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having lawful cognizance of the offence, to do execution of a judgment, by them or him given, against any delinquent or criminal, such officer shall proceed according to the direction of such warrant, to do execution himself, or by some meet person by him to be procured, to the acceptance of the court granting such warrant; and for doing execution as aforesaid, a reasonable satisfaction shall be made, as the court or justice shall allow; which shall be taxed as a part of the costs against such delinquent or criminal, and shall be paid as is provided by law, for the payment of other charges of prosecution. sect. 115. Every person who shall be informed against, complained of indicted, or in any lawful manner prosecuted, for any crime or matter of delinquency, and shall be thereof duly convicted, shall pay all the necessary costs arising upon such prosecution, before he shall be discharged ; but if such person, so prosecuted as aforesaid, shall be acquitted, or if, in case of conviction, the costs of prosecution cannot be obtained out of his estate, such costs, if the trial be in the superior or county court, shall be paid out of the state treasury, and if before a justice of the peace, out of the treasury of the town wherein the prosecution is had. And in all cases, the said superior and county courts respectively, are empowered to draw on the state-treasurer, and such justice of the peace is empowered to draw on the town-treasurer, for the amount of such costs, immediately after the prosecution is determined; and such costs, if eventually recovered of the person prosecuted, shall be paid into the treasury, which shall have been so as aforesaid drawn upon, for the amount thereof. (4) sect. 116. In case costs shall arise on any proceedings, or in pursuit of any person informed against, by any informing officer, and such person cannot be apprehended, or being apprehended, shall, without fault of the officer, escape, before he is committed to prison, or bailed, such costs, if the offence of which such person is accused be recognizable by the superior, or county courts, shall be paid out of the state treasury, and if cognizable, by a
Costs, on conviction.
Costs, on unsuccessful pursuit.
(4) In the revision of 1672, there is a statute, enacting, that any person committed upon delinquency, shall bear the charges of prosecution, and shall pay to the master
of the prison six shillings and eight pence,
before he shall be discharged. In the revision of 1750, persons prosecuted for any matter of delinquency, were liable to pay costs, whether found guilty or not, unless there was no cause for the prosecution, and
the same was had by mistake; and were liable to be assigned in service, if unable to pay. It was considered so unjust, that a person who was acquitted of the crime, should pay the costs of the prosecution, a statute was passed in 1811, exonerating from the payment of costs, every person acquitted of the crime for which he was prosecuted,
Reward for making discovery, and giving information, of forgery, &c.
justice of the peace only, out of the treasury of the town
receive his costs expended in such prosecution, not ex
Reward to be offered by governor, for making discovery and giving information against capital offenders.
ceeding twenty dollars, to be ordered out of the state
state treasury, by order of the court before whom such
conviction is had. (5)
(5) Our ancestors did not bring with them the sanguinary criminal code of their native country ; but borrowed their regulations from a different source. In the preface to the edition of 1672, they say, “We have endeavoured not only to ground our capital laws upon the word of God, but also all our other laws upon the justice and equity held forth in that word, which is a most perfect rule.” Accordingly, pursuant to that law, a statute was passed, unishing with death, idolatry, witchcraft, lasphemy, murder, bestiality, sodomy, incest, rape, man-stealing, perjury with intent to take away life, the cursing or smiting of parents by children, and the rebellion of sons against parents. Though these severe laws continued in force for a considerable time, yet the instances are rare in which any of them were executed; and indeed, very few capital punishments were ever inflicted in the state. No instance ever occurred, where a person was executed for idolatry, blasphemy, manstealing, for the cursing or smiting of parents by children, or the rebellion of sons ainst parents. There were a few convictions for the crime of witchcraft; but there is no certain evidence of an execution. But the rigour of this severe code has been, from time to time, greatly moderated; and in the revision of 1750, it underwent a material amelioration : idolatry, witchcraft, man-stealing, the cursing and smiting of parents by children, and rebellion
TITLE 23. Deaths.
An Act concerning sudden or untimely Deaths.
E it enacted by the Senate and House of Representatives, in General Assembly convened, That when any person shall come to asudden, untimely, or unnatural death ; or be found dead, the manner of whose
death is not known; any justice of the peace, or if there when and how be none in the town, any constable of the town, shall summoned. forthwith summon a jury of twelve judicious men, who shall be sworn by such officer, to enquire of the cause, and of the manner, of the death of such person, and shall present, on oath, a true verdict thereof, under their hands, to some justice of the peace, who shall return the same to the next superior court in the county : and no fee shall be allowed for any of the services afore
against parents by sons, are omitted; and incest is punished by whipping and setting on the gallows. Formerly, the various crimes, not capital, were punished by branding, cropping, setting in the pillory, whipping, fine and imprisonment. In 1787, the punishment of almost all crimes by imrisonment in new-gate was introduced. n the present code, the object has been to describe and define, as far as practicable, every act for which a man is liable to punishment, though some offences are unavoidably left to be punished at common law; and to proportion the punishment according to the nature and grade of the crime, so that every man may know when he violates the law, and what punishment he is liable to suffer for it. All punishments that fix a lasting stigma on the person of the offender, except whipping for theft, have been abolished ; but as this shameful punishment is peculiarly adapted to the meanness of this prevalent crime, it was thought best to retain it. The experience of this state has shewn, not only that mild punishments are better calculated to prevent crimes, than those which are sanguinary ; but that punishments must be attended with considerable severity, to operate as examples to others: and the dread of the caverns of new-gate, has produced a much more powerful and salutary effect, than the humane regulations, adopted in some penitentiaries, for the benevolent purpose of reforming offenders.
