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CHAPTER THE FOURTEENTH.
OF OFFENCES BY PERSONS IN OFFICE.
WHERE an officer neglects a duty incumbent on him, either by Officers incommon law or by statute, he is indictable for his offence; and this, dictable for
misconduct. whether he be an officer of the common law, or appointed by act of Parliament:(a) and a person holding a public office under the King's letters patent, or derivatively from such authority, has been considered as amenable to the law for every part of his conduct, and obnoxious to punishment for not faithfully discharging it. (b) And it is laid down generally, that any public officer is indictable for misbehaviour in his office. (c) There is also the further punishment of the forfeiture of the office for the misdemeanor of doing anything directly contrary to its design. (d) And in the case of a coroner, the 25 Geo. 2, c. 29, s. 6, makes particular provision, and enacts, that when convicted of extortion, or wilful neglect of duty, or misdemeanor in office, he may be removed from office by the judgment of the Court in which he is convicted, unless such office be annual, or annexed to some other office. Where a duty is thrown upon a body of several persons, and they neglect it, each is individually liable to prosecution for the neglect. (e)
It is proposed to treat shortly, in the present Chapter, of oppression, negligence, fraud, and extortion, by persons in office; and of the refusal of persons to execute the duties of their offices when properly appointed; leaving the subjects of buying and selling offices, and of bribery, for subsequent chapters.
The oppression and tyrannical partiality of judges, justices, and Oppression by other magistrates in the administration, and under colour of their public officers. offices, may be punished by impeachment in Parliament, or by information or indictment, according to the rank of the offenders, and the circumstances of the offence. (5) Thus if a justice of the peace abuses the authority reposed in him by law, in order to gratify his malice, or promote his private interests or ambition, he may be punished by indictment or information. But the Court of King's Bench have expressly declared, that though a justice of peace should act illegally, yet if he has acted honestly and candidly, without oppression, malice, revenge, or any bad view of ill intention whatsoever, the Court wilí never punish him by the extraordinary course of an information, but will leave the party complaining to the ordinary method of prosecu
(a) Reg. o. Wyat, 1 Salk. 380. Anon. (e) Rex v. Holland, 5 T. R. 607. 6 Mod. 96.
(f) 4 Blac. Com. 141. A judge is not (6) Rex r. Bembridge, M. 24 Geo. 3. indictable for an error in judgment; but I Salk. 380, note (a).
this rule extends only to judges in courts of (c) Anon. 6 Mod. 96.
record, and not to ministerial officers. Rex (d) I Hawk. P. C. c. 66, s. I.
v. Loggen and another, 1 Str. 74.
tion by action or indictment. (). And whenever justices have been challenged, either by way of indictment, or application for a criminal information, the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment. (g) But where two sets of magistrates having a concurrent jurisdiction, one set of them appointed a meeting to grant ale licenses, and, after such appointment, the other set of magistrates appointed a meeting for the same purpose on a subsequent day, and having met, granted a license which had been refused by the first set; it was held that the proceedings of the magistrates appointing the second meeting were illegal, and the subject of an indictment. Lord Kenyon, C. J.
, said that it was proper the question should be settled whether it were legal for two different sets of magistrates, having a concurrent jurisdiction, to run a race in the exercise of any part of their jurisdiction; and that it was of infinite importance to the public that the acts of magistrates should not only be substantially good, but also that they should be decorous. And Ashhurst, J., said that it was a breach of the law to attempt to wrest the jurisdiction out of the hands of the magistrates who first gave notice of the meeting; for what the law says shall not be done, it becomes illegal to do, and is therefore the subject matter of an indictment, without the addition of any corrupt motives. (h)
The conduct of justices of the peace in granting or refusing licenses to sell ale has been frequently the subject of investigation; and it seems to be clear that though upon this matter the justices have a discretionary jurisdiction given them by the law, and though discretion means the exercising the best of tħeir judgment upon the occasion that calls for it, yet if this discretion be wilfully abused, it is criminal, and under the control of the Court of King's Bench. (i) That Court will, therefore, grant an information against justices who refuse from corrupt and improper motives to grant such licenses ; (k) and an information will be granted against them as well for granting a license improperly as for refusing one in the same manner. (1)
To prevent abuses by the extensive power which the law is obliged to repose in gaolers, it is enacted by the 14 Edw. 3, 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, to accuse and turn evidence against some other person ; it shall be felony in the gaoler. For it is not lawful
Of justices granting or refusing ale licenses improperly.
