66 enacted, "That if any person or persons shall be charged with being Persons charged guilty of any of the offences aforesaid, before any one or more of upon oath with "his majesty's justices of the peace, or before one of his majesty's this act. offences against 'justices of the court of king's bench, if the offence be commit❝ted in England; or before the lord justice general, or one of the "lords of justiciary, or any one or more of his majesty's justices of "the peace in Scotland, if the offence be committed in Scotland; 66 66 66 66 of state, who is council. by information of one or more credible person or persons upon "oath, by him or them to be subscribed, such justice of the peace, Justice, &c. to "or justice of the king's bench, or lord justice general, lord jus- certify informa "tice clerk, or lord of justiciary, respectively, before whom such tion to one of information shall be made as aforesaid, shall forthwith certify the secretaries "under his hand and seal, and return such information, to one of "the principal secretaries of state of his majesty, his heirs or successors, who is hereby required to lay the same, as soon as conveniently may be, before his majesty, his heirs or successors, in "his or their privy council; whereupon it shall and may be lawful der's surrender "for his majesty, his heirs or successors, to make his or their in 40 days; "order, in his or their said privy council, thereby requiring and commanding such offender or offenders to surrender him or "themselves within the space of forty days after the first publica"tion thereof in the London Gazette, to the lord chief justice, or "any other of his majesty's justices of the court of king's bench, or "to any one of his majesty's justices of the peace, if the offence be "committed in England; or to any of the lords of justiciary, or to any one of his majesty's justices of the peace in Scotland, if the "offence be committed in Scotland; who is hereby required, and commitupon such offender or offenders surrendering him or themselves, ment without "to commit him or them, without bail or mainprise, to the county 66 66 66 66 66 66 66 gaol, or to the gaol or prison of the place where he or they shall bail. two Gazettes, so surrender, to the end that he or they may be forthcoming to answer the offence or offences wherewith he or they shall stand charged according to due course of law; which order the clerks "of his majesty's privy council shall cause to be forthwith printed " and published in the two successive London Gazettes, and to be forthwith transmitted to the sheriff of the county where the of- Order to be "fence shall be committed, who shall, within fourteen days after published in "the receipt thereof, cause the same to be proclaimed between and transmitted "the hours of ten in the morning and two in the afternoon, in the to the sheriff, "market-places, upon the respective market-days, of two market- who shall proclaim the same.” "towns, in the same county, near to the place where such offence "shall have been committed; and a true copy of such order shall Copy to be "be affixed upon some public place in such market-towns: and affixed in "in case such offender or offenders shall not surrender him or "themselves, pursuant to such order of his majesty, his heirs or surrendering, "successors, to be made in council as aforesaid, he or they so neg- &c. to be conlecting or refusing to surrender him or themselves as aforesaid, victed of felony without clergy. or escaping after such surrender, shall, from the day appointed "for his or their surrender as aforesaid, be adjudged, deemed, and "taken to be convicted and attainted of felony, and shall suffer King's bench, or pains of death, as in case of a person convicted and attainted justices of oyer "by verdict and judgment of felony, without benefit of clergy, if and terminer, "the offence be charged to have been committed in England; execution. " and shall be adjudged, deemed, and taken to be convicted of a "capital market-towns. Offenders not &c. to award If any person be charged with any offence this act, 66 capital crime, and shall suffer the pains of death and confiscation " of moveables, as in case of a person found guilty of a capital "crime, and under sentence for the same, if the offence be charged "to have been committed in Scotland; and that it shall be lawful "to and for the court of king's bench, or the justices of oyer and "terminer, or general gaol delivery, for the county or place where "such person shall be, to award execution against such offender "and offenders, in such manner as if he or they had been con"victed and attainted in the said court of king's bench, or before "such justices of oyer and terminer, or general gaol-delivery respectively, if the offence be charged to have been committed in England; and that it shall be lawful for the court of justiciary, "or the lords of justiciary, in their circuits, to award execution against such offender and offenders, in such manner as if he or "they had been found guilty and condemned in the said court of justiciary, or in the circuit, respectively." 66 66 66 66 Sect. 15. By 24 Geo. 3. c. 47. s. 12. "For the more easy and speedy bringing the offenders against this act to justice," it made felony by is enacted, "That if any person or persons shall be charged with "being guilty of any of the offences aforesaid, made felony by this "act, before any one or more of his majesty's justices of the peace, " or before one of his majesty's justices of the court of king's bench, "if the offence be committed in England or Wales, or within the "limits of any of the ports thereof, or within four leagues of the "coasts thereof; or before any one of the lords of justiciary, or "the judge of the high court of admiralty, or any judge ordinary, or judge admiral, deputy, or substitute, in Scotland, if the offence "be committed within Scotland, or within the limits of any port "of that part of Great Britain called Scotland, or within four leagues of the coast thereof, by information of one or more cre"dible person or persons upon oath, by him or them to be