have been actually committed, as his Majesty may deem most ex. pedient for bringing such offender to justice. (k) The 1 & 2 Geo. 4, c. 75, s. 11, enacts, "that if any person or 1 & 2 Geo. 4, persons shall wilfully cut away, cast adrift, remove, alter, deface, c. 75, s. 11. sink, or destroy, or shall do or commit any act with intent and Cutting away, defacing, &c., design to cut away, cast adrift, remove, alter, deface, sink, or de- buoys, buoystroy, or in any other way injure or conceal any buoy, buoy-rope, ropes, &c., or mark, belonging to any ship or vessel, or which may be attached felony, punishable by transto any anchor or cable belonging to any ship or vessel whatever, portation, &c. whether in distress or otherwise, such person or persons so offending shall, on being convicted of such offence, be deemed and adjudged to be guilty of felony, and shall be liable to be transported for any term not exceeding seven years, or, in mitigation of such punishment, to be imprisoned for any number of years at the discretion of the Court in which the conviction shall be made." () Besides the statutes which have been thus cited, there are some Statutes of a others of a more limited and local operation, which may be briefly limited and local opera noticed. The 2 Geo. 3, c. 28,which made provisions against damaging tion, 2 & 3 Vict. the cordage of vessels on the Thames, was repealed by the 2 & 3 Vict. c. 47, s. 27. c. 47, entitled "An act for further improving the police in and near the metropolis;" but sec. 27 of that act enacts, that "every person who shall unlawfully cut, damage, or destroy any of the ropes, cables, cordage, tackle, headfasts, or other the furniture of or belonging to any ship, boat, or vessel lying in the river Thames, or in any of the docks or creeks adjacent thereto, with intent to steal or otherwise unlawfully obtain the same or any part thereof, shall be deemed guilty of a misdemeanor." Tho 39 Geo. 3, c. 69 (a local act for 39 Geo. 3, improving the port of London), s. 4, after providing as to the burn- c. 69. ing, &c., of ships therein mentioned, enacts, "that if any person or persons shall knowingly, wilfully, or maliciously demolish, break down, cut, or destroy any of the works to be made by virtue of this act, or any ship or vessel lying in the said canal, or in any of the said docks, basins, cuts, or other works; then every such offender, being convicted thereof, shall suffer punishment by fine, imprisonment, or transportation, at the discretion of the Judge, &c., before whom such offender shall be tried and convicted." And by sec. 105, persons wilfully or maliciously cutting, &c., or in any manner destroying any rope, &c., by which any ship or vessel lying in the said canal, docks, &c., or in any place or places in the river Thames, between London Bridge and the mouth of the river Lea, are moored or fastened, shall forfeit not exceeding 101. The 47 Geo. 3, sess. 2, 47 Geo. 3, c. 2, s. 57 (local act), relates to the damaging, &c., of shipping, or sess. 2, c. 2, (k) Some offences of a similar nature may be inquired of and tried by courts martial by the naval articles of war, secs. 24 and 25, as given in 22 Geo. 2, c. 33. And by the 26th article, " care shall be taken in the conducting and steering of any of his Majesty's ships, that through wilfulness, negligence, or other defaults, no ship be stranded or run upon any rocks or sands, or split or hazarded, upon pain that such as shall be found guilty therein be punished by death, or such other punishment as the offence, by a court-martial, shall be judged to deserve." VOL. II. (1) See various provisions of this act as to unlawfully receiving anchors, cables, &c., or goods obtained from ships, ante, p. 270. By sec. 36, the act is not to extend to Scotland or Ireland; nor (by sec. 23) to affect the Cinque Port act, 48 Geo. 3, c. 130, or the Pilot act, 48 Geo. 3, c. 104. This statute contains no express provisions for the punishment of principals in the second degree and accessories, they are therefore punishable in the manner stated in note (u), ante, p. 448. Q Q s. 57. 