Of gaolers forcing persons to give evidence.
(f) Rex v. Palmer and others, 2 Burr. 1162. 1 Blac. Com. 354, note (17), where it is said that in no case will the Court grant an information unless an application for it be made within the second Term after the offence committed, and notice of the application be previously given to the justices, and unless the party injured will undertake to bring no action.
(9) Per Lord Tenterden, C. J., Rex v. Borron, 3 B. & Ald 434. Ex parte Fentiman, 2 Ad. & E. 127. 1 Blac. Com. 354, note (17).
(h) Rex v. Sainsbury and another, 4 T. R. 451.
(i) Rex v. Young and Pitts, I Burr. 556, 560, et seq.
(k) Rex n. Williams and Davis, 3 Burr. 1317. The licenses in this case bad been refused, because the persons applying for them would not give their votes for members of parliament as the justices would have had tbem. And see Rex v. Hann and Price, id. 1716, 1786.
(1) Rex v. Holland and Foster, 1 T. R. 692. And see l Burn's Just. tit. Alehouses.
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. (m) And a gaoler may be discharged and fined for voluntarily suffering his prisoners to escape, or for barbarously misusing them. (n) So a gaoler is indictable for refusing to receive a prisoner under the commitment of a magistrate. (0)
An overseer of the poor is also indictable for misfeasance in the Overseers of execution of his office: as if he relieve the
where there is necessity for it; (p) or if he misuse the poor, as by keeping and punishable for lodging several poor persons in a filthy unwholesome room, with their offices. the windows not in a sufficient state of repair to protect them against the severity of the weather; (g) or by exacting labour from them when they are unable to work. (r) And if overseers conspire to prevail upon a man to marry a poor woman big with child, for the purpose of throwing the expense of maintaining her and the issue from themselves upon another parish or township, they may be indicted. (s) And for most breaches of their duty overseers may be punished by indictment or information ; (t) but with respect to the proceeding by information, as it is an extraordinary remedy, the Court of King's Bench will not suffer it to be applied to the punishment of ordinary offences, and has long come to a resolution not to grant informations against overseers for procuring a pauper's marriage with a view to burthen another parish. (u)
An indictment against overseers on the 5 & 6 Wm. 4, c. 76, s. 47, for not accounting to the auditor of a union, upon request, on a day appointed by him, is bad, unless it appear that there was some rule, order, or regulation of the poor-law commissioners that the overseers should account upon such request; and where no such order, &c., is alleged, the indictment cannot be sustained after verdict, merely because it appears, by inference, or by the inducement, that the defendants have not in fact accounted for one whole quarter. (v) Upon such an indictment it is sufficient, at least after verdict, to allege the order to have been made by " the poor-law commissioners for England and Wales,” without naming each commissioner, and to state that a copy of the order, under seal, &c., was “duly sent” to the overseers, without alleging actual service on them. (w)
(m) 4 Blac. Com. 128. 3 Inst. 91. (n) 1 Hawk. P. C. c. 66, s. 2.
(0) Rex v. Cope, 6 A. & E. 226. 1 N. & P. 515. 7 C. & P. 720. See the form of indictment there ; which was for a refusal to receive in Newgate, and it was held that under the 4 Geo. 4, c. 64, the Court of Aldermen had not power to exclude from the gaol prisoners committed by the Middlesex magistrates, and who might have been committed to that gaol before that act passed.
(p) Tawney's case, 16 Vin. Abr. 415. I Bott. 358. pl. 371.
(9) Rex o. Wetheril and another, Cald. 432.
(s) Rex v. Winship and another, Cald. 76.
(8) Rex v. Compton, Cald. 246. Rex v. Tarrant, 4 Burr. 2106, and Rex v. Herbert,
I East, P. C. c. 11, s. 11, p. 461.
