the Army and Navy. Sect. 7. Offences relating to Prisoners of War. Sect. 8. Offences relating to Service under Foreign Powers. Sect. 9. Unlawful Arming. Sect. 10. Unlawful Combinations and Confederacies. Sect. 11. Libels on Foreign Dignitaries. Sect. 12. Scandalum Magnatum.

We shall cite the articles on illegal petitioning, as the law, which was passed immediately after the Restoration, is now little known, but from certain events which have lately occurred in Ireland, deserves to be more so.

ART. I.1

"Whosoever shall solicit, labour, or procure the getting of hands or other consent of any persons, above the number of twenty or more, to any petition, complaint, remonstrance, declaration, or other address to the Queen, or both Houses, or either House of Parliament, for alteration of matters established by law in church or state, unless the matter thereof have been first consented unto and ordered by three or more justices of that county, or by the major part of the grand jury of the county, or division of the county, where the same matter shall arise, at their public assizes or general quarter sessions; or if arising in London, by the Lord Mayor, aldermen, and commons in common council assembled; or shall repair to her Majesty, or both or either of the Houses of Parliament, upon pretence of presenting or delivering any petition, complaint, remonstrance, or declaration, or other addresses, accompanied with excessive number of people, or at any one time with above the number of ten persons, shall incur the penalties of the 36th class.

ART. II.

"Nothing in the last preceding article contained shall be construed to extend to debar or hinder any person or persons, not exceeding the number of twenty aforesaid, to present any public or private grievance or complaint to any member or members of parliament, after his election and during the continuance of the parliament, or to the Queen, for any remedy to be thereupon had; nor to extend to any address whatsoever to her Majesty, by all or any of the members of both or either Houses of Parliament during the sitting of parliament, but that they may enjoy their freedom of access to her Majesty as heretofore hath been used."

Article I. of section 9,2 which relates to unlawful arming, though a sufficiently accurate copy of the act of 60 Geo. III. & 1 Geo. IV. c. 1, s. 1, is badly expressed: "Who

soever shall be present at or attend any meeting or assembly of persons for the purpose of training or drilling themselves, &c. without any lawful authority from, &c. for so doing, for the purpose of training and drilling any other person, &c.; or shall [omitting all notice of lawful authority] train or drill any other person, &c., shall incur, &c."

"A meeting or assembly of persons for the purpose of training or drilling themselves," is certainly not a neat, if an intelligible form of expression; we are left in the dark as to whether the "lawful authority" applies to the individual attending or to the assembly in general; while the last paragraph, if literally interpreted, would render every serjeant in her majesty's service liable to transportation.

In the section which relates to unlawful combinations,1 article 5 affords but an indifferent specimen of grammar. "Whosoever, having been convicted of knowingly permitting any meeting," &c. in his house, " shall for any such offence committed after the date of his conviction for such first offence, be deemed guilty, &c." Art. 7 is drawn in the same form. See also Art. 1, sect. 6, p. 125, and Art. 16, p. 165, for other grammatical errors of a kindred nature.

Section 12, which declares that whosoever "shall devise, speak, or tell any false news, lies, or other such false things of prelates, dukes, earls," &c. shall be imprisoned, &c. should be omitted, not only because the law is obsolete,-the Duke of Richmond, in the eighth year of the reign of Queen Anne, being, we believe, the last peer who had recourse to it,—but because scandalum magnatum was never an indictable offence, but was punishable by proceedings in the nature of a qui tam

action.

Chapter III., which treats of offences against religion and the established church, will not detain us long, as, although it occupies twenty folio pages in the digest, its really important provisions might be contained in a single page. The Commissioners, in speaking of recusancy, which alone takes up seventy articles, make the following sensible observations :-

"The case stands thus: previously to the Toleration Acts it was deemed to be proper to enforce by rigid laws attendance at the

1 P. 10.

2 Duke of Richmond v. Costello, 11 Mod. 234.

Established Church, not merely by the professed members of the Church, but also by Roman Catholics and dissenters. With this view penalties were accumulated on each other by a multitude of statutes inflicting on recusants, particularly on Popish recusants, various and very severe penalties. A change in public policy has, since the framing of those statutes, introduced a system of almost universal toleration, as regards both Roman Catholics and Protestant dissenters.

"The legal machinery by which this great change has been effected, has, however, been of the most inartificial kind; the ancient penal statutes, with their accumulated penalties, have been left unrepealed, although subject to relief, in the case of Protestant dissenters, by complying with the provisions of the statutes, 1 W. & M. st. 1, c. 18, and 52 Geo. III. c. 155, and in the case of Roman Catholics, by subscribing the oath contained in the statute 10 Geo. IV. c. 7, and in addition, in some cases, complying with the provisions of the statute 31 Geo. III. c. 32.

