the said county, hath complained unto me, J. P., Esq., one [or, us, J. P. and K. P., Esqs., two of his majesty's justices of the peace in and for the said county, that A. O., of, &c., in the county aforesaid, [farmer], being a person commonly called a Quaker, hath refused to pay unto the said A. I., or to compound for, the tithes and other rights, dues, and payments belonging to the church of aforesaid, the and justly due to the said A. I. from the said A. O.: these are therefore to require day of, &c. FORMS. (No. 8.) Whereas complaint hath been made unto me, J. P., Esq., one [or, us, J. P. Order thereon for and K. P., Esqs., two] of his majesty's justices of the peace in and for payment. in the said the said county, by A. I., [vicar or rector] of the parish of A. O. to pay or cause to be paid unto the said A. I. the aforesaid sum of in the said county, the Whereas, upon the complaint of A. I., [vicar or rector] of the parish church of in the said county, A. O., of, &c., in the county aforesaid, [farmer], being a person commonly called a Quaker, hath been duly summoned to appear before J. P. and K. P., Esqs., two of his majesty's justices of the peace in and for the said county, to be examined for non-payment of his tithes and other rights, dues, and payments, belonging to the church of aforesaid, due from the said A. O. unto the said A. I.; and whereas the said justices, upon examination thereof, by writing under their hands and seals, have ordered the said A. O. to pay unto the said A. I. the sum of , for such his tithes and other rights, dues, and payments, as aforesaid, and moreover the sum of [15s.] for the charges of the said A. I. in recovering the same, which said sums make together the sum of ; and whereas it appeareth unto me, J. P., Esq., being one of the said justices, and also being one of the two next justices to the parish church of aforesaid, in the county aforesaid, not being patron of the said church, nor any way interested in any of the said tithes or other rights, dues, or payments, that the said A. O. hath had due notice of the said order, but hath refused and doth refuse to pay, and hath not paid, the said sum of nor any part thereof: these are, therefore, to authorize and command you, that you do forthwith levy the aforesaid sum of , by distress and sale of the goods and chattels of the said A. O., and, out of the money arising from such sale, that you do pay or cause to be paid unto the said A. I. the said sum of and thereout also deduct your necessary charges of distraining; (a) and if any overplus shall remain after such payment and deduction, as aforesaid, that you do render the same unto the said A. O. Given under my hand and seal, at day of, &c. in the said county, the (a) See ante, p. 932. Warrant of is tress thereon. Title-Deeds, Stealing of,—see Larceny, Vol. III. p. 533, 568. Tobacco. [12 Car. II. c. 34; 22 & 23 Car. II. c. 26.] Planting tobacco. By the 12 Car. II. c. 34, s. 1, no person shall plant any tobacco, on pain Justices of the peace are to com mand all constables, &c., to make a return to them of what tobacco is planted, and upon whose land. shall be a suf Except upon traversed. 1 of forfeiting the same, or the value thereof, or 40s. for every rod or pole of ground planted with it; half to the king and half to him that shall sue in any court of record. (a) And by the 22 & 23 Car. II. c. 26, s. 2 (which by the 5 Geo. I. c. 11, is continued along with the act of tonnage and poundage of the 12 Car. II. c. 4), it is enacted, that "all justices of the peace, within their several limits and jurisdictions, shall and do, a month before every general quarter-sessions to be holden for their respective counties, issue forth their warrants to all high constables, petty constables, and tithingmen within their several limits, thereby requiring the said high constables, petty constables, and tithingmen, and every of them, to make diligent search and inquisition, what tobacco is then sown, set, planted, growing, curing, cured, or made, within their several and re spective limits and jurisdictions, and by whom; and to make a true and lawful presentment in writing upon oath, at the next general quarter-sessions to be holden for such county, of the names of all such persons as have sown, set, planted, cured, or made, any tobacco, and what the full quantity of land is or was sown, set, or planted therewith, and who are the immediate tenant of tenants, or present occupiers of the land so sown, set, or planted, who are and shall be deemed planters thereof to all intents and purposes." Which presentSect. 