therein, was a capital felony; and our modern law retains so much of the ancient severity as only to exchange the loss of life for the loss of the of. fending limb. Therefore a stroke or blow in such a court of justice, whether blood be drawn or not, or even assaulting a judge sitting in the court, by drawing a weapon, without any blow struck, is punishable with the loss of the right hand, imprisonment for life, and forfeiture of goods and chattels, and of the profits of his lands during life. (x) A rescue also of a prisoner from any of the said courts, without striking a blow, is punished with perpetual imprisonment, and forfeiture of goods, and of the profits of lands during life (y) being looked upon as an offence of the same nature with the last; but only, as no blow is actually given, the amputation of the hand is excused. For the like reason, an affray, or riot, near the said courts, but out of their actual view, is punished only with fine and imprisonment. (z)

:

Not only such as are guilty of an actual violence, but of threatening or reproachful words to any judge sitting in the courts, are [126] guilty of a high misprision, and have been punished with large fines, imprisonment, and corporal punishment. (a) And, even in the inferior courts of the king, an affray or contemptuous behaviour is punishable with a fine by the judges there sitting; as by the steward in a court-leet, or the like. (b)

Likewise all such, as are guilty of any injurious treatment to those who are immediately under the protection of a court of justice, are punishable by fine and imprisonment: as if a man assaults or threatens his adversary for suing him, a counsellor or attorney for being employed against him, a juror for his verdict, or a gaoler or other ministerial officer for keeping him in custody, and properly executing his duty: (c) which offences, when they proceed farther than bare threats, were punished in the Gothic constitutions with exile and forfeiture of goods. (d)

Lastly, to endeavour to dissuade a witness from giving evidence; to disclose an examination before the privy council: or, to advise a prisoner to stand mute (all of which are impediments of justice); are high misprisions, and contempts of the king's courts, and punishable by fine and imprisonment. And anciently it was held, that if one of the grand jury disclosed to any person indicted the evidence that appeared against him, he was thereby made accessory to the offence, if felony and in treason a principal. And at this day it is agreed, that he is guilty of a high misprision, (e) and liable to be fined and imprisoned. (ƒ)

x Staund. P. C. 33. 3 Inst. 140. 141. a Cro. Car. 503.

10

y 1 Hawk. P. C. 57. b 1 Hawk. P. C. 58.

z Cro. Car. 375. e 3 Inst. 141, 142. f 1 Hawk. P. C. 59.

d Stiernb. de jure Goth. 1. 3. c. 3. e See Bar. 212. 27 Ass. pl. 44. § 4. fol. 188.

(8) Lord Thanet and others were prosecuted by an information filed by the attorney general for a riot at the trial of Arthur O'Connor and others for high treason under a special commission at Maidstone. Two of the defendants were found guilty generally. The three first counts charged (inter alia) that the defendants did riotously make an assault on one J. R., and did then and there beat, bruise, wound, and ill-treat the said J. R. in the presence of the commissioners. When the defendants were brought up for judgment, lord Kenyon expressed doubts, whether upon this information the court was not bound to pronounce the judgment of amputation of the right hand, &c. as required in a prosecution expressly for striking in a court of justice. In consequence of these doubts the attorney-general entered a noli prosequi upon the first three counts, and the court pronounced judgment of fine and imprisonment as for a common riot. 1 East P. C. 438.

(9) The mere attempt to stifle evidence is also criminal, though the persuasion should not succeed, on the principle now fully established, that an incitement to commit any crime is itself criminal. 6 East, 464. 2 East, 5. 21, 22. 2 Stra. 904. 2 Leach, 925. As to conspiring to prevent a witness from giving evidence, see 2 East, 362. Knowingly making use of a false affidavit is indictable. 8 East, 364. 2 Stra. 1144.

(10) A few years ago, at York, a gentleman of the grand jury heard a witness sweer in court,

CHAP. X.

OF OFFENCES AGAINST PUBLIC JUSTICE.

THE order of our distribution will next lead us to take into consideration such crimes and misdemesnors as more especially affect the commonwealth, or public polity of the kingdom: which however, as well as those which are peculiarly pointed against the lives and security of private subjects, are also offences against the king, as the pater-familias of the nation to whom it appertains by his regal office to protect the community, and each individual therein, from every degree of injurious violence, by executing those laws, which the people themselves in conjunction with him have enacted; or at least have consented to, by an agreement either expressly made in the persons of their representatives, or by a tacit and implied consent presumed and proved by immemorial usage.

