lence. 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; 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.z vio Not only such as are guilty of an actual violence, but of [126] threatening or reproachful words to any judge sitting in the Constructcourts, are guilty of a high misprision, and have been punished ivecas 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. 141. Staund., P. C., 38; 3 Inst., 140, y 1 Hawk., P. C., 57. b 1 Hawk., P. C., 58. (7) Lord Thanet and others were up for judgment, Lord Kenyon expressprosecuted by an information filed by ed doubts, whether upon this informathe attorney-general for a riot at the tion the court was not bound to protrial of Arthur O'Connor and others for nounce the judgment of amputation of high treason under a special commission the right hand, &c., as required in a at Maidstone. Two of the defendants prosecution expressly for striking in a were found guilty generally. The three court of justice. In consequence of first counts charged (inter alia) that the these doubts, the attorney-general endefendants did riotously make an assault tered a nolle prosequi upon the first on one J. R., and did then and there three counts, and the court pronounced beat, bruise, wound, and ill-treat the said judgment of fine and imprisonment as J. R. in the presence of the commission- for a common riot. 1 East, P. C., 438. ers. When the defendants were brought [CHRISTIAN.] Dissuading witnesses to give evidence, &c. 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;e which offenses, when they proceeded further than bare threats, were punished in the Gothic constitutions with exile and forfeiture of goods.d Lastly, to endeavor 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. 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, and liable to be fined and imprisoned.f 3. c 3 Inst., 141, 142. d Stiernhook, De Jure Goth., 1. 3, c. fol. 138. e See Bar., 212; 27 Ass., pl. 44, § 4, 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 incitement to commit any crime is itself criminal. 6 East, 464; 2 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. -[CHITTY.] (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 116 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.-[CHRISTIAN.] See post, p. 303. CHAPTER X. OF OFFENSES AGAINST PUBLIC JUSTICE. Offenses 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. offenses 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 proceedif 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 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.* 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. 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 2. Jailers making per; appellor. (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. (1) This act extended only to the years, or imprisonment not exceeding See statute passed for the safety of records, 2 R. S., 680, § 69, 70 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. e 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.] (5) The capital punishment for this offense was taken away by the stat. 1 Geo. IV., c. 116. And now, by stat. 9 Geo. IV., c. 31, s. 25, any assault upon any peace officer in the execution of his duty, or any person acting in aid of him, or upon any person with intent to resist or prevent the lawful apprehension or detainer of the party assaulting, or of any other person, subjects the offender, on conviction for a misdemeanor, to imprisonment for any term not exceeding two years; the court being empowered virons, the Savoy, and the Mint in also, if it think fit, to fine the offender, |