“That all and every his Majesty's subjects of this his Majesty's realm of Great Britain, who before the first day of May in the year of our Lord 1745, had incurred any penalty or forfeiture, in, by or for, the clandestine running, unshipping, concealing, or receiving, any prohibited goods, wares, or merchandizes, or any foreign goods, liable to the payment of the duties of customs and excise, or either of them, and who were, or might be subject to any information, or other prosecution whatsoever, for the penalties for the running, landing, unshipping, concealing or receiving thereof, or for landing any goods, without the presence of an officer, should be, and were, by the authority of the said act, acquitted, indemnified, released, and discharged, against his said Majesty, his heirs and successors, and all and every other person and persons, bodies politic and corporate, and any officer or officers of the Customs and Excise, any and every of them, of and from all the said offences (not excepted in the said act), and of and from all penalties, forfeitures, indictments, outlawries, convictions, and judgments (not therein after excepted), incurred, had or given, or that might arise, or accrue, for
“Whether the offence of being assisting, or concerned in the unshipping and in landing of the tobacco, charged in the Information in this case, is released, or discharged, by the act of Parliament, 18 Geo. II.?
“I will consider it first, merely on this statute, (18 Geo. II.)independent of the 9 Geo. II.; and will afterwards consider whether that statute affords any argument in behalf of the defendant?”
“1. The offence of running or landing prohibited goods.
“And we are of opinion, that the two first offences are discharged and pardoned, by the 18 Geo. II.—But the last is not, which is the offence charged in the Information, and is confessed by the defendant's demurrer.”
“The reasons for our opinion are:—We think that these three offences are very distinct and different from each other.”
“1. As they are always described by different words.
“The second, the running, unshipping, or landing goods liable to the payment of duties, before the duties are paid or secured, and which, for shortness sake, is generally called, “ the running or landing uncustomed goods.” the running or landing uncustomed goods.”
“2 dly , Those are made offences by different acts of Parliament, and different penalties are inflicted upon them, as appears by the two acts which have been cited by the counsel, particularly by the 8 Anne, by which, if persons are guilty of the offence in question, the goods themselves are forfeited, the offenders to pay double the amount of the drawback, and to suffer six months imprisonment.”
“3 dly , When those offences come to be considered, they are as different in their nature as possible, the last is much more heinous than either of the others.”
“The two first are not mala in se , but only mala prohibita ; but the offence under your Lordships' consideration, is not only malum prohibitum , but plainly malum in se.” malum in se.”
“It is receiving money of the crown, on an agreement to do a particular thing, and then not doing it; but acting clandestinely, in direct contradiction to the agreement, which is a cheat on the Crown and the public; and is generally attended with something worse; for the person who commits this offence is generally perjured likewise.” For by 4 and 5 Wm. and Mary, c. 15 and 11: The owner of the goods, or the person who is to be concerned in the direction of the voyage, must take care that the goods shall be bona fide exported and not landed again.”
“By what I have said, I think it is plain that the offence is not within the words or the meaning of the 18 Geo. II. They are certainly not prohibited goods, for they were lawfully imported, and paid the customs. And, for the same reason, they are not goods liable to be seized for not paying customs, they having paid them already, and they cannot be liable to pay them again, because it was agreed that they should never again be brought into Great Britain.”
“The only other words in the act, which can possibly relate to the offence in question, are, landing goods without the presence of an officer; and those plainly cannot be such, because the agreement is, that the same shall never be relanded; and if an officer was to be by when those were relanding, yet the offence would be just the same.”
“And as this offence is not within the words, so it is as clearly not within the meaning of the act; for the meaning of the act was, to reclaim, if possible, some sturdy stout fellows, who might make useful seamen in his Majesty's navy; but those who are guilty of those sorts of frauds are seldom of this sort. Besides, it can never
“I think, therefore, that it may as well be said, if an Act of Grace was to pass, pardoning robbery, burglary, and saying nothing of murder, that murder was within the meaning of such an act, as to say that this offence is within the meaning of the 18 Geo. II.”
“What was said, that this act is to be construed most beneficially for the subject, can have no weight in the present case, because, considering the nature of those crimes which are pardoned by this act, it certainly ought to be construed strictly, and, besides, it is plain that it was the intent of the legislature that it should be so construed, because the words most beneficially for the subject , though (as the plaintiff's case rightly observes) they are in all the other Acts of Grace since the Restoration, are omitted in this.”
“I shall now take notice of the act 9 Geo. II.; and, we think, upon considering it, that it affords no argument on the part of the defendant. After just the same words as there are in the present act, are those words, “or for making any false report or entry of the landing of any ship or vessel, inwards or outwards.”
“Now, entering the goods of a ship for exportation, to parts beyond the sea, which are intended to be relanded in Great Britain, is certainly a false entry, and for that reason this exception is put in afterwards.”
“Leaving to his Majesty, his heirs, &c., all debts, dues, and demands, due or owing to his Majesty, for, or in respect of any sum or sums of money, by him or any of his predecessors, at any time paid, on any debenture or debentures, certificate or certificates, where such debenture or certificate was wrongfully or fraudulently obtained, or where the same debenture afterwards became void, by the landing of the goods therein mentioned.”
“Now, as the legislature plainly had this act in their view when the 18 Geo. II. was made, because it is copied almost verbatim , till it comes to those words, or for making any false report, &c.; these seem to be purposely omitted, lest there should be a pretence that this offence was pardoned by the Act 18 Geo. II.”
“And, as a further proof that it was not intended to be included in that act, the saving clauses are likewise omitted.”
“For these reasons, we are all of opinion, that the offence stated in the question proposed to us, is not released or discharged by the 18 Geo. II.”