The species of crimes which we have now before us, is subdivided into such a number of inferior and subordinate classes, that it would much exceed the bounds of an elementary treatise, and be insupportably tedious to the reader, were I to examine them all minutely, or with any degree of critical accuracy. I shall therefore confine myself principally to general definitions, or descriptions of this great variety of offences, and to the punishments inflicted by law for each particular offence; with now and then a few incidental observations: referring the student for more particulars to other voluminous authors; who have treated of these subjects with greater precision and more in detail, than is consistent with the plan of these Commentaries.

The crimes and misdemesnors that more especially affect the [128] commonwealth, may be divided into five species: viz. offences against public justice, against the public peace, against public trade, against the public health, and against the public police or oeconomy: of each of which we will take a cursory view in their order.

First, then, of offences against public justice: some of which are felonious, whose punishment may extend to death; others only misdemes

nors.

I shall begin with those that are most penal, and descend gradually to such as are of less malignity.

1. Imbezzling or vacating records, or falsifying certain other proceedings in a court of judicature, is a felonious offence against public justice. It is enacted by statute 8 Hen. VI. c. 12. that if any clerk, or other person, shall wilfully take away, withdraw, or avoid any record, or process in the superior courts of justice in Westminster-hall, by reason whereof the judgment shall be reversed or not take effect; it shall be felony not

upon the trial of a prisoner, directly contrary to the evidence which he had given before the grand jury. He immediately communicated the circumstance to the judge, who upon consulting the judge in the other court, was of opinion that public justice in this case required that the evidence which the witness had given before the grand jury should be disclosed, and the witness was committed for perjury, to be tried upon the testimony of the gentlemen of the grand jury. It was held, that the object of this concealment was only to prevent the testimony produced before them from being contradicted by subornation of perjury on the part of the persons against whom bills were found. This is a privilege which may be waived by the crown. See p. 303. post.

Christian.

only in the principal actors, but also in their procurers and abettors. And this may be tried either in the king's bench or common pleas, by a jury de medietate: half officers of any of the superior courts, and the other half common jurors. Likewise by statute 21 Jac. I. c. 26. to acknowledge any fine, recovery, deed enrolled, statute, recognizance, bail, or judgment, in the name of another person not privy to the same, is felony without benefit of clergy. Which law extends only to proceedings in the courts themselves: but by statute 4 W. & M. c. 4. to personate any other person (as bail) before any judge of assize or other commissioner authorized to take bail in the country, is also felony. For no man's property would be safe, if records might be suppressed or falsified, or persons' names be falsely usurped in courts, or before their public officers.

2. To prevent abuses by the extensive power, which the law is obliged to repose in gaolers, it is enacted by statute 14 Edw. III. c. 10. that if any gaoler by too great duress of imprisonment makes any prisoner, that he hath in ward, become an approver or an appellor against [129] his will: that is, as we shall see hereafter, to accuse and turn evidence against some other person; it is felony in the gaoler. For, as sir Edward Coke observes, (a) it is not lawful to induce or excite any man even to a just accusation of another; much less to do it by duress of imprisonment; and least of all by a gaoler, to whom the prisoner is committed for safe custody.

3. A third offence against public justice is obstructing the execution of lawful process. This is at all times an offence of a very high and presumptuous nature; but more particularly so, when it is an obstruction of an arrest upon criminal process. And it hath been holden, that the party opposing such arrest becomes thereby particeps criminis ; that is, an ac. cessory in felony, and a principal in high treason. (b) Formerly one of

a 3 Inst. 91.

4

b 2 Hawk. P. C. 121,

(1) This act extends only to the courts expressly mentioned in it, and to the court of chancery only so far as it proceeds according to the rules of the common law. The term avoiding, in the act, is very comprehensive, for it includes rasing, cutting off, clipping, and cancelling a record. 1 Hale, 650. It does not include the judges, because the clerks are named first, who are their inferiors. 1 Hale, 649, 650. But though the judges are not included, they are by 8 Rich. II. c. 4. to pay a fine to the king, and make satisfaction to the party injured, for falsely entering pleas, rasing rolls, or changing verdicts to the disherison of any one. 1 Hale, 649. It is a high misprision in an officer to alter the enrolment of a memorial of an annuity deed, without the sanction of the court. 3 Taunt. 543.

By the 5 Geo. IV. c. 20. s. 10. persons in the post-office embezzling or destroying parliamentary proceedings, &c. sent post, will be guilty of a misdemeanor, and punishable with fine and imprisonment. Chitty

(2) The 27 Geo. III. c. 43. extends this provision to the taking special bail in Chester. The mere personating bail before a judge in chambers, which is not filed of record, is a misdemeanor only. 1 Hale, 696 2 Sid. 90. And if bail be put in under feigned names, there being no such persons to be defrauded, it is no felony, though the defendants may be punished by imprisonment, &c. as the court may think fit. 1 Stra. 384.

