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OF OFFENCES AGAINST PUBLIC JUSTICE.
*THE order of our distribution will next lead us to take into considera[*127 tion such crimes and misdemeanours 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 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 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 misdemeanours that more especially affect the commonwealth may be divided into five species, viz., *offences against public justice, [*128 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 offences against public justice, some of which are felonious, whose punishment may extend to death; others only misdemeanours. 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
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. See p. 303, post.
'The 8 Hen. VI. c. 12, s. 3 is now repealed, by 7 & 8 Geo. IV. c. 27, by sect. 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 attorney, 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 misdemeanour, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, 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. and M. c. 4, to personate any other person (as bail) before any judge of assize or other commissioner authorized to take bai' 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 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. 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
(a) 3 Inst. 91.
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."-CHITTY.
It is a high misprision in an officer to alter the enrolment of a memorial of an annuity-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 par liamentary proceedings, &c. sent by post will be guilty of a misdemeanour punishable with fine and imprisonment.-CHITTY.
But, by stat. 7 & 8 Geo. IV. c. 29, this statute, so far as it relates to this offence, is repealed; and it is enacted, by s. 21 and 1 Vict. c. 90, s. 5, that stealing or maliciously obliterating any record, writ, affidavit, or document belonging to any court of law or equity shall be a misdemeanour punishable with transportation for seven years, or fine or imprisonment, and now with penal servitude, (16 & 17 Vict. c. 99;) and, by stat. 2 W. IV. c. 34, ss. 9, 19, and 1 Vict. c. 90, s. 5, where a person having been convicted of any offence relating to the coin shall afterwards be indicted of any offence committed subsequent to such conviction, any clerk or officer of the court where the offender was first convicted, certifying a false copy of any indictment, knowing the same to be false, was liable to be transported for fourteen nor less than seven years, or to be imprisoned for any term not exceeding two years, and now to penal servitude. By 1 & 2 Vict. c. 94, s. 19, any person employed in the public-record office who shall certify any writing as a true copy, knowing the same to be false in any material part, or any person who shall counterfeit the signature of the assistant record-keeper or who shall counterfeit the seal of the said office, on being convicted thereof, might be transported for life or for not less than seven years, or be imprisoned for not more than four years. By 14 & 15 Vict. c. 99, s. 15, if any officer under that act shall wilfully certify any document as being a true copy or extract, knowing the same not to be so, he shall be guilty of a misdemeanour, and shall be liable on conviction to imprisonment for any term not exceeding eighteen months.-STEWART.
See also 11 Geo. IV. and 1 W. IV. c. 66, s. 11. And the false personation of voters at elections is a misdemeanour. 6 & 7 Vict. c. 18, s. 33.-STEWART.
The merely personating bail before a judge at chambers, or acknowledging bail in a false name, is only a misdemeanour, 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. I Ld. Raym. 445;) and a conviction cannot take place until the bail-piece is filed. 2 Sid. 90.-CHITTY. This act of Edw. III. is now repealed, by the 4 Geo. IV. c. 64, s. 1.—CHITTY.
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 antient 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 W. III. c. 27, 9 Geo. I. c. 28, and 11 Geo. I. c. 22, which enact that persons opposing the execution of any process ir 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. 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) But the officer permitting such escape, either by negligence or conni[* 130 vance, 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.(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 misdemeanour.(g)
(b) 2 Hawk. P. C. 121.
() Such as White-Friars and its environs, the Savoy, and
the Mint in Southwark. (4) 2 Hawk. P. C. 122.
() 1 Hal. P. C. 600.
() Ibid. 590. 2 Hawk. P. C. 134.
5 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 fire-arms 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 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. takes 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, Aug. 8, 1816.
By 9 Geo. IV. c. 31, s. 25, it is enacted that where any person shall be charged with and convicted of, as a misdemeanour, any assault 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 & 2 Geo. IV. c. 88, s. 2. 3 Geo. IV. c. 114, 1 Burn's J. 230, et seq.
And, by stat. 9 Geo. IV. c. 31, s. 25, the preventing the apprehension of an offender is a misdemeanour, punishable with fine or imprisonment for two years.-STEWART. 'There must be an actual arrest, as well as a lawful arrest, to make an escape criminal
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.(1) 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 offence. 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 misdemeanour by fine and *131] imprisonment. For the statute which ordains that such offence shall be no longer capital never meant to exempt it entirely from every degree of punishment.(j)8"
6. Rescue is the forcibly and knowingly freeing another from an arrest of imprisonment; 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 misdemeanour, a misdemeanour 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)° . By statute
(*) 1 Hal. P. C. 607.
() 2 Hawk. P. C. 128.
in an officer. 2 Hawk. c. 19, ss. 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 lawfully 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 some legal and proper officer. 1 Hale, 594, 595. 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.-CHITTY.
8 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 judg ment 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. 1 Russell, 378. To constitute a felonious prisonbreach, the party must be committed for a crime which is capital at the time of the breaking. I 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 misdemeanour. 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, 8 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 prisonbreach, though they were thrown down by accident." Rex vs. Haswell, R. & R. C. C. 458.-CHITTY.
9 By 1 & 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
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. By 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; or if the prisoner be in custody for petit larceny or other inferior offence, or charged with a debt of 1007., it is then a misdemeanour, punishable with fine and imprisonment. And, by several special statutes,(?) to rescue, or attempt 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, 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."
*7. Another capital offence against public justice is the returning from [*132 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.12
6 Geo. I. c. 23. (Transportation.) 9 Geo. I. c. 22. (Black Act.) 8 Geo. II. c. 20. (Destroying turnpikes, &c.) 19 Geo.
II. c. 34. (Smuggling. See the 52 Geo. III. c. 143, s. 11.) 2
by court-martial, having obtained a conditional pardon, escaping out of custody, and all parties aiding such escape, are punishable as felons. See Rex vs. Stanley, R. & R. C. C. 432.-CHITTY.
10 On an indictment under this act, the 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 vs. Shaw, R. & 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.-CHITTY.
Some of these acts, as far as they relate to the exclusion of benefit of clergy, and to the form of punishinent, are altered and amended by 1 & 2 Geo. IV. c. 88, and 5 Geo IV. c. 84.
By 4 Geo. IV. c. 54, 8 1, to rescue a party in custody for an offence against the Black. Act (9 Geo. I. c. 22) is punishable only with transportation, or imprisonment and hard labour.-CHITTY.
By stat. 1 Vict. c. 91, 28 1 & 2, any person rescuing, or attempting to rescue, any other person who shall be committed or found guilty of murder shall be liable to be transported for life, or for any time not exceeding fifteen years, or to be imprisoned for three; and now penal servitude may be substituted.-STEWART.
12 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 section 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 benefit of clergy. By sect. 84, the act is not to extend to persons banished, under the 60 Geo. III. and 1 Geo. IV. c. 8, for blasphemous and seditious libels. If the prisoner can show 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 for prosecuting an offender against the act to conviction.-CHITTY.
But these statutes are repealed by stat. 4 & 5 W. IV. c. 67, by which this offence is