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 felonious, 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.

And

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). 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 c. 12, § 3, is now repealed by 7 and 8 Geo.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 attor ney, 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 offences; 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 an nuity 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 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 accessary 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 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

(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 offender 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 firearms 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 VOL. II.

(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 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.

61

(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 as sault 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 and 2 Geo. IV. c. 88, § 2. 3 Geo. IV. c. 114, 1 Burn's J. 230, et seq.

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 [130] against public justice, and the party himself is punishable by fine or imprisonment (d). But the officer permitting such escape, either by negligence or connivance, is much more culpable that 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 (ƒ).. 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 misdemeanor (g) (8), (9).

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) (10). 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 of

(d) 2 Hawk. P. C. 122.

(c) 1 Hal. P. C. 600.

(f) 1 Hal. P. C. 590. 2 Hawk. P. C. 134.

(8) In New-York it is punishable with imprisonment not exceeding one year, and fine not exceeding 1,000 dollars. 2 R. S. 684,

18.

(9) 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 law fully in their custody, are guilty of an escape if they suffer them illegally to depart, 1 Hale, 595; but they may protect themselves from liability by delivering over their prisoner to

(g) 1 Hal. P. C. 588, 9. 2 Hawk. P. C. 134, 5. (h) 1 Hal. P. C. 607.

(i) Bract. l. 3, c. 9.

some legal and proper officer. 1 Hale, 594, 5. A private person, thus guilty of an escape, the punishment is fine, or imprisonment, or both. 2 Hawk. c. 20. s. 6.

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.

(10) Any one breaking a county jail with a view to escape, is punishable in New-York with imprisonment not exceeding one year: if, after conviction for a criminal offence he break jail and escape, he may be imprisoned for not more than two years: if the escape is after conviction, and from a state prison, the punishment may be for a period not exceeding 5 years. 2 R. S. 685.

fence. So that to break prison and escape, when lawfully committed for any treason or felony, remains still felony as at the common law; and to break prison (whether it be the county-gaol, the stocks, or other usual place of security), when lawfully confined upon any other inferior charge, is still punishable as a high misdemeanor by fine and im- [131] prisonment. For the statute which ordains that such offence

shall be no longer capital, never meant to exempt it entirely from every gree of punishment (j) (11).

de

6. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment (12); 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 misdemeanor, a misdemeanor 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) (13). 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. But 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 (14) or if the pri soner 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 (15). And by several special statutes (1), to rescue, or at

(j) 2 Hawk. P. C. 128.

(k) I Hal. P. C. 607. Fost. 344.

(11) An actual breaking is the gist of this offence, and must be stated in the indictment. It must also appear that the party was lawfully in prison, and for a crime involving judgment of life or member; it is not enough to allege that he "feloniously broke prison." 2 Inst. 591. 1 Russell, 381. If lawfully committed, a party breaking prison is within the statute, although he may be innocent; as, if committed by a magistrate upon strong suspicion. 2 Inst. 590, 1 Hale, P. C. 610, I Russell, 378. To constitute a felonious prison breach, the party must be committed for a crime which is capital at the time of the breaking. 1 Russell, 379. Cole's case. Plowd. Comm. 401. A constructive breaking is not sufficient; therefore, if a person goes out of prison without, obstruction, as by a door being left open, it is only a misdemeanor. 1 Hale, P. C. 611. An actual intent to break is not necessary. The statute extends to a prison in law, as well as to a prison in fact. 2 Inst. 589. "Prison breach or rescue is a common law felony, if the prisoner breaking prison, or rescued, is a convicted felon, and it is punishable at common law by imprisonment, and under 19 Geo. III. c. 74, § 4, by three times whipping. Throwing down loose bricks at the top of a prison wall, placed there to impede escape and give alarm, is prison breach,

(1) 6 Geo. I. c. 23. (Transportation.) 9 Geo. I. c. 22. (Black-act.) 8 Geo. II. c. 20. (Destroying though they were thrown down by accident." Rex v. Haswell. R. and R. C. C. 458.

(12) In New-York the punishment is imprisonment not exceeding ten years. The conviction of the prisoner is not required by the stat.: the crime consisting in obstructing the course of law. 2 R. S. 684, § 14.

(13) By 1 and 2 Geo. IV. c. 98, (entitled an "Act to amend the Law of Rescue,") s. 1, rescuing persons charged with felony, is punishable with seven years' transportation, or imprisonment for not less than one year, and not more than three years. And by s. 1, assaulting any lawful officer, to prevent the apprehension or detainer of persons charged with felony, is punishable with two years' imprisonment in addition to other pains and penalties incurred, (vide also 5 Geo. IV. c. 84, § 22.) This section is repealed by 9 Geo. IV. c. 31, which, by section 25, provides a punishment for these offences: vide post 217.

