially vary from those and writings; or concealing or embezmentioned in the text.

zling any part of his effects, to the By sect. 36, a bankrupt refusing to value of 101. with intent to defraud his be sworn, or answer, or not fully an- creditors, shall be guilty of felony, and swering, or to sign his examination, be liable to transportation for life, or may be committed. A warrant of not less than seven years, or to impricommitment for not signing the exa- sonment for any term not exceeding mination, need not set out the examin- seven years, as the court before whom ation. The conclusion of such war- he is convicted may adjudge. It being

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