1 & 2 Geo. 4, c. 76. Words" cast away or des troy." As to the goods, &c., in Folkstone Harbour. The 1 & 2 Geo. 4, c. 76, relates to the jurisdiction of the Cinque Ports, and the sixth section contains an enactment making the cutting away, defacing, &c., buoys, &c., a felony punishable by transportation in words similar to the 1 & 2 Geo. 4, c. 75, s. 11. (m) Upon the words "cast away or destroy" it may be mentioned that, upon the construction of those words in two statutes, 4 Geo. 1, c. 12, and 11 Geo. 1, c. 29 (now repealed) it appears to have been ruled that if a ship were only run aground or stranded upon a rock, and were afterwards got off in a condition capable of being easily refitted, she could not be said to be cast away or destroyed, and that the case was not therefore within either of those statutes. (n) A question has twice arisen, but has not been expressly decided, meaning of the word "vessel." as to what vessels are included within the word "vessel" in the 7 & 8 Geo. 4, c. 30. In the first case the prisoner was indicted for setting fire to a barge, and Alderson, B., would have reserved the question, if the prisoner had been convicted, whether a barge was a vessel within the meaning of this statute. (o) In the second case the prisoner was indicted for damaging a certain vessel by beating a hole in the bottom of it. The vessel in question was a small pleasure boat, about eighteen feet long, and two men could have carried it, and it was objected that the legislature meant to apply the terms "ship or vessel" only to such vessels as were likely to be underwritten, and not to small boats; and that in the 7 & 8 Geo. 4, c. 29, s. 17, where it was meant to include boats, the words were "vessel, barge, or boat," clearly making a distinction between a vessel and a boat. Patteson, J., "That the term vessel would in common parlance include this boat is clear, but whether in this act of Parliament it was meant to include such boats is the question." "I incline to think that this boat is within the clause in the act of Parliament; but as the word vessel must have the same construction in all other acts of Parliament, it might lead to inconvenience, and therefore if necessary I will take the opinion of the Judges upon it." (p) Indictment. In the same case it was objected that the indictment was bad, because it did not allege that the damage was done "otherwise than by fire;" but it was held to be sufficient, as it was alleged to be done by beating a hole in the bottom of the boat. (q) (m) Ante, p. 593, and see the 1 & 2 Geo. 4, c. 76, as to other offences committed within this jurisdiction. (n) De Londo's case, 1765. 2 East, P. C. c. 22, s. 42, p. 1098. (0) Rex v. Smith, 4 C. & P. 569. See this case, ante, p. 566. (p) Rex v. Bowyer, 4 C. & P. 559. Verdict not guilty. Could a corricle be considered a vessel within this statute? (q) Rex v. Bowyer, supra. CHAPTER THE FIFTY-FOURTH. OF WILFUL OR MALICIOUS DAMAGE TO REAL OR PERSONAL Persons cornmitting da mage to any property, in any case not previously provided for, may be com not exceeding THE 7 & 8 Geo. 4, c. 30, s. 24, enacts, "that if any person shall wilfully or maliciously (a) commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no remedy or punishment is hereinbefore provided, every such person, being convicted thereof before a justice of the peace, shall forfeit and pay such sum of money as shall appear may to the justice to be a reasonable compensation for the damage, injury, pelled by a or spoil so committed, not exceeding the sum of five pounds; which justice to pay sum of money shall, in the case of private property, be paid to the compensation party aggrieved, except where such party shall have been examined five pounds. in proof of the offence; and in such case, or in the case of property of a public nature, or wherein any public right is concerned, the money shall be applied in such manner as every penalty imposed by Application of a justice of the peace under this act is hereinafter directed to be ap- the money plied; and if such sum of money, together with costs (if ordered) shall not be paid either immediately after the conviction, or within such period as the justice shall at the time of the conviction appoint, the justice may commit the offender to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour as the justice shall think fit, for any term not exceeding two calendar months, unless such sum and costs be sooner paid: provided always, that nothing herein contained shall Proviso. extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a right to do the act complained of, (b) nor to any trespass, not being wilful and malicious, committed in hunting, fishing, or in the pursuit of game, but that every such trespass shall be punishable in the same manner as before the passing of this act." (a) See sec. 25, ante, p. 544. (b) It is a question for the magistrates, under all the circumstances, whether the party acted under such fair and reasonable awarded. BOOK THE FIFTH. OF OFFENCES WHICH MAY AFFECT THE PERSONS CHAPTER THE FIRST. OF PERJURY AND SUBORNATION OF PERJURY. PERJURY, by the common law, appears to be a wilful false oath by one who, being lawfully required to depose the truth in any proceeding in a Court of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not. ་་ " Subornation of perjury by the common law is an offence in pro Inciting a witness to give particular evidence, where the inciter (a) 1 Hawk. P. C. c. 69, s. 1. 