46 G. 4. c. 53. So much of stat. 22 C. 2. c. 5. portation or im- 9 G. 3. c. 30. Who may act as justices. 1 G. 1. st. 2. c. 25. Summary jurisdiction in cases of small embezzlements, &c. Counterfeiting the hand of the treasurer, &c. 9 & 10 W. 3. c. 41. No warlike or naval stores, except for the king's use, shall be made with the king's marks. that of death should be provided for the offences from which the benefit of clergy is so taken away as aforesaid, and that the same punishment should be extended in manner after mentioned: it is enacted, that so much of the said recited act as takes away the benefit of clergy from the persons convicted of the offences before mentioned, shall be repealed; and that from and after the passing of this act, every person who shall be lawfully convicted of stealing or embezzling H. M.'s ammunition, sails, cordage, or naval or military stores, or of procuring, counselling, aiding, or abetting any such offender, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned only, or to be imprisoned and kept to hard labour in the common gaol or house of correction for any term not exceeding seven years. By stat. 9 G. 3. c. 30. § 5., the treasurer, comptroller, surveyor, clerk of the acts, or any commissioner of the navy, may act as justices, in causing the offenders to be apprehended, committed, and prosecuted for the same. By stat. 1 G. 1. st. 2. c. 25. § 3., any of the principal officers or commissioners of the navy may issue warrants to search for naval stores, as justices may in cases of felony, and punish the offenders by fine not exceeding 20s., or imprisonment not exceeding one week, the value of the goods not exceeding 20s.; and if the offence requires a higher punishment, may commit him to the next gaol or to the custody of their messenger till he finds surety or sureties to appear in the exchequer, or other court where the king shall question him for the same within one year, on process duly served for that purpose on such offender. 6. And every person who shall counterfeit the hand of the treasurer, comptroller, surveyor, clerk of the acts, or of any com missioner of the navy, or the hand of the signing or vouching officer of H. M.'s navy, ships, or yards, to any bill, ticket, or papers, by virtue whereof H. M.'s naval treasure may be disposed of, or knowingly produce the same, he may be committed to prison by the said officers and commissioners, or any of them, until he find surety to appear at the next assizes or quarter sessions, to be there proceeded against according to law. By stat. 9 & 10 W. 3. c. 41. it is enacted, "That it shall not be lawful for any person or persons whatsoever, other than persons authorised by contracting with the king's principal officers or commissioners of the navy, ordnance, or victualling-office, for H. M.'s use, to make any stores of war or naval stores whatsoever with the marks usually used to and marked upon H. M.'s said warlike and naval or ordnance stores; viz. any cordage of three inches and upwards, wrought with a white thread laid the contrary way; or any smaller cordage, viz. from three inches downwards, with a twine in lieu of a white thread, laid to the contrary way as aforesaid; or any canvass wrought or unwrought, with a blue streak in the middle; or any other stores with the broad arrow, by stamp, brand, or otherwise; upon pain that every such person or persons who shall make such goods so marked as aforesaid, not being a contractor with H. M.'s principal officers or commissioners of the navy, ordnance, or victuallers for H. M.'s use, or employed by such contractor for that purpose as aforesaid, shall for every such offence forfeit such goods and 2007, together with the costs of prosecution, one moiety to the king, the other to the informer, 9 & 10 W. 3. to be recovered by action of debt," &c. c. 41. whose custody such marked stores are found, and who By § 2.," Such person or persons in whose custody, posses- Persons in sion, or keeping such goods or stores marked as aforesaid shall be found, not being employed as aforesaid; and such person or persons who shall conceal such goods or stores marked as aforesaid, being indicted and convicted of such concealment, or of the shall conceal having such goods found in his custody, possession, or keeping, the same, shall shall forfeit such goods and 200l., together with the costs of forfeit such prosecution, one moiety to the king, and the other to the in- goods and 2001. former, to be recovered as aforesaid; and shall also suffer im- and be imprisoned till payprisonment till payment and performance of the said forfeiture; ment. unless such person