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statutes, 3 Geo. 4. c. 114; and 9 Geo. 4. c. 32. s. 5. By Infliction of hard the first statute, the Court may sentence to imprisonment labour. with hard labour not exceeding the term for which they might previously imprison, either in addition to or in lieu

of any other punishment which might then be inflicted, in the following cases :

Assault with intent to commit felony.

Attempt to commit felony.

Riot.

Assault on a peace officer, or officer of customs and excise, or any revenue officer, acting in discharge of his duty, or any person acting in their aid.

Assault committed in pursuance of any conspiracy to raise the rate of wages.

Knowingly uttering counterfeit money.

Keeping a common gaming-house, a common bawdyhouse, or a common disorderly house. Perjury and subornation of perjury.

Being armed at night for the destruction of

game.

The 9 Geo. 4. c. 32. s. 5. enables the Court to sentence the offender to be imprisoned, with or without hard labour, for any term not exceeding two years, and also to fine such offender, and require him to find sureties for keeping the peace, in the following cases of assault, some of which, it will be seen, are, and others are not, included in the former statute :

Assault with intent to commit felony.

on a peace officer, or revenue officer, in the
execution of his duty, or person acting in his
aid.

with intent to resist or prevent the lawful appre-
hension or detainer of the party assaulting,
or of any other person for an offence for
which he may be liable to be apprehended or
detained.

committed in pursuance of any conspiracy to
raise the rate of wages.

It will be observed that, in these acts, common assaults are not included, nor conspiracies nor libels. In these cases, therefore, and in all other cases of misdemeanor not provided for by statute, the Court has no power to do more than fine, imprison, and require sureties.

There are, however, many cases of misdemeanor, which have been the subject of recent legislation, partaking of the character of larceny or swindling; as embezzlement by servants, factors, or agents; stealing various articles which are not the subjects of larceny at common law;

Passing dis

charged pri

soners.

Fees.

and obtaining money and goods by false pretences; in which the Court is empowered to punish, not only with imprisonment and hard labour, but also with whipping, if the offender be a male; or with transportation. These will be found, under their proper heads, in chapter 6.

The apportionment of punishment, which is now, in almost all instances cognizable at sessions, left to the discretion of the Court, is the most important duty cast on the justices. It is scarcely necessary to observe that it should not only be proportioned to the offence in degree, but adapted to it in kind; measured not only by the abstract enormity of the offence, but by the age, sex, and circumstances of the offender; and regulated by the balance of public benefit to be derived from the exposure of the criminal and the notoriety of his punishment, or from the silence dictated by a decent regard to the nature of the offence. In most cases, the additional requisition of security for the good behaviour of the offender, when he leaves his confinement, is proper; and especially where the evidence shews a temper likely to endanger the public peace, or habits which tend to subvert the public morals.

The 32 Geo. 2. c. 45. s. 4. enabled justices in session to order any convict, on his discharge from prison, and also any person acquitted before then, or discharged by proclamation, to be conveyed by a vagrant pass to the place of his settlement. This salutary provision was repealed by 5 Geo. 4. c. 83. s. 2; and its object seems scarcely to be supplied by the 5 Geo. 4. c. 85. which gives to the visiting justices of prisons power to deliver to prisoners, on their discharge, papers enabling them to receive necessary allowances for travelling in the parishes through which they are obliged to travel. This act contains no provision enabling the justices in session to give to an acquitted or discharged prisoner the same means of reaching his home. It is, therefore, now usual for the justices to direct the governor of the prison to give to such prisoner, if destitute of the means of reaching his place of abode, sufficient money to enable him to reach it, at the county charge; a proceeding equally discreet and just; as an innocent man surely suffers enough in his imprisonment without being left destitute among strangers on his acquittal; and, as if he be not supplied with the means of subsisting till he can regain the place where he is entitled to relief, he will be tempted to supply his wants from the property of others.

In cases of felony no fees are due from discharged pri

soners. In cases of traverse, fees are still payable to the clerk of the peace by defendants on acquittal ;-a piece of injustice which, we may believe, will not disgrace the criminal law much longer. No person, however, can be detained in prison for such fees; but they may be recovered by action.

CHAPTER VIII.

OF THE ORIGINAL JURISDICTION OF THE SESSIONS

IN CIVIL MATTERS.

§ 1. Of the Original Jurisdiction of the Sessions generally.

2. Of the Jurisdiction of the Sessions in Cases of Apprenticeship. 3. Of Articles of the Peace.

4. Of the Disposition of Vagrants.

§ 1. OF THE ORIGINAL JURISDICTION OF THE

SESSIONS.

WE Come now to that part of the business of the sessions, which is entirely submitted to the judgment of the Court, without the intervention of the jury; which, as opposed to the criminal trials, may be termed the civil jurisdiction of the Court of Quarter Sessions.