sub"scribed; such justice of the peace, or justice of the king's bench, "or any lord of justiciary, or judge of the high court of admiralty, "or judge ordinary, or judge admiral, deputy, or substitute respectively, before whom such information shall be made as aforejustice or judge "said, shall forthwith certify, under his hand and seal, and return shall certify and "such information to one of the principal secretaries of state of "his majesty, his heirs or sucessors; who is hereby required to lay "the same, as soon as conveniently may be, before his majesty "his heirs or successors, in his or their privy council; where"6 upon it shall and may be lawful for his majesty, his heirs, or successors, to make his or their order, in his or their said privy council, thereby requiring and commanding such offender "or offenders to surrender him or themselves, within the space of forty days after the first publication thereof in the London Gazette, to the lord chief justice, or any other of his majesty's justices of the court of king's bench, or to any one of his majesty's "justices of the peace, if the offence be committed within Eng"land or Wales, or within the limits of any of the ports thereof, or "within four leagues of the coast thereof; or to any of the lords "of justiciary, or judge of the high court of admiralty, or judge ordinary, or judge admiral, deputy, or substitute, in Scotland, if "the offence be committed within Scotland, or within the limits " of any port of that part of Great Britain called Scotland, or with return information to one of the secretaries of state, &c. 66 66 66 66 66 66 66 66 66 66 the same. suffer death as felons, &c. "in four leagues of the coast thereof; who is hereby required, upon such offender or offenders surrendering him or themselves, "to commit him or them, without bail or mainprise, to the county "gaol, or to the gaol or prison of the place where he or they shall so surrender, to the end that he or they may be forthcoming to answer the offence or offences, wherewith he or they shall stand charged, according to due course of law; which order the clerks "of his majesty's privy council shall cause to be forthwith printed "and published in two successive London Gazettes, and to be "forthwith transmitted to the sheriff of the county where the of- Order in coun"fence shall be committed, if the same shall be committed in cil to be published,and trans any county; and if the offence shall not be committed within mitted to sheany county, but within the limits of any port as aforesaid, or riffs, &c. who "within four leagues of the coast of any part of Great Britain, shall proclaim "to be transmitted to the sheriff of any county near to the place "where such offence shall be committed; which respective sheriff shall, within fourteen days after the receipt thereof, cause the same to be proclaimed, within the hours of ten in the morning " and two in the afternoon, in the market places, upon the respec"tive market days of two market towns in the same county in "which, or near to the place where such offence shall have been committed; and a true copy of such order shall be affixed upon some public place in such market towns: and in case such of- Offenders not "fender or offenders shall not surrender himself or themselves surrendering pursuant to such order of his majesty, his heirs or successors, to themselves, to "be made in council as aforesaid, he or they so neglecting or re"fusing to surrender himself or themselves as aforesaid, or escaping "after such surrender, shall, from the day appointed for his or their "surrender as aforesaid, be adjudged, deemed, and taken to be con"victed and attainted of felony, and shall suffer the pains of death "as in cases of a person convicted and attainted by verdict and "judgment of felony, without benefit of clergy, if the offence be "charged to have been committed within England or Wales, or "within the limits of any of the ports thereof, or within four leagues of the coast thereof; and shall be adjudged, deemed, and "taken to be convicted of a capital crime, and shall suffer the pains of death, and confiscation of moveables, as in case of a person found guilty of a capital crime, and under sentence for "the same, if the offence be charged to have been committed with"in Scotland, or within the limits of any of the ports thereof, or " within four leagues of the coast thereof; and that it shall be law"ful to and for the court of king's bench, or the justices of oyer King's bench, " and terminer, or general gaol delivery, or great sessions for the &c. to award county or place where such person shall be, to award execution execution against such ofagainst such offender or offenders, in such manner as if he or fenders in like they had been convicted and attainted in the said court of king's manner as if bench, or before such justices of oyer and terminer, or general they had been gaol delivery, or great sessions respectively, if the offence be the said court, "charged to have been committed within England or Wales, or &c. "within the limits of any of the ports thereof, or within four leagues of the coast thereof; and that it shall be lawful for the "court of justiciary, or the lords of justiciary in their circuits, or "the judge of the high court of admiralty, to award execution against such offender and offenders in such manner as if he or they 66 66 66 66 Any person harbouring such offenders, shall on conviction be guilty of felony, and be transported for seven years. Not to prevent any judge, justice, &c. from apprehending such offenders course of law. 86 they had been found guilty and condemned in the said court of justiciary, or in the circuit courts respectively, if the offence shall "be charged to have been committed within Scotland, or within the "limits of any of the ports thereof, or within four leagues of the "coast thereof." 