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 By 4 Geo. IV. c. 69, § 24, all pro- (2) The statute now in force upon this subject is the 3 & 4 W. 4, c. 53, by sect. 1, of which all prior existing statutes relating to the same subject are consolidated into one act. By sect. 8, in case any vessel or boat liable to seizure or examination under any act or law for the prevention of smuggling, shall not bring to on being required so to do, on being chased by any vessel or boat in his Majesty's navy, having the proper pendant and ensign of his majesty's ships hoisted, or by any vessel or boat duly employed for the prevention of smuggling, having a proper pendant and ensign hoisted, it shall be lawful for the captain, master, or other person having the charge or command of such vessel or boat in his Majesty's navy, or employed as aforesaid, (first causing a gun to be fired as a signal), to fire at or into such vessel or boat; and such captain, master, or other person acting in his aid or assistance, or by his direction, shall be and he is hereby indemnified and discharged from any indictment, penalty, action, or other proceeding for so doing. It has been held, with reference to a similar enactment in a former statute, 56 Geo. III. st. 2, c. 104, § 8, that if a Custom-house vessel chase a smuggler, and fire into her, without hoisting such a pendant and ensign as the law requires, the returning the fire is not malicious; Rex v. Reynolds, R. & R. C. C. 465. By sect. 53, no person shall, after sunset and before sunrise, between. 21st September and 1st April, or after the hour of eight in the evening, and before the hour of six in the morning, 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 or on board or from any vessel or boat, or on or from any part of the coast or shore of the united kingdom, or within six miles of any part of such coasts or shores, for the purpose of giving any notice to any person on board any smuggling vessel or boat, whether any person so on board of such vessel or boat be or be not within distance to notice any such signal; and if any person, contrary to the true intent and meaning of this act, make or cause to be made, or aid or assist in making, any such signal, such person so offending shall be guilty of a misdemeanor ; and it shall be lawful for any person to stop, arrest, and detain the person or persons who shall so offend, and to carry and convey such person or persons so offending before any one or more of his Majesty's justices of the peace residing near the place where such offence shall be committed, who, if he sees ees cause, shall commit the offender to the next county gaol, there to remain until the next court of oyer and terminer, great session, or gaol delivery, or until such person or persons shall be delivered by due course of law; and it shall not be necessary to prove on any indictment or information that any vessel or boat was actually on the coast; and the offender or offenders, being duly convicted thereof, shall, by order of the court, before whom such offender or offenders shall be convicted, either forfeit and pay the penalty or forfeiture of 100., or, at the discretion of such court, be sentenced or committed to the common gaol or house of correction, there to be kept to hard labour, for any term not exceeding one year. By sect. 54, in case any person be charged with or indicted for having made or caused to be made, or been aiding or assisting in making, any such signal as aforesaid, the burthen of proof that such signal so charged as having been made with intent, and for the purpose of giving such notice as aforesaid, was not made with such intent, and for such purpose, shall be upon the defendant against whom such charge is made or such indictment is found. By sect. 55, it shall be lawful for any person whatsoever to prevent any signal being made as aforesaid, and to enter and go into and upon any lands for that purpose, without being liable or subject to any indictment, suit, or action for the same. An indictment for this offence charged it to have been committed on the 9th March, but did not state it to have been committed between the 21st September and the 1st April; but the day was proved as laid, and the objection was held no ground for arresting the judgment; Rex v. Brown, M. & M. N. P. C. 163. All that it is necessary to prove in support of an indictment for this offence is, that the defendant made a signal by lighting a fire or otherwise, or was present aiding or assisting in so doing on the sea-shore, &c. as stated in the indictment. It need not be proved that any smuggling vessel was in fact within sight, or actually on the coast, at the time; and it is for the defendant to prove, if he can, that the fire, &c. was not lighted with the intent charged in the indictment; Archb. Cr. Pl. 468, 469. The quarter sessions have cognizance of this offence; Rex v. Cock, 4 M. & S. 71. By sect. 58, if any persons to the number of three or more, armed with fire-arms or other offensive weapons, shall, within the united kingdom, or within the limits of any port, harbour, or creek thereof, be assembled in order to be aiding or assisting in the illegal landing, running, or carrying away of expired; as the subsequent statutes (b), 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. any prohibited goods, or any goods liable to any duties which have not been paid or secured, 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 from any person or persons employed by them or assisting them, or from the place where the same shall have 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 customs, or in the preventing the apprehension of any person 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 the united 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. Three persons at the least, must be present to constitute the offence of assembling armed for the purpose of running, or assisting to run, uncustomed goods. It is not necessary that all should be armed; if some are armed, with the knowledge of the others, and those others are present aiding and assisting, it will be sufficient; Rex v. Smith, R. & R. C. C. 368. But the fact that some of the party are armed must be known to those who are unarmed, or the latter cannot be convicted; Rex v. Southern, Id. 444. These cases were decided upon the repealed Poaching Act, 57 Geo. III. c. 90; but they seem safe guides for the construction of the statute now referred to. A variance between the indictment and evidence, as to the kind of arms, does not seem material; if it is proved that the parties were armed either with "fire-arms," or such other " offensive weapons as are within the meaning of the statute, it would seem to be sufficient; Archb. Cr. Pl. 469, 470. Not only guns, pistols, daggers, and other instruments of war, but also bludgeons, clubs, and