Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 27 November 2021), February 1786 (o17860222-1).

Old Bailey Proceedings supplementary material, GEORGE BAILLIE, 22nd February 1786.

GEORGE BAILLIE was set to the Bar, whose Case was reserved for the Opinion of the Twelve Judges, which Opinion was delivered by Mr. Justice Gould, as follows:

This prisoner was indicted at the Sessions at this place, the 14th of September, 1785: the indictment set forth that at the quarter Sessions, holden January the 31st, in the 23d of his present Majesty; the prisoner who had been committed by a Justice of Peace, had been charged upon oath with being a rogue and vagabond, being found in an inclosed yard belonging to Mr. William Swan 's dwelling-house, and the Sessions having upon examination adjudged him to be a rogue and vagabond, ordered him to be detained in the House of Correction for the space of six months: then the indictment stated that at the Sessions of the Peace, holden by adjournment, on the 12th of December in the same year, the same prisoner was brought before that Court, committed by a warrant of two Justices as an incorrigible rogue, having escaped from the House of Correction before the expiration of six months, for which he had been committed; and these two Justices on his examination adjuged him to be an incorrigible rogue, and to be detained in the same House of Correction for two years; then the indictment further charges, that the prisoner, on the 14th of May did offend again in like manner, as a rogue and vagabond; having upon him a certain implement called an iron crow, with an intent feloniously to break and enter a coach-house and stable; and also having upon him a certain offensive weapon called a pistol, with intent feloniously to assault some persons. Upon these charges in the indictment at the Old Bailey Sessions, in September, 1785, he was tried and found guilty, but two objections were taken by his Counsel, first that the offence described being created by the statute of the twenty-third of his present Majesty, cannot support an indictment under the act of Parliament, made in the 17th of King George the Second: the next objection was, that the words in like manner, in the act of the 17th of King George the Second, referred to offences committed as an incorrigible rogue, whereas this prisoner offending on this indictment is stated to be offending in like manner as a rogue and vagabond not saying as an incorrigible rogue. These two objections were by the Recorder laid before the Judges for their consideration, and as to the first objection, which is, that the offence described being created by the 23d of his present Majesty, cannot support an indictment under the 27th of George the Second; all the Judges are of opinion that there is no ground for this objection: the statute of the 23d of the present King, enacts that a person under the circumstances therein described (among which the case of the prisoner as stated in the indictment expresly falls) shall be deemed a rogue and vagabond within the intent and meaning of the statute made in the 17th year of King George the second; the Judges think this provision has the same operation, as if the descriptions in this act of the 23d of his present Majesty, had been originally inserted in the first statute in addition to what is therein specified to constitute the offence: The title of the act, though not regarded as a part of an act of Parliament, yet may serve in some degree, to point out the intent of the legislature, and in the present case, the title is

"An Act to extend the

"provisions (or an act describing the 17th

"of King George the Second) to contain

"cases not therein mentioned." Upon this objection therefore, all the Judges concur in opinion, that the statute of the 23d of George the Third, is to be considered as incorporated into, and making a part of the 17th of his late Majesty: as to the second objection, which is that the words in like manner of the 17th of George the Second, refer to offences committed as an incorigible rogue, whereas the indictment states the prisoner to have offended in like manner, as a rogue and vagabond, and it therefore does not follow in the words or intention of the act of parliament; the Judges are unanimous in opinion, upon weighing the several provisions in the act of the 17th of George the Second, applicable to the case of the prisoner, that this indictment is sufficient. - The act of the 17th of George the Second divides the offences into three classes; first, idle and disorderly persons, these are to be punished by one or two Justices with one, or more, months imprisonment; the second are rogues and vagabonds, punishable by one or more Justices, by whipping, or to be committed to the next general or quarter sessions; the next are incorrigible rogues, who it seems are to be committed till the sessions, and not punishable before. At the first commitment of the prisoner, the quarter sessions adjudged him to be a rogue and vagabond, which is one of the offences mentioned in the act of the 17th of King George the Second, and detained him in the House of Correction for six months; after this, he is brought before the Sessions again, having escaped before the end of the six months, and on his examination, is adjudged by the Sessions to be an incorrigible rogue, and ordered to be detained in the House of Correction for two years; then it appears by the indictment, that before the expiration of the two years, he was guilty of another offence specified in the act of the 23d of his present Majesty; for by that act, it is declared, such person should be deemed a rogue and vagabond, within the intent and meaning of the 17th of George the Second; the provision of that act, in the 8th section, is, that if an incorrigible rogue, so ordered by the Sessions to be detained, shall, before the expiration of the time, break, or make his escape, from the House of Correction, or shall offend again in like manner, he shall be deemed guilty of felony. The context, which adopts the words in like manner, refers to breaking, or escaping, from the House of Correction; therefore, recourse must be had to another part of the statute for the meaning of those words: now, the third section provides, that all rogues and vagabonds, who shall so break or escape, and all who, after having been punished as rogues and vagabonds, and discharged, shall again commit any of the said offences, shall be deemed incorrigible rogues; to which provision in section the 3d, the words in like manner in the 8th section, must, in my opinion, necessarily refer; then the situation of the prisoner is, that having been adjudged an incorrigible rogue, and having been committed for two years, he escapes, and is at large before the expiration of the time, and commits a new act of vagrancy, he thereby becomes an incorrigible rogue the second time, and so incurs the guilt of felony: these facts being disclosed in the indictment, and no technical terms or words of art being necessary for the description of the offence, the law must draw the inference from the words, and that is, that by what the prisoner has so done, he becomes an incorrigible rogue a second time, and consequently has offended in like manner, and has so been guilty of the felony; he is therefore in such a case as the act declares his person shall be deemed and taken to be guilty of felony. It is the opinion, therefore, of all the Judges, that this prisoner is liable to the sentence imposed by the act of parliament for such a felon.

Mr. Recorder. Prisoner, the Judges having unanimously declared their opinion that your conviction was legal, the sentence of of the law upon you is, that you be transported beyond the seas for the term of seven years, to commence from the time of your conviction, to such place, or places, as his Majesty, by the advice of his Privy Council, shall think proper to declare and appoint .