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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 orioeconomy : 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.

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 selony 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)

не VI. c. 12, 93, is now re- of seven years, or to suffer such other punishpealed by 7 and 8 Geo. IV. c. 27; by $ 21 of ment by fine or imprisonment, or by both, as which it is enacted, that " if any person shall the court shall award ; and it shall not in any steal, or shall for any fraudulent purpose, take indictment for such offence be necessary to from its place of deposit for the time being, allege that the article, in respect of which the or from any person having the lawful custody offence is committed, is the property of any thereof, or shall unlawfully and maliciously person, or that the same is of any value.” obliterate, injure, or destroy any record, writ, 2 R. S. 680, $ 69, 70, punishes these of return, panel, process, interrogatory, deposi- fences; and id. 671, 0 25, 26, make it forgery tion, affidavit, rule, order, or warrant of attor. in the second degree to alter any record of any ney, or any original document whatsoever, of instrument, the record of which is evidence, or or belonging to any court of record, or relate any return to process; or to falsely enter any ing to any matter civil or criminal, begun, de- such as true. pending, or terminated, in any such court, or (2) It is a high misprision in an officer to any bill, answer, interrogatory, deposition, af. alter the enrolment of a memorial of an anfidavit, order, or decree, or any original docu. nuity deed, without the sanction of the court. ment whatsoever, of or belonging to any court 3 Taunt. 543. of equity, or relating to any cause or matter, By the 5 Geo. IV. c. 20. s. 10. persons in the begun, depending, or terminated in any such post-office embezzling or destroying parliacourt, every such offender shall be guilty of a mentary proceedings, &c. sent by post, will misdemeanor, and being convicted thereof, be guilty of a misdemeanor, and punishable shall be liable, at the discretion of the court, with fine and imprisonment. to be transported beyond the seas for the terin (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. II!. 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 () (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

(c) Such as White-Friers, and its environs ; the Savoy; and the Mint in Southwark.

(a) 3 Inst. 91.
(6) 2 Hawk. P. C. 121.

judge at chambers, or acknowledging bail in of his accomplice, is a felony, without benefit a false name, is only a misdemeanor, unless of clergy. It seems the right of the party to the bail are filed; 2 East, P. C. 109; and arrest should be proved, to bring a party repotting in bail in the name of a person not in sisting within the meaning of the act. 1 existence, is not within the Act. 1 Stra. 304. Stark. C. N. P. 246. If a cutting or woundThe courts will not vacate the proceedings ing, &c. take place in an attempt to appreagainst the party personated, until the offend. hend the prisoner, without a due notification er is convicted ; T. Jones, 64, 1 Ventr. 501, of the warrant or authority by which the per3 Keb. 694, 1 Ld. Rd. 445; and a conviction son acts, it does not fall within the meaning cannot take place until the bail-piece is filed, of the act, as it is not a wilful resistance of a 2 Sid. 90

lawful apprehension. 3 Camp. 68. per lord See 2 R. S. 676, Ø 48.

Ellenborough, C. J. at Maidstone, 8 Aug. (4) This act of Edw. III. is now repealed 1816. by the 4 Geo. IV. c. 64. s. l. As to the duties (7) By 9 Geo. IV. c. 31, $ 25, it is enacted, of gaolers, see ante, I book, p. 346.

that where any person shall be charged with, (5) In New-York it is punishable by impri- and convicted of, as a misdemeanor, any assonment not exceeding one year, and by fine sault upon any person with intent to resist or not exceeding 250 dollars. 2 R. S. 684, 9 preveni the lawful apprehension or detainer of 17.

the party so assaulting, or of any other per(6) By the 25 Geo. II. c. 37. s. 9, attempting son, for any offence for which he or they may to rescue a person convicted of murder, whilst be liable by law to be apprehended or detain. proceeding to execution, is felony, and pu: ed; the court may sentence the offender to be nishable with death. By the 43 Geo. III. c. imprisoned, with or without hard labour, for 58. s. 1, shooting at, or levelling loaded fire. any term not exceeding two years, and may arms at a person, and attempting to discharge also fine the offender, and require him to find the same, or stabbing or cutting with intent sureties for keeping the peace. See 1 and 2 to obstruct, resist, or prevent the lawful appre. Geo. IV. c. 88, § 2. 3 Geo. IV.c. 114, 1 Burn's hension and detainer of the person so stabbing, J. 230, et seq. &c. or the lawful apprehension and detainer Vol. II.