By 9 Geo. IV. c. 4, s. 13, (entitled the Mutiny Act,) persons under sentence of death by court martial, having obtained a conditional pardon, escaping out of custody, and all parties aiding such escape, are punishable as felons. See Rex v. Stanley, R. and R. C. C. 432.

(14) In New-York the punishment is not to exceed 10 years' imprisonment. 2 R. S. 683, 1. (15) On an indictment under this Act, the

tempt to rescue, any person committed for the offences enumerated in those acts, is felony without benefit of clergy; and to rescue, or attempt to rescue, the body of a felon executed for murder, is single felony, and subject to transportation for seven years. Nay, even if any person be charged with any of the offences against the black-act, 9 Geo. I c. 22, [*132] and being required by order of the privy council to surrender himself, neglects so to do for forty days, both he and all that knowingly conceal, aid, abet, or succour him, are felons without benefit of clergy (16).

7. Another capital offence against public justice is the returning from transportation, or being seen at large in Great Britain, before the expiration of the term for which the offender was ordered to be transported, or had agreed to transport himself. This is made felony without benefit of clergy in all cases, by statutes 4 Geo. I. c. 11, 6 Geo. Í. c. 23, 16 Geo. II. c. 15, and 8 Geo. III. c, 15, as is also the assisting them to escape from such as are conveying them to the port of transportation (17).

8. An eighth is that of taking a reward, under pretence of helping the owner to his stolen goods. This was a contrivance carried to a great length of villainy in the beginning of the reign of George the First; the confederates of the felons thus disposing of stolen goods, at a cheap rate, to the owners themselves, and thereby stifling all farther inquiry. The famous Jonathan Wild had under him a well-disciplined corps of thieves, who brought in all their spoils to him; and he kept a sort of public office for restoring them to the owners at half price. To prevent which audacious practice, to the ruin and in defiance of public justice, it was enacted by statute 4 Geo. I. c. 11. that whoever shall take a reward under the pretence of helping any one to stolen goods, shall suffer as the felon who stole them; unless he causes such principal felon to be apprehended and brought to trial, and also gives evidence against them. Wild, still continuing in his old practice, was upon this statute at last convicted and executed (m) (18).

turnpikes, &c.) 19 Geo. II. c. 34. (Smuggling. See the 52 Geo. III. c. 143, s. 11.) 25 Geo. II. c. 37.

offence of delivering instruments of escape to a prisoner has been held to be complete, though the prisoner had 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 knew of what offence the prisoner had been convicted. Rex v. Shaw, R. and R. C. C. 526. This Act applies only to cases of attempt, Tilley's case, 2 Leach, 662, and a case where the commitment is on suspicion only, is not within it. Greenif's case, 1 Leach, 363. This Act appears virtually to be repealed by 4 Geo. IV. c. 64, s. 43, which makes delivering instruments of escape to any prisoner, whether he actually escape or not, a felony punishable by fourteen years' transportation.

(16) Some of these Acts, as far as they relate to the exclusion of benefit of clergy, and to the form of punishment, are altered and amended by 1 and 2 Geo. IV. c. 88, and 5 Geo. IV. c. 84.

By 4 Geo. IV. c. 54, § 1, to rescue a party in custody for an offence against the Blackact, 9 Geo. I. c. 22, is punishable only with transportation, or imprisonment and hard la

bour

(Murder.) 27 Geo. II. c. 15. (Black-act.)
(m) See stat. 6 Geo. I. c. 23, ◊ 9.

(17) These provisions are virtually repealed by the 5 Geo. IV. c. 84. which revives and consolidates into one act the laws relative to the transportation of offenders. By the 22d seetion it is enacted, that if any offender, sentenced or ordered to be transported or banished, or having agreed to transport or banish himself, shall be afterwards found at large, without lawful excuse, before the expiration of the term of transportation or banishment, he shall suffer death without clergy. By sect. 84, the act is not to extend to persons banished under the 60 Geo. III. and I Geo. IV. c. 8. for blasphemous and seditious libels. If the prisoner can shew such circumstances of poverty or sickness, which amount to an absolute impossibility to transport himself, or leave the kingdom, he will not be within the act. 1 Leach, 396. By the 22d sect. of 5 Geo. IV. c. 84. a reward of 201. is given from prosecuting an offender against the act to conviction.

(18) In Rex v. Ledbitter, R. and R. C. C. 76, a police offier was indicted under 4 Geo. I. c. 11, § 4, for taking money under the pretence of helping a person to goods stolen from him, and convicted of felony, though the offcer had no knowledge of the felon, and though