proved than the fact that a statement has been made in evidence. The falsehood of a statement made in pleading will be proved in exactly the same manner in which the falsehood of a statement made in evidence is proved. Whether the accused person knew that he was pleading falsely, the courts will determine on the same evidence on which they now determine whether a witness knew that he was giving false testimony.

"We consider a law for punishing false pleading as indispensably necessary to the expeditious and satisfactory administration of justice, and we trust that the passing of such a law will speedily follow the appearance of the code of procedure. We do not, as we have stated, at present propose such a law, because, while the system of pleading remains unaltered in the courts of this country, and particularly in the courts established by royal charter, it will be difficult, or to speak more properly, impossible to enforce such a law. We have, therefore, gone no further than to provide a punishment for the frivolous and vexatious instituting of civil suits, a practice which, even while the existing systems of procedure remain unaltered, may, without any inconvenience, 'be made an offence. The law on the subject of false evidence will, as it appears to us, render unnecessary any law for punishing the frivolous and vexatious preferring of criminal charges."

These are the observations of a clever man, superficially acquainted with courts of justice and led astray by imperfect analogies. Pleading is a mixed allegation of law and fact. False testimony is not. The writer loses sight of this distinction; or he would scarcely have said that there will be no more difficulty in trying a charge of false pleading than of trying a charge of false evidence. How, again, is it possible to say whether a man thought his own claim or defence just or not? We ourselves have repeatedly seen a case break down from unforeseen causes,—as the absence, embarrassment, or contradiction of a witness, on whom both party and counsel had implicitly relied.

5. Offences by Ministerial Officers.-Under this head the principal offences are aiding or permitting prisoners to escape, and the remarks are not confined, as the title of the section would imply, to gaolers and officers of justice. The guilt of the assisting party is made by the law of England to depend in a great measure on the guilt of the prisoner; and the commissioners do not object to this criterion; but they see no

reason for awarding a slighter punishment to him who assists a person confined on suspicion than to him who assists a convict. The distinction has received a partial sanction, and though it must be admitted that the law is equally defied and obstructed in both cases, it is impossible to help regarding one with more indulgence than the other.

Before the 1 Ed. II., breaking prison was a capital offence, without reference to the original cause of imprisonment. By that statute 66 our lord the king willeth and commandeth that none from henceforth that breaketh prison shall have judgment of life or member for breaking of prison only, except the cause for which he was taken and imprisoned did require such judgment, if he had been convicted thereupon according to the law and custom of the realm, albeit in times past it hath been used otherwise."

The pregnant brevity and precision of this enactment will strike every reader curious about style.

The commissioners think the alteration insufficient, and conceive that the only fitting course to pursue with one charged with a capital offence who escapes previously to trial, is to try him first on the original charge and then (in case of his acquittal) for the escape. The second trial under such circumstances, however, would run counter to the feelings of society.

6. Obstructions and Offences by Private Persons.—“ A private person may offend against this branch of the executive power, either in not performing a duty cast upon him, or by resistance to officers in the execution of their duty, or in protecting offenders by affording the means of flight or concealment, or rendering other such aid or assistance, or by simply omitting to reveal his knowledge of offences either actually committed or merely meditated.

"The first and second of these classes of offences have already been adverted to."

It required a long time after sanctuaries were abolished, to eradicate the popular notions concerning them, and it was consequently found necessary to provide by express enactments against resistance to process in the Whitefriars, the Savoy, the Minories, and other districts. The commissioners suggest that these enactments have now become nugatory, and may be repealed.

Their next topic is misprision, as to which they think the

law open to grave objection. One guilty of aiding an offender to escape by concealment or otherwise, is punishable as an accessory after the fact, but cannot be convicted of the offence till after the conviction of the principal. It also seems doubtful whether an accessory after the fact can exist, except in respect of offences of an inferior degree to felony. The commissioners think that assistance of this kind should be held to constitute a distinct offence, and that the liability of the offender to punishment should not be made dependent either on the guilt of the principal or the knowledge the party aiding might have of it-the sole question in each instance to be, whether such party intended to obstruct the execution of the law.

By the common law, the bare knowledge and concealment (i. e. by not revealing it) of treason committed or contemplated, was treason. The statute 1 & 2 Philip & Mary reduces the offence to misprision. The like concealment of a felony is punishable (by 3 Edw. I. c. 9) in the case of a public officer, by imprisonment for a year and a day-of a common person, by imprisonment for a less, but undefined period: in both, by fine and ransom, at the king's pleasure. The commissioners think that, (except in the case of crimes contemplated, or very heinous offences committed,) there is no such imperative necessity for enforcing disclosures by severe penalties.