(5) This act of Edw. III. is now repealed by the 4 Geo. IV. c. 64 s. 1. As to the duties of gaolers, see ante, 1 Book, p. 346. n. (18).

(4) By the 25 Geo. II. c. 37. s. 9. attempting to rescue a person convicted of murder, whilst proceeding to execution, is felony, and punishable with death. By the 43 Geo. III. c. 58. s. 1. shooting at, or levelling loaded fire-arms at a person, and attempting to discharge the same, or stabbing or cutting with intent to obstruct, resist, or prevent the lawful apprehension and detainer of the person so stabbing, &c. or the lawful apprehension and detainer of his accomplice, is a felony, without benefit of clergy. It seems the right of the party to arrest should be proved, to bring a party resisting within the meaning of the act. 1 Stark. C. N. P. 246. If a cutting or wounding, &c. take place in an attempt to apprehend the prisoner, without a due notification of the warrant or authority by which the person acts, it does not fall within the meaning of the act, as it is not a wilful resistance of a lawful apprehension. 3 Camp. 68. per lord Ellenborough, C. J. at Maidstone, 8 Aug. 1816. By the 1 & 2 Geo IV. c. 88. the assaulting an officer or other person, with intent to obstruct the apprehension of a person charged with, or sus VOL. II 59

the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places, where indigent persons assembled together to shelter themselves from justice (especially in London and Southwark), under the pretext of their having been ancient palaces of the crown, or the like: (c) all of which sanctuaries for iniquity are now demolished, and the opposing of any process therein is made highly penal, by the statutes 8 & 9 Will. III. c. 27., 9 Geo. I. c. 28., and 11 Geo. I. c. 22., which enact, that persons opposing the execution of any process in such pretended privileged places within the bills of mortality, or abusing any officer in his endeavours to execute his duty therein, so that he receives bodily hurt, shall be guilty of felony, and transported for seven years and persons in disguise, joing in or abetting any riot or tumult on such account, or opposing any process, or assaulting and abusing any offi. cer executing or for having executed the same, shall be felons without benefit of clergy.

4. An escape of a person arrested upon criminal process by eluding the vigilance of his keepers before he is put in hold, is also an offence against

public justice, and the party himself is punishable by fine or impri[130] sonment. (d) But the officer permitting such escape, either by neg

ligence or connivance, is much more culpable than the prisoner; the natural desire of liberty pleading strongly in his behalf, though he ought in strictness of law to submit himself quietly to custody, till cleared by the due course of justice. Officers therefore who, after arrest, negli gently permit a felon to escape, are also punishable by fine : (e) but voluntary escapes, by consent and connivance of the officer, are a much more serious offenco: for it is generally agreed that such escapes amount to the same kind of offence, and are punishable in the same degree as the offence of which the prisoner is guilty, and for which he is in custody, whether treason, felony, or trespass. And this whether he were actually committed to gaol, or only under a bare arrest. (f) But the officer cannot be thus punished, till the original delinquent hath actually received judgment or been attainted upon verdict, confession, or outlawry, of the crime for which he was so committed or arrested otherwise it might happen, that the officer might be punished for treason or felony, and the person arrested and escaping might turn out to be an innocent man. But, before the conviction of the principal party, the officer thus neglecting his duty may be fined and imprisoned for a misdemesnor. (g)

5

c Such as White Friers, and its environs; the Savoy; and the Mint in Southwark. d 2 Hawk. P. C. 122. e 1 Hal. P. C. 600, f 1 Hal. P. C, 590. 2 Hawk. P. C. 154. g 1 Hal. P. C. 588, 9. 2 Hawk, P. C. 154, 5.

pected of, felony, or if such person so charged shall do so, then if the person so offending be convicted of a misdemeanor only, he may, in addition to the punishment for which he shall be then liable, be kept to hard labour for not exceeding two years, and not less than six months. And by 3 Geo. IV. c. 114. if the offender be guilty of a misdemeanor only, the court may, at their discretion, award the punishment of hard labour, in lieu of, or in addition to, the punishment of fine and imprisonment.

Chitty.

(5) There must be an actual arrest, as well as a lawful arrest, to make an escape criminal in an officer. 2 Hawk. c. 19. s. 1, 2. It must also be for a criminal matter. Id. s. 3. And the imprisonment must be continuing at the time of the offence. Id. s. 4. 1 Russ. 531. 1 Hale, 594 In some cases it is an escape to suffer a prisoner to have greater liberty than can by law be allowed him; as, to admit him to bail against law, or to suffer him to go beyond the limits of the prison, though he return. 2 Hawk. c. 19. s. 5. A retaking will not excuse an escape. Id.

s. 13.

