after the said day, maliciously, willingly, or unlawfully bark any apple trees every such [No. XVIII.] 3 and 4 Edward VI. c. 5.-It shall be High Treason for Twelve Persons or above, being assembled together, to attempt to kill or imprison any of the King's Council, or to alter any Laws, and to continue together by the space of an Hour, being commanded by a Justice of Peace, Mayor, Sheriff, &c. to return. And it shall be Felony for Twelve Persons or above, to practise to destroy any l'ark, Pond, Conduit or Dove-house, or to have Common or Way in any Ground, or to pull down any Houses, Barns, or Mills, or to burn any Stack of Corn, or to abate the Rents of any Lands, or the Prices of any Victual, and to continue together an Hour, being commanded by a Justice of Peace, Sheriffs, Bailiffs, &c. by Proclamation to return. EXP. 7 Ed. 6. cap. 11. and REP. 1 M. 1. Sess. 2. cap. 12. [No. XIX.] 5 and 6 Edward VI. c. 4.-Against Quarrel- [No. XX.] 1 Mary, sess. 2. c. 12. No. XVII. 37 H. VIII. c. 6. Barking of fruit trees. No. XX. 1 Mary, IF any persons to the number of twelve or above, being assembled together, shall intend, go about, practise or put in use, with force and arms, unlawfully and of their own authority, to change any laws made for religion, by authority of Parliament or any other laws of this realm, the sess. 2. c. 12. same number of twelve or above, being commanded by the sheriff, or by any justice of peace, or by any mayor, sheriff, justices of peace or bailiffs, Riots. of any city, borough, or town corporate, where any such assemblies shall be, by proclamation in the Queen's name to retire and repair to their houses or places from whence they came: and any of them, notwithstanding such proclamation, shall continue together by the space of one hour after such commandment made, or after that shall willingly in forcible and riotous manner attempt to do or put in ure any of the things above specified: That then as well every such abode together, as every such act or offence, shall be adjudged felony, and the offenders shall suffer death, as in case of felony. And if any persons to the said number of twelve or above, shall go about, &c. to overthrow, cut, cast down or dig the pales, hedges, ditches, or other enclosure of any park, or other ground enclosed, or the banks of any fish-pond, or any conduits for water, to the intent that the same should from thenceforth lie open, or unlawfully to have any way or common in the said parks or other grounds enclosed, or to destroy the deer in any park, or any warren of conies, or any dove-houses, or fish in any fish-pond, or to pull or cut down any houses, barns, mills, or bays, or to burn any stacks of corn, or to abate or diminish the rents of any lands, or the price of victual, corn or grain; and being commanded by any justice of peace, &c. by proclamation, &c. to retire to their habitations, &c. and they notwithstanding shall remain together by the space of one hour, or shall in forcible manner put in ure any of the things before-mentioned, No. XX. 1 Mary, sess. 2. c. 12. &c. every of the said offenders shall be judged a felon, &c. And if any person unlawfully, by ringing of bells, sounding of any trumpet, drum, horn, or other instrument, or by firing of a beacon, or by malicious speaking of any words, or making any outcry, or by setting up or casting of any bill or writing, or by any other deed, shall raise any persons to the number of twelve or above, to the intent that the same persons should do any of the acts above-mentioned, and the persons so raised, after commandment given in form aforesaid, shall make their abode together, or in forcible manner put in ure any of the acts abovesaid; then all persons, by whose speaking, &c. shall be adjudged felons. And if the wife, servant, or other persons shall any way relieve them that be unlawfully assembled, with victuals, weapons or other thing, they shall be adjudged felons. And if any persons above the number of two, and under the number of twelve, shall practise any of the things above-mentioned, and being commanded by a justice of peace, &c. to retire, &c. make their abode by the space of one hour together, every of them shall suffer imprisonment one year, and every person damnified shall recover his triple damages against him; and every person able, being requested by the King's officers, shall be bound to resist them. If any persons to the number of forty or above, shall assemble together by forcible manner, unlawfully to put in ure any of the things above specified, or to do other felonies or rebellions, and so shall continue together three hours after proclamation made at or nigh the place where they be so assembled, or in some market town thereunto next adjoining, and after notice to them given; every person so willingly assembled and continuing shall be adjudged a felon. And if any copyholder or farmer, being required by any of the King's officers to aid and assist them in repressing the said offenders, do refuse, he shall forfeit his copyhold or lease, only for term of his life. The statute of 3 & 4 Ed. 6. c. 5. repealed. 