P. Fine £5: (a) to be recovered either by distress, (s. 19 of 11 & 12 Vic., c. 43), or according to the procedure of 5 W. IV., No. 22. See "Abattoir," ante, p. 1, and "Justices, Recovery of Fines," post, and ex parte Cockburn, post, Part III.

S. Id., s. 2. [One Justice].—(2) Chief Clerk in every Police Office, or Clerk to every Petty Sessions, failing to cause true and exact printed copies of the Table of specified Fees to be posted up in a conspicuous part of the office or sessions-room. (See s. 2).

P. Fine 10s. for every day on which same shall not be so placed, posted up, or kept; (Note G): to be recovered as offence (1).

S. Id. [One Justice].-(3) Clerk of every Justice acting singly neglecting or refusing to produce and show, if required, to the person requiring to see the same, a printed copy of said Schedule, upon his demanding payment of any fee. (See s. 2).

P. Fine 10s.; (Note G): to be recovered as offence (1).

FENCES (DIVIDING).

For the provisions regulating Dividing Fences, and the recovery of costs incurred in their erection, see 9 G. IV., No. 12.

For stealing or injuring Fences, see "Larceny," "Malicious Injuries."

FELONY AND MISDEMEANOR.

Crimes have, from an early period, been distributed by the law of England into three classes-Treasons, Felonies, and Misdemeanors.

The prominent feature in High Treason is, the violation of the allegiance due from a subject to the Sovereign, as the Supreme Magistrate of the State. Between felonies and misdemeanors, the distinction at the present day is, in great measure, arbitrary and very unsatisfactory, a felony being distinguishable from a misdemeanor rather by the consequences which follow on a conviction for the offence, than by any particular element or ingredient appearing in it.

"Felony" is, in our criminal law, intermediate between treason (which is a higher kind of felony) and misdemeanor; and it is distinguishable from both. The crime of felony is of remote origin, and was founded upon feudal principles. Its incidents were not formerly, as they are now, of a merely arbitrary nature, preremptorily annexed to certain criminal acts. It sprung from the feudal relations. At the present day, a conviction for felony, ipso facto, induces a forfeiture of the property-real or personal, or both of the offender. (Cr. L. Com., 4 Report, p. 12).

The term "misdemeanor" applies to all crimes of an inferior degree, which do not fall within either of the preceding divisions.

Our Criminal Law is imperative with reference to the conduct of individuals; so that, if a statute forbids or commands a thing to be done, all acts or omissions contrary to the prohibition or command of the statute are offences at Common Law, and ordinarily indictable as such. As illustrating

(G) Penalty not recoverable if complaint be not made within one calendar mouth after the commission of the alleged offence. (S. 2).

this rule, see R. v. Woodrow, (15 M. & W., 404), where it was held, under a penal statute, (5 & 6 Vic., c. 93, s. 3), that a dealer in tobacco, although ignorant of its adulteration, is liable to the penalties imposed by that Act. (And see Lee v. Simpson, 3 C. B., 871; R. v. Humphreys, 14 Q. B., 388). The word "crime" is popularly understood as conveying the idea of something doue in violation of law, and therefore exposing the criminal to some sort of punishment. Under the denomination of crimes are comprised offences of a public nature, i.e., all such acts or attempts as tend to the prejudice of the community. (5 C. B., 407). "All misdemeanors whatsoever of public evil example against the Common Law may be indicted," says Hawkins, (Bk. 2, c. 25, s. 4); "but no injuries of a private nature, unless they in some way concern the king." Also, he adds "It seems to be a good general ground, that wherever a statute prohibits a matter of public grievance to the liberties and security of a subject, or commands a matter of public convenience, as the repairing of the common streets of a town, an offender against such statute is punishable not only at the suit of the party aggrieved, but also by way of indictment for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by it."

"I am of opinion," says Lord Denman, in Buchanan's case, (8 Q. B., 883), "that wherever a person does an act which a statute, on public grounds, has prohibited generally, he is liable to an indictment; I quite agree, that where, in the clause containing the prohibition, a particular mode of enforcing the prohibition is prescribed, and the offence is new, that mode only can be pursued. The case then is as if the statute had simply declared that the party doing the act was liable to the particular punishment; but, where there is a distinct absolute prohibition, the act is indictable."

An indictment will only be for some wrong common to all the subjects of the Crown;-common, in this sense, that it affects them all, not of necessity equally, but in some degree. The distinction of crimes from civil injuries seems principally to consist in this, that the latter "are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals;" whilst crimes are "a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity." Murder and robbery are properly ranked amongst crimes, since, besides the injury involved in them to individuals, they strike at the very being of society, which cannot possibly subsist where acts of this sort are suffered to escape with impunity. Many inferior offences, also, of a public nature, are indictable; and a crime will be deemed of a public nature, not merely where it causes some hurt, damage, or inconvenience to the public, but also where it is "of a public evil example." Thus it is an indictable offence for a parent who has the means of supporting her child, (R. v. Chandler, 1 Dearsl., 453), to neglect to provide sufficient food or necessaries for it, whilst of very tender years and unable to take care of itself; though, in this case, some injury to the health of the infant must be shown. (R. v. Philpot, 1 Dearsl., 179). It is at Common Law indictable, knowingly to take a glandered horse into a market, fair, or other place of public resort, to the danger of the liege subjects of the Crown. (R. v.

