
    The State against Doctor Fraser.
    
      Charleston District,
    
    1797.
    In all misde-defendant is imparlance ^ next succeed3 the ^indict-31' mentis found,
    No prosecution tobe commenced for any penaltyt fine, or forfeiture, under any act of cmembtyi Unless commenced ■within six months after the Offence has been committecl.
    UPON an indictment for a misdemeanor,
    * Doctor Fraser being a royalist in the course of the revo-kttiónary war, was put upon the confiscation list, and return-et^to Carolina, where his family and friends were, without name being taken off this list, contrary to one of the clauses of the act of confiscation and banishment. . t
    
      Sometime after his return, information was given to the governor, who caused him to be taken up and imprisoned, for this return contrary to the terms of the act. A bill of indictment was given out and found against him, and a motion was made by his counsel, Mr. Parker, for leave to traverse this bill, as a matter of right until the next succeeding court; which was opposed by the Attorney-General, who contended, that this being what the law terms a high misdemeanor, a return from banishment for treason, the defendant was not entitled to the same indulgence, as in cases of inferior misdemeanors. That the offence and punishment being clearly pointed out by the act, all that was necessary, was, to identify the defendants person, which neither required much time nor deliberation. That it was the policy of the act to do speedy justice in such cases, and to avoid delay as much as possible.
    To this it was replied, on behalf of the defendant, that the higher the law considered the misdemeanor, the greater the necessity of having a reasonable time allowed for his defence ; that there was no crime so great, or punishment so instantaneous, but the court would grant this indulgence, where they saw the justice of the case required it. That the act in question was a war regulation, one passed flagrante hello., and little suited to the day of peace and tranquillity. That no danger could be expected to the state at this day, from the few solitary individuals who had returned contrary to the terms of this act. That the passions arid resentments of men of all descriptions, had happily subsided ; and with them, the principles of the government itself had relaxed ; for to the honour of the state, there had not been one single instance, in which it had refused to take these unfortunate men off the banishment act, where an application had been made to the legislature. That the defendant in this case, had intended to throw himself upon the liberality of the government upon this occasion ; but was apprehended and taken up, before he had an opportunity of doing so. That the treaty of peace with Great Britain, and! the return of harmony between the two countries, had so far changed the relative situation of the two governments, as to induce them to bury for ever in oblivion, all that had passed in the struggle for independence ; and as America had been so great a gainer by the revolutionary contest, she ought not to be the last in liberality towards those who differed in political sentiments from the majority of their former fellow-citizens.
    4 Black, Cómm. 345.
    See tlie act S5VS* ¿Lsws. Publlc ’
   Giumke and Bay

were of opinion, that they could not in justice refuse this motion ; that the law had laid" down nQ distinction between great and small misdemeanors ; they were all put upon the same footing ; and it had been the uniform practice cif this court from time immemorial, to grant this reasonable indulgence, to men to prepare for their defence in- every case of a misdemeanor whatever.

Wadies, J.

afterwards came into court and fully con¿ eurred in this opinion. He also mentioned the case of a man who had been indicted for murdering a negro, which was the highest species of misdemeanor known-in'our laws', who was allowed a term to plead, and prepare for his de-fence. The motion was therefore granted, and Doctor Fraser was- admitted to bail.- At the- next succeeding court he was discharged from the indictment; the prosecution not being commenced within six months after the of-fence was committed, (z. e. his return.)

This act after reciting that “ whereas many acts of this “ province (now state) had passed imposing penalties and “ forfeitures upon offenders against such acts without li- “ uniting- any time for commencing prosecutions against « such offenders the act then, goes on and declares that in all and every case, “ where anj penalty, fne, or forfeiture « whatever hath been, or shall hereafter be inficted,. or im- posed by any act or acts of the general assembly of this « province, (now state) already passed, or to be passed, and the time lor prosecuting such offender or offenders, is not c‘ therein provided, no information, action, suit or prosecu-w don. shall be had, issue-i, brought, or commenced against “ the o.lender or offenders against any such act or acts, un- “ less the same be done within six months, after the time (i when the offence sh-úl be committed; and all and every “ offender, or offenders again t an; such act or acts, shall “ not. from thenceforth be subject or liable to any penalty, aftae or forfedure, which may be thereby inflicted or iaspo- “ s.d, any law, usage or custom to the contrary not with- “ standing. This to be deemed a public act,” &c. &c. &c.

In the confiscation act there was no time limited for commencing any prosecution for any offence against that act; it w is drerefore under a far construction of the act of 174-8S that che defendant,in this case was finally discharged.

Present, Grimke, Waties and Bay,  