Old Bailey Proceedings supplementary material. JOHN LONGMEAD.
2nd December 1795
Reference Numbero17951202-1

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Mr. Justice GROSE delivered the OPINIONS of the JUDGES on the CASE of JOHN LONGMEAD , who was tried in October Sessions, as follows:

The prisoner at the bar, John Longmead, was tried before Mr. Justice Heath, at the last Old Bailey sessions, on an indictment founded on the statute of 19 Geo. II . chapter 34, stating, that he, together with three others, armed with offensive weapons, did assemble together, in order to be aiding and assisting in rescuing from certain officers of Excise a quantity of foreign spirits liable to the payment of duties. The prisoner was convicted on very satisfactory evidence; it was moved in arrest of judgment, that the statute 19 Geo. II . was not intended to be continued by the statute 28 Geo. III . and was not so continued. The statute 19 Geo. II . is intituled, "An act for the further punishment of persons going armed or disguised in defiance of the laws of Customs or Excise; and for indemnifying offenders against these laws, upon the terms in this act mentioned; and for relief of officers of the Customs in informations upon seizures." The statute of the 28 Geo. III . chap. 23. continues the act for the punishment of persons going armed or disguised in defiance of the laws of Customs or Excise; and for indemnifying offenders against those laws, upon the terms therein-mentioned; and for the relief of officers of the Customs in informations upon seizures.

In favour of life, and not from any doubt entertained upon the subject, this case was laid before the judges; and by them attentively considered; and they are unanimously of the opinion with which I shall conclude. The motion in arrest of judgment was, on the indictment being founded on the 19 Geo. II . chap. 34, the argument being, that that statute, which was temporary, has expired, and is not continued by 28 Geo. III . chap. 23; for it is said, that the statute 19 Geo. II . which is intituled (as I have just now read), has these words, "the terms in this act mentioned;" and that the statute of 28 Geo. III . supposed to have continued the statute 19 Geo. II . has not continued it; because, in describing the title of that statute, instead of the words "in this act mentioned," it uses the words "therein men

tioned," and instead of the words "for relief," which leaves out the word "the," it uses the words"for the relief." Every man that hears the objection must be shocked, if he could conceive that that objection could prevail; because of one word being substituted for another; and in this act the word"the" being left out, could make no alteration in the sense, and create no sort of doubt whatever, what the intention of the legislature was; and they would be the more shocked, when it is recollected that the statute 19 Geo. II . is a most beneficial, salutary, and necessary statute; that it is to prevent men going armed with fire-arms, in disguise, in defiance of the laws; and to enable all persons wounded by such offenders, or executors of persons wounded by such offenders, to recover a recompence for that injury which they have received, and for that breach of the law, and when it is farther considered, that this law was continued, and has been uniformly acted upon since the last of these statutes passed. The argument used is founded upon three cases; one is, 2 Salkeld, 609; another is, Croke Elizabeth, 210; and the third is, I Lord Raymond, 343; these are cases where persons bringing actions upon penalties: have taken upon them to recite the statutes, whose business it is to know what they claim under, when they recite that as the ground of action or defence; the objection is well known in law under the title of variance; he that sets out pleading a grant and warrant, upon the foundation of a statute, must set out faithfully, he must know what that foundation is; but this is not a question of variance, it is a question of construction and intention; and therefore these cases do not apply to the case before us: when the legislature mean to continue a law, pass a law, or repeal a law, they are not bound to use any precise form of words, if what they meant is clear and obvious, whatever the form of words may be, it must be carried into execution: that this is so in the present case, is clear beyond a doubt; and there are authorities for it both ancient and modern. I will refer to an authority to be found in Foster, page 79:"That by an act passed in the 19th of the King, reciting, that Alexander Lord Pitsligo, and other persons, therein named, had been in actual rebellion, and were fled from justice;" 'it is enacted, that the said Alexander Lord Pitsligo, &c. &c. shall stand attainted of high treason, unless they surrender themselves to justice, on or before the 12th day of July, 1746.' Lord Pitsligo did not surrender in obedience to the act, and thereupon his lands in Scotland were surveyed and seized for the use of his Majesty, by order of the Court of Exchequer in Scotland, pursuant to the act of the 20th of the King, upon a presumption that he stood attainted by the act of the 19th. His Lordship put in his claim to the lands, in the Court of Session, by the name of Alexander Lord Forbes , of Pitsligo; setting forth, that his ancestor was, by letters patent, bearing date the 24th of June, 1633, ennobled and created a Baron of Scotland, by the name, stile, and title of Lord Forbes, of Pitsligo, which title is now descended on him; and insisted that he is not named in the act of attainder, and consequently doth not stand attainted, nor are his lands subject to forfeiture.

To this claim the King's Advocate put in an answer, by which he admitted the patent of creation as stated in the claim; but insisted, that the claimant is the person meant, and sufficiently described by the act. The cause coming on to be heard in the Court of Session, their Lordships pronounced their interlocutor, by which they find that the said Alexander Lord Forbes, of Pitsligo, is not attainted by the act of the 19th of the King, and therefore sustain his claim, and decree possession to be delivered to him.

From that interlocutor his Majesty's Advocate, in behalf of his Majesty, appealed, and the cause came to a hearing in January, 1750: It was referred to the Judges, and the Judges were of opinon, that if he was the person intended and named in that act, he was sufficiently described by the name and title of Alexander Lord Pitsligo. Upon that ground their Lordships reversed the interlocutor and dismissed the claim.

This is a very strong case in point, and the doctrine has been recognized and confirmed in the case of Lord Strathaven, which is so much like the case of Lord Pitsligo, that it is unnecessary to cite it; they both prove, that in the constituting words of the statute, the intention of the legislature is alone to be considered; it is not pretended that there is even a doubt but that some act was intended to be continued; it is not pretended that these words are applicable to any other act, or that there is a doubt whether any other statute is continued by it. Then the argument is this, that these words mean nothing, if it was not the intention of the legislature to continue some act, and that no man can doubt what that act, and that the intention is the whole that should be carried into execution; the intention is most clearly here to continue the statute, 19 Geo. II . and whatever is clearly the intention of the legistature. courts of justice are bound to support that intention. I know of no position that would be more fatal in a court of judicature than to refuse to understand the words of the intention, and depart from decided cases upon a ground in applicable to the case before them, and founded neither upon law, justice, nor good sense. The Judges are unanimously of opinion, that this is not a question of variance, but of construction; that the statute 19 Geo. II . is continued by the statute 28 Geo. III . that the indictment is good, and that judgment ought not to be arrested.

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