1 Eliz. c. 16. EXP. No. XXIV. ' 22 & 23 C. II. c. 1. [No. XXI.] 4 and 5 Philip and Mary, c. 4.-An Act that Accessaries in Murder and divers Felonies, shall not have the Benefit of Clergy. [Extends to certain cases of Arson.-See the Act, ante, Cl. IV. p. 526.] [No. XXII.] 1 Elizabeth, c. 16.-The Statute made Anno 1 Mar. Sess. 2. c. 12. against unlawful and rebellious Assemblies, shall be continued during the Queen's Life, and until the end of the Parliament then next following. EXP. [No. XXIII.] 13 Charles II. c. 5.-An Act against Tumults and Disorders, upon Pretence of preparing or presenting Public Petitions, or other Addresses to his Majesty or the Parliament. [Inserted Class II. No. 35. p. 137, ante.] [No. XXIV.] 22 and 23 Charles II. c. 1.-An Act to prevent malicious Maiming and Wounding. WHEREAS upon the one and twentieth day of December, in the year of our Lord one thousand six hundred and seventy, a violent and 'inhuman attempt was made upon the person of Sir John Coventry, knight of the honourable order of the Bath, being a member of the Commons House of Parliament, and then attending the Parliament, and upon the person of his servant William Wylkes, by a considerable number of armed men, both on foot and horseback, whereby the said Sir John Coventry and his said servant then lost several goods; and the said Sir John Coventry received divers wounds, some of which were given him in such barbarous manner, that some of the offenders held him whilst others 'wounded him. (1) II. And whereas by several bills of indictment found by the grand jury 'for the city and liberty of Westminster, where the said facts were committed, Sir Thomas Sandys knight, Charles Obrian esquire, Simon Parry, ' and Miles Reeves, amongst others, stand indicted of felony and robbery 'for the same, but have fled from justice, not daring to abide a legal trial:' 'Be it therefore enacted, &c. "Sir Thomas Sandys, &c. "not rendering themselves, shall be perpetually banished. Adjournment " of the gaol delivery for Middlesex. Sir Thomas Sandys, &c. not render"ing themselves, &c. shall be adjudged felons. No pardon but by Act of "Parliament. A pardon granted to any one that was guilty of the fact, "and will make a discovery of any others besides those mentioned in "the Act." No. XXIV. 22 & 23 C. II. c. 1 VII. And for prevention of the like mischiefs for the time to come, be it Malicious further enacted by the authority aforesaid, That if any person or persons, maiming made from and after the four and twentieth day of June, which shall be in the year felony. of our Lord God one thousand six hundred seventy and one, on purpose and of malice forethought, (2) and by lying in wait, (3) shall unlawfully cut out or disable the tongue, put out an eye, slit (4) the nose, cut off a nose or (1) The history of this transaction, as related by Burnet, Histy. vol. I. 269, fo. and adopted almost verbatim by Hume, is, that Sir John Coventry, in a debate in the House of Commons upon a proposal for taxing playhouses, had reflected upon the amours of the King. "This was carried with great indignation to the court. It was said that this was the first time that the King was personally reflected upon. If it was passed over, more of the same kind would follow, and it would grow a practice to talk so. It was therefore thought fit to take such severe notice of this, that nobody should dare to talk at that rate for the future. The Duke of York told me he said all he could to the King to divert him from the resolution he took; which was, to send some of the guards and watch in the streets where Sir John lodged, and leave a mark upon him." After stating the particu lars of the violence he adds, "Coventry had his nose so well needled up, that the scar was scarce to be discerned. This (i. e. the attack, come semble) put the House of Commons in a furious uproar. They passed a Bill of banishment against the actors of it, and put a clause in it, that it should not be in the King's power to pardon them." (2) It is not necessary that there should be a previous malice against the individual wounded-an attack upon a stranger is sufficient. See Carrol's case, 1 East, ch. 7. §3, 4. (3) In Mills's case, 1783, 1 East, ch. 7. § 5. Leach, Case 130, the Court said, "A person who intends to do this kind of mischief to another, and by deliberately watching an opportunity, carries that intention into execution, may be said to lie in wait on purpose. It is not necessary that he should plant himself in any particular concealment, and effect the mischief by rushing from his lurking place. If, having formed an intention to maim, he takes a convenient opportunity of delibe rately doing the injury, it is a lying in wait, although he do not take any particular time, or appear to use any extraordinary degree of preparation to perpetrate the mischief." In that case the prosecutor was passing with his master's cart, and was beset by a gang of thieves, several of whom cried out, "Damn you, where are your knives," upon which the prisoner gave the wound in question. No other motive could be assigned for the outrage, but that the