3. "Which said presentment upon oath shall be received and filed by ment, being filed, the clerk of the peace of the said county in open sessions, and, after such receipt ficient conviction. and filing, shall be a sufficient conviction in law, to all intents and purposes, of all such persons as shall be so presented for the sowing, setting, planting, improving to grow, making, or curing tobacco, either in seed, plant, leaf, or otherwise, contrary to the said recited acts, or either of them, unless such per notice it shall be son or persons so presented (having notice given to him or them of such presentment made, by the delivery of a copy of such presentment to him or them, or by leaving a copy of such presentment at his or their dwelling-house of houses, or usual place of abode, in the presence of one or more credible witnesses, ten days at the least before the next quarter-sessions) shall, at the quartersessions next after such notice shall be given to him or them, traverse such presentment, and find sufficient sureties for the prosecuting and trying such traverse, at the quarter-sessions to be holden for the said county next after such traverse shall be entered or made." Power given to to pull up and destroy all the plants, &c. Sect. 4. "That all constables, tithingmen, bailiffs, and other public officers, all officers, &c., shall and do, within their respective jurisdictions, from time to time, as often as occasion shall require, within fourteen days after warrant from two or more of the justices of the peace within such county, town, city, or place, to them, calling to their assistance such person or persons as they and every one of them shall find convenient and necessary, pluck up, burn, consume, tear in pieces, and utterly destroy all tobacco seed, plant, leaf, planted, sowed, or growing in any field, earth, or ground." The penalty of officers not doing their duty in destroying of it. Sect. 5. "If any such tobacco shall be suffered or permitted to grow, or be consumed in seed, plant, or leaf, in any township, tithing, parish, hamlet, of place, by the space of fourteen days after the receipt of such warrant or wal (a) The 6 Geo. IV. c. 105, repeals so much of the 15 Car. II. c. 7, as before then remained unrepealed. c. 26. rants, by the said constables, tithingmen, bailiffs, or other public officers of the 22 & 23 Car. 2, respective townships, tithings, parishes, or hamlets as aforesaid; that then such constables, tithingmen, bailiffs, or other public officers respectively, shall, for every such offence, forfeit and pay the sum of 5s. for every rod, perch, or pole of ground so set, planted, or sowed with tobacco, and so proportionably for a greater or lesser quantity of ground; the one moiety thereof to the king's majesty, and the other moiety to him or them that shall sue for the same, to be recovered by action of debt, bill, plaint, or information, in any of his majesty's courts of record at Westminster.' the officers. Sect. 6. "That in case any person or persons shall refuse or neglect to aid The penalty for or assist (being thereunto required) any constable, bailiff, or other public refusing to assist officer, in the due execution of this act, that every such person or persons for every such offence, upon conviction thereof made before two justices of the peace of the said county where such offence shall be committed, shall forfeit and pay the sum of 5s, to be levied by warrant from the said justices, by distress and sale of the offender's goods; and, in case no distress can be found, then every such offender shall be committed to the common gaol of the said county, there to remain for the space of one week, without bail or mainprize." Sect. 7. "And if any person or persons whatsoever shall forcibly resist any The forfeiture for constable, bailiff, or other public officer, or other person or persons whatso- resisting the ever, in the due execution of this act, that then every such person, for every such offence, upon conviction thereof made before two justices of the peace of the said county where such offence shall be committed, shall forfeit and pay the sum of 51., to be levied by warrant from the said justices, by distress and sale of the offender's goods; and in case no distress can be found, then every such offender shall be committed to the common gaol of the said county, there to remain for the space of three months, without bail or main prize." officers. Sect. 9. "Provided, that this act, nor anything therein contained, shall++ Sic in act. extend to the hindering of the planting of tobacco in any physic garden of tobacco planted A saving for either University, or in any other private garden for physic or chirurgery in the physic only, so as the quantity so planted exceed not one-half of one pole in any one gardens. place or garden." Torn. [9 Heu. III. c. 35; Magna Charta, c. 17; 52 Hen. III. c. 10; 13 Edw. I. c. 13; 1 Edw. III. c. 17; 31 Edw. III. st. 1, c. 15; 1 Edw. IV. c. 2.] THE sheriff's torn is the king's court of record holden before the sheriff, for Torn, what. the redressing of common grievances within the county. 