"The principal effect, therefore, of all these unrepealed statutes, and this complicated system of penalties, is to compel the subscription to the declarations and tests provided by the Toleration Acts. Regarding the effect to be thus produced by so many statutes in a mere technical point of view, we think, that this object might be attained by much more simple means; and we regret the necessity we are under of submitting, as part of the existing law, so many complicated statutes and lists of penalties and disabilities, no longer of any real practical use beyond that which we have suggested."1

The fourth chapter, under the section headed "omissions to discharge public duties," contains two articles which deserve serious attention.

ART. XII.

"Whosoever shall wilfully disobey any statute of the realm by doing any matter or thing prohibited to be done, or omitting any matter or thing commanded to be done, shall incur the penalties of the 39th class," [that is, shall be liable to imprisonment not exceeding three months, or fine at discretion, or both.]

ART. XIII.

"The rule contained in the last preceding article shall not apply, where any mode of proceeding shall be specially prescribed or penalty imposed, in respect of disobedience by the same statute, or shall be exclusively prescribed by some other statute."2

It will be seen that while article 12 lays down a general rule of equal justice and expediency, article 13 limits its operation to those cases where no specific mode of proceeding, other than by indictment, is prescribed. It thus annuls that oppressive doctrine of cumulative penalties, under which a prosecutor may now, in many cases, proceed either by indictment or by summary conviction, as he shall consider this or that course best calculated to harass the defendant.

According to the present law, if a statute prescribe a summary punishment for an offence already indictable at common law, the defendant is liable either to an indictment at common law or to a conviction under the act; and in like manner, if a statute create a new offence, and a subsequent Act or a subsequent clause of the same Act ordain a specific course of proceeding in the event of disobedience, the prosecutor may either adopt that course, or proceed by indictment. If, however, the same clause which creates the offence also prescribe the manner of enforcing the penalty, that manner must be pursued, and the party offending cannot be indicted. "This distinction," as the Commissioners very properly observe, "does not rest on any sound or intelligible principle," and they therefore propose that "where a statute commanding or prohibiting a thing to be done, also (although in another part of the statute) annexes a penalty to disobedience, such penalty ought to be regarded as the proper legislative measure of punishment."4

3

Under the head "Contempts against Courts of Justice," the Commissioners include, in one article, the offence of assaulting a superior judge whilst acting in his judicial capacity, and that of striking any other person in the presence of such judge, both which crimes are made punishable by imprisonment not exceeding three years, and fine at discretion. By the next article, a party endeavouring to rescue any prisoner in the presence of such judge, is rendered liable to transportation for seven years. These punishments do not appear to be founded on any consistent principle. The latter

1 R. v. Robinson, 2 Burr. 799; R. v. Carlile, 3 B. & A. 161.

2 2 Hale, P. C. 171; R. v. Wright, 1 Burr. 543.

3 R. v. Robinson, 2 Burr. 805; R. v. Buck, 1 Stra. 679.

4 P. 11.

offence is now punishable by imprisonment for life and forfeiture of goods absolutely, and of the profits of land during the offender's life; and the former offence subjects the delinquent to the additional penalty of the loss of his right hand. It is clear that these punishments are far too severe; but the Commissioners have not reduced the scale in proportion to the relative magnitude of the offences. Striking a judge is clearly a crime of a more serious character than rescuing or endeavouring to rescue a prisoner in his presence, while the committing of a simple assault in a court of justice would probably be considered by most people as amply punished by a year's imprisonment. Besides, the words in the article, "shall strike any person," do not exclude a blow which selfdefence may render necessary. We are the more surprised at this omission, as the Commissioners, in a note, "conceive that, at the present day," such a blow "would be held to be a justification.”

The following is the definition of perjury contained in article 5 of section 4, which relates to offences by and concerning witnesses.

"To the crime of perjury it is essential-first, that an oath be lawfully administered by competent authority to a party as a witness or deponent in some judicial proceeding, or on some other occasion where an oath is imposed, required, or sanctioned by law; secondly, that the party swear affirmatively or negatively as to some fact or thing, past or present, material to such proceeding, or on such other occasion, or to his belief as to such fact or thing, knowing that which he swears to be false, or not knowing it to be true." ”” 9

This passage introduces a material amendment on the existing law, according to which perjury can, in strictness, be committed only in some judicial proceeding, and it is therefore necessary, every sessions, to introduce in all acts requiring oaths to be taken on occasions not judicial, specific clauses, which enact that persons taking these oaths falsely shall incur the penalties of perjury. The statutes which relate to this offence are consequently very numerous, and the means of ascertaining whether any particular falsehood renders the party liable to an indictment, proportionably troublesome. We are