or inability of the said offender to pay the said forfeitures or penalties, that then the party offending be set publicly in the stocks by the space of two hours. And all and singular the forfeitures or penalties aforesaid shall be employed and converted to the use of the poor of the parish where the said offences shall be committed, saving only that it shall and may be lawful to and for any such justice, mayor, or head officer or officers, out of the said forfeitures or penalties, to reward any person or persons that shall inform of any offence against this act, according to their discretions, so as such reward exceed not the third part of the forfeitures or penalties." (Sect. 4, ante, 1232, limits the time for prosecutions for the penalty to ten days). The driver of a van travelling to and from distant towns (as London and York) is a carrier within the meaning of this act, and liable to the penalty for driving on a Sunday, though the driver of a stage or mail coach may not be so liable. (Ex parte Middleton, 3 B. & C. 164; 4 D. & R. 824, S. C.; Sandiman v. Breach, 7 B. & C. 96; 9 D. & R. 791, S. C. supra). Lord's day. tress, the offender shall be set in stocks. Forfeitures, how disposed of. By stat. 2 Geo. III. c. 15, s. 7, fish carriages shall be allowed to pass Fish carriages. on Sundays and holidays, whether laden or returning empty. Route of stage The 7 & 8 Geo. IV. c. lxxv, contains various regulations relative to Watermen. watermen plying and working on the river Thames on a Sunday, and repeals so much of the 29 Car. II. c. 7, s. 2, as prevents travelling by water on a Sunday. (See the enactments, tit. "Thames," Vol. VI.) The 3 Will. IV. c. 19, ss. 26, 27, empowers the court of aldermen or two justices to regulate the route and conduct of persons driving stage carriages, cattle, &c., during divine service. (See tit. "Police," Vol. V.; "Stage Coaches," Vol. V.; and ante, tit. “Hackney Coaches"). As to the exemption from toll of persons going to or returning from church on a Sunday, see ante, p. 727. coaches, &c., during divine ser vice. Exemptions from toll. on. By stat. 29 Car. II. c. 7, s. 6, no person upon the Lord's day shall Serving process serve or execute any writ, process, warrant, order, judgment, or decree, (except in cases of treason, felony, or breach of the peace), but the service thereof shall be void; and the person serving the same shall be as liable to answer damages to the party grieved, as if he had done the same without any writ, process, warrant, order, judgment, or decree. cess. Justice's warrant to obtain sureties for good beha But this doth not extend to ecclesiastical process; as, citations or ex- Ecclesiastical procommunications. (Gibs. 271; Walgrave v. Taylor, 1 Ld. Raym. 706). A justice issued a warrant to the constable, to make a person find sureties for his good behaviour: the constable executed the warrant on a Sunday, and he was justified by the Court; who resolved, that a warrant for good behaviour is a warrant for the peace, and more; and that this statute is to be favourably interpreted for the peace. (Johnson v. Colton, T. Raym. 250). viour. Arresting for a res So a person may be arrested on a Sunday, on an attachment for a rescue. (Anon., Willes, 459). Or under an escape warrant. (Sir W. cue or escape. Moore's case, 2 Ld. Raym. 1028; 2 Salk. 626, S. C.) Or, if the party has wrongfully escaped, he may be retaken on a Sunday, without a warrant. (Ib.; and Atkinson v. Jameson, 5 T. R. 25; and Featherstonehaugh v. Atkinson, Barnes, 373). But bail cannot take the defendant on a Sunday, in order to surrender Bail taking dehim. (Brookes v. Warren, 2 Bla. Rep. 1273). It has been held, that, by the construction of stat. 29 Car. II. c. 7, s. 7, a warrant of commitment for a penalty cannot be executed on a Sunday, and that the apprehension on that day is wholly void, and the defendant entitled to be discharged out of custody. (R. v. Myers, 1 T. R. 265, on the Lottery Act). fendant. Warrant of commitment for a peexecuted on. nalty cannot be not be done on. Judicial acts cannot be done on a Sunday; but ministerial ones may. Judicial acts may (9 Coke, 66 b. See tit. "Coroner," Vol. II.) Lord's day. Discharge of prisoners in gaols on Sunday. Elections of officers of corporations and other public companies now required to be By the 5 & 6 Will. IV. c. 38, s. 12, where the term of imprisonment of a prisoner in gaol expires on a Sunday, the prisoner shall be discharge on the preceding Saturday. See