BOOK 4, CHAPTER 13 Of Offenses Against the Public Health, and the Public Police or Economy

formado por un único campo de gules en que aparecen tres leones pasantes y

contorneados de oro, lampasados y armados o uñados de azur.

THE fourth species of offenses, more especially affecting the commonwealth, are such as are against the public health of the nation; a concern of the highest importance, and for the preservation of which there are in many countries special magistrates or curators appointed.

1. THE first of these offenses is a felony; but, by the blessing of providence for more than a century past, incapable of being committed in this nation. For by statute 1 Jac. I. c. 31. it is enacted, that if any person infected with the plague, or dwelling in any infected house, he commanded by the mayor or constable, or other head officer of his town or vill, to keep his house, and shall venture to disobey it; he may be enforced, by the watchmen appointed on such melancholy occasions, to obey such necessary command: and, if any hurt ensue by such enforcement, the watchmen are thereby indemnified. And farther, if such person so commanded to confine himself goes abroad, and converses in company, if he has no plague sore upon him, he shall be punished as a vagabond by whipping, and be bound to his good behavior: but, if he has any infectious sore upon him uncured, he then shall be guilty of felony. By the statute 26 Geo. II. c. 6. (explained and amended by 29 Geo. II. c. 8.) the method of performing quarantine, or forty days probation, by ships coming from infected countries, is put in a much more regular and effectual order than formerly; and masters of ships, coming from infected places and disobeying the directions there given, or having the plague on board and concealing it, are guilty of felony without benefit of clergy. The same penalty also attends persons escaping from the lazarets, or places wherein quarantine is to be performed; and officers and watchmen neglecting their duty; and persons conveying goods or letters from ships performing quarantine.

2. A SECOND, but much inferior, species of offense against public health is the selling of unwholesome provisions. To prevent which the statute 51 Hen. III. St. 6. and the ordinance for bakers, c. 7. prohibit the sale of corrupted wine, contagious or unwholesome flesh, or flesh that is bought of a Jew; under pain of amercement for the first offense, pillory for the second, fine and imprisonment for the third, and abjuration of the town for the fourth. And by the statute 12 Car. II. c. 25. §. 11. any brewing or adulteration of wine is punished with the forfeiture of 100£, if done by the wholesale merchant; and 40£, if done by the vintner or retail trader. These are all the offenses which may properly be said to respect the public health.

V. THE last species of offenses which especially affect the commonwealth are those against the public police and economy. By the public police and economy I mean the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations. This head of offenses must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended under any of the four preceding species. These amount, some of them to felony, and others to misdemeanors only. Among the former are,

1. THE offense of clandestine marriages: for by the statute 26 Geo. II. c. 33. 1. To solemnize marriage in any other place besides a church, or public chapel wherein banns have been usually published, except by license from the archbishop; — and, 2. To solemnize marriage in such church or chapel without due publication of banns, or license obtained from a proper authority; — do both of them not only render the marriage void, but subject the person solemnizing it to felony, punished by transportation for fourteen years: as, by three former statutes,1 he and his assistants were subject to a pecuniary forfeiture of 100£ 3. To make a false entry in a marriage register; to alter it when made; to forge, or counterfeit, such entry, or a marriage license, or aid and abet such forgery; to utter the same as true, knowing it to be counterfeit; or to destroy or procure the destruction of any register, in order to vacate any marriage, or subject any person to the penalties of this act; all these offenses, knowingly and willfully committed, subject the party to the guilt of felony, without benefit of clergy.

2. ANOTHER felonious offense, with regard to this holy estate of matrimony, is what our law corruptly calls bigamy; which properly signifies being twice married, but with us is used as synonymous to polygamy, or having a plurality of wives at once.2 Such second marriage, living the former husband or wife, is simply void, and a mere nullity, by the ecclesiastical law of England: and yet the legislature has thought it just to make it felony, by reason of its being so great a violation of the public economy and decency of a well ordered state. For polygamy can never be endured under any rational civil establishment, whatever specious reasons may be urged for it by the eastern nations, the fallaciousness of which has been fully proved by many sensible writers: but in northern countries the very nature of the climate seems to reclaim against it; it never having obtained in this part of the world, even from the time of our German ancestors; who, as Tacitus informs us,3 “prope soli barbarorum singulis uxoribus contenti sunt” [“almost the only barbarians who are contented with one wife”]. It is therefore punished by the laws both of ancient and modern Sweden with death.4 And with us in England it is enacted by statute 1 Jac. I. c. 11. that if any person, being married, do afterwards marry again, the former husband or wife being alive, it is felony; but within the benefit of clergy. The first wife in this case shall not be admitted as an evidence against her husband, because she is the true wife; but the second may, for she is indeed no wife at all;5 and so, vice versa, of a second husband. This act makes an exception to five cases, in which such second marriage, though in the three first it is void, is yet no felony. 1. Where either party bath been continually abroad for seven years, whether the party in England has notice of the other’s being living or no. 2. Where either of the parties has been absent from the other seven years, within this kingdom, and the remaining party has had no notice of the other’s being alive within that time. 3. Where there is a divorce or separation a mensa et thoro [from bed and board] by sentence in the ecclesiastical court. 4. Where the first marriage is declared absolutely void by any such sentence, and the parties loosed a vinculo [from (marital) bonds]. Or, 5. Where either of the parties was under the age of consent at the time of the first marriage: for in such case the first marriage was voidable by the disagreement of either party, which this second marriage very clearly amounts too. But, if at the age of consent the parties had agreed to the marriage; and afterwards one of them should marry again; I should apprehend that such second marriage would be within the reason and penalties of the act.

