Sivut kuvina

invasion. (1) Under which class may be ranked the neglecting to join the posse comitatus, or power of the county, being thereunto required by the sheriff or justices, according to the statute 2 Hen. V, c. 8, which is a duty incumbent. upon all that are fifteen years of age, under the degree of nobility, and able to travel. (m) Contempts against the prerogative may also be, by preferring the interests of a foreign potentate to those of our own, or doing or receiving any thing that may create an undue influence in favour of such extrinsic power; as, by taking a pension from any foreign prince without the consent of the king. (n) Or, by disobeying the king's lawful demands; whether by writ, issuing out of his courts of justice, or by a summons to attend his privy councils, or by letters from the king to a subject commanding him to return from beyond seas (for disobedience to which his lands shall be seized till he does return, and himself afterwards punished), or by his writ of ne exeat regnum, or proclamation, commanding the subject to stay at home. (0) Disobedience to any of these commands is a high misprision and contempt; and so, lastly, is disobedience to any act of parliament, where no particular penalty is assigned: for then it is punishable, like the rest of these contempts, by fine and imprisonment, at the [*123] discretion of the king's courts of justice. (p)

3. Contempts and misprisions against the king's person and government may be by speaking or writing against them, cursing or wishing him ill, giving out scandalous stories concerning him, or doing any thing that may tend to lessen him in the esteem of his subjects, may weaken his government, or may raise jealousies between him and his people. (6) It has been also held an offence of this species to drink to the pious memory of a traitor; or for a clergyman to absolve persons at the gallows, who there persist in the treasons for which they die these being acts which impliedly encourage rebellion. And for this species of contempt a man may not only be fined and imprisoned, but suffer the pillory (7) or other infamous corporal punishment: (q) in like manner, as in the ancient German empire, such persons as endeavored to sow sedition, and disturb the public tranquility, were condemned to become the objects of public notoriety and derision, by carrying a dog upon their shoulders from one great town to another. The emperors Otho I and Frederic Barbarossa inflicted this punishment on noblemen of the highest rank. (r)

4. Contempts against the king's title, not amounting to treason or præmunire, are the denial of his right to the crown in common and unadvised discourse; for, if it be by advisedly speaking, we have seen (s) that it amounts to a præmunire. This heedless species of contempt is however punished by our law with fine and imprisonment. Likewise if any person 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 crown 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 office, [ *124] 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

(1) 1 Hawk. P. C. 59. (p) 1 Hawk. P. C. 60.

(m) Lamb. Eir. 315.
(q) Ibid.

(n) 3 Inst. 144. (0) See book I, page 266. (r) Mod. Un. Hist. xxix, 28, 119. (s) See page 91.

(6) [To assert falsely that the king labors under the affliction of mental derangement is criminal, and an indictable offence: 3 D. and R. 464; 3 B. and C. 257, S. C. In Rex v. Cobbett, E. T. 1805; (Holt on Libel, 114, 115; 29 St. Tr. 1), where the defendant was convicted of publishing a libel upon the administration of the Irish government, and upon the public conduct and character of the lord lieutenant and the lord chancellor of Ireland, Lord Ellenborough, C. J., observed, "It is no new doctrine, that if a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient be by ridicule or bloquy, the person so conducting himself is exposed to the inflictions of the law." See also Holt Rep. 424; 14 How. St. Tr. 1095, S. C.

(7) The punishment of the pillory was finally altogether abolished by statute 1 Vic. c. 23.

those of præmunire: 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. 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, and two justices of the peace may by the same statute summons, 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 subjected to the same penalties that were mentioned in a former chapter: (t) which in the end may amount to the alternative of abjuring the realm, or suffering death as a felon. (8) 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 iudicia, quæ sancta habebantur,-arces et aula regis,-denique locus quilibet præsente aut adventante rege. (v) And at present, with us, by the statute *33 Hen. VIII, e. 12, malicious striking in the king's palace, wherein his royal person resides, whereby blood is drawn, is punishable by perpet- [*125 ] ual 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. (9)

But striking in the king's superior courts of justice, in Westminster-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 blow in such a court of justice, whether blood be drawn or not, or even assaulting a

(t) See page 55.

(u) 3 Inst. 140. LL

red. cap. 7 and 34.
7 c. 7.

(w) LL. Ine c. 6. LL. Canut. 56. LL.

(v) Stiernh. de jure Goth. 1. 3, 4. 2.