2 Haw. c. 10, s. 2. word. And forasmuch as the sheriff did go in the circuit twice every year through- Meaning of the out every hundred within the county, it was called tour or tourn, which signifieth a circuit or perambulation. 2 Inst. 70. By the 31 Edw. III. st. 1, c. 15, the sheriff shall make his turn yearly, once When to be within a month after Easter, and another time within a month after Michael- holden. mas; and if he holds it in other manner, he shall lose his turn for the time: that is, the court so holden for that time shall be void, and the sheriff shall lose the profit thereof. 2 Inst. 71. And by the 9 Hen. III. c. 35, he shall keep his turn nowhere but in due Where to be place and accustomed. holden. torn. By the statute of Marlbridge, 52 Hen. III. c. 10, archbishops, bishops, earls, Who need not barons, men of religion, or women, shall not need to come to the sheriff's appear at the turn, unless their presence be specially required for some cause; and if any have tenements in divers hundreds, they shall not need to come to the turn but in the bailiwicks where they dwell. See 2 Haw. c. 10, s. 11. FORM. Who are to ap Tenants in ancient demesne are privileged by the common law from coming to this court, unless they and their ancestors have time out of mind used to come to it. Also, parsons of churches have the like privilege by the common law. 2 Haw. c. 10, s. 11. But all other persons, being above the age of twelve years, are bound to pear at the torn. attend at such courts, in order to make inquiry of all common grievances, and also give security to the public for their good behaviour, by taking an oath to be faithful to the king, and to observe his laws, and also by incorporating themselves into some free pledge or tithing, which formerly signified a certun number of families living together in the same precinct, the masters wheret were every one of them mutually bound for each other, and punishable for the default of any member of any such family in not appearing to answer for himself on any accusation made against him. 2 Haw. c. 10, s. 2. Jurors. Indictments to be indented. Distress and sale. Within what time offences are cognizable in the torn. Traverse. Indictment to be certified to the sessions. Constables chosen in the torn. The 6 Geo. IV. c. 30, repeals the 1 Rich. III. c. 4, relating to jurors. If the defendant except not to an unqualified juror upon his arraignment, he is concluded by that omission. 2 Hale, 70. By the 13 Edw. I. st. 2, c. 13, the jury shall put their seals to their mquisitions. By the 1 Edw. III. c. 17, indictments in the torn shall be by roll indented, one part to remain with the indictors, and the other with him that taketh the inquest. It seems to be settled at this day, that a distress is incident of common right to every fine and amerciament in the torn; and that the offender's goods may be distrained in any lands within the precinct of the court, or in the highway; and that the goods distrained may be sold. But the bailiff must have a special warrant to make distress. 2 Haw. c. 10, s. 25. Id. s. 31. Or the fine may be recovered by action of debt. But no offence is cognizable in the torn, unless it arise since the holding of the last court. Id. s. 50. It seems to be agreed, that a presentment in the torn of any offence within the jurisdiction of the court, being neither capital nor concerning any freehold, subjects the party to a fine or amerciament, without any traverse. Id. s. 76. By Magna Charta, 9 Hen. III. c. 17, the sheriff is restrained in his tora from hearing and determining indictments of felonies; yet the sheriffs did commonly make out process or precepts in nature of a capias to arrest the parties; but, by 1 Edw. IV. c. 2, their power of making out process upon these indictments is taken away as well in cases of indictments of felony as other misdemeanors within their cognizance; but they are to deliver all such indictments and presentments to the next sessions, who are to make out process thereupon, and hear and determine them. 2 Hale, 71. And the estreats of the fines thereupon shall be enrolled, and by indenture be delivered to the sheriff, to the use of him that was sheriff at the time of the indictment so taken in the torn as aforesaid. The constables of common right are to be chosen and sworn in the torn or leet. 2 Haw. c. 10, s. 37. See title Lect, Vol. III. Trade. See Malicious Injuries to Property, Vol. III. p. 727, 729; Manufactures, Vol. III.; Linen, Vol. III.; Woollen, post; Silk, ante; Servants, ante. Transportation. See Judgment, Vol. III. TRANSPORTATION, or exile, is generally regarded as next to death in the Preliminary obscale of punishment, though, perhaps, it amounts to scarcely any punishment servations. at all, in the estimation of many of those criminals who actually endure it. It was altogether unknown as a penalty to the common law of England. 