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Chap. 10.] OFFENCES AGAINST PUBLIC JUSTICE

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Chap. 10.] OFFENCES AGAINST PUBLIC JUSTICE Chap. 10.] OFFENCES AGAINST PUBLIC JUSTICE. CHAPTER X. OF OFFENCES AGAINST PUBLIC JUSTICE. 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 pecul- iarly pointed against the lives and security of private subjects, are also offences against the king, as the pater-familiasof 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 them- selves 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 misdemeanors that more especially affect the commonwealth, may be divided into five species, .viz.: *offences against public justice, [*121 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 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 jistice 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. 80; 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. 33 128 OBSTRUCTING PROCESS: ESCAPES. [Book IV. 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 re- pose 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, *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 obstructingthe execution of lawful process. This is at all times an offence of a very high and presumptuous na- ture; 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 particepscriminis ; that is, an accessory in felony, and a prin- cipal in high treason. (b) Formerly one of the greatest obstructions to pub lie justice, both of the civil and criminal kind, was the multitude of pretended privileged places, where indigent persons assembled together to shelter them- selves from justice (especially in London and Southwark), under the pretext ot 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 Win. 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 [*130] the party himself *is punishable by fine or imprisonment.(d) (5) But the 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 com- mitted or arrested: otherwise it might happen, that the officer might be pun- ished 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, (a) 3 Inst. 91. (b) 2 Hawk. P. C. 121 (c) Stch as White-Friarsg,and its environs; the Savoy; and the Mint in Southwark (d) 2 Hawk. P. C. 122. (e) 1 Hal. P. C 600. (f) 1 Hal. P. C. 590. 2 Hawk, P. C. 134. (3) This statute is now repealed. (4) For provisions punishing similar offences, see statute 24 and 25 Vic. c. 100. The wilful refusal to aid a peace officer in the performance of his duty, when requested, is a misdemea- nor at common law. Regina v. Brown, 1 C.& M. 314. (5) See statute 14 and 15 Vic. c. 100, s. 29. 372 Chap. 10.] ESCAPES: RESCUE. the officer thus neglecting his duty may be fined and imprisoned for a mis- demeanor. (g) (6) 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.(i) But this severity is mitigated by the statute defrangentibusprisonam,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 misdemeanor by fine and [*131] imprisonment.
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