CHAPTER X.-OFFENCES AGAINST PUBLIC JUSTICE.

PREAMBLE.

Crimes Against the State. Five Species.

1. Against public justice.

2. Against public peace.

3. Against public trade.

4. Against public health.

5. Against public police or economy.

OFFENCES AGAINST PUBLIC JUSTICE.

Different Kinds. Some of these are felonious, whose punishment may be death; others are only misdemeanors.

1. Embezzling or Vacating Records. This act and the falsifying of proceedings in a court are felonious offences. By statute of Henry VI, if any clerk or other person wilfully 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 in both the principal actors and also in their abettors. By statute of James I, to acknowledge any fine, recovery, deed, statute, bail or judgment in the name of another person, not privy to the same, is felony, without benefit of clergy. No man's property would be safe, if records might be suppressed or falsified, or persons' names be falsely assumed in courts or before public officers.

2. Intimidation of a Prisoner. If a jailer, by too great duress of imprisonment, make any prisoner in his charge become an approver or an appellor against his will; that is, to accuse and give evidence against another person, it is felony in the jailer.

3. Obstruction of Legal Process. A third offence is obstructing the execution of legal process. This offence is particularly heinous, when it is an obstruction of an arrest upon criminal process. The party opposing such arrest becomes thereby particeps criminis, that is, an accessory in felony, and a principal in high treason. Formerly the greatest obstruction to public justice, both of the civil and criminal kind, was the multitude of privileged places, where indigent persons assembled to shelter themselves from justice, especially in London, under the pretext of their having been ancient palaces of the crown.

4. Escape. An escape of a person arrested on criminal process, by eluding the vigilance of his keepers, before he is put in confinement, is an offence against public justice, punishable by fine or imprisonment. But the officer permitting such escape is more culpable than the prisoner, the natural desire of liberty inciting the latter.

· Official Negligence or Collusion. Officers, who after arrest, negligently permit a felon to escape, are punishable by fine; but if the officer connives at the escape, it is a much more serious offence, and the punishment of the officer in such case should be commensurate with that punishment which would probably have been awarded the criminal, had he been found guilty and sentenced. And this, whether the party was actually committed to jail, or was only under a bare arrest. But the officer cannot be thus punished, till the original delinquent has actually received judgment, or been attainted of the crime. But before the conviction of the principal party, the officer neglecting his duty may be fined and imprisoned.

5. Breach of Prison. By the common law, the crime of breaking prison, or conspiring so to do, was felony, but by statute, where a party lawfully confined on an inferior charge breaks jail, the punishment is for a high misdemeanor only.

6. Rescue. This is the forcibly and knowingly freeing another from an arrest or imprisonment, and is generally the same offence in a stranger so rescuing, as it would have been in a jailer to have voluntarily permitted an escape. A rescue therefore of one apprehended for felony is felony; for treason, treason, and for a misdemeanor, a misdemeanor also. But here, as is the case upon voluntary escapes, the principal must first be attainted or receive judgment, before the rescuer can be punished, and for the same reason; because perhaps, in fact, there may have been no offence committed.

Aid to a Prisoner. By statute of George II, to convey to any prisoner, in custody for treason or felony, any arms, instruments of escape or disguise, though no escape be attempted, is felony, but if the offence charged be a minor one, it is then a misdemeanor.

7. Premature Return from Transportation. Formerly all convicts returning before the expiration of their respective terms, were liable to a death sentence, as were also those whò aided them to escape.

8. Taking a Reward, under False Pretence. This was a pretence to help an owner recover his stolen goods.

9. Receiving Stolen Goods Knowingly. This is a high misdemeanor. Under the common law, this crime was but a misdemeanor only. By statute of Anne, the receivers may be prosecuted and punished, though the principal felon be unconvicted. The prosecutor has now two methods in his choice; either to punish the receivers for the misdemeanor immediately, before the thief is taken, or to wait until the felon be convicted, and then punish them as accessories to the felony. He can only resort to one of these modes of punishment.

10. Compounding a Felony. This was formerly termed theft bote, which is where the party robbed not only knows the felon, but also receives his goods again or other amends, upon agreement not to prosecute. Formerly such act was held to make the party an accessory, but now is punishable as a misdemeanor only, by fine and imprisonment.

No Questions Asked. By statute of George II, even to advertise a reward for the return of things stolen, with no questions asked, or words to the same purport, subjects the advertiser and the printer to a forfeiture of fifty pounds each.

