Sivut kuvina


But striking in the king's superior courts of justice, in West- Actual viominster 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 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 courts 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 a 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. 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 offense 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.z7

ive vio

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

or reproach

those under

Likewise, all such as are guilty of any injurious treatment to Injuries to those who are immediately under the protection of a court of protection of justice, are punishable by fine and imprisonment; as if a man court assaults or threatens his adversary for suing him, a counselor

LL. Inae., c. 6; LL. Canut., 65; LL. Alured., c. 7.

* Staund., P. C., 38; 3 Inst., 140, 141.

y 1 Hawk., P. C., 57.

z Cro. Car., 373.

a Cro. Car., 503.
b1 Hawk., P. C., 58.

(7) 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 commission- for a common riot. ers. When the defendants were brought


up for judgment, Lord Kenyon express
ed doubts, whether upon this informa-
tion the court was not bound to pro-
nounce 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 en-
tered a nolle prosequi upon the first
three counts, and the court pronounced
judgment of fine and imprisonment as
1 East, P. C., 438.

or attorney for being employed against him, a juror for his verdict, or a jailer or other ministerial officer for keeping him in custody, and properly executing his duty;c which offenses, when they proceeded further than bare threats, were punished in the Gothic constitutions with exile and forfeiture of goods.d

give evidence, &c.


Lastly, to endeavor to dissuade a witness from giving eviwitnesses to dence; 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 offense, 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

c 3 Inst., 141, 142.

d Stiernhook, De Jure Goth., 1. 3, c. fol. 138.


e See Bar., 212; 27 Ass., pl. 44, § 4,

(9) 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


f 1 Hawk., P. C., 59.

(8) The mere attempt to stifle evi- jury. He immediately communicated dence is also criminal, though the per- the circumstance to the judge, who, suasion should not succeed, on the prin- upon consulting the judge in the other ciple now fully established, that an in- court, was of opinion that public justice citement to commit any crime is itself in this case required that the evidence criminal. 6 East, 464; 2 East, 5, 21, which the witness had given before the 22; 2 Stra., 904; 2 Leach, 925. As to grand jury should be disclosed, and the conspiring to prevent a witness from witness was committed for perjury, to giving evidence, see 2 East, 362. Know- be tried upon the testimony of the geningly making use of a false affidavit is tlemen of the grand jury. It was held indictable. 8 East, 364; 2 Stra., 1144. that the object of this concealment was -[CHITTY.] 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.-[CHRISTIAN.] See post, p. 303.





THE order of our distribution will next lead us to take into FIFTH consideration such crimes and misdemeanors as more espe- against pulcially affect the commonwealth, or public polity of the kingdom; lie justice which, however, as well as those which are peculiarly pointed against the lives and security of private subjects, are also offenses 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 offenses, and to the punishments inflicted by law for each particular offense, 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 commonwealth may be divided into five species, viz., [128] offenses against public justice, 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 offenses against public justice; some of which First. are felonious, whose punishment may extend to death; others against pubonly misdemeanors. I shall begin with those that are most lic justice. penal, and descend gradually to such as are of less malignity.

to records,

1. Embezzling or vacating records, or falsifying certain other 1. Injuries proceedings in a court of judicature, is a felonious offense against and falsifypublic justice. It is enacted by statute 8 Hen. VI., c. 12, that ing proceed if any clerk, or other person, shall willfully take away, with- courts.

ings of


draw, or avoid any record, or process in the superior courts of justice in Westminster Hall, by reason whereof the judg ment shall be reversed or not take effect; it shall be felony not 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. Jailers making

2. To prevent abuses by the extensive power which the law son become is obliged to repose in jailers, it is enacted by statute 14 Edw. approver or III., c. 10, that if any jailer, by too great duress of imprison


four years.