Henson, 1 Dearsl., 24). And any outrage upon public decency, as well as against the public peace, is indictable. (R. v. Holmes, 1 Dearsl., 207).

FELONS (ABSCONDING).

See "ESCAPE," "PRISONERS."

S. 4 Vic., No. 10, s. 2. (H) [Two Justices].-(1) Any male offender under sentence of transportation, (1) absconding a first time, or absenting

(H) By s. 1, Convicts absconding, and being apprehended before the expiration of their sentences, to serve the time of their absence in addition to the term of their sentence. By s. 21 of 3 W. IV., No. 3, Twenty-four hours' absence from the employment of Government, or from private service, without due leave having been first obtained for such purpose, shall be deemed an absconding; and, by s. 20, Convicts absconding are to serve the time of their absence, and be punished, though their sentences may have expired at the time of such trial; and s. 19 provides a punishment for absconding a second time, &c.; (and see 3 Vic., No. 22, s. 5). S. 18 contains a list of offences by convicts, and their punishments, which are within the summary jurisdiction of Justices in Petty Sessions.

By s. 22 of 3 W. IV., No. 3, Offenders escaping from penal settlements or irongangs, &c., are liable, on conviction before two Justices, (if males), to be publicly whipped, and to be forthwith transported or sent back to the penal settlement, &c., from which they escaped; (if females), to be returned "to the place of confinement from which she escaped, and kept in solitary confinement, on bread and water," for not exc. one cal. m.; and such offenders shall be detained until they have served out the full measure of their sentences, as well as of the time during which they escaped or were absent. By s. 23, Convicts wilfully disabling themselves are to serve the time of their disability; and, by s. 32, Records are to be kept of such offenders' names, and returns thereof transmitted, &c.; and the Clerk of the Peace or Clerk of Petty Sessions is to keep such records under a penalty.

3 Vic, No. 22, abolishes the transportation of female convicts, and provides for the more effectual punishment of female offenders. This Act is modified by 5 Vic., No. 3.

By s. 1 of 18 Vic., No. 7, All laws, ordinances, rules, and regulations in force respecting felons and other offenders transported from the United Kingdom, shall be applied to all felons or other offenders who have been or shall be convicted and sentenced in the said Colony.

S. 2. As often as any felon or other offender convicted in the said Colony shall escape from lawful custody, or abscond from the district or other place to which, under regulations or conditions in that behalf made, he shall be restricted, although at the time of his apprehension or trial for such offence, the original term of sentence may have expired, such felon or other offender may, notwithstanding, be at any time apprehended, tried, and convicted of such escape or absconding, and shall be liable to be dealt with in all respects as persons escaping or absconding during any subsisting sentence are or may be liable to. See, ante, "Escape."

(1) Evidence of being a Transported Convict].-By 3 W. IV., No. 3, s. 35, it is provided that, as often as any question shall arise in any Court in the Colony, whether any person is or hath been a transported felon or offender, the indent, or instrument in writing commonly called an indent, purporting to contain the name, offence, and sentence or order of transportation of any such person to New South Wales or its dependencies, or an examined copy of so much thereof as may be necessary for the occasion, shall,-upon the production thereof before such Court, together with due proof that such indent or instrument in writing hath been deposited and kept in the office of the Colonial Secretary for the said Colony, or other proper office for such purpose, as an authentic instrument, and that such offender or person named therein arrived in the said Colony or its dependencies as a transported felon or offender, and was reputed to be and dealt with as the person described in such indent or instrument in writing,-be received and admitted as sufficient evidence in such Court of every such person as aforesaid, touching whom

himself from the service of his master or employer for any period exceeding one week.

P. Labour in irons 12-3 mths., or for the term such offender shall have been absent; or punishment authorized by 3 W. IV., No. 3, s. 22. (Note H)

S. Id., s. 3. [Two Justices].—(2) Any transported male offender absconding from the employment of Government, or from the service of his master or mistress, a second time, or oftener.

P. Labour in irons, not exc. 2 yrs., nor less than 3 cal. m., or for the time of such offender's absence.

S. Id., s. 8. [One Justice].-(3) Any settler, householder, or other free person, harbouring in or about his house, lands, or otherwise,—or in any way employing any convict illegally at large.