3. A THIRD species of felony against the good order and economy of the kingdom, is by idle soldiers and mariners wandering about the realm, or persons pretending so to be, and abusing the name of that honorable profession.6 Such a one, not having a testimonial or pass from a justice of the peace, limiting the time of his passage; or exceeding the time limited for fourteen days, unless he falls sick; or forging such testimonial; is by statute 39 Eliz. c. 17. made guilty of felony, without benefit of clergy. This sanguinary law, though in practice deservedly antiquated, still remains a disgrace to our statute-book: yet attended with this mitigation, that the offender may be delivered, if any honest freeholder or other person of substance will take him into his service, and he abides in the same for one years; unless licensed to depart by his employer, who in such case shall forfeit ten pounds.

4. OUTLANDISH persons calling themselves Egyptians, or gypsies, are another object of the severity of some of our unrepealed statutes. These are a strange kind of commonwealth among themselves of wandering impostors and jugglers, who made their first appearance in Germany about the beginning of the sixteenth century, and have since spread themselves all over Europe. Munster, it is true,7 who is followed and relied upon by Spelman,8 fixes the time of their first appearance to the year 1417; but, as he owns, that the first whom he ever saw were in 1524, it is probably an error of the press for 1517: especially as other historians9 inform us, that when sultan Selim conquered Egypt, in the year 1517, several of the natives refused to submit to the Turkish yoke; but, being at length subdued and banished, they agreed to disperse in small parties all over the world, where their supposed skill in the black art gave them an universal reception, in that age of superstition and credulity. In the compass of a very few years they gained such a number of idle proselytes, (who imitated their language and complection, and betook themselves to the same arts of chiromancy, begging, and pilfering) that they became troublesome and even formidable to most of the states of Europe. Hence they were expelled from France in the year 1560, and from Spain in 1591.10 And the government in England took the alarm much earlier: for in 1530, they are described by statute 22 Hen. VIII. c. 10. as “outlandish people, calling themselves Egyptians, using no craft nor feat of merchandise, who have come into this realm and gone from shire to shire and place to place in great company, and used great, subtle, and crafty means to deceive the people; bearing them in hand, that they by palmistry could tell men’s and women’s fortunes; and so many times by craft and subtlety have deceived the people of their money, and also have committed many heinous felonies and robberies.” Wherefore they are directed to avoid the realm, and not to return under pain of imprisonment, and forfeiture of their goods and chattels; and, upon their trials for any felony which they may have committed, they shall not be entitled to a jury de medietate linguae [half foreign and half native]. And afterwards, it is enacted by statutes 1 & 2 Ph. & M. c. 4. and 5 Eliz. c. 20. that if any such persons shall be imported into the kingdom, the importer shall forfeit 40£. And if the Egyptians themselves remain one month in this kingdom; or if any person, being fourteen years old, (whether natural born subject or stranger) which has been seen or found in the fellowship of such Egyptians, or which has disguised him or herself like them, shall remain in the same one month, at one or several times; it is felony without benefit of clergy: and Sir Matthew Hale informs us,11 that at one Suffolk assizes no less than thirteen gypsies were executed upon these statutes, a few years before the restoration. But, to the honor of our national humanity, there are no instances more modern than this, of carrying these laws into practice.

5. To descend next to offenses, whose punishment is short of death. Common nuisances are a species of offenses against the public order and economical regimen of the state; being either the doing of a thing to the annoyance of all the king’s subjects, or the neglecting to do a thing which the common good requires.12 The nature of common nuisances, and their distinction from private nuisances, were explained in the preceding volume;13 when we considered more particularly the nature of the private sort, as a civil injury to individuals. I shall here only remind the student, that common nuisances are such inconvenient or troublesome offenses, as annoy the whole community in general, and not merely some particular person; and therefore are indictable only, and not actionable; as it would be unreasonable to multiply suits, by giving every man a separate right of action, for what damnifies him in common only with the rest of his fellow subjects. Of this nature are, 1. Annoyances in highways, bridges, and public rivers, by rendering the same inconvenient or dangerous to pass: either positively, by actual obstructions; or negatively, by want of reparations. For both of these, the persons so obstructing, or such individuals as are bound to repair and cleanse them, or (in default of these last) the parish at large, may be indicted, distrained to repair and amend them, and in some cases fined. Where there is an house erected, or an enclosure made, upon any part of the king’s demesnes, or of an highway, or common street, or public water, or such like public things, it is properly called a purpresture.14 2. All those kinds of nuisances, (such as offensive trades and manufactures) which when injurious to a private man are actionable, are, when detrimental to the public, punishable by public prosecution, and subject to fine according to the quantity of the misdemeanor: and particularly the keeping of hogs in any city or market town is indictable as a public nuisance.15 3. All disorderly inns or ale-houses, bawdy-houses, gaming-houses, stage-plays unlicensed, booths and stages for rope-dancers, mountebanks, and the like, are public nuisances, and may upon indictment be suppressed and fined.16 Inns, in particular, being intended for the lodging and receipt of travelers, may be indicted, suppressed, and the inn-keepers fined, if they refuse to entertain a traveler without a very sufficient cause: for thus to frustrate the end of their institution is held to be disorderly behavior.17 Thus too the hospitable laws of Norway punish, in the severest degree, such inn-keepers as refuse to furnish accommodations at a just and reasonable price.18 4. By statute 10 & 11 W. III. c. 17. all lotteries are declared to be public nuisances, and all grants, patents, or licenses for the same to be contrary to law. 5. Cottages are held to be common nuisances, if erected singly on the waste, being harbors for thieves and other idle and dissolute persons. Therefore it is enacted by statute 31 Eliz. c. 7. that no person shall erect a cottage, unless he lays to it four acres of freehold land of inheritance to be occupied therewith, on pain to forfeit to the king 10£ for its erection, and 40 s. per month for its continuance: and no owner or occupier of a cottage shall suffer any inmates therein, or more families than one to inhabit there, on pain to forfeit 10 s. per month to the lord of the leet. This seems, upon our present more enlarged notions, a hard and impolitic law; depriving the people of houses to dwell in, and consequently preventing the populousness of towns and parishes: which, though it is generally endeavored to be guarded against, though a fatal rural policy, (being sometimes, when the poor are ill-managed, an intolerable hardship) yet, taken in a national view, and on a supposition of proper industry and good parochial government, is a very great advantage to any kingdom. But indeed this, like most other rigid or inconvenient laws, is rarely put in execution. 6. The making and selling of fireworks and squibs, or throwing them about in any street, is, on account of the danger that may ensue to any thatched or timber buildings, declared to be a common nuisance, by statute 9 & 10 W. III. c. 7. and therefore is punishable by fine. 7. Eaves-droppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet:19 or are indictable at the sessions, and punishable by fine and finding sureties for the good behavior.20 8. Lastly, a common scold, communis rixatrix, (for our law-latin confines it to the feminine gender) is a public nuisance to her neighborhood. For which offense she may be indicted;21 and, if convicted, shall22 be sentenced to be placed in a certain engine of correction called the trebucket, castigatory, or cucking stool, which in the Saxon language signifies the scolding stool; though now it is frequently corrupted into ducking stool, because the residue of the judgment is, that, when she is so placed therein, she shall be plunged in the water for her punishment.23

