resentatives, 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 jus[*128] tice, 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 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. (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 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 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 [*129] 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. (a) 8 Inst. 91. (1) This statute is now repealed. For statutes for the punishment of offenses 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; and 25 Vic., c. 96, s. 30; 24 and 25 Vic., c. 98. (2) The statute now in force for the punishment of this offense, is 24 and 25 Vic., c. 98, 8. 34. The false personation of voters at elections was made a misdemeanor by statute 6 and 7 Vic., c. 18, § 33. It is also a statutory crime in the United States. (3) This statute is now repealed. 3. A third offence against public justice is obstructing the execution of lawful process. This is at all times an offence of a very high and presumptuous nature; 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 particeps criminis; that is, an accessory in felony, and a principal in high treason. (b) Formerly one of the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places, where indigent persons assembled together to shelter themselves from justice (especially in London and Southwark), under the pretext of 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 Ŵm. 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 [*130] justice, and 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 committed or arrested: otherwise it may happen, that the officer might be punished 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, the officer thus neglecting his duty may be fined and imprisoned for a misdemeanor. (g) (6) (b) 2 Hawk. P. C. 121. (c) Such as White-Friars, and its environs; the Savoy; and the Mint, in Southwark. (4) For provisions punishing similar offenses, see statute 24 and 25 Vic., c. 100. The willful refusal to aid a peace officer in the performance of his duty, when requested, is a misdemeanor at common law. Regina v. Brown, 1 C. & M., 314. (5) See statute 14 and 15 Vic., c. 100, § 29. A prisoner confined on a void warrant may lawfully break prison and escape. State v. Leach, 7 Conn. 452; S. C., 18 Am. Dec., 118. (6) Mr. Bishop, in his treatise on Criminal Law, discusses fully this subject, with the following result: "To constitute an escape, there must be an actual arrest and a legal and continuing imprisonment. The arrest must be for some criminal offense which justifies imprisonment No escape is a felony, unless the cause for which the prisoner is detained was actually a felony at the time of the escape. A private person, a jailer de facto or his deputies, but not his mere servant, may be liable for an escape. The rule is, that whenever any person has another lawfully in his custody, whether the arrest is made by himself or another, he is guilty of an escape if he allows him to go at large before delivering him into the custody of some legally constituted authority. The escape is a misdemeanor in the prisoner, apart from the charge upon which he is held. See, generally upon the subject 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 de frangentibus prisonam, 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 countygaol, 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 imprisonment. For the statute which ordains that such [*131] offence shall be no longer capital, never meant to exempt it entirely from every degree of punishment. (j) (7) 6. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is generally the same offence in the stranger so rescuing, as it would have been in a gaoler 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, likewise, as 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, it may turn out there has been no offence committed. (k) By statutes 11 Geo. II, c. 26, and 24 Geo. II, c. 40, if five or more persons assemble to rescue any retailers of spirituous liquors, or to assault the informers against them, it is felony, and subject to transportation for seven years. By the statute 16 Geo. II, c. 31, to convey to any prisoner in custody for treason or felony any arms, instruments of escape, or disguise, without the knowledge of the gaoler, though no escape be attempted, or any way to assist such prisoner to attempt an escape, though no escape be actually made, is felony, and subjects the offender to transportation for seven years: or, if the prisoner be in custody for petit larceny, or other inferior offence, or charged with a debt of 100l., it is then a misdemeanor punishable with fine and imprisonment. And by several special statutes (1), to rescue, or attempt to rescue, any person committed for the offences enumerated in those acts, is felony without benefit of clergy; and to rescue, or attempt to rescue, the body of a felon executed for murder, a single felony, and subject to transportation for seven years. Nay, even if any person be charged with any of the offences against the black-act, 9 Geo. I, c. 22, and being required by order *of the privy council to surrender himself, neglects so to do for forty days, both he and all that knowingly [*132] conceal, aid, abet, or succour him, are felons, without benefit of clergy. (8) 7. Another capital offence against public justice is the returning from transportation, or being seen at large in Great Britain, before the expiration of the (h) 1 Hal. P. C. 607. (j) 2 Hawk. P. C. 128. (1) Bract. 