prosecutor had before detected and beat off some thieves who had endeavoured to rob his cart at the same place. Eyre B. left it to the jury, with the preceding observations, Whether the fact was deliberately and intentionally done, by lying in wait for that purpose on the account suggested, or from any other malicious and deliberate motive; or whether it were a sudden impulse of rage, not in the previous contemplation of the parties? The prisoner was convicted. In Carrol's case, ub. sup. the prisoners followed two boys who were to rob, declaring they would stab or cut the nose off the first man who molested them. Mr. Kerby having detected one of the boys, Carrol, who was lurking about, came up to them, and after walking backwards and forwards, gives the wound, saying, "Damn you, let the Boy go;" and all the judges were of opinion that there was a sufficient lying in wait. But where the prisoner was detected stealing turnips, and immediately struck the prosecutor with an iron instrument, the case was held not to be within the statute; R. v. Tickner, Leach, Case 94; 1 E. P. C. ch 7. § 6. So where the prisoner, who was at the head of a pressgang, pressed the prosecutor by whom he had been arrested some time before, saying, "I will be revenged," and the prosecutor resisted, and was wounded by the prisoner, who had previously said, "To it, Boys," to his men; R. v. Murkey, ibid. (4) In Carrol's case, ub. sup. Parker C. B. No. XXIV. 22 & 23 C. II. c. 1. Forfeitures. lip, or cut off or disable any limb or member of any subject of his Majesty, with intention in so doing to maim (5) or disfigure in any the manners before-mentioned such his Majesty's subject; that then and in every such case the person or persons so offending, their counsellors, aiders and abettors, (knowing of, and privy to the offence as aforesaid) shall be and are hereby declared to be felons, and shall suffer death as in cases of felony without benefit of clergy. VIII. Provided, That no attainder of such felony shall extend to corrupt the blood, or forfeit the dower of the wife, or the lands, goods or chattels of the offender. IX. Provided always, and it is hereby declared and enacted, That his Majesty's royal assent to this Bill shall not determine this Session of Parliament. (6) Gould and Yates J. were of opinion (dubitant Willes J. and Eyre B.) that the slitting of the nose was not confined to any particular form or direction; but that any division of the flesh or gristle of the nose, whether perpendicular or transverse, came within the clear denomination of a slit. (5) In the well known case of Coke and Woodburne, at Suffolk Assizes, 8 Geo. I. the prisoners alleged, by way of defence, that their intention was not to maim but to murder; but Lord King held it to be a question for the jury, Whether the means to accomplish the purpose, and the consequences of those means, were not likewise in their inten No. XXV. 22 & 23 C. II. c. 7. Felony, &c. in the night time. Attainder shall not work corruption of blood, &c. tion and design; and whether every blow and cut were not intended, as well as the object for which the prisoners insisted they were given? In the conference of the judges on Carrol's case, Willes J. and Eyre B. expressed some dissatisfaction with this case, and thought at least that the construction ought not to be carried further; 1 East, ch. 7.6. And see Williams's Case, Note to 6 Geo. I. c. 23, post. (6) Any offence against this Act seems to be included in the more general provisions of 43 Geo. III. c. 56. referred to post, and inserted on account of its relation to other subjects, ante, Class IV. [No. XXV.] 22 and 23 Charles II. c. 7.- An Act to prevent the malicious Burning of Houses, Stacks of Corn and Hay, and killing or maiming of Cattle. WHEREAS divers lewd and evil-disposed persons, intending the ruin and impoverishment of their fellow-subjects, have devised, and of 'late secretly in the night time, and at other times when they think their deeds are not known, frequently practised, in several parts of this kingdom, unlawful and wicked courses in burning of ricks and stacks of hay, corn and grain, destroying of buildings, trees, and cutting, maiming, wounding and killing of horses, sheep, beasts, and other cattle, in con'tempt of the laws, and to the insupportable wrong and damage of many of 'his Majesty's good subjects:' II. For prevention whereof, and discovery of the offenders, be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and of the Commons, in this present Parliament assembled, and by authority of the same, That where in any part of this kingdom any person or persons after the first day of March, in the year of our Lord one thousand six hundred and seventy, shall in the night time maliciously, unlawfully and willingly burn, or cause to be burnt or destroyed, any ricks or stacks of corn, hay or grain, barns or other houses or buildings or kilns, or shall in the night time maliciously, unlawfully and willingly kill or destroy any horses, sheep, or other cattle, of any person or persons whatsoever; every such offence shall be adjudged felony, and the offenders, and every of them, shall suffer as in case of felony.