6. IDLENESS in any person whatsoever is also a high offense against the public economy. In China it is a maxim, that if there be a man who does not work, or a woman that is idle, in the empire, somebody must suffer cold or hunger: the produce of the lands not being more than sufficient, with culture, to maintain the inhabitants; and therefore, though the idle person may shift off the want from himself, yet it must in the end fall somewhere. The court also of Areopagus at Athens punished idleness, and exerted a right of examining every citizen in what manner he spent his time; the intention of which was,24 that the Athenians, knowing they were to give an account of their occupations, should follow only such as were laudable, and that there might be no room left for such as lived by unlawful arts. The civil law expelled all sturdy vagrants from the city:25 and, in our own law, all idle persons or vagabonds, whom our ancient statutes describe to be “such as wake on the night, and sleep on the day, and haunt customable taverns, and ale-houses, and routs about; and no man wot from whence they come, ne whither they go;” or such as are most particularly described by statute 17 Geo. II. c. 5. and divided into three classes, idle and disorderly persons, rogues and vagabonds, and incorrigible rogues: — all these are offenders against the good order, and blemishes in the government, of any kingdom. They are therefore all punished, by the statute last-mentioned; that is to say, idle and disorderly persons with one month’s imprisonment in the house of correction; rogues and vagabonds with whipping and imprisonment not exceeding six months; and incorrigible rogues with the like discipline and confinement, not exceeding two years: the breach and escape from which confinement in one of an inferior class, ranks him among incorrigible rogues; and in a rouge (before incorrigible) makes him a felon, and liable to be transported for seven years. Persons harboring vagrants are liable to a fine of forty shillings, and to pay all expenses brought upon the parish thereby; in the same manner .as by our ancient laws, whoever harbored any stranger for more than two nights, was answerable to the public for any offense that such his inmate might commit.26

7. UNDER the head of public economy may also be properly ranked all sumptuary laws against luxury, and extravagant expenses in dress, diet, and the like; concerning the general utility of which to a state, there is much controversy among the political writers. Baron Montesquieu laws it down,27 that luxury is necessary in monarchies, as in France; but ruinous to democracies, as in Holland. With regard therefore to England, whose government is compounded of both species, it may still be a dubious question, how far private luxury is a public evil; and, as such, cognizable by public laws. and indeed our legislators have several times changed their sentiments as to this point: for formerly there were a multitude of penal laws existing, to restrain excess in apparel;28 chiefly made in the reigns of Edward the third, Edward the fourth, and Henry the eighth, against piked shoes, short doublets, and long coats; all of which were repealed by statute 1 Jac. I. c. 25. But, as to excess in diet, there still remains one ancient statute unrepealed, 10 Edw. III. st. 3. which ordains that no man shall be served at dinner or supper, with more than two courses; except upon some great holy days there specified, in which he may be served with three.