1. 3, c. 9. (k) 1 Hal. P. C. 607. Fost. 344. (l) 6 Geo. 1, c. 23. (Transportation.) 9 Geo. I. c. 22. (Black-act.) 8 Geo. II, c. 20. (Destroying turnpikes, &c.) 19 Geo. II, c. 34. (Smuggling. See the 52 Geo. III, c. 143, s. 11.) 25 Geo. II, c. 87. (Murder.) 27 Geo. II, c. 15. (Black-act.) State v. Doud, 7 Conn., 384; Colby v. Sampson, 5 Mass., 310; Commonwealth v. Farrell, 5 Allen, 130. And as to liability of deputies for escape, State v. Errickson, 32 N. J., 421; Kavanaugh v. State, 41 Ala., 399. (7) On the old authorities the commitment must be for a criminal offense and the imprisonment must be lawful. If there is no proper warrant, or no legal right to detain without a warrant, there can be no breach of prison, but if the commitment is legal, any breach constitutes the offense. Prison is held to be any place where one is under lawful arrest. There must be actual breaking, some force or violence; not such as is implied by law. As, if one walk out of prison through an open door, there is no prison breach. It is an escape simply. The breaking must be by the prisoner, or with his privity. Offense is not committed if the prison is broken by others not in privity with him, or by fire or lightning, and then the prisoner escape. See People v. Duell, 3 Johns., 449; Commonwealth v. Briggs, 5 Met., 559. A prison breach is a misdemeanor when the imprisonment is on civil process. Reg. v. Allan, i C. & M., 295. (8) These statutes are since repealed or essentially changed. term for which the offender was ordered to be transported, or had agreed to transport himself. This is made felony without benefit of clergy in all cases, by statutes 4 Geo. I, c. 11, 6 Geo. I, c. 23, 16 Geo. II, c. 15, and 8 Geo. III, c. 15, as is also the assisting them to escape from such as are conveying them to the port of transportation. (9) 8. An eighth is that of taking a reward, under pretence of helping the owner to his stolen goods. This was a contrivance carried to a great length of villainy in the beginning of the reign of George the First; the confederates of the felons thus disposing of stolen goods at a cheap rate, to the owners themselves, and thereby stifling all farther inquiry. The famous Jonathan Wild had under him a well disciplined corps of thieves, who brought in all their spoils to him; and he kept a sort of public office for restoring them to the owners at half price. To prevent which audacious practice, to the ruin and in defiance of public justice, it was enacted by statute 4 Geo. I, c. 11, that whoever shall take a reward under the pretence of helping any one to stolen goods, shall suffer as the felon who stole them; unless he causes such principal felon to be apprehended and brought to trial, and also gives evidence against them. Wild, still continuing in his old practice, was upon this statute at last convicted and executed. (m) (10) 9. Receiving of stolen goods, knowing them to be stolen, is also a high misdemeanor and affront to public justice. We have seen in a former chapter, (n) that this offence, which is only a misdemeanor at common law, by the statute 3 and 4 W. and M. c. 9, and 5 Ann. c. 31, makes the offender accessory to the theft and felony. But because the accessory cannot in *general be [*133] tried, unless with the principal, or after the principal is convicted, the receivers by that means frequently eluded justice. To remedy which, it is enacted by statute 1 Ann. c. 9, and 5 Ann. c. 31, that such receivers may still be prosecuted for a misdemeanor, and punished by fine and imprisonment, though the principal felon be not before taken so as to be prosecuted and convicted. And, in case of receiving stolen lead, iron, and certain other metals, such offence is by statute 29 Geo. II, c. 30, punishable by transportation for fourteen years. (0) So that now the prosecutor has two methods in his choice: either to punish the receivers for the misdemeanor immediately, before the thief is taken; (p) or to wait till the felon is convicted, and then punish them as accessories to the felony. But it is provided by the same statutes, that he shall only make use of one, and not both of these methods of punishment. By the same statute, also, 29 Geo. II, c. 30, persons having lead, iron, and other metals in their custody, and not giving a satisfactory account how they came by the same, are guilty of a misdemeanor, and punishable by fine or imprisonment. And by statute 10 Geo. III, c. 48, all knowing receivers of stolen plate or jewels, taken by robbery on the highway, or when a burglary accompanies the stealing, may be tried as well before as after the conviction of the principal, (m) See stat. 6 Geo. I, c. 23, § 9. (n) See page 38. (0) See also statute 2 Geo. III, c. 28, § 