Private individuals, who have persons lawfully in their custody, are guilty of an escape if they suffer them illegally to depart, 1 Hale, 595.; but they may protect themselves from liabili ty by delivering over their prisoner to some legal and proper officer. 1 Hale, 594, 5. A pri vate person, thus guilty of an escape, the punishment is fine, or imprisonment, or both. Haws. 20. 6. 6.

5. Breach of prison by the offender himself, when committed for any cause, was felony at the common law: (h) or even conspiring to break it. (i) But this severity is mitigated by the statute de frangentibus prisonam, 1 Edw. II. which enacts, that no person shall have judgment of life or member for breaking prison, unless committed for some capital offence. So that to break prison and escape, when lawfully committed for any trea son or felony, remains still felony as at the common law; and to break prison (whether it be the county-goal, the stocks, or other usual place of security), when lawfully confined upon any other inferior charge, is still punishable as a high misdemesnor by fine and imprisonment. For the statute which ordains that such offence shall be no longer capi. [131] tal, never meant to exempt it entirely from every degree of punish. ment. (j)

6. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is generally the same offence in the stranger so rescuing, as it would have been in a gaoler to have voluntarily permitted an escape. A rescue therefore of one apprehended for felony, is felony; for treason, treason; and for a misdemesnor, a misdemesnor also. But here likewise as upon voluntary escapes, the principal must first be attainted or receive judgment before the rescuer can be punished: and for the same reason; because perhaps in fact it may turn out that there has been no offence committed. (k) By statute 11 Geo. II. c. 26. and 24 Geo. II. c. 40, if five or more persons assemble to rescue any retailers of spirituous liquors, or to assault the informers against them, it is felony, and subject to transportation for seven years. By the statute 16 Geo. II. c. 31. to convey to any prisoner in custody for treason or felony any arms, instruments of escape, or disguise, without the knowledge of the gaoler, though no escape be attempted, or any way to assist such prisoner to attempt an escape, though no escape be actually made, is felony, and subjects the offender to transportation for seven years or if the prisoner be in custody for petit larceny or other inferior offence, or charged with a debt of 1007., it is then a misdemeanor, punishable with fine and imprisonment. And by several

hi Hal. P. C. 607.

i Bract. l. 3. c. 9.
kl Hal. P. C. 607, Fost. 344.

j 2 Hawk, P. C. 128.

By the 52 Geo. III. c. 156. persons aiding the escape of prisoners of war are guilty of felony, and liable to transportation. It has been held, that the offence of aiding a prisoner of war to escape is not complete, if such prisoner is acting in concert with those under whose charge he is, merely to detect the defendant, and has no intention to escape. Russ. & R. C. C. 196. Chitty.

(6) Under the 19 Geo. III. c. 74. s. 4. the party may be whipped three times. The throwing down loose bricks at the top of a prison wall, placed there to impede escape and give alarm, is a prison breach, though they are thrown down by accident, in attempting to escape by other means. Russ. & R. C. C. 458.

(7) But though the principal be not convicted, still the party rescuing may be punished, as for a misdemeanor. 2 Hawk. c. 21. s. 8. Before the passing of the 1 & 2 Geo. IV. c. 88. s, 1. the rescuing a person under a cornmitment for a felony, was not a transportable offence, but was punishable only as a felony within clergy at common law. Russ. & R. C. C. 432. By that act, however, the rescuing or aiding the rescue of a person charged with or convicted of felony, or on suspicion thereof, if the rescuer be convicted, and would have been before the passing of the act, liable to imprisonment not exceeding one year, he may now be transported for seven years, or imprisoned with hard labour for not less than one, and not more than three years.

By the 5 Geo. IV. c. 84. s. 22. the rescuing, or attempting to rescue, or assisting in rescuing, a person sentenced to transportation or banishment, and having been found unduly at large, has been retaken, and is in custody of any officer, &c. to be reconveyed to prison; or causing to be conveyed any disguise, &c. to such offender, is punishable in the same manner as if such person had been confined in a prison. See n. (10). post. Chitty.

(8) This act does not extend to cases where an actual escape is made, but is confined to cases of an attempt. 2 Leach, 662. 3 P. Wms. 439. The offence of delivering the instrument to the prisoner is complete, though he has been pardoned of the offence of which he was convicted, on condition of transportation; and a party may be convicted, though there is no evidence that he