8. NEXT to that of luxury, naturally follows the offense of gaming, which is generally introduced to supply or retrieve the expenses occasioned by the former: it being a king of tacit confession, that the company engaged therein do, in general, exceed the bounds of their respective fortunes; and therefore they cast lots to determine upon whom the ruin shall at present fall, that the rest may be saved a little longer. But, taken in any light, it is an offense of the most alarming nature; tending by necessary consequence to promote public idleness, theft, and debauchery among those of a lower class: and, among persons of a superior rank, it has frequently been attended with the sudden ruin and desolation of ancient and opulent families, an abandoned prostitution of every principle of honor and virtue, and too often has ended in self-murder. To restrain this pernicious vice, among the inferior sort of people, the statute 33 Hen. VIII. c. 9. was made; which prohibits to al but gentlemen the games of tennis, tables, cards, dice, bowls, and other unlawful diversions there specified,29 unless in the time of Christmas, under pecuniary pains and imprisonment. And the same law, and also the statute 30 Geo. III. c. 24. inflict pecuniary penalties, as well upon the master of any public house wherein servants are permitted to game, as upon the servants themselves who are found to be gaming there. But this is not the principal ground of modern complaint: it is the gaming in high life, that demands the attention of the magistrate; a passion to which every valuable consideration is made a sacrifice, and which we seem to have inherited from our ancestors the ancient Germans; whom Tacitus30 describes to have been bewitched with the spirit of play to a most exorbitant degree. “They addict themselves, says he, to dice, (which is wonderful) when sober, and a serious employment; with such a mad desire of winning or losing, that, when stripped of everything else, they will stake at last their liberty, and their very selves. The loser goes into a voluntary slavery, and, though younger and stronger than his antagonist, suffers himself to be bound and sold. And this perseverance in so bad a cause they call the point of honor: ea est in re prava pervicacia, ipsi fidem vocant.” One would almost be tempted to think Tacitus was describing a modern Englishman. When men are thus intoxicated with so frantic a spirit, laws will be of little avail: because the same false sense of honor, that prompts a man to sacrifice himself, will deter him from appealing to the magistrate. Yet it is proper that laws should be, and be known publicly, that gentlemen may learn what penalties they willfully incur, and what a confidence they repose in sharpers; who, if successful in play, are certain to be paid with honor, or, if unsuccessful, have it in their power to be still greater gainers by informing: For by statute 16 Car. II. c. 7. if any person by playing or betting shall lose more than 100£, at one time, he shall not be compellable to pay the same; and the winner shall forfeit treble the value, one moiety to the king, the other to the informer. The statute 9 Ann. c. 14. enacts, that all bonds and other securities, given for money won at play, or money lent at the time to play withal, shall be utterly void: that all mortgages and encumbrances of lands, made upon the same consideration, shall be and inure to the use of the heir of the mortgagor: that, if any person at one time loses 10£, at play, he may sue the winner, and recover it back by action of debt at law; and, in case the loser does not, any other person may sue the winner for treble the sum so lost; and the plaintiff in either case may examine the defendant himself upon oath: and that in any of these suits no privilege of parliament shall be allowed. The statute farther enacts, that if any person cheats at play, and at one time wins more than 10£, or any valuable thing, he may be indicted thereupon, and shall forfeit five times the value, shall be deemed infamous, and suffer such corporal punishment as in case of willful perjury. By several statutes of the reign of king George II,31 all private lotteries by tickets, cards, or dice, (and particularly the games of faro, basset, ace of hearts, hazard, passage, rolly polly, and all other games with dice, except backgammon) are prohibited under a penalty of 200£, for him that shall erect such lotteries, and 50£, a time for the players. Public lotteries, unless by authority of parliament, and all manner of ingenious devices, under the denomination of sales or otherwise, which in the end are equivalent to lotteries, were before prohibited by a great variety of statutes32 under heavy pecuniary penalties. But particular descriptions will ever be lame and deficient, unless all games of mere chance are at once prohibited; the inventions of sharpers being swifter than the punishment of the law, which only hunts them from one device to another. The statute 13 Geo. II. c. 19. to prevent the multiplicity of horse races, another fund of gaming, directs that no plates or matches under 50£, value shall be run, upon penalty of 200£, to be paid by the owner of each horse running, and 100£, by such as advertise the plate. By statute 188 Geo. II. c. 34. the statute 9 Ann. is farther enforced, and some deficiencies supplied: the forfeitures of that act may now be recovered in a court of equity; and moreover, if any man be convicted upon information or indictment of winning or losing at any sitting 10£ or 20£, within twenty four hours, he shall forfeit five times the sum. Thus careful has the legislature been to prevent this destructive vice: which may show that our laws against gaming are not so deficient, as ourselves and our magistrates in putting those laws in execution.

9. LASTLY, there is another offense, so constituted by a variety of acts of parliament, which are so numerous and so confused, and the crime itself of so questionable a nature, that I shall not detain the reader with many observations thereupon. And yet it is an offense which the sportsmen of England seem to think of the highest importance; and a matter, perhaps the only one, of general and national concern: associations having been formed all over the kingdom to prevent its destructive progress. I mean the offense of destroying such beasts and fowls, as are ranked under the denomination of game: which, we may remember, was formerly observed,33 (upon the old principles of the forest law) to be a trespass and offense in all persons alike, who have not authority from the crown to kill game (which is royal property) by the grant of either a free warren, or at least a manor of their own. But the laws, called the game laws, have also inflicted additional punishments (chiefly pecuniary) on persons guilty of this general offense, unless they be people of such rank or fortune as is therein particularly specified. All persons therefore, of what property or distinction soever, that kill game out of their own territories, or even upon their own estates, without the king’s license expressed by the grant of a franchise, are guilty of the first original offense, of encroaching on the royal prerogative. And those indigent persons who do so, without having such rank or fortune as is generally called a qualification, are guilty not only of the original offense, but of the aggravations also, created by the statutes for preserving the game: which aggravations are so severely punished, and those punishments so implacably inflicted, that the offense against the king is seldom thought of, provided the miserable delinquent can make his peace with the lord of the manor. This offense, thus aggravated, I have ranked under the present head, because the only rational footing, upon which we can consider it as a crime, is that in low and indigent persons it promotes idleness, and takes them away from their proper employments and callings; which is an offense against the public police and economy of the commonwealth.

THE statutes for preserving the game are many and various, and not a little obscure and intricate; it being remarked,34 that in one statute only, 5 Ann. c. 14. there is false grammar in no fewer than six places, besides other mistakes: the occasion of which, or what denomination of persons were probably the penners of these statutes, I shall not at present inquire. It is in general sufficient to observe, that the qualifications for killing game as they are usually called, or more properly the exemptions from the penalties inflicted by the statute law, are, 1. The having a freehold estate of 100£, per annum; there being fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the shire: 2. A leasehold for ninety nine years of 150£, per annum: 3. Being the son and heir apparent of an esquire (a very loose and vague description) or person of superior degree: 4. Being the owner, or keeper, of a forest, park, chase, or warren. For unqualified persons transgressing these laws, by killing game, keeping engines for that purpose, or even having game in their custody, or for persons (however qualified) that kill game, or have it is possession, at unseasonable times of they year, there are various penalties assigned, corporal and pecuniary, by different statutes;35 on any of which, but only on one at a time, the justices may convict in a summary way, or prosecutions may be carried on at the assizes. And, lastly, by statute 28 Geo. II. c. 12. no person, however qualified to kill, may make merchandise of this valuable privilege, by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification.

NOTES

     1.    6 & 7 W. III. c. 6. 7. & 8 W. III. c. 35. 10 Ann. c. 19. § 176.

     2.    3 Inst. 88.

     3.    de mor. Germ. 18.

     4.    Stiernh. de jure Sueon. l. 3. c. 2.

     5.    1 Hal. P. C. 693.

     6.    3 Inst. 85.

     7.    Cosmogr. l. 3.

     8.    Gloss. 193.

     9.    Mod. Univ. Hist. xliii. 271.

   10.    Dufresne. Gloss. I. 200.

   11.    1 Hal. P. C. 671.