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 behall, 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 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


2 Hawk. P. C. 134, 5.

(d) 2 Hawk. P. C. 122.
(c) 1 Hal. P. C. 600.
( 1 Hal. P. C. 590. 2 Hawk. P. C. 134.

(g) 1 Hal. P. C.588, 9.
(h) 1 Hal. P. C. 607.
(i) Bract. l. 3, c. 9.

(8) In New-York it is punishable with im- some legal and proper officer. 1 Hale, 594, prisonment not exceeding one year, and fine 5. A private person, thus guilty of an escape, not exceeding 1,000 dollars. 2 R. S. 684, Ø the punishment is fine, or imprisonmeni, or 18.

both. 2 Hawk. c. 20. s. 6. (9) There must be an actual arrest, as well By the 52 Geo. III. c. 156, persons aiding as a lawful arrest, to make an escape criminal the escape of prisoners of war are guilty of in an officer. 2 Hawk. c. 19. s. 1, 2. It must felony, and liable to transportation. It bas also be for a criminal matter. Id. s. 3. And been held, that the offence of aiding a prisoner the imprisonment must be continuing at the of war to escape is not complete, if such pritime of the offence. Id. s. 4. 1 Russ. 531. 1 soner is acting in concert with those under Hale, 594. In some cases it is an escape to whose charge he is, merely to detect the desuffer a prisoner to have greater liberty than fendant, and has no intention to escape. Russ. can by law be allowed him ; as, to admit him & R. C. C. 196. to bail against law, or to suffer him to go be- (10) Any one breaking a county jail with a yond the limits of the prison, though he re- view to escape, is punishable in New York turn. 2 Hawk. c. 19. s. 5. A retaking will with imprisonment not exceeding one year: not excuse an escape. Id. s. 13.

if, after conviction for a criminal offence he Private individuals, who have persons law. break jail and escape, he may be imprisoned fully in their custody, are guilty of an escape for not more than two years : if the escape is if they suffer them illegally to depart, 1 Hale, after conviction, and from a state prison, the 595; but they may protect themselves from punishment may be for a period not exceedliability by delivering over their prisoner to ing 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

degree of punishment () (11).

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 prisoner be in custody for petit larceny or other inferior offence, or charged with a debt of 1001., it is then a misdemeanor, punishable with fine and imprisonment (15). And by several special statutes (?), to rescue, or at(j) 2 Hawk. P. C. 128.

(1) 6 Geo. I. c. 23. (Transportation.) 9 Geo. I. (k) I Hal. P. C. 607. Fost. 344.

c. 22. (Plack-act.) 8 Geo. Il. c. 20. (Destroying (11) An aetual breaking is the gist of this though they were thrown down by accident." offence, and must be stated in the indictment. Rexr. Haswell. R. and R. C. C. 458. It must also appear that the party was lawful- (12) In New-York the punishment is imly in prison, and for a crime involving judg. prisonment not exceeding ten years. The ment of life or member; is not enough to conviction of the prisoner is not required by allege that he feloniously broke prison.” 2 the stat. : the crime consisting in obstructing Inst. 591. 1 Russell, 381. If lawfully com- the course of law. 2 R. S. 684. 9 14. mitted, a party breaking prison is within the (13) By 1 and 2 Geo. IV. c. 98, (entitled an statute, although he may be innocent; as, if “Act to amend the Law of Rescue,") s. 1, committed by a magistrate upon strong aus- rescuing persons charged with felony, is pun. picion. 2 Inst. 590, 1 Hale, P. C. 610, i Rus- ishable with seven years' transportation, or imsell, 378. To constitute a felonious prison prisonment for not less than one year, and not breach, the party must be committed for a more than three years. And by s. 1, assaultcrime which is capital at the time of the break. ing any lawful officer, to prevent the apprehen. ing. I Russell, 379. Cole's case. Plowd. sion or detainer of persons charged with feloComm. 401. A construetive breaking is not ny, is punishable with two years' imprisonsufficient; therefore, if a person goes out of ment in addition to other pains and penalties prison without obstruction, as by a door being incurred, (vide also 5 Geo. IV. c. 84, 5 22.) left open, it is only a misdemeanor. i Hale, This section is repealed by 9 Geo. IV. c. 31, P. C. 611. An actual intent to break is not which, by section 25, provides a punishment necessary. The statute extends to a prison for ese offences : vide post 217. in law, as well as to a prison in fact. 2 Inst. By 9 Geo. IV. c. 4, s. 13, (entitled the

