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 statute *33 Hen. VIII. c. 12, malicious striking in the king's
palace, wherein his royal person resides, whereby blood is drawn, is punishable by perpetual imprisonment, and fine at the king's pleasure ; and also with the loss of the offender's right hand, the solemn execution of which sentence is pre
scribed in the statute at length (9) (10). 6. Contempts But striking in the king's superior courts of justice, in king's courts of 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 court 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 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 (w). A rescue also of a prisoner from any of the said courts, without striking a blow, is punished with perpetual
(w) LL. Inæ. c. 6; LL. Canut. (1) Staund. P. C. 38; 3 Inst. 140, c. 56; LL. Alured. c. 7.
(9) Mr. Hargrave has given in the 11th vol. 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 onely judged to loose his hand, but also his body to remaine 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 is spared, I may hereafter doe 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 loose neither hand, land, nor goods, but should go free at liberty.”_Ch.
(10) So much of the 33 Hen. VIII. c. 12, (part of $ 6 to $ 18,) as relates to the punishment of manslaughter, and of malicious striking, by reason whereof blood shall be shed, is repealed by 9 Geo. IV. c. 31. As to manslaughter, generally, vide pos', 191.
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) (11).
*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 (6).
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 further than bare threats, were punished in the Gothic constitutions with exile and forfeiture of goods (d).
(4) Hawk. P. C. 517.
(6) 1 Hawk. P. C. 58.
(11) 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 gene rally.
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 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 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 entered a noli prosequi upon the three first counts, and the court pronounced judgment of fine and imprisonment as for a common riot; 1 East, P. C. 438.-CH.
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 imprisions, 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 accessary 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 (f)(12)(13).
(12) 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 jury. He immediately communicated the circumstance to the judge, who upon consulting the judge in the other 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 testi
mony 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 contracted 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.-Ch.
(13) It appears that an attempt to stifle evidence is an indictable offence, on the principle that an incitement to commit crime is in itself criminal ; 6 East, 464; 2 Stra. 904.
OF OFFENCES AGAINST PUBLIC JUSTICE.
These are of
familias of the
The order of our distribution will next lead us to take into Of offences consideration such crimes and misdemesnors as more espe- commonwealth. cially affect the commonwealth, or public polity of the king- fences against dom: which, however, as well as those which are peculiarly as the paterpointed against the lives and security of private subjects, are nation. 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 misdemesnors, that more especially affect They are divided the commonwealth, may be divided into five species ; viz. as *offences 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.
to five species,
I. Offences against public justice, wbich are felonies, as,
1. Embezzling, vacating, or falsifying public records ;
First then, of offences against public justice : some of which are felonious, 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. Embezzling or vacating records, or falsifying certain der 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 (1). 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 statule 21 Jac I. c. 26, to acknowledge any fine, recovery, deed enrolled, statute, recognizance, bail (2), or judgment, in the name of another person not privy to the same, is felony without be
(1) The 8 Hen. VI. c. 12, $ 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 misdemeanor, 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 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.”
(2) The merely personating bail before a judge at chambers, or acknowledging bail in a false name, is only a misdemeanor, 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;
Ventr. 501 ; 3 Keb. 694; 1 Ld. Rd. 445; and a conviction cannot take place until the bail-piece is filed ; 2 Sid. 90.