[*124 ought not to direct the right of the crown of England; this is a misdemeanour, by statute 13 Eliz. c. 1, and punishable with forfeiture of goods and chattels. A contempt may also arise from refusing or neglecting to take the oaths appointed by statute for the better securing the government, and yet *acting in a public office, place of trust, or other capacity, for which the said oaths are required to be taken, viz., those of allegiance, supremacy, and abjuration; which must be taken within six calendar months after admission. The penalties for this contempt, inflicted by statute 1 Geo. I. st. 2, c. 13, are very little, if any thing, short of those of a præmunire; being an incapacity to hold the said offices, or any other; to prosecute any suit; to be guardian or executor; to take any legacy or deed of gift; and to vote at any election for members of parliament; and after conviction the offender shall also forfeit 500l. to him or them that will sue for the same. Members, on the foundation of any college in the two universities, who by this statute are bound to take the oaths, must also register a certificate thereof in the college-register within one month after; otherwise, if the electors do not remove him, and elect another within twelve months, or after, the king may nominate a person to succeed him by his great seal or sign-manual. Besides thus taking the oaths for offices, any two justices of the peace may by the same statute summon, and tender the oaths to, any person whom they shall suspect to be disaffected; and every person refusing the same, who is properly called a non-juror, shall be adjudged a popish recusant convict, and subject to the same penalties that were mentioned in a former chapter;(t) which in the end may amount to the alternative of abjuring the realm, or suffering death as a felon." 5. Contempts against the king's palaces or courts of justice have been always looked upon as high misprisions; and by the antient law, before the conquest, fighting in the king's palace, or before the king's judges, was punished with death.(u) So too, in the old Gothic constitutions, there were many places privi leged by law, quibus major reverentia et securitas debetur, ut templa et judicia, quæ sancta habebantur,-arces et aula regis,-denique locus quilibet præsente aut adventante rege.(v) And at present, with us, by the statute *33 Hen. VIII. c. 12, malicious striking in the king's palace, wherein his royal person re[*125 sides, whereby blood is drawn, is punishable by perpetual imprisonment, and fine at the king's pleasure, and also with loss of the offender's right hand; the solemn execution of which sentence is prescribed in the statute at length. But striking in the king's superior courts of justice, in Westminster hall, or at the assizes, is made still more penal than even in the king's palace. The reason seems to be that those courts being antiently held in the king's palace, and before the king himself, striking there included the former contempt against the king's palace, and something more, viz., the disturbance of public justice. For this reason, by the antient common law before the conquest,(w) striking in the (t) See page 55. (*) 3 Inst. 140. LL. Alured. cap. 7 and 34. () Stiernhook, de jure Goth. l. 3, c. 3. (w) LL. Inæ. c. 6. LL. Canut. 56. LL. Alured. c. 7. 7 By stat. 10 Geo. IV. c. 7, s. 24, any person assuming any ecclesiastical title established in England or Ireland shall forfeit 1007. for each offence; and, by stat. 14 & 15 Vict. c. 60, briefs, rescripts, or letters-apostolical are declared unlawful and void.-STEWART, Mr. Hargrave has given in the 11th vol. of the State Trials, p. 16, an extract from Stowe's Annals, containing a very curious account of the circumstances of the trial of Sir Edmund Knevet, who was prosecuted upon this statute soon after it was enacted: "for which offence he was not onely judged to lose his hand, but also his body to remain in prison, and his lands and goods at the king's pleasure. Then the said Sir Edmund Knevet desired that the king, of his benigne grace, would pardon him of his right hand and take the left; for (quoth he) if my right be spared, I may hereafter doe such good service to his grace as shall please him to appoint. Of this submission and request the justices forthwith informed the king, who of his goodness, considering the gentle heart of the said Edmund, and the good report of lords and ladies, granted him pardon, that he should lose neither hand, land, nor goods, but should go free at liberty."-CHRISTIAN. So much of the 33 Hen. VIII. c. 12 (part of s. 6 to s. 18) as relates to the punishment of manslaughter and of malicious striking, by reason whereof blood shall be shed, is repealed by 9 Geo. IV. c. 31.-CHITTY. king's court of justice, or drawing a sword therein, was a capital felony; and our modern law retains so much of the antient severity as only to exchange the loss of life for the loss of the offending 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) *126] *Not only such as are guilty of an actual violence, but of threatening or reproachful words to any judge sitting in the courts, are 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 sueing him, a counsel 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 proceeded further 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.10 And antiently 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)" (*) Staund. P. C. 38. 3 Inst. 140, 141. (v) 1 Hawk. P. C. 57. (*) Cro. Car. 373. (a) Ibid. 503. (6) 1 Hawk. P. C. 58. (e) 3 Inst. 141, 142. (d) Stiernhook, de jure Goth. 1. 3. c. 3. 9 Lord Thanet and others were prosecuted by an information filed by the attorneygeneral 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 judg ment, 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 nolle 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. CHRISTIAN. 10 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, 521, 522. 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.-CHITTY. 1. A few years ago, at York, a gentleman of the grand jury heard a witness swear in court, 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 CHAPTER X. OF OFFENCES AGAINST PUBLIC JUSTICE. *THE order of our distribution will next lead us to take into considera[*127 tion such crimes and misdemeanours 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 misdemeanours that more especially affect the commonwealth may be divided into five species, viz., *offences against public justice, [*128 against the public peace, against public trade, against the public health, and against the public police or economy; 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 misdemeanours. I shall begin with those that are most penal, and descend gradually to such as are of less malignity. 