Jury of in
Penalty on juror for negMect.
Divorces, in what cases to be granted.
Petition and service.
Mode of giving notice, in certain cases.
sect. 2. And if any person, summoned to serve as a
juror as aforesaid, shall refuse or neglect to appear, and
erform that service, he shall forfeit the sum of two dolrs, to the treasury of the town to which he belongs.
o TITLE 24. Divorce.
An Act authorising the superior court to grant
E it enacted by the Senate and House of Representatives, in General Assembly convened, That the superior court shall have power to grant divorces to any man or woman, lawfully married, for adultery; fraudulent contract; wilful desertion for three years, with total neglect of duty, by the other party; or in case of seven years' absence of one party, not heard of.(1
%. '2. The party aggrieved may prefer a petition to the superior court, which shall be duly served on the other party; and on due proof of the facts, said court may grant a divorce, and declare the petitioner to be single and unmarried, who may then lawfully marry, or be married, again.
sect. 3. In every petition for a divorce, returned to
the . court, if it shall not appear, by the return of the o
cer, or otherwise, that the respondent has had actual notice, the court shall continue the cause until the next term, to the intent that actual notice may be given ; and when the respondent lives out of the state, and actual notice can be given, it shall be lawful for any judge of the superior court, in vacation, to prescribe the mode in which the same shall be given ; and such notice having been given accordingly, at least six weeks before the sitting of the court, to which the petition is returnable, such court, on due proof thereof, may, if they judge it proper, proceed to a trial of the cause, at the first term. If the respondent be absent out of the state, and cannot be served with actual notice, without great expence, the pendency of such petition shall be published in two or more newspapers in this state, immediately after the rising of such court, six weeks successively. And if the petitioner shall have removed from any other state or nation, to this state, and shall not have statedly resided in this state, three years next before the date of said petition, he or she shall take nothing by the petition, unless the cause of divorce shall have arisen subsequent to his or her removal into this state. And in every case, where the petitioner coming to reside in this state, shall have left his or her consort in any other state or nation, actual notice of the pendency of such petition, shall be given to the respondent, by the reading of the petition in his or her hearing, which shall be proved by the oath of the person reading the same, administered by proper authority. And if the respondent, so notified, shall not appear in the cause, at the term to which the petition is returnable, the court shall continue the petition to the next term.
(1) A statute permitting divorces for
the same reasons as the present, was passed at an early period; as it appears in the revision of 1702. At this time, divorces were not granted in any christian country, on such grounds; and it was generally understood, that the precept of our Saviour prohibited divorces in all cases, except for the single cause of adultery. As the framers of this statute regarded, in the strictest manner, the authority of the sacred scriptures, and would not, on an
consideration, have passed a law, who, they considered to be repugnant to a divine precept, it is evident, that they very properly considered marriage to be mere
ly a civil contract, and that the remark of our Saviour was only intended to condemn the practice of the Jews in permitting divorces at the pleasure of the husband; and not to prohibit a legislature from making such laws as the interest of society required, relating to the subject of marriage and divorce. That this statute is not repugnant to the law of God, or the best interests of the community, is evident, from the consideration, that there is in no country more conjugal purity and felicity than in this, and no where has the
christian religion a greater influence and ascendency.
sect. 4. The superior court shall have power to assign to any woman, so divorced, such reasonable part of the estate of her late husband, as in their discretion, the circumstances of the estate will admit, not exceeding one third part thereof.
TITLE 25. Dogs.
An Act for preventing mischief by Dogs. SECT. 1. B. it enacted by the Senate and House of Rep
resentatives, in General Assembly convened, That any two justices of the peace, in any town, may make all necessary rules, orders and regulations, whenever they shall judge the inhabitants of the state, or their property, shall be in danger, for the confining, restraining, killing, or destroying of dogs, belonging to, or found in their respective towns, as they shall judge reasonable, for the effectual security of such inhabitants, or their property ; and such rules, orders, or regulations, shall be ublished, and a notification of the same set up in writing, in three of the most public places in such town, wherein the same shall be made, and not less than one, in each school society therein. And when such rules, orders, or regulations shall be so made and published, all
Two justices of the peace may make rules, &c. relating to dogs ;
to be publish