12, for the punishment of receivers of goods stolen by bumboats, &c., in the Thames. (p) Foster, 873. (9) These offenses are no longer capital. (10) By statute 24 and 25 Vic., c. 96, s. 151, persons corruptly taking money or reward on pretense of helping any person to property which has been stolen, embezzled, etc., unless they shall use all due diligence to bring the offenders to trial, are made guilty of felony. See Reg. v. King. 1 Cox C. C., 36; Reg. v. Pascoe, 1 Den. C. C., 456. And by section 50, any person advertising a reward for the return of property stolen or lost, and using words purporting that no questions will be asked, or that a reward will be given for the property stolen or lost, without seizing or making any inquiry after the person producing it, or promising to return to any pawnbroker or other person money advanced or paid by him on such property, or any other sum or reward for the return of such property, and any person publishing such advertisement is made subject to a fine of 50%. and whether he be in or out of custody; and, if convicted, shall be adjudged guilty of felony, and transported for fourteen years. (11) 10. Of a nature somewhat similar to the two last is the offence of theft bote, which is where the party robbed not only knows the felon, but also takes his goods again, or other amends upon agreement not to prosecute. This is frequently called compounding of felony; and formerly was held to make a man an accessory; but it is now punished only with fine and imprisonment. (9) This perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment. And the Salic law, "latroni eum *similem habuit, qui fertum celare vellet, et occulte sine judice compositionem ejus admittere." (r) By statute 25 Geo. II, c. 36, even to advertise [*134] 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 50%. each. (12) 11. Common barretry is the offence of frequently exciting and stirring up suits and quarrels between his majesty's subjects, either at law or otherwise. (s) (13) The punishment for this offence, in a common person, is by fine and imprisonment; but if the offender (as is too frequently the case) belongs to the profession of the law, a barretor who is thus able as well as willing to do mischief, ought also to be disabled from practising for the future. (t) And, indeed, it is enacted by statute 12 Geo. I, c. 29, that if any one who hath been convicted of forgery, perjury, subordination of perjury, or common barretry, shall practice as an attorney, solicitor, or agent, in any suit; the court, upon complaint, shall examine it in a summary way; and, if proved, shall direct the offender to be transported for seven years. Hereunto may also be referred another offence, of equal malignity and audaciousness; that of suing another in the name of a fictitious plaintiff; either one not in being at all, or one who is ignorant of the suit. This offence, if committed in any of the king's superior courts, is left, as a high contempt, to be punished at their discretion. But in courts of a lower degree, where the crime is equally pernicious, but the authority of the judges not equally extensive, it is directed by statute 8 Eliz. c. 2, to be punished by six months' imprisonment, and treble damages to the party injured. 12. Maintenance is an offence that bears a near relation to the former; being an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it: (u) a practice that was greatly encouraged by the first introduction of uses. (2) This is an offence against public justice, as it keeps alive strife [*135] and contention, and perverts the remedial process of the law into an engine of oppression. And, therefore, by the Roman law, it was a species of the crimen falsi to enter into any confederacy, or do any act to support another's lawsuit, by money, witnesses, or patronage. (x) A man may, however, (q) 1 Hawk. P. C. 125. (t) Ibid. 224. (r) Stiernh. de jure Goth. 1. 3, c. 5. (u) Ibid. 249. (s) 1 Hawk. P. C. 243. (x) Ff. 48, 10, 28. (11) These offenses are covered by statutes 24 and 25 Vic., c. 96. The punishment is penal servitude or imprisonment, and in case of males under sixteen years of age, with or without whipping. Statutes for the punishment of these offenses are general in the United States. (12) See also stat. 24 and 25 Vic., c. 96, § 102. (13) 1 Hawkins P. C., ch. 81, defines a barrater to be one who is a common mover, exciter or maintainer of suits or quarrels in courts or in the country, including all kinds of disturbances of the peace, and spreading false rumors and calumnies through which discord may arise among neighbors. Though it has been held that, to be a barrater, one must not sue in his own right, if the suits are oppressive and merely to harrass and annoy, it would seem to be barratry. See Commonwealth v. McCulloch, 15 Mass., 227. One act is not enough to make a barrater. It would seem there must be three. State v. Chitty, 1 Bailey, 379; Commonwealth v. Pray, 13 Pick.. 359; Commonwealth v. Davis, 11 Pick., 432; Commonwealth v. Mohn, 52 Penn. St., 243; Commonwealth v. Tubbs, 1 Cush., 2; and on the whole subject, Rex v. Urlyn, 2 Saund., 308, and note. |