(3) The mere personating bail before

(1) This act extended only to the years, or imprisonment not exceeding 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. It is repealed, however, so far as relates to this offense, by the stat. 7 & 8 Geo. IV., c. 27; and the 7 & 8 Geo. IV., c. 29, s. 21, enacts, that any person who shall steal, or for any fraudulent purpose remove from its place of deposit, or unlawfully or maliciously obliterate, injure, or destroy any record, writ, &c., atlidavit, rule, order, or other document relating to any court of law or equity, shall be guilty of a misdemeanor, punishable with transportation a judge in chambers, which is not filed for seven years, or with fine and im- of record, was a misdemeanor only; 1 prisonment. By the 2 Will. IV., c. 34, Hale, 696; 2 Sid., 90; until, by the 1 s. 19, any clerk or officer of the court Will. IV., c. 66, s. 11, it was enacted, who shall knowingly certify a false copy that if any person should before any of a former indictment against a party court, judge, or other person lawfully indicted for a second offense relating to authorized to take any recognizance or the coin (the certificate of the officer bail, acknowledge any recognizance or being made evidence by the act) is sub- bail in the name of any other person. jected to transportation for any term not not privy or consenting to the same, he exceeding fourteen nor less than seven should be guilty of felony, and liable to years, or imprisonment for any term not transportation for life, or for any term exceeding three years. And by 1 & 2 not less than seven years, or to impris Vict., c. 94, s. 19, the falsely certifying ment for any term not exceeding four as true any copy of a record in the cus- years nor less than two years. If bail tody of the Master of the Rolls, or be put in under feigned names, there counterfeiting the signature of an as- being no such persons to be defrauded, sistant record keeper, or the seal of it is no felony, though the defendants the office, is felony, subject to trans- may be punished by imprisonment, &c., portation for life or not less than seven as the court may think fit. 1 Stra., 384.

(2) This punishment is reduced by 1 Will. IV., c. 66, s. 11 (which extends to the acknowledgment, "in the name of any other person not privy or consenting to the same," of" any fine, recovery, cog novit actionem, or judgment, or any deed to be enrolled"), to transportation for life or not less than seven years, or impris onment for not more than four nor less than two years.

*See statute passed for the safety of records, 2 R. S., 680, § 69, 70
† See statute against falsely personating another, 2 R. S., 676.

ment, makes any prisoner that he hath in ward become an approver or an appellor against his will, that is, as we shall see [129] hereafter, to accuse and turn evidence against some other person, it is felony in the jailer. For, as Sir Edward Coke observes, 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 jailer to whom the prisoner is committed for safe custody.

ing process.

3. A third offense against public justice is obstructing the 3. Obstructexecution of lawful process. This is at all times an offense 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 high treason. 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; 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 endeavors 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."

a 3 Inst., 91.

b 2 Hawk., P. C., 121.

Such as White-Friars, and its en

(4) This act of Edw. III. is now repealed by the 4 Geo. IV., c. 64, s. 1. As to the duties of jailers, see ante, vol. i., p. 346, note.-[CHITTY.]

virons, the Savoy, and the Mint in

also, if it think fit, to fine the offender, and to require him to find sureties of the peace. And the malicious shooting or attempting to shoot at, or stabbing, cutting, or wounding any person, with (5) The capital punishment for this intent to resist or prevent the lawful apoffense was taken away by the stat. 1 prehension or detainer of any person, is Geo. IV., c. 116. And now, by stat. 9 felony, punishable with transportation Geo. IV., c. 31, s. 25, any assault upon for life or not less than fifteen years, or any peace officer in the execution of his imprisonment for any term not exceedduty, or any person acting in aid of him, ing three years. 1 Vict., c. 85, s. 4. To or upon any person with intent to resist bring the offender within these enactor prevent the lawful apprehension or ments, it must of course be shown that detainer of the party assaulting, or of the arrest would have been lawful; and any other person, subjects the offender, unless the circumstances are such as on conviction for a misdemeanor, to im- that he must have known the cause of prisonment for any term not exceeding the arrest, it must be proved that he two years; the court being empowered was apprised of the intention to make

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