shall upon his trial produce a certificate under the hand of three or more of the king's officers or commissioners of the navy, ordnance, or victuallers, expressing the numbers, quantities, or weights of such goods as he or she shall then be indicted for, and the occasion and reason of such goods coming to their hands or possession." Vide Cole's case, post, 873. In addition to which, by stat. 9 G. 1. c. 8. § 3., Every person Extended to lawfully convicted of having in his custody any timber, thick stuff, timber, &c. by or plank, marked with the broad arrow, by stamp, brand, or other- 9 G. 1. c. 8. wise, or of concealing any timber, &c. so marked, shall suffer, forfeit, and pay as for having, keeping, or concealing any other warlike, naval, or ordnance stores, contrary to the said act" of 9 & 10 W. 3. c. 41. By stat. 9 G. 1. c. 8. § 4., the court may mitigate the penalty Corporal puninflicted by the st. 9 & 10. W. 3. as they shall see cause, and ishment or imcommit the offender so convicted to the common gaol of the prisonment. county or place where the offence shall be committed, until payment of the penalty and forfeiture, or punish such offender corporally by causing him to be publicly whipped, OR (a) committed to some public workhouse, there to be kept to hard labour for six months, or a less time, as to such judge in his discretion shall seem meet. 17 G. 2. c. 40. Offence may be tried at assizes or sessions. Stat. 17 G. 2. c. 40. § 10., after reciting doubts whether the two statutes 9 & 10 W. 3. c. 41. and 9 G. 1. c. 8. gave jurisdiction to justices of assize, justices of peace, &c. to try such offences, enacts and declares, that "justices of assize and justices of the peace at the general quarter sessions for any county, city, &c. may hear and determine such offences, &c., and may impose any fine not exceeding 2007., and mitigate the penalty, &c., and commit the offender to the common gaol of the county until payment, &c., or in lieu thereof may punish such offender corporally, by Punishment. causing him to be publicly whipped, AND committed to some house of correction or public workhouse, there to be kept to hard labour for three months, or less time, as to such judge, &c. in his discretion shall seem meet." In the case of R. v. Bland, 5 T. R. 370., the defendant's counsel contended that, as their client could pay the penalty, the court had no authority to inflict corporal punishment. But the court said that the words of the statutes were in the disjunctive, enabling them either to impose a penalty, or to punish the offender corporally: (a) In stat. 9 G. 1. c. 8. § 4. it is OR committed. In 17 G. 2. c. 40. § 10. it is AND committed. Court may inflict corporal punishment, though defendant offer to pay the penalty. May award costs. 39 & 40 G. 3. c. 89. Persons (other than contractors) receiving or having stores of war in their possession. Further punishment of persons convicted of offences against 9 & 10 W. 3. How far 9 & 10 tend to con tractors. and that this construction had already been put on the statutes in several instances, particularly in the case of R. v. Newell, M. 33 G. 3. And this appearing to the court to be a gross case, they sentenced the defendant to Clerkenwell prison for three months, there to be kept to hard labour, and during that time to be publicly whipped on Clerkenwell Green for the space of 100 yards. Though there was no instance prior to Trin. term, 46 G. 3. in which the defendant had been ordered to pay the costs, the court of K. B. adjudged the defendant (A. Chapple) to pay the penalty of 2004., together with the costs. 5 T. R. 371. n. By stat. 39 & 40 G. 3. c. 89. § 1., every person (not being a contractor, or employed as by 9 & 10 W. 3. c. 41. is mentioned), who shall willingly or knowingly sell or deliver, or cause to be sold or delivered, or shall knowingly receive, or have in his custody, possession, or keeping, any stores of war, or naval ordnance, or victualling stores, or any goods whatsoever marked as in the said recited act is expressed, or any canvass, marked either with a blue streak in the middle, or with a blue streak in a serpentine form, or any bewper, otherwise called buntin, wrought with one or more streaks of raised tape, the same being in a raw or unconverted state, or being new, or not more than one third worn; and such person who shall conceal any such stores or goods marked as aforesaid shall be deemed a receiver of stolen goods, knowing them to have been stolen, and shall, on conviction, be transported for fourteen years; unless he shall upon his trial produce a certificate under the hands of three or more of the principal officers or commissioners of the navy, ordnance, or victualling, expressing the number, quantity, or weight of such stores or goods, and the reason of the same coming into his possession. 