   12.    1 Hawk. P. C. 197.

   13.    Vol. III. pag. 216.

   14.    Co. Litt. 277. from the French pourpris, an enclosure.

   15.    Salk. 460.

   16.    1 Hawk. P. C. 198. 225.

   17.    1 Hal. P. C. 225.

   18.    Stiernh. de jure Sueon. l. 2. c. 9.

   19.    Kitch. of courts. 20.

   20.    Ibid. 1 Hawk. P. C. 132.

   21.    6 Mod. 213.

   22.    1 Hawk. P. C. 198. 200.

   23.    3 Inst. 219.

   24.    Valcr. Maxim. l. 2. c. 6.

   25.    Nov. 80. c. 5.

   26.    LL. Edw. c. 27. Bracton. l. 3. tr. 2.c. 10. § 2.

   27.    Sp. L. b. 7. c. 2 & 4.

   28.    3 Inst. 199.

   29.    Logetting in the fields, slide-thrift or shove-groat, cloysh-cayls, half-bowl, and coyting.

   30.    de mor. Germ c. 24.

   31.    12 Geo. II. c. 28. 13 Geo. II. c. 19. 18 Geo. II. c. 34.

   32.    10 & 11 W. III. c. 17. 9 Ann. c. 6. § 56. 10 Ann. c. 26. § 109. 8 Geo. I. c. 2. § 36, 37. 9 Geo. I. c. 19. § 4, 5. 6 Geo. II. c. 35. § 29, 30.

   33.    See Vol. II. pag. 417, etc.

   34.    Burn’s Justice, tit. Game. § 3.

   35.    Burn’s Justice, tit. Game.

continuación

BOOK 4, CHAPTER 12 Of Offenses Against Public Trade

formado por un único campo de gules en que aparecen tres leones pasantes y

contorneados de oro, lampasados y armados o uñados de azur.

Offenses against public trade, like those of the preceding classes, are either felonious, or not felonious. Of the first sort are,

1. OWLING, so called from its being usually carried on in the night, which is the offense of transporting wool or sheep out of this kingdom, to the detriment of its staple manufacture. This was forbidden at common law,1 and more particularly by statute 11 Edw. III. c. 1. when the importance of our woolen manufacture was first attended to; and there are now many later statutes relating to this offense, the most useful and principal of which are those enacted in the reign of queen Elizabeth, and since. The statute 8 Eliz. c. 3. makes the transportation of live sheep, or embarking them on board any ship, for the first offense forfeiture of goods, and imprisonment for a year, and that at the end of the year the left hand shall be cut off in some public market, and shall be there nailed up in the openest place; and the second offense is felony. The statutes 12 Car. II. c. 32. and 7 & 8 W. III. c. 28. make the exportation of wool, sheep, or fuller’s earth, liable to pecuniary penalties, and the forfeiture of the interest of the ship and cargo by one owners, if privy; and confiscation of goods, and three years imprisonment to the master and all the mariners. And the statute 4 Geo. I. c. 11. (amended and farther enforced by 12 Geo. II. c. 21. and 19 Geo. II. c. 34.) makes it transportation for seven years, if the penalties be not paid.

2. SMUGGLING, or the offense if importing goods without paying the duties imposed thereon by the laws of the customs and excise, is an offense generally connected and carried on hand in hand with the former. This is restrained by a great variety of statutes, which inflict pecuniary penalties and seizure of the goods for clandestine smuggling; and affix the guilt of felony, with transportation for seven years, upon more open, daring, and avowed practices: but the last of them, 19 Geo. II. c. 34. is for this purpose instar omnium [equal to all]; for it makes all forcible acts of smuggling, carried on in defiance of the laws, or even in disguise to evade them, felony without benefit of clergy: enacting, that if three or more persons shall assemble, with fire arms or other offensive weapons, to assist in the illegal exportation or importation of goods, or in rescuing the same after seizure, or in rescuing offenders in custody for such offenses; or shall pass with such goods in disguise; or shall would, shoot at, or assault any officers of the revenue when in the execution of their duty; such persons shall be felons, without the benefit of clergy. As to that branch of the statute, which required any person, charged upon oath as a smuggler, under pain of death, to surrender himself upon himself upon proclamation, it seems to be expired; as the subsequent statutes,2 which continue the original act to the present time, do in terms continue only so much of the said act, as relates to the punishment of the offenders, and not to the extraordinary method of apprehending or causing them to surrender: and for offenses of this positive species, where punishment (though necessary) is rendered so by the laws themselves, which by imposing high duties on commodities increase the temptation to evade them, we cannot surely be too cautious in inflicting the penalty of death.3

3. ANOTHER offense against public trade is fraudulent bankruptcy, which was sufficiently spoken of in a former volume;4 when we thoroughly examined the nature of these unfortunate traders. I shall therefore here barely mention over again some abuses incident to bankruptcy, viz. the bankrupt’s neglect of surrendering himself to his creditors; his non-conformity to the directions of the several statutes; his concealing or embezzling his effects to the value of 20£; and his withholding any books or writings with intent to defraud his creditors: all which the policy of our commercial country has made capital in the offender; or, felony without benefit of clergy. And indeed it is allowed in general, by such as are the most averse to the infliction of capital punishment, that the offense of fraudulent bankruptcy, being an atrocious species of the crimen falsi [forgery], ought to be put upon a level with those of forgery and falsifying the coin.5 To this head we may also subjoin, that by statute 32 Geo. II. c. 28. it is felony punishable by transportation for seven years, if a prisoner, charged in execution for any debt under 100£, neglects or refuses on demand to discover and deliver up his effects for the benefit of his creditors. And these are the only felonious offenses against public trade; the residue being mere misdemeanors: as,