The far greater part of the civil business of the sessions comes before the justices as a Court of Appeal deriving their authority, from various statutes. But the sessions have in some matters an original jurisdiction, which will be shortly considered in this chapter.

In general, the sessions have an original jurisdiction to do whatever may be done by two magistrates, except where the statute, empowering the magistrates to act, gives an appeal to the sessions. (a) They have clearly an original jurisdiction, under 3 Car. 2. c. 4. to make an order in case of bastardy; but the order is so much more commonly made out of sessions, and brought before the sessions by way of appeal, that it seems fitter for consideration among the matters appertaining to the appellant jurisdiction of the court. (b) On an appeal, the sessions having this original jurisdiction, may not only quash the order of bastardy appealed from, but may make a new order on another

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Provisions of the statute, 5

Eliz. c. 4. s. 35.

person; (c) but, in the exercise of this authority, they are bound to afford the party to be affected by the order an opportunity of making his defence against it; and, therefore, they cannot make the order unless he has been summoned to appear, or actually appears before them. If, therefore the sessions, having quashed an order of bastardy on appeal, propose, on the facts elicited, to make another on a person who is absent, they must either adjourn the matter to give him an opportunity of attending, or resume it at a subsequent session to which he may be summoned; as, otherwise, he would be deprived of all redress, since no appeal will lie ab eodem ad eundem, or from one authority to another with similar powers. (d) But if, having been summoned, he neglect to appear, the Court may proceed in his absence.

The cases in which the sessions most usually exercise an original jurisdiction are in cases of apprenticeship; in the allowance of articles of the peace; and in the disposal of vagrants committed to the sessions for punishment.

§2. OF THE JURISDICTION OF THE SESSIONS IN

CASE OF APPRENTICES.

The statute 5 Eliz. c. 4. s. 35. enacts, "That if any such master (as therein referred to) shall misuse or evil intreat his apprentice, or the said apprentice shall have any just cause to complain, or the apprentice do not his duty to his master, then the said master or apprentice being aggrieved, and having cause to complain, shall repair unto one justice of the peace within the said county, or to the mayor, or other head officer of the city, town corporate, market town, or other place where the said master dwelleth, who shall by his wisdom and discretion make such order and direction between the said master and his apprentice as the equity of the case shall require; and if for want of good conformity in the said master, the said justice of the peace, or the said mayor, or other head officer, cannot compound and agree the matter between him and his apprentice, then the said justice, or the said mayor, or other head officer, shall take bond of the said master to appear at the next sessions then to be holden in the said county, or within the said city, town corporate, or market town, to be before the justices of the said county, or the mayor, or head officer of the said town corporate, or market town, if the

(c) Barrell's case, 1 Mod. Rep. 20; Pridgeon's case, 1 Bulstr. 255; the King v. Smith, Bulstr. 340.

(d) 1 Sess. Cas. 179.

said master dwell within any such; and upon his appearance, and hearing of the matter before the said justices, or the said mayor, or other head officer, if it be thought meet unto them to discharge the said apprentice of his apprenticehood, then the said justices, or four of them at the least, whereof one to be of the quorum, or the said mayor, or other head officer, with the assent of three other of his brethren, or men of best reputation within the said city, town corporate, or market town, shall have power by authority hereof, in writing under their hands and seals, to pronounce and declare, that they have discharged the said apprentice of his apprenticehood; and the cause thereof and the said writing so being made and enrolled by the clerk of the peace and town clerk amongst the records that he keepeth, shall be a sufficient discharge for the said apprentice against his master, his executors, and administrators, the indenture of the said apprenticehood, or any law or custom to the contrary notwithstanding. And if the default shall be found to be in the apprentice, then the said justices, or the said mayor, or other head officer, with the assistance aforesaid, shall cause such due correction and punishment to be ministered unto him as by their wisdom and discretion shall be thought meet."

the act.

In the construction of this act, it was, at one time, Construction of doubted whether the session had any original jurisdiction, or could only interfere on appeal; but it is clearly settled that they have jurisdiction to act without any application previously made to a magistrate. (e) Their jurisdiction extends not only to apprentices bound to the trades enumerated in the statute, but to apprentices in all other trades; (f) and even if the master be a freeman of the city of London, and the indentures are enrolled in London, the sessions for the county of Middlesex have jurisdiction to discharge the apprentice, notwithstanding the saving in section 40 of the act of the privileges of London and Westminster. (g)

If the master be bound over or summoned to appear, the sessions may proceed in his absence to hear the case; and may, if they see fit, discharge the apprentice from his indentures. (h) It has been doubted whether the sessions have power, on such discharge, to order any return

(e) The King v. Wheeson, 1 Salk. 68; the King v. Gill, 1 Stra. 143; the King v. Davies, 2 Stra. 704.

(f) The King v. Collingbourn, 2 Lord Raym. 1410.
(g) Id. ibid.
(h) Ditton's case, 2 Salk, 490.

D

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