Likewise if any person punished by our law with fine and imprisonment. shall in any wise hold, affirm, or maintain, that the common law of this realm, not altered by parliament, ought not to direct the right of the crow of England; this is a misdemeanor, 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 [124] 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 praemunire: 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 (12) 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 men tioned in a former chapter (t); which in the end may amount to the alter native of abjuring the realm, or suffering death as a felon (13). : 5. Contempts against the king's palaces or courts of justice, have been always looked upon as high misprisions: and by the ancient 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 privileged by law, quibus major reverentia et securitas debetur, ut templa et judicia, quae sancta habebantur,―arces et aula regis,—denique locus quilibet praesente aut adventante rege (v). And at present, with us, by the statute *33 Hen. VIII. c. 12. malicious striking in [*125] the king's palace, wherein his royal person resides, 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 (14), (15). (13) See page 116. note (14) 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 dm'ind Knevet, who was prosecuted upon snis statut soon after it was enacted: "for which offense he was not onely judged to lose bis hand, but also his body to remain in prison, and his lands and goods at the king's pleasurv Then the said sir Edmund Knevet deured that the king, of his benigne grace, would (v) Stiernh. de jure Goth. 1. 3, c. 3. pardon him of his right hand, and take the left for (quoth he) if my right be spared, 1 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, con sidering 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." (15) So much of the 33 H. VIII. c. 12 (part of ◊ 6 to ◊ 18,) as relates to t ́e Dunist But striking in the king's superior courts of justice, in Westminster-hall, at the assises, is made still more penal than even in the king's palace. The reason seems to be, that those courts being anciently 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 ancient common law before the conquest (w), striking in the king's court of justice or drawing a sword 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 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) (16). [*126] *Not only such as are guilty of an actual violence, but o 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 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 proceeded 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 (10) LL. Inae. c. 6. LL. Canut. 56. LL. Alured. 8.7. (z) Staund. P. C. 38. 3 Inst. 140, 141. ment of manslaughter, and of malicious strik- (a) Ibid. 503. (b) 1 Hawk. P. C. 58. (c) 3 Inst. 141, 142. (d) Stiernh. de jure Goth. 1. 3, c. 3. wound, and ill-treat the said J. R. in the pre sence of the commissioners. When the defendants were brought up for judgment, ord 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 prosecut.on expressly for striking in a court of justice. In consequence of these doubts the attorney-ge neral entered a noli prosequi upon the first three counts, and the court pronounced "udg ment of fine and imprisonment as for a com mon riot. 1 East, P. C. 438. to stand mute (all of which are impediments of justice), are high mir prisions, and contempts of the king's courts, and punishable by fine and imprisonment (17). 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 accessary 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 (f) (18), (19). : CHAPTER X. OF OFFENCES AGAINST PUBLIC JUSTICE. THE order of our distribution will next lead us to take into consideration such crimes and misdemeanors 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 (e) See Bar 212. 27 Ass. pl. 44, ◊ 4, fol. 138. 2 (17) 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. 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. (18) A few years ago, at York, a gentleman of the grand jury neard 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 apon 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 (19 In New-York every court of record (f) 1 Hawk. P. C. 59. (including the court of chancery, 2 R. S. 276. 1,) may punish as a criminal contempt, 1. any disorderly, contemptuous, or insolent behaviour committed during its sitting in immediate view and presence, and directly tendins to interrupt its proceedings or impair the respect due to its authority: 2. any disturb ance whatever directly tending to interrup its proceedings: 3, 4. wilful disobedience or resistance of any process or order: 5. contumaciously refusing to be sworn as a witness, or to testify: 6. the publication of a false or grossly inaccurate report of the proceedings of the court. The punishment may be by fine not exceeding 250 dollars, and by imprisonment not exceeding 30 days. (2 R. S. 278.) A justice of the peace may also punish the first and second classes of contempt, and the third also, if it be committed in his presence by fine not exceeding 25 dollars, and by m prisonment not exceeding 5 days the imprisonment for non-payment of the fine not to ex ceed 10 days: so too, if a witness refuses to be sworn or to testify, and the party calling him swears that he is a material witness, the justice may imprison him till he answer, (id. 273, 274.) a period less definite than that fixed in other courts. These punishments do not prevent an indictment, but mitigate the sen tence thereon. (Id. 278.) These acts seem to be intended to define all contempts of court such a number of inferior and subordinate classes, that it would much ex ceed 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 misdemeanors 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 felo nious, whose punishment may extend to death; others only misdemeanors. 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 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 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. & M. c. 4. to personate any other person (as bail) before any judge of assise or other commissioner authorized to take bail in the country, is also felony (3). For no man's property (1) The 8 Hen. VI. c. 12, 3, is now repealed by 7 and 8 Geo. IV. c. 27; by 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 misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the terin of seven years, or 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." 2 R. S. 680, 69, 70, punishes these of fences; and id. 671, § 25, 26, make it forgery in the second degree to alter any record of any instrument, the record of which is evidence, or any return to process; or to falsely enter any such as true. (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 parlia mentary proceedings, &c. sent by post, will be guilty of a misdemeanor, and punishable with fine and imprisonment. (3) The merely personating bail before a 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 (4). 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 (5). 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 cessary in felony, and a principal in high treason (b) (6), (7). Formerly one of the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places, where in digert persons assembled together to shelter themselves from justice (espe cially 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 (a) 3 Inst. 91. 'b) 2 Hawk. P. C. 121. judge at chambers, or acknowledging bail in a false name, is only a misdemeanor, 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 offende is convicted; T. Jones, 64, 1 Ventr. 501, 3 Keb. 694, 1 Ld. Rd. 445; and a conviction cannot take place until the bail-piece is filed, 2 Sid 90. (6) 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 eutting with intent to obstruct, resist, or prevent the lawful apprehension and detainer of the person so stabbing, or the lawful apprehension and detainer VOL. II. 61 (c) Such as White-Friers, and its environs; the Savoy; and the Mint in Southwark. 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 wound. ing, &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. (7) By 9 Geo. IV. c. 31, § 25, it is enacted, that where any person shall be charged with, and convicted of, as a misdemeanor, 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 per son, for any offence for which he or they may be liable by law to be apprehended or detain ed; 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 and Geo. IV. c. 88, § 2. 3 Geo. IV. c. 114, 1 Bu J. 230, et seq. |