4. USURY, which is an unlawful contract upon the loan of money, to receive the same again with exorbitant increase. Of this also we had occasion to discourse at large in a former volume.6 We there observed that by statute 37 Hen. VIII. c. 9. the rate of interest was fixed at 10£ percent per annum: which the statute 13 Eliz. c. 8. confirms; and ordains, that all brokers shall be guilty of a praemunire [forewarning] that transact any contracts for more, and the securities themselves shall be void. The statute 21 Jac. I. c. 17. reduced interest to eight percent; and, it having been lowered in 1650, during the usurpation, to six percent, the same reduction was re-enacted after the restoration by statute 12 Car. II. c. 13. and, lastly, the statute 12 Ann. St. 2. c. 16. has reduced it to five percent. Wherefore not only all contracts for taking more are in themselves totally void, but also the lender shall forfeit treble the money borrowed. Also if any scrivener or broker takes more than five shillings percent procuration-money, or more than twelve-pence for making a bond, he shall forfeit 20£ with costs, and shall suffer imprisonment for half a year.

5. CHEATING is another offense, more immediately against public trade; as that cannot be carried on without a punctilious regard to common honesty, and faith between man and man. Hither therefore may be referred that prodigious multitude of statutes, which are made to prevent deceits in particular trades, and which are chiefly of use among the traders themselves. For so cautious has the legislature been, and so thoroughly abhors all indirect practices, that there is hardly a considerable fraud incident to any branch of trade, but what is restrained and punished by some particular statute. The offense also of breaking the assize of bread, or the rules laid down by law, and particularly by statute 31 Geo. II. c. 29. and 3 Geo. III. c. 11. for ascertaining its price in every given quantity, is reducible to this head of cheating: as is likewise in a peculiar manner the offense of selling by false weights and measures; the standard of which fell under our consideration in a former volume.7 The punishment of bakers breaking the assize, was anciently to stand in the pillory, by statute 51 Hen. III. St. 6. and for brewers (by the same act) to stand in the tumbrel or dungcart:8 which, as we learn from domesday book, was the punishment for knavish brewers in the city of Chester so early as the reign of Edward the confessor. “Malam cervisiam faciens, in cathedra ponebatur stercoris.”9 [“He who made bad beer, was placed in a dung-cart.”] But now the general punishment for all frauds of this kind, if indicted (as they may be) at common law, is by fine and imprisonment: though the easier and more usual way is by levying on a summary conviction, by distress and sale, the forfeitures imposed by the several acts of parliament. Lastly, any deceitful practice, in cozening another by artful means, whether in matters of trade or otherwise, as by playing with false dice, or the like, is punishable with fine, imprisonment, and pillory.10 And by the statutes 33 Hen. VIII. c. 1. and 30 Geo. II. c. 24. if any man defrauds another of any valuable chattels by color of any false token, counterfeit letter, or false pretense, or pawns or disposes of another’s goods without the consent to the owner, he shall suffer such punishment by imprisonment, fine pillory, transportation, whipping, or other corporal pain, as the court shall direct.

6. THE offense of forestalling the market is also an offense against public trade. This, which (as well as the two following) is also an offense at common law,11 is described by statute 5 & 6 Edw. VI. c. 14. to be the buying or contracting for any merchandise or victual coming in the way to market; or dissuading persons from bringing their goods or provisions there; or persuading them to enhance the price, when there: any of which practices make the market dearer to the fair trader.

7. REGRATING is described by the same statute to be the buying of corn, or other dead victual, in any market, and selling them again in the same market, or within four miles of the place. For this also enhances the price of the provisions, as very successive seller must have a successive profit.

8. ENGROSSING, by the same statute, is the getting into one’s possession, or buying up, of corn or other dead victuals, with intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or two rich men to raise the price of provisions at their own discretion. And the penalty for these three offenses by this statute (which is the last that has been made concerning them) is the forfeiture of the goods or their value, and two months imprisonment for the first offense; double value and six months imprisonment for the second; and, for the third, the offender shall forfeit all his goods, be set in the pillory, and imprisoned at the king’s pleasure. Among the Romans these offenses, and other male-practices to raise the price of provisions, were punished by a pecuniary mulct. “Poena viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coierit, quo annona carior fiat.”12 [“Those who entered into any association, or employed any other means, by which the price of provisions was enhanced, were fined twenty guineas.”]

9. MONOPOLIES are much the same offense in other branches of trade, that engrossing is in provisions: being a license or privilege allowed by the king for the sole buying and selling, making, working, or using, of anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before.13 These had been carried to an enormous height during the reign of queen Elizabeth; and were heavily complained of by Sir Edward Coke,14 in the beginning of the reign of king James the first: but were in great measure remedied by ft 21 Jac. I. c. 3. which declares such monopolies to be contrary to law and void; (except as to patents, not exceeding the grant of fourteen years, to the authors of new inventions;) and monopolists are punished with the forfeiture of treble damages and double costs, to those whom they attempt to disturb; and if they procure any action, brought against them for these damages, to be stayed by any extrajudicial order, other than of the court wherein it is brought, they incur the penalties of praemunire. Combinations also among victualers or artificers, to raise the price of provisions, or any commodities, or the rate of labor, are in many cases severely punished by particular statutes; and, in general, by statute 2 & 3 Edw. VI. c. 15. with the forfeiture of 10£, or twenty days imprisonment, with an allowance of only bread and water, for the first offense; 20£, or the pillory, for the second; and 40£, for the third, or else the pillory, loss of one ear, and perpetual infamy. In the same manner, by a constitution of the emperor Zeno,15 all monopolies and combinations to keep up the price of merchandise, provisions, or workmanship, were prohibited upon pain of forfeiture of goods and perpetual banishment.

10. To exercise a trade in any town, without having previously served as an apprentice for seven years,16 is looked upon to be detrimental to public trade, upon the supposed want of sufficient skill in the trader; and therefore is punished by statute 5 Eliz. c. 4. with the forfeiture of forty shillings by the month.