other things commonly used as weapons, are within the meaning of the Act; Rex v. Cosans, 1 Leach, 342, 343 n. See Rex v. Hutchinson, 1 Leach, 342. But a common whip has been held not to be an offensive weapon; Rex v. Fletcher, 2 Str. 1166; and bats, which are long poles used by smugglers to carry tubs, have been also held not to be offensive weapons within the meaning of the repealed statute 6 Geo. IV. c. 108, § 56; Rex v. Noakes, 5 C. & P. 396. And so, even of a hatchet, if caught up suddenly and accidentally, in the heat of an affray; Rex v. Rose, 1 Leach, 342 n. To bring a case within the statute, it must appear that the parties had deliberately assembled for the purpose charged in the indictment; but that purpose may be proved, either expressly, by the evidence of an accomplice, or the like; or impliedly, by evidence of circumstances from which the jury may fairly presume it; Archb. Cr. Pl. 470. Reasonable proof must be given that the goods were uncustomed; but circumstantial evidence, from which the jury may fairly presume it, will be sufficient; Rex v. Shelley, 1 Leach, 340 n. By sect. 60, if any person, being in company with more than four other persons, be found with any goods liable to forfeiture under this or any other Act relating to the revenue of Customs 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 person within five miles of the seacoast, or of any navigable river leading therefrom, with such goods, and carrying offensive arms or weapons, or disguised in any way, every such person shall be adjudged guilty of felony, and shall, on conviction of such offence, be transported as a felon for the space of seven years. The evidence necessary to support an indictment upon this section may be sufficiently collected from the remarks above made upon sect. 58, and from the words of this section itself; it does not seem very clear, upon the latter branch of this section, whether both persons must be armed or disguised, or not; Archb. Cr. Pl. 472. By sect. 59, if any person shall maliciously shoot at any vessel or boat belonging to his Majesty's navy, or in the service of the Revenue, within one hundred leagues of any part of the coast of the united kingdom, or shall maliciously shoot at, maim, or dangerously wound any officer of the army, navy, or marines, being duly employed for the prevention of smuggling, and on full pay, or any officer of Customs or Excise, or any person acting in his aid or assistance, or duly employed for the prevention of smuggling, in the due execution of his office or duty, every person so offending, and every person aiding, abetting, or assisting therein, shall, being lawfully convicted, be adjudged guilty of felony, and suffer death as a felon. The shooting at the vessel, and the shooting at or wounding the officer, must appear to have been wilful, and will then be presumed to have been malicious, until the contrary is shewn. We have seen, that if a Custom-house vessel fires upon a smuggling vessel, without having such a pendant and ensign flying as the law requires, the returning the fire is not malicious; Rex v. Reynolds, R. & R. C. C. 465. It must be shewn that the vessel was at the time belonging to his Majesty's navy, or employed in the service of the Revenue; which, it seems, may be done by parol evidence; Archb. Cr. Pl. 471; and that she was within one hundred leagues of some part of the coast of the united kingdom, and that the officer was at the time in the army, navy, or marines, on full pay, and employed for the prevention of smuggling. He must also be shewn to be an officer of the Customs, in the due exercise of his office; but evidence of his acting as such will be sufficient, without producing his commission or appointment; see sects. 117 and 118 of the statute. By sect. 61, if any person shall by force or violence, assault, resist, oppose, molest, hinder, or obstruct any officer of the army, navy, or marines, being duly employed for the prevention of smuggling, and on full pay, or any officer of Customs or Excise, or other 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 transported for seven years, or sentenced to be imprisoned and kept to hard labour, for any term not exceeding three years. By sect. 77, offences against the Act committed upon the high seas shall, for the purpose of prosecution, be deemed and taken to have been committed at the place on land into which the offender shall be brought, or in which he shall be found. By sect. 117, persons employed in the prevention of smuggling, shall be deemed and taken to be duly employed, without proof of their appoint ment. 3. fraudulent bankruptcy, felony without clergy; [*156] 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 20%.; 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. By sect. 118, the commissions of officers in the army, &c. need not be produced in evidence upon any trial; and such officers shall be competent witnesses, although they may be entitled to a reward upon conviction. And by sect. 122, offences against the Act may be tried in any county. (3) By 6 Geo. IV. c. 16, which states in the preamble, that it is expedient to amend the laws relating to bankrupts, and to simplify the language thereof, and to consolidate the same so amended and simplified, in one Act, and to make other provisions respecting bankrupts, all laws relating to bankrupts are repealed, and all former provisions are reduced into this one Act. The different frauds taken notice of do not materially vary from those mentioned in the text. By sect. 36, a bankrupt refusing to be sworn, or answer, or not fully answering, or to sign his examination, may be committed. A warrant of commitment for not signing the examination, need not set out the examination. The conclusion of such war (d) See vol. II. p. 481, 482. rant, committing a bankrupt " until he shall full answers make to the satisfaction of the commissioners, and sign and subscribe his examination," is informal, but not defective in substance; In re Leak, 3 Y. & J. 46. As to commitment of witnesses by the commissioners, see post, 284, n. (10) at the end. By sect. 99, it is enacted, that the bankrupt or other person swearing falsely before the commissioners shall be guilty of perjury, and suffer the pains and penalties in force against that offence. By sect. 112, any bankrupt neglecting to surrender and submit himself to be examined; or refusing to make discovery of his estate and effects; or declining to deliver up his goods, books, and writings; or concealing or embezzling any part of his effects, to the value of 10l. with intent to defraud his creditors, shall be guilty of felony, and be liable to transportation for life, or not less than seven years, or to imprisonment for any term not exceeding seven years, as the court before whom he is convicted may adjudge. It being |