“Prison breach or rescue is a common Mutiny Act,) persons under sentence of death law felony, if the prisoner breaking prison, or by court martial, having obtained a conditionrescued, is a convicted felon, and it is punish. al pardon. escaping out of custody, and all able at common law by imprisonment, and parties aiding such escape, are punishable as under 19 Geo. III. c. 74, 9 4, by three times felons. See Rex v. Stanley, R. and R. C. C. 432. whipping. Throwing down loose bricks at (14) In New York the punishment is not to the top of a prison wall, placed there to im- exceed 10 years' imprisonment. 2 R. S.683,9 1. pede escape and give alarm, is prison breach, (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. I. 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 selons 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 selon who stole them ; unless he causes such principal selon 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 (Murder.) 27 Geo. II. c. 15. (Black-act.) the 52 Geo. Ill. c. 143, s. 11.) 25 Geo. II. c. 37. (m) See stat. 6 Geo. I. c. 23, 09. offence of delivering instruments of escape (17) These provisions are virtually repealed to a prisoner has been held to be complete, by the 5 Geo. IV.c. 84. which revives and conthough the prisoner had been pardoned of the solidates into one act the laws relative to the offence of which he was convicted, on condi. transportation of offenders. By the 22d seetion of transportation ; and a party may be tion it is enacted, that if any offender, senconvicted, though there is no evidence that he tenced or ordered to be transported or banish. knew of what offence the prisoner had been ed, or having agreed to transport or banish convicted. Rex v. Shaw, R. and R. C. C. himself, shall be afterwards found at large, 526. This Act applies only to cases of at. without lawful excuse, before the expiration tempt, Tilley's case, 2 Leach, 662, and a case of the term of transportation or banishment, where the commitment is on suspicion only, he shall suffer death without clergy. By sect. is not within it, Greenif's case, I Leach, 363. 84, the act is not to extend to persons banisbThis Act appears virtually to be repealed by 4 ed under the 60 Geo. III. and í Geo. IV. c. 8. Geo. IV. c. 64, s. 43, which makes delivering for blasphemous and seditious libels. If the instruments of escape to any prisoner, whether prisoner can shew such circumstances of po. he actually escape or not, a felony punishable verty or sickness, which amount to an absolute by fourteen years' transportation.

impossibility to transport himself, or leave the (16) Some of these Acts, as far as they kingdom, he will not be within the act. I Leach, relate to the exclusion of benefit of clergy, 396. By the 22d sect. of 5 Geo. IV. c. 84. a and to the form of punishment, are altered reward of 201. is given from prosecuting an ofand amended by 1 and 2 Geo. IV. c. 88, and 5 fender against the act to conviction. Geo. IV. c. 84.

(18) In Rex v. Ledbitter, R. and R. C. C. By 4 Geo. IV. c. 54, Ø 1, to rescue a party 76, a police offier was indicted under 4 Geo. in custody for an offence against the Black. I. c. 11, 94, for taking money under the preact, 9 Geo. I. c. 22, is punishable only with tence of helping a person to goods stolen from transportation, or imprisonment and hard la. him, and convicted of felony, though the offsbour

cer had no knowledge of the felon, and though

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