66 66 Sect. 16. By 19 Geo. 2. c. 34. s. 3 and 4. and 24 Geo. 3. c. 47. s. 13 and 14. it is further enacted, "That all and every person and persons, who shall, after the time appointed as afore"said for the surrender of any person or persons so charged upon "oath with any of the offences aforesaid, shall be expired, harbour, receive, conceal, aid, abet, or succour such person or persons, knowing him or them to have been so charged as aforesaid, and "to have been required to surrender him or themselves by such "order or orders as aforesaid, and not to have surrendered pur"suant to such order or orders, being prosecuted for the same "within one year after the offence committed, and lawfully con"victed thereof, shall be guilty of felony, and shall be transported as a felon or felons for the space of seven years, in the same manner as felons are or shall be appointed to be transported by "virtue of any act or acts already made, or hereafter to be made, "touching the transportation of felons; and if any such offender "or offenders shall be found at large within Great Britain before "the expiration of the said term, without lawful cause, he, she, or "they shall suffer death as felons, and have execution awarded against him, her, or them, as persons attainted of felony, with"out benefit of clergy." 66 66 + Sect. 17. By 24 Geo. 3. c. 47. s. 14. it is provided, “That "nothing herein contained shall be construed to prevent or hinder any judge, justice of the peace, magistrate, officer, or minister "of justice whatsoever, from taking, apprehending, and securing by the ordinary" such offender or offenders against whom such information shall "be given, and for requiring whose surrender such order in council shall be made as aforesaid, by the ordinary course of law; "and in case such offender or offenders, against whom such in"formation, and for requiring whose surrender such order in coun"cil shall be made as aforesaid, shall be taken and secured, in "order to be brought to justice, before the time shall be expired, within which he or they shall be required to surrender "him or themselves by such order in council as aforesaid; that "then, and in such case, no further proceeding shall be had upon "such order made in council against him or them so taken and "secured as aforesaid, but he or they shall be brought to trial by "due course of law; any thing herein contained to the contrary "in any wise notwithstanding.' Foster, 51. 1 Wilson, 164. 4 Bac. Ab. 567. O. B. 1785. p. 646. p. 772. The following constructions have been held upon this statute. + Sect. 18. FIRST, That it is certainly necessary to suggest the several facts and requisites in the act on the roll, in order to ground a prayer for execution; for they are the several steps which the act requireth to be taken by the crown, in order to bring the prisoner under an attainder: and he may traverse them all, and the offender will not be affected, unless the several requisites mentioned in the act have been complied with in this particular case; and and if he traverseth all or any of them, the onus probandi lies upon the crown; for this is not like the case of an attainder by act of parliament, in which the facts are settled, the person named, and the only question is, whether the prisoner is the identical person attainted. + Sect. 19. SECONDLY, That if the prisoner would take ad- Foster, 56. vantage of the insufficiency of the suggestion, viz. because the names of the market-towns at which it is enacted the offender shall be proclaimed is not set forth-he must demur. take advantage of it on motion. He cannot † Sect. 20. THIRDLY, That if the prisoner pleads, he must do Foster, 56. it instanter and ore tenus, as is done in indictments; for there can be no inconvenience in his pleading instanter, if he intends to put the proof of all the matters suggested on the roll upon the crown. Sect. 21. FOURTHLY, That the prisoner is not intitled to a Foster, 56. copy of the suggestion. + Sect. 22. FIFTHLY, That the words, " near to the place," are Foster, 57. restrictive of the sheriff's power, and that the proclamation must be made in the market-towns near the place, and not at remote towns, nor at towns even comparatively remote; for though it does not mean at the very next market-towns, it would be very dangerous to leave matters of this sort to the discretion of the sheriff merely. + Sect. 23. SIXTHLY, That the proceedings at the trial shall be in the same form and manner as before justices of gaol-delivery. Cossans, Old + Sect. 24. SEVENTHLY, That if an offender be arraigned upon Case of Geo. a suggestion on the surrender clause, and the crown should after- Bailey Sessions, wards think proper to proceed against him by indictment on the 1785. merits of the case, the attorney-general may enter a nolle prosequi on the record of the suggestion. As to the THIRD POINT, viz. In what county the offence of smuggling, &c. may be tried. Attainder not to forfeiture. + Sect. 25. By 19 Geo. 2. c. 34. s. 5. "And for the better and Offences where more impartial trial of any indictment or information which shall to be tried. be found, commenced, or prosecuted, for any of the offences made effect corruption felony by this or any other act relating to the revenues of customs of blood, &c. or or excise," it is enacted, "That every such offence shall and may "be inquired of, examined, tried, and determined, in any county "within that part of the kingdom of Great Britain called England, "in such manner and form as if the fact had been therein com"mitted: provided, that no attainder for any of the offences made felony by virtue of this act shall make or work any corruption "of blood, loss of dower, or forfeiture of lands or tenements.' + Sect. 26. By 24 Geo. 3. c. 47. s. 16. it is provided, "That " in case any person shall be brought before any justice of the "peace, being charged with having hindered, opposed, obstructed, "or assaulted, any officer of the navy, customs, or excise, contrary visions of 19 "to this act, and it shall appear that the offence with which such Geo. 3. c. 69. "person is charged falls within the provisions of an act passed in may be commit"the nineteenth year of his majesty's reign, intituled, ‹ An act for ted until the 66 X X 2 Persons charged officers, whose offence falls with obstructing within the pro next quarter"the sessions, &c. |