II. Barretry. This is the offence of frequently exciting and stirring up suits and quarrels between his majesty's subjects, either at law or otherwise. The punishment for this offence, in a common person, is by fine and imprisonment; but if the offender is a lawyer, who is thus able, as well as willing, to do mischief, he ought also to be disbarred from practice. Under the statute of George I, where any one, convicted for barretry, afterwards attempts to practice as an attorney in any suit, he shall be transported for seven years.1

Fictitious Plaintiff. Another offence is the institution of a suit in the name of a fictitious plaintiff, whether it be a fabulous name, or of one ignorant of the suit. It is a high contempt, punishable at the court's discretion in the higher tribunals, and by six months imprisonment and treble damages by judges of inferior courts.

12. Maintenance. This is similar to the last mentioned offence, being an officious intermeddling in a suit, that in no way

1 A man cannot be guilty of barretry, if the act be a single one.

belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it; a practice which was greatly encouraged by the first introduction of uses. This is an offence against public justice, as it keeps alive contention. The Roman law frowned severely upon it. A man may, however, maintain the suit of a kinsman, servant, or poor neighbor.

13. Champerty. This is a species of maintenance, and is punished in the same manner; being a bargain with a plaintiff or defendant campum partire, to divide the land or other matter sued upon between them, if they prevail at law, whereupon the champerter is to carry on the party's suit at his own expense. Champart, in the French law, signifies a similar division of profits, being a part of the crop due annually to the landlord. In our sense of the word, it signifies the purchasing of a suit, or the right of suing. It is abhorred so much by our law, that a chose in action, or thing, of which one has the right, and the other the possession, is not assignable at common law, because no man should purchase a claim to sue in another's right. These pests of society, who officiously interfere in other men's quarrels, even at the hazard of their own fortunes, were severely animadverted upon by the Roman law.

14. Compounding of Informations. The compounding of informations upon penal statutes is an offence of an equivalent nature in criminal causes, and tends to render the laws odious. The statute of Elizabeth punished severely such informers, who made composition without leave of court, or accepted promises of money from the defendant to excuse him.1

15. Conspiracy to Indict. Malicious Prosecution. A conspiracy to indict an innocent man of felony falsely and maliciously, who is accordingly indicted, is an abuse of public justice,? The party injured may either have a civil action, or the conspirators, of which there must be at least two, may be indicted at the suit of the king, for which the punishment under the ancient common law was very severe. They forfeited their goods, and also their

1 This applies only to common informers, and not to cases, where the penalty is given the party aggrieved.

2 It is no excuse for a conspiracy to carry on a malicious prosecution, that the indictment preferred was insufficient, or that the court before which the case was taken had no jurisdiction. The offence of conspiracy is not confined to injuring a single individual. It may be to injure public trade, or public health, or to do any illegal act.-Chitty.

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lands for life, lost their civil privileges as jurors or witnesses, had their lands wasted, their houses razed, their trees rooted up, and were themselves consigned to prison. The present punishment is fine and imprisonment.

Blackmail. To this head may be referred the offence of sending letters threatening to accuse of an indictable crime, with a view to extort money or other property.

16. Perjury. This takes place after a suit has been commenced. It is termed wilful and corrupt. Coke defines it, to be a crime committed, when a lawful oath is administered in some judicial proceeding, to a person, who swears wilfully, absolutely and falsely, in a matter material to the issue or point in question.

When Oaths are Valid. The law takes no notice of a false oath, but such as is committed in a court of justice, having power to administer it, or before some magistrate or proper officer, invested with similar authority, in some proceedings relative to a civil suit or a criminal prosecution; for it esteems other oaths unnecessary.

Affidavit in Extra-judicial Matters. It is much to be questioned, how far a magistrate is justified in taking a voluntary affidavit in any extra-judicial matter, as is now too frequent upon every petty occasion. By such idle oaths, a man in foro conscientiae incurs the guilt, and yet evades the temporal penalties of perjury.

Requisite. The perjury must be corrupt, malo animo, wilful, positive and absolute,' and must be some material point. No regard is paid to it, if it be merely in some trifling collateral circumstance.

Subornation of Perjury. This offence consists in procuring another to take such a false oath, as constitutes perjury in the principal.

Punishment. Anciently the punishment of perjury and subornation was death; afterwards banishment or cutting out the tongue. Subsequently it was forfeiture of goods, but now it is

1 Yet if a man swears, that he believes that to be true, which he knows to be false, he is as criminal, in point of law, as if he had made a positive assertion, that the fact was as he swore he believed it to be. The oath may be on the trial or by affidavit, so that it be before an officer authorized to administer it, in a pending proceeding, and as to a material fact. It is not necessary that the statement be credited, or do actual injury.-Chitty.

2 The false oath must be actually taken. Mere solicitation will not suffice.