11. LASTLY, to prevent the destruction of our home manufactures, by transporting and seducing our artists to settle abroad, it is provided by statute 5 Geo. I. c. 27 that such as so entice or seduce them shall be fined 100£, and be imprisoned three months; and for the second offense shall be fined at discretion, and be imprisoned a year: and the artificers, so going into foreign countries, and not returning within six months after warning given them by the British ambassador where they reside, shall be deemed aliens, and forfeit all their lands and goods, and shall be incapable of any legacy or gift. By statute 23 Geo. II. c. 13. the seducers incur, for the first offense, a forfeiture of 500£, for each artificer contracted with to be sent abroad, and imprisonment for twelve months; and for the second 1000£, and are liable to two years imprisonment: and if any person exports any tools or utensils used in the silk or woolen manufactures, he forfeits the same and 200£, and the captain of the ship (having knowledge thereof) 100£: and if any captain of a king’s ship, or officer of the customs, knowingly suffers such exportation, he forfeits 100£, and his employment; and is forever made incapable of bearing any public office.

NOTES

     1.    Mirr. c. 1. § 3.

     2.    Stat. 26 Geo. II. c. 32. 32 Geo. II. c. 18. 4. Geo. III. c. 12.

     3.    See Vol. I. pag. 317. Beccar. ch. 33.

     4.    See Vol. II. pag. 481, 482.

     5.    Beccar. ch. 34.

     6.    See Vol. II. pag. 455, etc.

     7.    See Vol. I. pag. 274.

     8.    3 Inst. 219.

     9.    Seld. tit. of hon. b. 2. c. 5. § 3.

   10.    1 Hawk. P. C. 188.

   11.    2 Hawk. P. C. 235.

   12.    Ff. 48. 12. 2.

   13.    1 Hawk. P. C. 231.

   14.    3 Inst. 181.

   15.    Cod. 4. 59. 1.

   16.    See Vol. I. pag. 427.

continuación

BOOK 4, CHAPTER 11 Of Offenses Against the Public Peace

formado por un único campo de gules en que aparecen tres leones pasantes y

contorneados de oro, lampasados y armados o uñados de azur.

WE are next to consider offenses against the public peace; the conservation of which is entrusted to the king and his officers, in the manner and for the reasons which were formerly mentioned at large.1 These offenses are either such as are an actual breach of the peace; or constructively so, by tending to make others break it. Both of these species are also either felonious, or not felonious. The felonious breaches of the peace are strained up to that degree of malignity by virtue of several modern statutes: and, particularly,

1. THE riotous assembling of twelve persons, or more, and not dispersing upon proclamation. This was first made high treason by statute 3 & 4 Edw. VI. c. 5. when the king was a minor, and a change in religion to be effected: but that statute was repealed by statute 1 Mar. c. 1. among the other treasons created since the 25 Edw. III; though the prohibition was in substance re-enacted, with an inferior degree of punishment, by statute 1 Mar. St. 2. c. 12. which made the same offense a single felony. These statutes specified and particularized the nature of the riots they were meant to suppress; as, for example, such as were set on foot with intention to offer violence to the privy council, or to change the laws of the kingdom, or for certain other specific purposes: in which cases, if the persons were commanded by proclamation to disperse, and they did not, it was by the statute of Mary made felony, but within the benefit of clergy; and also the act indemnified the peace officers and their assistants, if they killed any of the mob in endeavoring to suppress such riot. This was thought a necessary security in that sanguinary reign, when popery was intended to be re-established, which was likely to produce great discontents: but at first it was made only for a year, and was afterwards continued for that queen’s life. And, by statute 1 Eliz. c. 16. when a reformation in religion was to be once more attempted, it was revived and continued during her life also; and then expired. From the accession of James the first to the death of queen Anne, it was never once thought expedient to revive it: but, in the first year of George the first, it was judged necessary, in order to support the execution of the act of settlement, to renew it, and at one stroke to make it perpetual, with large additions. For, whereas the former acts expressly defined and specified what should be accounted a riot, the statute 1 Geo. I. c. 5. enacts, generally, that if any twelve persons are unlawfully assembled to the disturbance of the peace, and any one justice of the peace, sheriff, under-sheriff, or mayor of a town, shall think proper to command them by proclamation to disperse, if they contemn his orders and continue together for one hour afterwards, such contempt shall be felony without benefit of clergy. And farther, if the reading of the proclamation be by force opposed, or the reader be in any manner willfully hindered from the reading of it, such opposers and hinderers are felons, without benefit of clergy: and all persons to whom such proclamation ought to have been made, and knowing of such hindrance, and not dispersing, are felons, without benefit of clergy. There is the like indemnifying clause, in case any of the mob be unfortunately killed in the endeavor to disperse them; being copied from the act of queen Mary. And, by a subsequent clause of the new act, if any persons, so riotously assembled, begin even before proclamation to pull down any church, chapel, meeting-house, dwelling-house, or out-houses, they shall be felons without benefit of clergy.

2. BY statute 1 Hen. VII. c. 7. unlawful hunting in any legal forest, park, or warren, not being the king’s property, by night, or with painted faces, was declared to be single felony. But now by the statute 9 Geo. I. c. 22. to appear armed in any inclosed forest or place, where deer are usually kept, or in any warren or hares or conies, or in any high road, open heath, common, or down, by day or night, with faces blacked, or otherwise disguised, or (being so disguised) to hunt, wound, kill, or steal any deer, to rob a warren or to steal fish, or to procure, by gift or promise of reward, any person to join them in such unlawful act, is felony without benefit of clergy. I mention these offences in this place, not on account of the damage thereby done to private property, but of the manner in which that damage is committed: namely, with the face blacked or with other disguise, and being armed with offensive weapons, to the breach of the public peace and the terror of his majesty’s subjects.

3. ALSO by the same statute 9 Geo. I. c. 22. amended by statute 27 Geo. II. c. 15. knowingly to send any letter without a name, or with a fictitious name, demanding money, venison, or any other valuable thing, or threatening (without any demand) to kill, or fire the house of, any person, is made felony without benefit of clergy. This offense was formerly high treason by the statute 8 Hen. V. c. 6.