tit. "Gaols," Vol. III. By the 3 & 4 Will. IV. c. 31, intituled, “An Act to enable the Election 3 & 4 Will. IV. c. 31. of Officers of Corporations and other Public Companies now required to be held on the Lord's Day to be held on the Saturday next preceding, or on the Monday next ensuing," (24th July, 1833), reciting, "Whereas the prof nation of the Lord's day is greatly increased by reason of certain meetings which are usually or occasionally held thereon: and whereas it is the duty of the legislature to remove as much as possible impediments to the due observance of the Lord's day:" it is enacted, "That every meeting or adjourned meeting of any vestry or corporation, whether ecclesiastical or civil, or of any public company, for the nomination, election, appointment, swearing in, or admission of any officer or officers, or for the transaction of any other secular affair of such vestry, corporation, or company, and every other meeting of a public and secular nature, which, according to any act of Parliament, or according to any chara, grant, constitution, deed, testament, law, prescription, or usage whatsoever, is or shall be required to be held on any Lord's day, or on any day which shall happen to be on a Lord's day, shall be held on the Saturday next preceding or on the Monday next ensuing, at the like hour, with like form and effect as if the same had been held on such Lord's day: and every matter transacted at any such meeting or adjourned meeting held upon any Lord's day shall be absolutely void and of none efect, to If election does not all intents and purposes whatsoever: Provided always, that, when no held on a Sunday shall be held on the Saturday preceding or the Monday following. take place on the Saturday, the person holding office to continue so to do until the Monday. Elections not made on such Sa shall be taken to be within the 11 Geo. I. c. 4. such nomination, election, appointment, swearing in, or admission shal have taken place on such Saturday, every person whose term of office would, according to any such act, charter, grant, constitution, deed, testament, law, prescription, or usage, have expired on any such Lord's day, shall continue in office, and exercise and enjoy all the powers and privileges annexed or relating to such office, until and on such Monday next ensuing, in the same manner as if such Monday had been the customary day of nomination, election, appointment, swearing in, or admission." Sect. 2. "Whenever the nomination, election, appointment, swar turday or Monday, ing in, or admission of any such officer or officers as before mentioned shall not take place on such Saturday or Monday, or shall beeste void, the case shall be and is hereby declared to be within the provisions of an act made and passed in the eleventh year of his late Majesty King George the First, intituled, An Act for preventing the Inconvenient arising for Want of Elections of Mayors or other Chief Magistrates of Be roughs or Corporations being made upon the Days appointed by Charter i Usage for that Purpose, and directing in what Manner such Elections sa be afterwards made, as fully and effectually as if such officer or offers had been expressly named in the said act." Warrant on stats. 3 Car. I. c. 1, and 29 Car. II. c. 7. to levy 208. on carrier for travelling on Lord's day; which same will do, mutatis mutandis, for other penalties under this title. County of- } To the constable of —, in the said county, and to the and eightpence, part of the said sum of twenty shillings, to A. I., of ——, [yeoman], who informed me of the said offence, and that you see the remaining sum of thirteen shillings and fourpence employed to the use of the poor of your said parish of -, returning to him the said A. O. the overplus upon demand, the reasonable charges of taking, keeping, and selling the said distress, being first deducted. And you are to certify to me, with the return of this precept, what you shall have done in the execution thereof. Herein fail you not. Given under my hand and seal at in the said county, the day of J. P. Lunatics. Lost Enstrument, Proof in Case of, see "Evidence," Vol. II. pp. 366, 369; "Larceny" of Lost Property, ante, p. 1105. Lotteries. See "Gaming," Vol. III. See the Addenda, tits. "Art Unions,”—“ Gaming.” Lunatics (@). I. How far liable for Crimes. Prosecution and Treatment of [39 & 40 Geo. III. c. 94; 3 & 4 Vict. c. 54, s. 3.] II. County and Public Lunatic Asylums. Sending Lunatics to, [9 Geo. IV. c. 40; 1 Vict. c. 14; 3 & 4 Vict. c. 54; 5 & 6 III. Private Lunatic Asylums. Sending of Pauper Lunatics to, [2 & 3 Will. IV. c. 107; 3 & 4 Will. IV. c. 64; 5 & 6 Vict. As to the incompetency of lunatics as witnesses, see tit. "Evidence," (a) The Queen is the general guardian of idiots and lunatics. (17 Edw. II. st. 1, c. 9 & 10). But the custody of lunatics is generally committed to the Lord Chancellor, Lord Keeper, or lords commissioners for the custody of the great seal, by the Queen's sign manual. All matters, therefore, touching lunatics are within the peculiar jurisdiction of the Court of Chancery. Surety of the peace cannot be granted to or required from a person of non sane memory upon his own request; but yet, if there be cause, the justice ought to provide for his safety. (Dalt. c. 117. See as to the apprehension and The stats. 3 & 4 Will. IV. c. 36, and A person of non sane memory shall not avoid his own act, by reason of this defect; but his heir or executor may. (Beverley's case, 4 Rep. 123 b). If an idiot, or a lunatic, not being in Miscellaneous points as to luna tics. 1. How far liable for crimes, &c. Four kinds of lunacy. Drunkards' liability for crimes. I. How far liable for Crimes. Prosecution and Treatment of Ensane Criminals. Non compos mentis is of four kinds : First, Idiots; who are of non sane memory from their nativity, by s perpetual infirmity. (1 Inst. 247; Bac. Ab. Idiot (A.)). Secondly, Those that lose their memory and understanding by the visitation of God, as by sickness or other accident. Thirdly, Lunatics; who have sometimes their understanding, and sometimes not. Fourthly, Drunkards (a); who, by their own vicious act, for a time a lucid interval, take a wife, the marriage is void; for consent is necessary to make a marriage effectual, and neither of them is capable of consenting to any thing. But as it might be difficult to prove the exact state of the party's mind at the actual celebration of the nuptials, it is provided by stat. 15 Geo. II. c. 30, that the marriage of lunatics and persons under phrensies, (if found luna. tics under a commission, or committed to the care of trustees by any act of Parliament), before they are declared of sound mind by the Lord Chancellor, or the majority of such trustees, shall be totally void. (1 Blac. Com. 439). A lunatic may surrender a lease in the Court of Chancery, in order to renew the same. (Stat. 11 Geo. IV. & 1 Will. IV. c. 65). Also, by the direction of the Lord Chancellor, he may accept a surrender of such lease, and execute a new one. (Ib.) The committee of a lunatic cannot make a lease. (Knipe v. Palmer, 2 Wils. 130). For provisions to authorize the sale or mortgage of the estates of persons found lunatic by inquisition, in England or Ireland respectively; and for granting leases of the same; see stats. 11 Geo. IV. & 1 Will. IV. c. 65, and 1 & 2 Geo. IV. c. 114. To make a will, it is not sufficient that the testator have memory to answer to familiar and usual questions, but he ought to have a disposing memory, so as to be able to make a disposition of his estate, with understanding and reason. (6 Rep. 23). But a will made during a lucid interval is valid. (1 Phil. Ec. Ca. 90). (a) Drunkards, where the drunkenness is voluntary, shall have no privilege by their want of sound mind; but shall have the same judgment for their crimes as if they were in their right senses. (1 Inst. 247; 1 Hawk. c. 1, s6; 1 Hale, 32). It was held by Holroyd, J., that where, as on a charge of murder, the material question is, whether an act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated is a circumstance proper to be taken into consideration. Per Holroyd, J., in R. v. Gridley, 1 Rus. C. & M. by Greaves,8). But, according to Rex v. Carroll, 7 C. & P. 145, that case is not law. Drunkenness, however, is often taken into consideration in deciding upon the intention of the offender. This, if a man used a stick, a jury would not infer a malicious intent so strongly against him if drunk when he made an interperate use of it, as they would if he had used a different kind of weapon; but where a dangerous instrument was used, which, if used, must produce grievous bodily harm, drunkenness could have no effect on the consideration of the malicious intent of the party. (R. v. Meakin, 7 C. & P. 297; R. v. Crust, 8 C. & P. 546). It may also be take into consideration, in cases where what the law deems sufficient provocation has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober. v. Thomas, 7 C. & P. 