2 East, P. C. 760. 2 Russ. 267. 2. And every person (except as aforesaid), in whose custody shall be found any canvass or buntin marked or wrought as aforesaid, not being new, nor more than one third worn, and all persons who shall be convicted of any offence contrary to so much of the said act of 9 & 10 W. 3. as relates to the making or having in possession, or concealing any such stores, besides forfeiting such stores and the sum of 2007. as therein specified, shall be punished by pillory (a), whipping, and imprisonment, or by any of the said ways, in such manner and for such time as to the judge or justices before whom such offender shall be convicted may seem meet: Provided that such judge or justices may mitigate such penalty of 2001., as they shall think fit. 3. provides, that nothing in the said act of 9 & 10 W. 3. or W. 3. shall ex- this act contained shall extend to exempt from the operation of this act any contractor or person employed as aforesaid, except only so far as concerns stores marked as aforesaid, which shall be bond fide provided, made up, or manufactured by such person, and which shall not have been before delivered into H. M.'s store, unless, having been so delivered, they shall have been sold or returned to such person by the said commissioners. Defacing marks. § 4. And if any person shall wilfully and fraudulently destroy, beat out, take out, cut out, deface, obliterate, or erase, wholly or in part, any of the marks mentioned in the said act of 9 & 10 W. 3., or this act, denoting such stores to be the property of H. M., or cause any other person to do so, for the purpose of concealing H. M.'s property therein, he shall be deemed guilty of felony, and shall be transported for fourteen years. 5. If any person, convicted of any offence against this act, for which he shall not have been transported, or contrary to the said act of 9 & 10 W. 3. shall be guilty of a second offence, which would not otherwise as the first offence subject him to transportation, he shall, on conviction for such second offence, be transported for fourteen years. 7. And the court before whom any offender shall be con- Punishments victed for offences punishable with transportation, may mitigate may be mitithe same by causing such person to be set on the pillory (a), gated. publicly whipped, fined, or imprisoned, or by all or any of the said ways, as such court shall think fit. One moiety of all such fines shall go to H. M., and the other to the informer; and the court may also order such offender to be imprisoned until such fine be paid. 54 G s. c. 60. 9 & 10 W. 3. 40 G. 3. c. 89. By stat. 54 G. 3. c. 60., the provisions, matters, and things, in respect to the making, selling, delivering, receiving, having in possession, and concealing any cordage wrought either with a white thread laid the contrary way, or with a twine laid to the contrary way, contained in stats. 9 & 10 W. 3. c. 41. and 39 & 40 G. 3. c. 89., or in any other act or acts of parliament, shall extend to the making, selling, delivering, receiving, having in possession, and concealing any cordage wrought with one or more worsted threads, threads. provided this shall not repeal any of the statutes now in force, in respect to cordage wrought either with a white thread laid the contrary way, or with a twine laid to the contrary way. Persons prohibited from sweeping har bours for lost stores. By stat. 54 G. 3. c. 159. § 10., all persons, except such as are duly licensed thereto by a commissioner of H. M.'s navy, are prohibited from creeping or sweeping for anchors, cables, ropes, rope yarns, or other stores, lost or supposed to be lost in harbours, &c. within certain prescribed limits, under a penalty of 101. R. v. Bridges, 8 East, 53. The defendant was brought up to Punishment receive judgment after conviction on stat. 9 & 10 W. 3. c. 41. § 2. under the stat.; for unlawfully having in his possession naval stores, &c., and judg- hard labour. ment was about to be pronounced that he should be imprisoned in the house of correction for the county of Surrey, and there kept to hard labour for three calendar months, and once during that time publicly whipped. This would have been warranted by stat. 17 G. 2. c. 40. § 10. reciting stats. 