: our law with fine and imprisonment. Likewise if any person shall in any wise hold, affirm, or maintain, that the common law of this realm, not altered by parliament, ought not to direct the right of the crown of England; this is a misdemesnor, by statute 13 Eliz. c.1. and punishable with forfeiture of goods and chattels. (7) A contempt may also arise from refusing or neglecting to take the oaths, appointed by statute for the better securing the government; and yet acting in a public office, place of trust, or other capacity, for [124] which the said oaths are required to be taken; viz. those of allegiance, supremacy, and abjuration; which must be taken within six calendar months after admission. The penalties for this contempt, inflicted by statute 1 Geo. I. st. 2. c.13. are very little, if any thing, short of those of a praemunire : being an incapacity to hold the said offices, or any other to prosecute any suit: to be guardian or executor: to take any legacy or deed of gift; and to vote at any election for members of parliament: and after conviction the offender shall also forfeit 500l. to him or them that will sue for the same. Members on the foundation of any college in the two universities, who by this statute are bound to take the oaths, must also register a certificate thereof in the college-register, within one month after; otherwise, if the electors do not remove him, and elect another within twelve months, or after, the king may nominate a person to succeed him by his great seal or sign manual. Besides thus taking the oaths for offices, any two justices of the peace may by the same statute summon, and tender the oaths to, any person whom they shall suspect to be disaffected: and every person refusing the same, who is properly called a non-juror, shall be adjudged a popish recusant convict, and subjected to the same penalties that were mentioned in a former chapter'; which in the end may amount to the alternative of abjuring the realm, or suffering death as a felon. (8) 5. CONTEMPTS against the king's palaces or courts of justice have been always looked upon as high misprisions: and by * See pag. 55. (7) This statute was made for the queen's life, and has expired. (8) But see pp. 58, 59. nn. (6) (7). the antient law, before the conquest, fighting in the king's palace, or before the king's judges, was punished with death ". So, too, in the old Gothic constitution, there were many places privileged by law, quibus major reverentia et securitas debetur, ut templa et judicia, quae sancta habebantur, arces et aula regis, - denique locus quilibet praesente aut adventante rege". [125] And at present, with us, by the 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 loss of the offender's right hand, the solemn execution of which sentence is prescribed in the statute at length. BUT striking in the king's superior courts of justice, in 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 antiently 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 antient common law before the conquest", striking in the king's courts of justice, or drawing a sword therein, was a capital felony and our modern law retains so much of the antient 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. A rescue also of a prisoner from any of the said courts, without striking a blow, is punished with perpetual imprisonment, and forfeiture of goods, and of the profits of lands during life: 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 3 Inst. 140. LL. Alured.cap.7. &34. * Staund. P. C. 38. 3 Inst. 140, 141. u Stiernh. de jure Goth. 1. 3. c. 3. w LL. Inae. c. 6. LL. Canut. 56. LL. Alured. c. 7. 1 Hawk. P. C. c. 21. s. 5. said courts, but out of their actual view, is punished only with fine and imprisonment ". NOT only such as are guilty of an actual violence, but of [ 126 ] 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*. (9) 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 '. 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 which offences, when they proceeded farther than bare threats, were punished in the Gothic constitutions with exile and forfeiture of goods". : 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 misprisions, and contempts of the king's courts, and punishable by fine and imprisonment. And antiently 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 accessory 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, and liable to be fined and imprisoned'. (9) It has been determined, that a judge sitting at nisi prius has the power of fining even a defendant conducting his own defence to a criminal charge, for contempt of the court in the course of that defence. R. v. Davison, 4 B. & A. 329. CHAPTER THE TENTH. OF OFFENCES AGAINST PUBLIC 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. |