1. Embezzling 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 only in the principal actors, but also in their procurers and abettors.1 And this may be tried either in the king's bench or 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. The 8 Hen. VI. c. 12, s. 3 is now repealed, by 7 & 8 Geo. IV. c. 27, by sect. 21 of which it is enacted that "if any person shall steal, or shall for any fraudulent purpose take from its place of deposit for the time-being, or from any person having the lawful custody thereof, or shall unlawfully and maliciously obliterate, injure, or destroy, any record, writ, return, panel, process, interrogatory, deposition, affidavit, rule, order, or warrant of attorney, or any original document whatsoever, of or belonging to any court of record, or relating to any matter civil or criminal begun, depending, or terminated in any such court, or any bill, answer, interrogatory, deposition, affidavit, order, or decree, or any original document whatsoever, of or belonging to any court of equity, or relating to any cause or matter begun, depending, or terminated in any such court, every such offender shall be guilty of a misdemeanour, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or common pleas by a jury de medietate,-half officers of any of the superior courts, and the other half common jurors.2 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. and M. c. 4, to personate any other person (as bail) before any judge of assize or other commissioner authorized to take bai' in the country, is also felony.3 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 *129] *become an approver or an appellor against 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 accessory in felony, and a principal in (a) 3 Inst. 91. to suffer such other punishment by fine or imprisonment, or by both, as the court shall award; and it shall not in any indictment for such offence be necessary to allege that the article in respect of which the offence is committed is the property of any person, or that the same is of any value.”—CHITTY. 2 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 par liamentary proceedings, &c. sent by post will be guilty of a misdemeanour punishable with fine and imprisonment.-CHITTY. But, by stat. 7 & 8 Geo. IV. c. 29, this statute, so far as it relates to this offence, is repealed; and it is enacted, by s. 21 and 1 Vict. c. 90, s. 5, that stealing or maliciously obliterating any record, writ, affidavit, or document belonging to any court of law or equity shall be a misdemeanour punishable with transportation for seven years, or fine or imprisonment, and now with penal servitude, (16 & 17 Vict. c. 99;) and, by stat. 2 W. IV. c. 34, ss. 9, 19, and 1 Vict. c. 90, s. 5, where a person having been convicted of any offence relating to the coin shall afterwards be indicted of any offence committed subsequent to such conviction, any clerk or officer of the court where the offender was first convicted, certifying a false copy of any indictment, knowing the same to be false, was liable to be transported for fourteen nor less than seven years, or to be imprisoned for any term not exceeding two years, and now to penal servitude. By 1 & 2 Vict. c. 94, s. 19, any person employed in the public-record office who shall certify any writing as a true copy, knowing the same to be false in any material part, or any person who shall counterfeit the signature of the assistant record-keeper or who shall counterfeit the seal of the said office, on being convicted thereof, might be transported for life or for not less than seven years, or be imprisoned for not more than four years. By 14 & 15 Vict. c. 99, s. 15, if any officer under that act shall wilfully certify any document as being a true copy or extract, knowing the same not to be so, he shall be guilty of a misdemeanour, and shall be liable on conviction to imprisonment for any term not exceeding eighteen months.-STEWART. See also 11 Geo. IV. and 1 W. IV. c. 66, s. 11. And the false personation of voters at elections is a misdemeanour. 6 & 7 Vict. c. 18, s. 33.-Stewart. The merely personating bail before a judge at chambers, or acknowledging bail in a false name, is only a misdemeanour, unless the bail are filed, (2 East, P. C. 109;) and putting in bail in the name of a person not in existence is not within the act. 1 Stra. 304. The courts will not vacate the proceedings against the party personated until the offender is convicted, (T. Jones, 64. 1 Ventr. 501. 3 Keb. 694. 1 Ld. Raym. 445;) and a conviction cannot take place until the bail-piece is filed. 2 Sid. 90.-CHITTY. This act of Edw. III. is now repealed, by the 4 Geo. IV. c. 64, s. 1.—CHITTY. high treason.(b)5 Formerly, one of 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 antient 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 W. III. c. 27, 9 Geo. I. c. 28, and 11 Geo. I. c. 22, which enact that persons opposing the execution of any process ir 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, joining in or abetting any riot or tumult on such account, or opposing any process, or assaulting and abusing any officer 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 imprisonment.(d) [*130 But the officer permitting such escape, either by negligence 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, negligently 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 offence; 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 misdemeanour.(g) (b) 2 Hawk. P. C. 121. (e) Such as White-Friars and its environs, the Savoy, and the Mint in Southwark. (d) 2 Hawk. P. C. 122. () 1 Hal. P. C. 600. () Ibid. 590. 2 Hawk. P. C. 134. (9) 1 Hal. P. C. 588, 589. 2 Hawk. P. C. 134, 135. 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. takes 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, Aug. 8, 1816. By 9 Geo. IV. c. 31, s. 25, it is enacted that where any person shall be charged with and convicted of, as a misdemeanour, any assault upon any person with intent to resist or prevent the lawful apprehension or detainer of the party so assaulting, or of any other person, for any offence for which he or they may be liable by law to be apprehended or detained, the court may sentence the offender to be imprisoned, with or without hard labour, for any term not exceeding two years, and may also fine the offender, and require him to find sureties for keeping the peace. See 1 & 2 Geo. IV. c. 88, s. 2. 3 Geo. IV. c. 114, 1 Burn's J. 230, et seq. 6 And, by stat. 9 Geo. IV. c. 31, s. 25, the preventing the apprehension of an offender is a misdemeanour, punishable with fine or imprisonment for two years.-STEWART. 'There must be an actual arrest, as well as a lawful arrest, to make an escape criminal |