"To require every one, without distinction as to the nature and degree of the offence, to become an accuser, would be productive of inconvenience in exposing numbers to penal prosecutions, multiplying criminal charges, and engendering private dissension. It may sometimes be more convenient that offences should be passed over, than that all should indiscriminately be made the subject of prosecution; and a law would be considered to be harsh and impolitic, if not unjust, which compelled every party injured by a criminal act, and, still more so, to compel every one who happened to know that another had been so injured, to make a public disclosure of the circumstances. Here, therefore, there is reason for limiting the law against mere misprisions to the concealment of such crimes as are of an aggravated complexion, on grounds which do not extend to acts of concealment, or other positive obstructions of the course of criminal justice; the latter, as

amounting to actual violations nf public right, cannot but be regarded as criminal, whatsoever be the degree of the original offence."

7. Indirect Obstructions of the Course of Justice.—Under this head the commissioners content themselves with mentioning the compounding of felonies and the publication of ex parte proceedings in courts of justice.

8. Abuses of Judicial Authority.-Numerous penal enactments are still to be found in the statute book against abuses of this kind by lords of franchises and others entitled to peculiar jurisdictions. The altered state of society has rendered almost all of them useless, and it is thought that the law affords sufficient protection against magistrates and inferior judges; for, as regards the bench of Westminster Hall, there has never of late years existed so much as a suspicion of any corrupt or tyrannical exertion of authority.

We now come to Barretry, Maintenance, and Champerty. The offence of Common Barretry consists of a series of acts tending to the disturbance of the peace-moving or exciting suits, getting fraudulent or forcible possession of lands in controversy, sowing discord by false reports and calumnies, &c. &c. The commissioners object that a law warranting a charge of so indefinite and doubtful character tends to promote the very evil it is meant to exclude; and, with every wish to restrain needy practitioners, they recommend its abolition.

Maintenance consists in affording aid to litigants in the shape of money or (according to some authorities) of advice; for though it is not illegal to tell a friend what course to pursue, or what attorney to select," it is said that a man of great power, not learned in the law, may be guilty of maintenance by telling another, who asks his advice, that he has a good title." It might have been necessary to prohibit acts of this kind in feudal times, when each great lord lived surrounded by a band of feudal retainers, and both judges and juries were in the habit of considering the position and connections of the party as well as the merits of the case. But such a law can serve no other purpose now, than to restrain persons actuated by charitable or friendly motives from rendering as

1 Bacon's Ab.

sistance where it is most needed; for how a poor man is to procure an adjudication of a claim unless some one commits maintenance, it passes our comprehension to conceive.

Neither do we see much good in forbidding Champerty, i. e. a bargain made with a party for a share of the subject-matter of the suit. It can no longer prejudice the course of justice, and many a just title may lie dormant and die out unless the claimant is enabled to promise his friend or attorney some compensation proportionate to the risk. At all events, it is obvious that the effect of the laws in question, supposing them to be enforced, would be diametrically the reverse of that which they were originally intended to produce. They were framed to restrain the rich and powerful: they would operate to the injury of the poor.

A Digest of the existing law on the several subjects abovementioned follows; but as most of them seldom occur in practice, and many are to be repealed, we see no necessity for copying it.

Forgery. The Prefatory Remarks on this topic commence with a description of the characteristics of the offence, and a short statement of the progress of the law.

"In early times, when few transactions were conducted in writing, the offence was of rare occurrence, and attracted little of the attention of the legislature. As civilization proceeded, and a widely extended system of paper credit grew up, cases of forgery began to multiply to a most alarming extent, and an impolitic degree of severity was resorted to for the purpose of suppressing them. So many statutes were afterwards made that Sir W. Blackstone observes, I believe, through the number of these general and special provisions, there is now hardly a case possible to be conceived, wherein forgery, that tends to defraud, whether in the name of the real or fictitious person, is not made a capital crime." Since the publication of the Commentaries many other statutable provisions have been made applicable to particular cases; but the punishment of death is now no longer inflicted for any forgery, having been finally abolished by an act of the 1st year of your majesty's reign, which substituted transportation for life, or not less than seven years, or imprisonment not exceeding four nor less than two years, in lieu of it. The greater num

14 Black, Com, 250.