Frederick V. Barfield. any evidence to prove that any other matters were submitted by arbitration bonds, than those expressed in the condition of such bond, or so to explain the meaning of the parties, as to make the least variation from the import of the terms of the submission. The court therefore was of opinion, that it was improper to permit any parol testimony to be admitted, in order to explain the intent and meaning of the parties to the arbitration bonds. The terms of submission ought to be plain and explicit, as to the object and design of them; and it is much better to let the time run out and expire, within which awards are to be made, than to introduce a principle of so dangerous a tendency, as the one contended for by the plaintiff on the present occasion; as in the end it might defeat the statute of frauds. Rule for a new trial made absolute. Present, BURKE, GRIMKE, WATIES and BAY. N. B. This was the second new trial which was ordered in this case, there having been a former one, on account of the jury finding against the terms of the submission. Charleston District,1797. In all misdemeanors the defendant is entitled to an imparlance THE STATE against DOCTOR FRASER. UPON an indictment for a misdemeanor. Doctor Fraser being a royalist in the course of the revo lutionary war, was put upon the confiscation list, and returnover to the ed to Carolina, where his family and friends were, without next succeed ing term after his name being taken off this list, contrary to one of the the indict ment is found. clauses of the act of confiscation and banishment. No prosecu tion to be com menced for any penalty, fine, or forfeiture, under any act of assembly, unless commenced within six months after the offence has been committed. 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 tra verse 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 mis demeanor, 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 defendant's 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 bello, 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 con trary to the terms of this act. That the passions and re sentments 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 libe rality of the government upon this occasion; but was apprehended and taken up, before he had an opportunity of The State V. Fraser. The State doing so. V. Fraser. 4 Black. Comm. 345. See the act passed in Laws. 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. GRIMKE and BAY were of opinion, that they could not in justice refuse this motion; that the law had laid down no distinction between great and small misdemeanors; they were all put upon the same footing; and it had been the uniform practice of this court from time immemorial, to grant this reasonable indulgence, to men to prepare for their defence in every case of a misdemeanor whatever. WATIES, J. afterwards came into court and fully concurred 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 defence. The motion was therefore granted, and Doctor Fraser was admitted to bail. At the next succeeding court he was discharged from the indictment; the prosecu tion not being commenced within six months after the of fence was committed, (i. e. his return.) This act after reciting that "whereas many acts of this upon 1748, p. 216. province (now state) had passed imposing penalties and of the Public "forfeitures offenders against such acts without li"miting any time for commencing prosecutions against "such offenders;" the act then goes on and declares that in all and every case, "where any penalty, fine, or forfeiture “whatever hath been, or shall hereafter be inflicted, 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 for prosecuting such offender or offenders, is not "therein provided, no information, action, suit or prosecution, shall be had, issue 1, brought, or commenced against "the offender or offenders against any such act or acts, un"less the same be done within six months, after the time "when the offence shall be committed; and all and every "offender, or offenders again t any such act or acts, shall not from thenceforth be subject or liable to any penalty, 66 fine or forfeiture, which may be thereby inflicted or impo“sed, any law, usage or custom to the contrary notwith"standing. This to be deemed a public act," &c. &c. &c. In the confiscation act there was no time limited for com. mencing any prosecution for any offence against that act; it was therefore under a fair construction of the act of 1748, that the defendant in this case was finally discharged, Present, GRIMKE, WATIES and BAY. The State V. Fraser. THE STATE against BERNARD RIPPON. UPON an indictment for receiving stolen goods, in the 6ourt of sessions. The defendant was convicted on this indictment, and Mr. Marshall gave notice of a motion for a new trial at the next constitutional court of appeals, on the grounds that the jury had found a verdict against law and evidence. At a meeting of the next constitutional court of appeals, Mr. Marshall moved for leave to go into the consideration of his motion for the new trial, which was opposed by the Attorney-General, because the defendant was not present to abide the sentence of the court, in case the motion should be overruled; and the rather because he had been admitted Charleston District,1797. to bail before his trial, but as soon as he had heard the verdict against him, he had slipped out of court, and had since concealed himself. He observed, that the court had laid down a rule, not to hear any motion in arrest of judgment, or for a new trial, in any case where either imprisonment or infamous corporal punishment was to be awarded, unless the defendant, or person convicted, was present and in custody of the sheriff, ready to suffer or abide whatever sentence the court, after the final determination of the case, might think proper to inflict. For if this was not the uniform practice of the court, it was easy to foresee that every culprit who dreaded confinement, or other corporal punishment, would in every case move for a new trial, or in arrest of judgment, and if he was not within the four walls of a prison, he would speculate afterwards on the chances for or against him on the event of such motion, and appear or abscond, as it suited him. For it was well known there was nothing a man would not do, rather than suffer infamous punishment, and very few would submit to imprisonment if he could get off. In the present case, our act of the legislature was a very severe one against offences of this kind, and inflicted the pillory, fine, and imprisonment. It was not discretionary in the court, to inflict the one or the other, as it thought proper; but was imperative as to the whole; though the time and the amount were left discretionary, yet the nature and quality of the punishment could not be altered or changed. Under those circumstances, he said, it would be trifling with the time and dignity of the court, to go into and determine such motions as the present, without the power of doing complete justice to the public as well as to the individual. The court, after consultation, was of opinion, that the rule of practice laid down in these kind of criminal cases, and which had been long acquiesced in, could not be dispensed with. That wherever corporal punishment was either probable, or certain, the defendant should be in the power of |