817; R. v. Pearson, 2 Lewin, 144). If, indeed, there is really a previous determination to resent a slight affront in a barbaross manner, the state of drunkenness in which the prisoner was ought not to be regarded. (Ib.) R Upon an indictment for stabbing, the jury may take into consideration, among other circumstances, the fact of the prisoner being drunk at the time, in order to determine whether he acted under a bona fide apprehension that his person or property was about to be attacked. (R. v. Marshall, 1 Lewin, 76; R. v. Goodier, Id.; 1 Russ. C. & M. by Greaves, 8). deprive themselves of their memory and understanding. (See Wheller 1. How far v. Alderson, 3 Hagg. 602). liable for crimes, &c. Idiots and lunatics, who are under a natural disability of distinguishing between good and evil, are not punishable for their crimes. (1 Hawk. Liability of, for c. 1, s. 1; 4 Coke, 125; Co. Lit. 247. a.) But if a lunatic, or other person who wants discretion, commit a trespass against the person or possession of another, he shall be compelled, in a civil action, to give satisfaction for the damage. (1 Hawk. c. 1, s. 5.) As to his liability for contracts, and that he is liable for necessaries, see Bagster v. Earl Portsmouth, 5 B. & C. 170 ; 2 C. & P. 178 ; 7 D. & R. 614, S. C.; Wentworth v. Tubb, 1 Young & C.; N. C. 171; and see Brown v. Jodrell, 3 C. & P. 30; 1 M. & M. 105, S. C.; and Levy v. Baker, 1 M. & M. 106, n. He who incites a madman to do a murder or other crime is a principal offender, and as much punishable as if he had done it himself. (Î Hawk. c. 1, s. 7.) It is said, per Tracy, J., in R. v. Arnold, (16 Howell's St. Tri. 764), that it is not every frantic and idle humour of a man that will exempt him from justice and the punishment of the law. When a man is guilty of a great offence, it must be very plain and clear before a man is allowed such an exemption; therefore, it is not every kind of frantic humour, or something unaccountable in a man's actions, that points him out to be such a madman as to be exempted from punishment. It must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast; such an one is never the object of punishment. And per Yorke, Solicitor-General, in Lord Ferrers's case, (19 Howell's St. Tri. 947, 948). If there be a total permanent want of reason, it will acquit the prisoner. If there be a total permanent want of it, when the offence was committed, it will acquit the prisoner. But, if there be only a partial degree of insanity, mixed with a partial degree of reason; not a full and complete use of reason, but (as Lord Hale carefully and emphatically expresses himself) a competent use of it, sufficient to have restrained those passions which produced the crime; if there be thought and design; a faculty to distinguish the nature of actions, to discern the difference between moral good and evil; then, upon the fact of the offence proved, the judgment of the law must take place. 66 Where, on an indictment for murder, it appeared that the defendant laboured under a notion that the inhabitants of Hadleigh, and particularly the deceased, were continually issuing warrants against him with intent to deprive him of his life and liberty, Lord Lyndhurst, C. B., told the jury that they must be satisfied, before they could acquit the prisoner on the ground of insanity, that he did not know when he committed the act what the effect of it, if fatal, would be with reference to the crime of murder. The question was, did he know that he was committing an offence against the laws of God and nature?" (R. v. Offord, 5 C. & P. 168). In R. v. Oxford, for shooting at the Queen, Lord Denman, C. J., told the jury, "Persons prima facie must be taken to be of sound mind till the contrary is shewn. But a person may commit a criminal act, and not be responsible. If some controlling disease was, in truth, the acting power within him which he could not resist, then he will not be responsible. It is not more important than difficult to lay down the rule by which you are to be governed.” "On the part of the defence it is contended, that the prisoner was not compos mentis, that is, (as it has been said), unable to distinguish right from wrong, or, in other words, that, from the effect of a diseased mind, he did not know at the time that the act he did was wrong.' "Something has been said about the power to contract and to make a will. But I think that those things do not supply any test. The question is, whether the prisoner was la crimes. |