3 Inst. 164. Com. Dig. tit. Justice of Peace, B. 102. Bac. Ab. tit. Perjury. (b) 1 Hawk. P. C. c. 69, s. 10. Bac. Ab. tit. Perjury, and the authorities there cited. (c) Rex v. Edwards, East. T. 1764, MS. Bayley, J. And as to dissuading witnesses from giving evidence, see vol I, p. 182. must be wilful, and taken with some The false oath must be wilful, and taken with some degree of The false oath deliberation, for if upon the whole circumstances of the case it shall appear probable that it was owing rather to the weakness than perverseness of the party, as where it was occasioned by sur- degree of deprise, or inadvertency, or a mistake of the true state of the question, liberation. it cannot but be hard to make it amount to voluntary and corrupt perjury, which is of all crimes whatsoever the most infamous and detestable. (d) It has been said that no oath will amount to perjury, unless it be sworn absolutely and directly, and, therefore, that he who swears a thing according as he thinks, remembers, or believes, cannot, in respect of such an oath, be found guilty of perjury. (e) But De Grey, Ld. C. J., appears to have laid down a different doctrine. (f) And Lord Mansfield, C. J., is stated to have said, "It is certainly true that a man may be indicted for perjury in swearing that he believes a fact to be true which he must know to be false." (g) It is further said that, upon this question being agitated in the Court of Common Pleas, all the Judges were unanimous that belief was to be considered as an absolute term, and that an indictment might be supported upon such a statement. (h) But it has been holden that perjury cannot be assigned upon an assertion the correctness of which depends upon the construction of a deed. (i) The important requisites in a case of perjury appear to be these: the false oath must be taken in a judicial proceeding, before a competent jurisdiction, and it must be material to the question depending. (k) A man may be indicted for perjury in swearing that he believes a fact to be true. With respect to the falsity of the oath it should be observed, The oath must that it has been considered not to be material whether the fact, be false. which is sworn, be in itself true or false; for, howsoever the thing sworn may happen to prove agreeable to the truth, yet, if it were not known to be so by him who swears to it, his offence is altogether as great as if it had been false, inasmuch as he wilfully swears that he knows a thing to be true which at the same time he knows nothing of, and impudently endeavours to induce those before whom he swears to proceed upon the credit of a deposition which any stranger might make as well as he. (1) The oath must be taken either in a judicial proceeding, or in The oath must some other public proceeding of the like nature, wherein the King's be taken in a judicial prohonour or interest are concerned; as, before commissioners ap-ceeding. pointed by the King to inquire of the forfeitures of his tenants, or of defective titles wanting the supply of the King's patents. But it is not material whether the Court, in which a false oath is taken, be a Court of record or not, or whether it be a Court of common law, or a Court of equity, or civil law, &c., or whether the oath be taken in the face of the Court, or out of it before persons au (d) 1 Hawk. P. C. c. 69, s. 2. (e) 3 Inst. 166. (f) Miller's case, 3 Wils. 427. 2 Black, Rep. 881. (g) Pedley's case, 1 Leach, 325. (h) Anon. C. P. Mich. T. 1780. 1 Hawk. P. C. c. 69, s. 7, note (a), p. 88, (ed. 1795.) (i) Rex v. Crespigny, cor. Kenyon, C. J. 1 Esp. 280. (k) By Lord Mansfield, C. J., in Rex v. Aylett, T.-R. 69. (2) 1 Hawk. P. C. c. 69, s. 6. Rex". Edwards, cor. Adams, B., Shrewsbury Lent Ass. 1764; and subsequently consi dered of by the Judges, MS. And see per Lawrence. J., in Rex v. Mawbey and others, 6 T. R. 619. |