(1) III. Provided always, That no attainder for any the offences made felony by virtue of this Act, shall make or work any corruption of blood, loss of dower, or disinheritance of heir or heirs. (1) See Notes to 9 Geo. I. c. 22, post; statute are made capital in a more general by which the offences mentioned in this manner. c. 7. IV. And be it further enacted and declared, That in case any person or No. XXV. persons who shall be convict or attainted of any the offences made felony 22 & 23 C.II. by virtue of this Act as aforesaid, (to avoid judgment of death, or execution thereupon for such his offence) shall make his election to be transported beyond the seas to any of his Majesty's plantations; That then the justices of assize, Oyer and Terminer, gaol delivery, or justices of the The party at peace, before whom such offender shall be convict or attaint by virtue of liberty to be this Act, and every of them respectively, shall cause judgment to be entred transported for against every such offender, that he be transported beyond the seas to some of his Majesty's plantations, in the said judgment to be particularly mentioned and expressed, there to remain for the space of seven years; and that in pursuance of the said judgment, the sheriff or sheriffs of the county or city where such offender shall be so convict or attainted, shall cause the said offender to be safely conveyed and embarked to be transported as aforesaid; and if any such offender shall return into this king- Felony to redom before the expiration of the said seven years, he shall suffer death as turn before. a felon, and as if no such election to be transported had been made by him. seven years. V. And be it further enacted by the authority aforesaid, That if any Treble Damperson or persons shall in the night-time maliciously, unlawfully, and wil- ages for maimlingly maim, wound, or otherwise hurt any horses, sheep, or other cattle, ing cattle, whereby the same shall not be killed or utterly destroyed, or shall destroy throwing any plantations of trees, or throw down any inclosures, in manner afore- down of inclosaid; That then every such offender or offenders shall lose and forfeit unto sures, &c. in the party grieved treble the damage which he or they shall thereby susthe night-time. tain; the same to be recovered by action of trespass, or upon the case, to be taken at the common law. VI. And be it further enacted by the authority aforesaid, That upon the Justices power complaint and request of the party or parties injured in any such manner, to enquire of any three or more justices of the peace for the county, division, city, town the offence and corporate, or place where such offence shall be committed, whereof one to punish the offenders. be of the quorum, shall and may, and they are thereunto authorised and required by virtue of this Act, to enquire, as well by the oaths of twelve lawful men or more of the same county, as by examination of witnesses upon oath, or by any lawful ways or means which to them shall seem meet, of and concerning any the offences before incurred, and offenders therein; and in order thereunto, to issue out warrants, as well for the summoning of jurors, as for the apprehending of all such persons, as shall or may be thereof suspected, and to take their examination touching the same; as also to cause all such other persons as to them shall seem likely to make discovery thereof, to appear before them, and to give information upon oath, of and concerning their knowledge of the premises; so as no person so to be examined by the said justices of the peace, shall be convicted, or in any wise proceeded against, for or by reason of any offence concerning which he or they shall be so examined as a witness, and shall upon such his examination make a true discovery thereof: And in case any person or A witness refupersons, who by the said justices be thought likely to make discovery as sing to appear, aforesaid, shall refuse to appear, or to be examined as a witness, being shall be comduly summoned by the said justices in pursuance of this Act; it shall and mitted to primay be lawful for the said justices of the peace to commit the party so refus- son. ing, to the common gaol for the said county, without bail or mainprise until he shall submit to be examined upon oath, of and concerning his knowledge touching the same offence, or the offenders by whom the same was committed. No person shall be twice punished for this offence. The prosecution must be VII. Provided, That no person who shall be punished for any offence by virtue of this Act, shall be punished for the same offence by virtue of any other Act or Law whatsoever; nor shall be questioned for the same, unless he be proceeded against within six months after the offence committed. [No. XXVI.] 22 and 23 Charles II. c. 11.-An Act to prevent the Delivery up of Merchants' Ships, and for the months. Increase of good and serviceable Shipping. [Inserted Pt. III. Cl. II. No. 6.—See Provision, Section XII., against destroying ships.] |