(t) Rex v. Commings, 1 Bott. 357. pl. 370. Rex v. Robinson, 2 Burr. 799. Rex o Jones, 1 Bott. 360. pl. 377. 2 Nol. 474.
From these authorities it appears that such proceeding may be had in some cases where a particular punishment is created by statute, and a specific method of recovering the penalty is pointed out. But as to this, see ante, Book I. Chap. iii. p. 49, 50.
(-) Rex v. Slaughter, Cald. 246, note (a). And perhaps this offence would not be punishable at all if the woman settled in the defendant's parish previous to the marriage is with child by the man to whom the defendants procure her to be married. 2 Nolan, 477.
(v) Reg. v. Crossley, 10 A. & E. 132. 2 P. & D. 319.
(w) Per Lord Denman, C. J., and Pat
Negligence by It has been already stated, that an officer neglecting the duties of public officers. his office is guilty of an indictable offence. (x) In some cases also
the offence will amount to a forfeiture of his office, if it be a beneficial one; (y) for, by the implied condition that the grantee of an office shall execute it diligently and faithfully, it appears to be clear that he will be liable to a forfeiture of it, not only for doing a thing directly contrary to its design, but also for neglecting to attend to his duty at all usual, proper, and convenient times and places, whereby any damage shall accrue to those by or for whom he was made an officer. (z) A coroner neglecting the duties of his office is indictable: (a) and by statute 3 Edw. 1, c. 9, the sheriff
, coroner, or any other bailiff concealing felonies, or not arresting felons, or otherwise not doing their duty, are to be imprisoned for a year, and fined at the King's pleasure. (6) A sheriff is indictable for refusing or neglecting to execute a criminal according to his sentence; but he is not bound to execute a criminal if he be not in his custody, and in such case if it is intended by the Court, which passed the sentence, that the sheriff should do execution, there should be a special mandate to the party having the prisoner in custody to deliver him to the sheriff, and another to the sheriff to receive the prisoner and execute him. (c) And an indictment lies at common law against all subordinate officers for neglect, as well as misconduct, in the discharge of their official duties. A constable is therefore indictable for neglecting the duties required of him by common law or by statute ; (d) and when a statute requires him to do what without requiring had been his duty, it is not imposing a new duty, and he is indictable at common law for the neglect. (e) And an overseer of the poor is indictable for the wilful neglect of his duty. Thus overseers have been held to be indictable
for not providing for the poor ; (f) for refusing to account within four days after the appointment of new overseers, under 43 Eliz. c. 2; (9) for not making a rate to reimburse constables under 14 Car. 2, c. 14; (h) and for not receiving a pauper sent to them by order of two justices; (i) or disobeying any other order of justices, where the justices have competent jurisdiction. (j)
teson, J. Whether disobedience of an order (d) Reg. v. Wyat, 1 Salk. 380. Crowof the commissioners within sec. 98 be ther's case, Cro. Eliz. 654; indictment indictable till the third offence, was not against a constable for refusing to make discussed in this case, but it should seem it hue and cry after notice of a burglary. is not. C. S. G.
(e) Reg. v. Wyat, 1 Salk. 38). (x) Ante, p. 135.
(Í) 2 Nolan, 475. Tawney's case, ! (y) 4 Blac. Com. 140.
Bott. 358, pl. 371. Rex v. Windship and (2) 1 Hawk. P. C. c. 66, s. 1. And see another, Cald. 72. further as to forfeiture of offices, Com. Dig. (9) Rex v. Commings, 5 Mod. 179. 2 Officer, (K. 2) (K. 3), and the Earl of lol. 453, 476, where it is observed in the Shrewsbury's case, 9 Co. 50.
note (3) that this case occurred prior to 17 (a) See precedents of indictments against Geo. 2, c. 38. coroners for refusing to take inquisitions, or (h) Rex v. Barlow, 2 Salk. 609. 1 Bott. for not returning inquisitions according to 357, pl. 369. The objection was, that the evidence, 2 Chit. Crim. Law, 255, Cro. word used in the act is “ may," which does Circ. Comp. (10th ed.) 173.
not require it as a duty. But the Court (b) Ante, p. 131. And by 3 Hen. 7, held the word “may” to be imperative, and c. 1, if any coroner be remiss, and make the same as “shall.” By 18 Gco. 3, c. 19, not inquisition upon the view of the body constables are now to be paid for parish dead, and certify not, as ordained in the business out of the poor's rate. statute, he shall, for every default, forfeit (i) Rex v. Davis, 1 Bott. 361, pl. 378. to the King a hundred shillings.
