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THE order of our distribution will next lead us to take into
consideration such crimes and misdemesnors 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 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 have treated of these subjects with greater precision and more in detail, than is consistent with the plan of these Commentaries.
The crimes and misdemesnors that more especially affect the commonwealth, may be divided into five species : viz. offences against public justice, against the public peace, against [ 128 ] public trade, against the public health, and against the public police or oeconomy; 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 misdemesnors. 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 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. (1) 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 is obliged to repose in gaolers, it is enacted by statute
(1) But the attainder does not work any corruption of blood, or forfeiture of dower.
14 Edw. III. c. 10. that if any gaoler by too great duress of
imprisonment makes any prisoner, that he hath in ward, be[ 129 ] come 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 observesa, 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." (2) 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“: all of which sanctuaries for iniquity are now demolished, and the opposing of any process therein is made highly penal, by the statutes 8&9W.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 2 3 Inst. 91.
virons; the Savoy; and the Mint in 2 Hawk.P.C. c.17. s.1.
Southwark. « Such as White-Friers, and its en
(2) It seems that there must be a knowledge of the party's guilt of the particular species of offence, to implicate the person opposing his arrest, as accessary to the crime (see Hawkins in the place cited); though where the party is actually in the custody of an accredited officer, as a constable or sheriff, he that rescues him must at his peril take notice of the crime with which he is charged. It should, however, be understood in all these cases, that where clergy is taken away from the original felony by statute, the person so hindering his arrest shall still have his clergy: 1 Hale P. C.606. See the 1& 2G. 4. c. 88. p. 131, n.(6).
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. (3)
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 connivance, is much [ 130 ] 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®: 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. 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 misdemesnor 5. (4) 2 Hawk.P.C. c. 17. s.5.
6 i Hal. P.C. 598, 9. 2 Hawk, € 1 Hal. P.C. 600.
P.C. c. 19. s. 26. fi Hal. P. C. 590. 2 Hawk. P.C. c.19. s. 22.
(3) The 9G.1.c.28., by which the capital punishment was imposed upon the offence last described, has been repealed in that part by the 1 G. 4. c. 116.
(4) The offence for which the party is in custody must be a capital crime
5. Breach of prison by the offender himself, when committed for any cause, was felony at the common law": or even conspiring to break it. But this severity is mitigated by the statute de frangentibus prisonam, 1 Edw. II. st. 2., 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 misdemesnor by fine and imprisonment. For the statute [ 131 ] which ordains that such offence shall be no longer capital,
never meant to exempt it entirely from every degree of punishment.. (5)
at the time he is suffered to escape, in order to make the voluntary escape capital in the officer. So that if A is in custody for having dangerously wounded B and the officer suffers him to escape; though B should afterwards die, and A thereupon become guilty of murder, yet the escape will not be capital, for A was in custody only for a misdemeanour at the time of the escape. Hawk. P. C. B. 2. c. 19. s. 25. This rule applies also to breaches of prison within the exception of the statute of Ed. 2. Ib. c.18. s. 14.
The provisions already mentioned in the text, reach cases only where the escape is actually effected; but by the 16 G.2. c.31., which is mentioned for another purpose in the following page, it is made a felony punishable by transportation for seven years, to assist any prisoner in attempting to make his escape from the custody of any officer or person having lawful charge of him by virtue of a warrant of commitment for treason or felony (except petty larceny), expressed in such warrant (and therefore a commitment on suspicion is not within the act, i Leach, 97, Walder's case); or to assist any felon in attempting to make his escape from any boat or ship carrying felons for transportation, or from the contractor for their transportation, his assigns or agents, or any person to whom such felon shall have been delivered, in order for transportation.
(5) The offence of prison-breach is in law and reason also complete, whether the party was or was not guilty upon the charge for which he was imprisoned; and therefore Hale lays it down that he may be tried and have judgment for it, before trial of the principal felony. At the same time, with more mercy than consistency, he lays down that, if he has been tried for the principal felony and acquitted, he shall not be tried for the prisonbreach, or may plead his acquittal in bar. i Hale, H. P. C. 611. The