P. Fine £50-£1 to be recovered either by distress, (s. 19 of 11 & 12 Vic., c. 43), or according to the procedure of 5 W. IV., No. 22. See, post, "Justices, Recovery of Fines," where s. 1 of 5 W. IV., No. 22, is given at length; and ex parte Cockburn, post, Part III.

N.B.-If defendant prove to Justice's satisfaction that he used diligence in ascertaining, and had reasonable ground for believing, that such convict was free, it shall not be imperative on Justice to impose any penalty. (S. 8).

S. 3 W. IV, No. 3, s. 25. [Two Justices].—(4) Any person harbouring or concealing any transported felon or offender who may be illegally at large, or seducing or exciting any such person to abscond from the employment of Government, or the service of his master or mistress.

P. Fine £10-£5, and a severer punishment if the offender be a convict under sentence of transportation; if fine adjudged, to be recovered as offence (3).

M. 4 Vic., No. 10, s. 5.-Any convict who may have escaped from the Colony being found at large anywhere beyond the limits of the same, or within any of H. M. possessions in the islands of New Zealand.

P. Tr. to a penal settlement 14 yrs., on being convicted before any Court of General Quarter Sessions.

FELONS (INFANTS).

It is sufficient, in this place, to refer to the "Act to provide for the Care and Education of Infants, under the age of nineteen years, who may

such question shall arise, being or having been a transported felon or offender for the term or time in such indent mentioned; and as often as any such question shall arise, whether any person shall have been transported to Van Diemen's Land or its dependencies, then the production of the order of removal, or written document, under and by virtue of which such person shall have been removed or sent from Van Diemen's Land or its dependencies to New South Wales or its dependencies, or an examined copy of so much thereof as may be necessary, together with due proof that such written order or document hath been kept in the proper office for such purpose, and that such person arrived in New South Wales or its dependencies as a transported felon or offender, and was reputed to be and dealt with as the person described in such written order or document, shall be in like manner received and admitted as sufficient evidence of such person having been transported to Van Diemen's Land or its dependencies for the term or time in such written order or document mentioned.

be convicted of Felony or Misdemeanor," (13 Vic., No. 21). By s. 1, Such infant may be assigned by the Supreme Court, or any Judge thereof, upon the application of any person willing to take charge of such infant, and to provide for his or her maintenance and education, if such Court or Judge shall find that the same will be for the infant's benefit, due regard being had to the infant's age, the prevention of crime, &c.

FINES.

Appropriation of Fines].-2 Vic., No. 23, s. 1, enacts, That whenever any law or statute that is or shall be in force within the Realm of England, and which shall be in other respects applicable to the Colony of New South Wales, shall direct the appropriation of any forfeiture, penalty, or sum of money, or any part thereof, for the use or on behalf of the poor of any parish, township, or other place, the same shall be and is hereby required to be paid, at the discretion of the Justice, Judge, or Court imposing the fine or penalty, to the Treasurer or other authorized officer of any benevolent or charitable society, established or to be established in any district of the Colony, for the relief of such poor persons as, through age, accident, or infirmity, are unable to support themselves: Provided that in any district in which there is no benevolent or charitable society, the same shall be paid towards the support of the Benevolent Society in the City of Sydney.

And by s. 1 of 11 Vic., No. 29, it is provided,-That whenever any law or statute that is or shall be in force within the Realm of England, and which shall be in other respects applicable to the said Colony, or which shall have been or shall be adopted in the said Colony, shall direct the appropriation of any fine, forfeiture, penalty, or sum of money, or any part thereof, to be paid to the overseers of the poor, for the use of County or other rates, or to any person or persons, or for any purpose or purposes inapplicable to the state or circumstances of the said Colony, the same shall be and is hereby required to be paid, at the discretion of the Justice, Judge, or Court, imposing the fine, forfeiture, or penalty, to the Treasurer or other authorized officer of any benevolent or charitable institution established, or to be established, in any district of the said Colony, for the relief of such poor persons as through age, accident, or infirmity, are unable to support themselves: Provided that in any district, except as hereinafter provided, in which there is no such benevolent or charitable institution, the same shall be paid towards the support of the Benevolent Asylum of Sydney; and by s. 2, the Governor may remit the whole or any part of such fines, &c.

11 Vic., No. 43, s. 1, repeals the clauses of 9 Vic., No. 8, (An Act regulating the sale and delivery of Coal in Sydney, &c.), and 9 Vic., No. 15, (The Customs Act), respecting the appropriation of fines, &c. By s. 2, All fines, &c., under the above-mentioned Acts shall be paid,—one moiety to H.M., and the other moiety to the Informer, who shall be entitled also to his costs or charges, to be ascertained, &c., by the Justices hearing the case.

Drunkenness, Fines of].-By 17 Vic., No. 6, s. 5, All fines and penalties paid and recovered by virtue of the Licensed Publicans Act, from