2 H. Bla. 223; 3 P. Wms. 38; 1 Bla. Com. 137. The only case in which it arose seems to have been that of abjuration, where the party accused fled to a sanctuary, confessed his crime, and took an oath to leave the kingdom at the port assigned him, and never to return without permission of his majesty. 4 Bla. Com. 833. This was evidently not a punishment, but a condition of pardon, for it was expressly contended by Magna Charta, that no freeman shall be banished unless by the judgment of his peers or by the law of the land. 9 Hen. III. st. I. c. 29. It appears that exile was first introduced as a punishment by the legislature in the thirty-ninth year of Queen Elizabeth, when a statute (39 Eliz. c. 4), enacted, that such rogues as were dangerous to the inferior people should be banished the realm, Barr. Acrh. stat. 445, (5 Edw.); and that the first statute in which the word transportation is used, is the 18 Car. II. c. 3, which gives a power to the judges, at their discretion, either to execute or transport to Ame rica, for life, the moss-troopers of Cumberland and Northumberland. 2 Wood, 498; and see 22 Car. II. c. 5; 22 & 23 Car. II. c. 7. The act 18 Car. II. was made perpetual by the 31 Geo. II. c. 42. See 1 Comm. c. 9, p. 137, n. Transportation was first brought into general use as a punishment anno 1718, by the 4 Geo. I. c. 11, and continued by the 6 Geo. I. c. 23, which statute allowed the court a discretionary power to order felons who were by law entitled to their clergy, to be transported to the American plantations. By these statutes, the persons contracting for the transportation of convicts to the colonies, or their assigns, had an interest in the service of each for seven or fourteen years, according to the term of transportation. The principal act now in force regulating the transportation of offenders, is 5 Geo. ÎV. c. 84, infra, which revives and consolidates all the laws on the subject. toto. A judgment of transportation for fourteen years, if bad for excess, is bad in toto, Judgment, if bad and cannot operate as a judgment for seven years. R. v. Ellis, 8 D. & R. 173. in part, bad in Where a court of quarter-sessions have passed an erroneous judgment of Erroneous judgtransportation, the Court of King's Bench will not send it back to be amended, ment. but will reverse it, on writ of error. Id. judgment. Where a prisoner was convicted of perjury, at the assizes at Chester, and What a mere the sentence of transportation was entered on record as follows:-"Where- order, and not a fore," &c. " it is ordered that the said L. R. be transported to the coast of New South Wales, for and during the term of seven years," it was held, on error brought, that this was no judgment, but merely an order. R. v. Kenworthy, 1 B. & C. 711; 3 D. & R. 173, S. C. Commencement of act under the provisions of which all persons already sentence d or ordered for transportation shall be placed. By the 5 Geo. IV. c. 84, intituled "An Act for the Transportation of Offenders 5 Geo. 4, c. 84. from Great Britain," after reciting that "whereas the several laws in force for regulating the transportation of offenders from Great Britain will expire at the end of the present session of Parliament; and it is expedient that the laws relative to that subject should be revised and consolidated into one act:" it is enacted," that this act shall take effect on the last day of this present session of Parliament; and that, on and from that day, all things remaining to be done, touching the punishment, imprisonment, correction, removal, transportation, discipline, employment, diet, and clothing, of persons sentenced or ordered to transportation or banishment from any part of Great Britain, under any acts heretofore or now in force, or pardoned on condition of being transported under any such acts, shall be continued, done, and completed under the provisions of this act; and that all sentences and orders for transportation, all orders in council, and other orders, warrants, instructions, directions, appointments, authorities, contracts, and securities made, issued, or given under any of the said acts, and in force at the time of the commencement of this act, shall continue in force under and by virtue of this act, unless and until they shall be revoked and superseded." |