(8) [By statute 10 Geo. IV, c. 7, as y ecclesiastical title established in England was made punishable by a fine of 1001. In the ppe issued a brief which, while evading this statute appointed catholic bishops with terrorial designations different from those of the established church, and they were enthroned with great pomp. This lead to statute 14 and 15 Vic. c. 60, which forbade all such titles, and declared this and all similar briefs illegal and void. The statute however, has been substantially a dead letter, and is important only as a protest of the English nation against any assumption of authority by the pope within the realm."

(9) [Mr. Hargrave has given in the 11th volume 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 Edmund Knevet, who was prosecuted upon this statute, soon after it was enacted: "for which offence he was not only judged to lose his hand, but also his body to remain in prison, and his lands and goods at the king's pleasure. Then the said Sir Edmund Knevet desired that the king, of his benigne grace, would pardon him of his right hand, and take the left: for (quoth he) if my right be spared, I may hereafter do 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, considering 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."

So much of the 33 Hen. VIII, c, 12 (part of § 6 to § 18), as relates to the punishment of manslaughter, and malicious striking, by reason whereof blood shall be shed, is repealed by 9 Geo. IV, c. 31. As to manslaughter generally, vide post, 191.]

VOL. II.-47


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) (10) [*126] *Not only such as are guilty of an actual violence, but of 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 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. (11) 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 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. (ƒ) (12) (x) Staund. P. C. 38. 3 Inst. 140, 141. (y) 1 Hawk. P. C. 57. (2) Cro. Car. 373. (a) Ibid. 503. (b) 1 Hawk. P. C. 58. (c) 3 Inst. 141, 142. (d) Stiernh. de jure Goth. l. 3, c. 3. (e) See Bar. 212. 27 Ass. pl. 44, § 4, fol. 138. (f) 1 Hawk. P. C. 59.

(10) [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 first three 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 commissioners. When the defendants were brought up for judgment. Lord Kenyon expressed doubts, whether upon this information the court was not bound to pronounce the judg ment 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 entered a nolle prosequi upon the first three counts, and the court pronounced judgment of fine and imprisonment as for a common riot. 1 East. P. C. 438; 27 St. Tr. 821.]

(11) [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; 2 id. 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, 354; 2 Stra. 1144.]

(12) There is an exception to this rule in the case of a witness before the grand jury who 18 indicted for perjury. The jurors in this case are not only competent but compellable to give evidence of what was sworn to before them. State v. Offutt, 4 Blackf. 355; State v. Fasset, 16 Comm. 457; State v. Broughton, 7 Ired. 96; Huidekoper v. Cotton, 3 Watts, 56.




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 the representatives, or by a tacit and implied consent presumed from 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 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 nave 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.: *offences against public justice,

against the public peace, against public trade, against the public [*128] health, and against the public police or economy: of each of which we will take a cursory view in their order.

First, then, of offences against public justice: some of which are felonies, 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. Embezzling 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. 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. (1) 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. and 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. (2) For no man's property would be safe, if

(1) This statute is now repealed. For statutes for the punishment of offences of the character mentioned in the text, and others of a somewhat similar nature, see statutes 7 and 8 Geo. IV, c. 29; 1 Vic. c. 90; 1 and 2 Vic. c. 94; 7 and 8 Vic. c. 19; 14 and 15 Vic. c. 99 and 16 and 17 Vic. c. 99; 24 and 25 Vic. c. 96, s. 30; 24 and 25 Vic. c. 98.

(2) The statute now in force for the punishment of this offence, is 24 and 25 Vic. c. 98, s. 34. For decisions under previous statutes, see 1 Stra. 304: 1 Vent. 501; 3 Keb. 694; 1 Ld. Raym. 445; 2 Sid. 90.

The false personation of voters at elections was made a misdemeanor by statute 6 and 7 Vic. c. 18, s. 33.

"ecords might be suppressed or falsified, or persons' names be falsely usurped i 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, [*129] *become an approver or an appellor against his will; that is, as we shall see hereafter, to accuse and turn evidence against some other person; it is felony in the gaoler. (3) 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. 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 accessory in felony, and a principal in high treason. (b) 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 and 9 Wm. 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 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)

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 against public justice, and the party himself *is punishable by fine or imprisonment. (d) (5). But the [*130] officer permitting such escape, either by negligence or connivance, is much more culpable than 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. (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,

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

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

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

(3) This statute is now repealed.

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

(4) For provisions punishing similar offences, see statute 21 and 25 Vic. c. 100. The wilful refusal to aid a peace officer in the performance of his duty, when requested, is a misdemea uor at common law. Regina v. Brown, 1 C. & M. 314.

(5) See statute 14 and 15 Vic. c. 100, s. 29.

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