9 & 10 W. 3. c. 41. and 9 G. 1. c. 8., but a doubt occurring how far the power of sentencing to hard labour was taken away by the subsequent stat. 39 & 40 G. 3. c. 89. § 2., the court, upon further consideration, and comparing the different provisions of these statutes, were of opinion that the power of sentencing to hard labour was taken away by the latter statute, and therefore pronounced judgment that the defendant should be imprisoned in the house of correction for the county of Surrey for three calendar months, and be once during that time publicly whipped. By stat. 12 G. 3. c. 24., if any person shall, either in this realm 12 G. 3. c. 24. or in any place thereto belonging, wilfully and maliciously set on Burning or defire, burn, or otherwise destroy, or cause or aid therein, any of stroying stores (a) This punishment is abolished, except in certain cases, by stat. 56 G. 3. 38.; see tit. illory. Stealing stores larceny at C. L. Thorne's case, Exeter Spr. ass. 1800. One became death of her husband of canvass stores, which had been purchased by him in his lifetime at a public sale, and had H. M.'s military, naval, or victualling stores, or other ammunition of war, or any place where any such stores or ammunition shall be placed or kept, he, his aiders and abettors, shall be guilty of felony without benefit of clergy. And they who commit such offence out of the realm may be tried either where the offence was committed, or in any county within this realm. 2 East's P. C. 1094. Though the statute (31 El. c. 4.) only speaks of embezzling or stealing stores to the value of 20s., still any of the officers who have a bare charge of the stores in the king's warehouses, or a mere authority to deliver them out, may be guilty of felony at common law in stealing them to any amount from such places of deposit. Accordingly, in Thorne's case, 2 East's P. Ċ. 622., where it appeared that the prisoner was foreman of one of the storehouses in Plymouth dock containing naval stores, and had given security in 2001. for the faithful discharge of his duty, and was entrusted with the receiving and delivering out again of the stores in the absence of the clerk, whose proper duty it was when present; and that certain kersey was cut off by him from a bale in the stores, and delivered by him to an accomplice to be taken out of the yard, though the value was under 20s., he was by the direction of the court convicted of larceny at common law in stealing the kersey. Under the statutes for protecting the king's stores, the king's mark denotes the original ownership; and there the onus probandi lies on the party to account satisfactorily for his possession according to the regulations prescribed, otherwise the bare fact of pos session concludes him. But even here the presumption of the malus animus from the bare fact of possession may be rebutted by circumstances, as in the following case:-A widow woman was inpossessed on the dicted before Mr. Justice Foster, Fost. Append. 439. edit. of 1792, 2 East's P. C. 765., upon the western circuit, on stat. 9 & 10 W.3. c. 41. for having in her custody divers pieces of canvass, marked with the king's mark, in the manner described in the act, she not being a person employed by the commissioners of the navy to make the same for the king's use. The canvass was marked as charged in the indictment, and was clearly proved to be such as was made for the use of the navy, and to have been found in the defendant's custody. The defendant did not attempt to shew that she was within any exception of the act, as being a person employed to make canvass for the use of the navy; nor did she offer to produce any certificate from any officer of the crown, touching the occasion and reason of such canvass coming into her possession. Her defence was, that when there happened to be in H. M.'s stores a considerable quantity of old sails, no longer fit for that use, it had been customary for the persons entrusted with the stores to make a public sale of them in lots, larger or smaller, as best suited the purpose of the buyers; and that the canvass produced in evidence, which happened to have been made up long since, some for table linen and some for sheeting, had been in common use in the defendant's family a considerable time before her husband's death, and upon his death came to the defendant, fraud, held not and had been used in the same public manner by her to the time of the prosecution. This was proved by some of the family, and by the woman who had frequently washed the linen. This been many years made up into household furniture, but no evidence was given of any certificate of such sale being lawful, as required by stat. 9 & 10 W. 3., or of any excuse allowed by the act; yet the possession being by act of law, without within the penalty of the statute. |