Say. 163, S. C. (c) Rex v. Antrobus, 6 C. & P. 784. 2 (1) 2 Nol. 476. Rex v. Boys, Say. 143. A. & E. 788. 4 N. & M. 565.
But otherwise where the justices have no
the poor pu.
It was the opinion of a majority of the learned judges present at Overseers of the discussion, that an indictment would not lie againt an overseer
nishable for for not relieving a pauper, unless there were an order for his relief, neglecting to except in a case of immediate emergency, where there was not time relieve pauto get an order. (k) But there may be cases in which the neglect pers. to provide a pauper with necessaries will render an overseer liable to be indicted. Thus where an indictment stated that the defendant, an overseer, had under his care a poor person belonging to his township, but neglected and refused to provide for her necessary meat, &c., whereby she was reduced to a state of extreme weakness, and afterwards, through want of such reasonable and necessary meat, &c., died, the defendant was convicted, and sentenced to a year's imprisonment. (1) And where an overseer was indicted for neglecting to supply medical assistance when required, to a pauper labouring under dangerous illness, the learned judge before whom the indictment was tried held that an offence was sufficiently charged and proved, though such pauper was not in the parish workhouse, nor had previously to his illness received or stood in need of parish relief. (m)
By thé 1 & 2 Wm. 4, c. 60, an act for the better regulation of Churchvestries, s. 11, “ if any churchwarden, ratc-collector, overseer, or wardens and other parish officer, shall refuse to call meetings according to the to call ves
others refusing provisions of this act, or shall refuse or neglect to make and give tries guilty of the declarations and notices directed to be made and given by this a misdemeanor. act, or to receive the vote of any rate-payer as aforesaid, or shall in any manner whatsoever alter, falsify, conceal, or suppress any vote or votes as aforesaid, such churchwarden, rate-collector, overseer, or other parish officer, shall be deemed and taken to be guilty of a misdemeanor."
Upon an indictment against an officer for neglect of duty, it is Indictment for sufficient to state that he was such officer, and it is not necessary neglect of to state his appointment. (n) And in the case of a delinquent in duty. India, prosecuted under 24 Geo. 3, c. 25, for neglect of duty, it was held not to be necessary to state that the neglect was corrupt; the statute making it a misdemeanor if it was wilful. (c) And the indictment for neglect of duty need not aver that the defendant had notice of all the facts it states, if it was his duty to have known them. (p) Where some of the charges against the defendant were jurisdiction, Rex v. Smith, 1 Bott. 415, pl. order of justices, in a case where such an
order could be had. It was agreed that (k) Rex v. Meredith & Turner, Russ. & the defendant should enter into his own Ry. 46. This case occasioned much doubt recognizance to appear, and receive judgand discussion. It came under considera- ment when called upon. tion in Mich. Term, 1802, and was ad. (1) Rex v. Booth, Russ. & Ry. 47, journed until the following Hilary Term, note (a). when it was further adjourned, as there (m) Rex v. Warren, cor. Holroyd, J., was a difference of opinion among the Worcester Lent Assizes, 1820. In a case judges. Lord Ellenborough, C. J., Lord where the parents of a bastard child had Alvanley, C. J., Heath, J., Rooke, J., and neglected to provide necessaries for its subGraham, B., seemed to be of opinion that sistence, it was decided that the officers of the indictment was good, and the conviction the parish in which the child was born were proper, the overseer having taken the pauper obliged to provide such necessaries without under his care ; but ŇDonald, €. B., an order of justices, Hays v. Bryant, 1 H. Grose, J., Thomson, B., Lawrence, J., Le Blac, 253. Blanc, J., and Chambre, J., thought other- (n) Rex v. Holland, 5 T. R. 607. wise, and were of opinion, that except in a (0) Id. ibid. case of immediate and urgent necessity,
(p) Id. ibid. the overseer was only bound to act under an