4. To pull down or destroy any turnpike-gate, or fence thereunto belonging, by the statute 1 Geo. II. c. 19. is punished with public whipping, and three months imprisonment; and to destroy the toll-houses, or any sluice or lock on a navigable river, is made felony to be punished with transportation for seven years. By the statute 5 Geo II. c. 33 the offense of destroying turnpike-gates or fences, is made felony also, with transportation for seven years. And, lastly, by the statute 8 Geo. II. c. 20, the offenses of destroying both turnpikes upon roads, and sluices upon rivers, are made felony without benefit of clergy; and may be tried as well in an adjacent county, as that wherein the fact is committed. The remaining offenses against the public peace are merely misdemeanors and no felonies; as,

5. AFFRAYS (from affraier, to terrify) are the fighting of two or more persons in some public place, to the terror of his majesty’s subjects: for, if the fighting be in private, it is no affray but an assault.2 Affrays may be suppressed by any private person present, who is justifiable in endeavoring to part the combatants, whatever consequence may ensue.3 But more especially the constable, or other similar officer, however denominated, is bound to keep the peace; and to that purpose may break open doors to suppress an affray, or apprehend the affrayers; and may either carry them before a justice, or imprison them by his own authority for a convenient space till the heat is over; and may then perhaps also make them find sureties for the peace.4 The punishment of common affrays is by fine and imprisonment; the measure of which must be regulated by the circumstances of the case: for, where there is any material aggravation, the punishment proportionably increases. As where two persons coolly and deliberately engage in a duel: this being attended with an apparent intention and danger of murder, and being a high contempt of the justice of the nation, is a strong aggravation of the affray, though no mischief has actually ensued.5 Another aggravation is, when thereby the officers of justice are disturbed in the due execution of their office: or where a respect to the particular place ought to restrain and regulate men’s behavior, more than in common ones; as in the king’s court, and the like. And upon the same account also all affrays in a church or church-yard are esteemed very heinous offenses, as being indignities to him to whose service those places are consecrated. Therefore mere quarrelsome words, which are neither an affray nor an offense in any other place, are penal here. For it is enacted by statute 5& 6 Edw. VI. c. 4. that if any person shall, by words only, quarrel, chide, or brawl, in a church or church-yard, the ordinary shall suspend him, if a layman, ab ingressu ecclesiae [from entering the church]; and, if a clerk in orders, from the ministration of his office during pleasure. And, if any person in such church or church-yard proceeds to smite or lay violent hands upon another, he shall be excommunicated ipso facto [by that fact]; or if he strikes him with a weapon, or draws any weapon with intent to strike, he shall besides excommunication (being convicted by a jury) have one of his ears cut off; or, having no ears, be branded with the letter F in his cheek. Two persons may be guilty of an affray: but,

6. RIOTS, routs, and unlawful assemblies must have three persons at least to constitute them. An unlawful assembly is when three, or more, do assemble themselves together to do an unlawful act, as to pull down enclosures, to destroy a warren or the game therein; and part without doing it, or making any motion towards it.6 A rout is where three or more meet to do an unlawful act upon a common quarrel, as forcibly breaking down fences upon a right claimed of common, or of way; and make some advances towards it.7 A riot is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel:8 as if they beat a man; or hunt and kill game in another’s park, chase, warren, or liberty; or do any other unlawful act with force and violence; or even do a lawful act, as removing a nuisance, in a violent and tumultuous manner. The punishment of unlawful assemblies, if to the number of twelve, we have just now seen may be capital, according to the circumstances that attend it; but, from the number of three to eleven, is by fine and imprisonment only. The same is the case in riots and routs by the common law; to which the pillory in very enormous cases has been sometimes superadded.9 And by the statute 13 Hen. IV. c. 7. any two justices, together with the sheriff our under-sheriff of the county, may come with the posse comitatus [power of the county], if need be, and suppress any such riot, assembly, or rout, arrest the rioters, and record upon the spot the nature and circumstances of the whole transaction; which record alone shall be a sufficient conviction of the offenders. In the interpretation of which statute it has been held, that all persons, noblemen and others, except women, clergymen, persons decrepit, and infants under fifteen, are hound to attend the justices in suppressing a riot, upon pain of fine and imprisonment; and that any battery, wounding, or killing the rioters, that may happen in suppressing the riot, is justifiable.10 So that our ancient law, previous to the modern riot act, seems pretty well to have guarded against any violent breach of the public peace; especially as any riotous assembly on a public or general account, as to redress grievances or pull down all enclosures, and also resisting the king’s forces if sent to keep the peace, may amount to overt acts of high treason, by levying war against the king.

7. NEARLY related to this head of riots is the offense of tumultuous petitioning; which was carried to an enormous height in the times preceding the grand rebellion. Wherefore by statute 13 Car. II. St. 1. c. 5. it is enacted, that not more than twenty names shall be signed to any petition to the king or either house of parliament, for any alteration of matters established by law in church or state; unless the contents thereof be previously approved, in the country, by three justices, or the majority of the grand jury at the assizes or quarter sessions; and in London, by the lord mayor, aldermen, and common council:11 and that no petition shall be delivered by a company of more than ten persons: on pain in either case of incurring a penalty not exceeding 100£, and three months imprisonment.

8. AN eighth offense against the public peace is that of a forcible entry or detainer; which is committed by violently taking or keeping possession, with menaces, force, and arms, of lands and tenements, without the authority of law. This was formerly allowable to every person disseized, or turned out of possession, unless his entry was taken away or barred by his own neglect, or other circumstances; which were explained more at large in a former volume.12 But this being found very prejudicial to the public peace, it was thought necessary by several statutes to restrain all persons from the use of such violent methods, even of doing themselves justice; and much more if they have no justice in their claim.13 So that the entry now allowed by law is a peaceable one; that forbidden is such as is carried on and maintained with force, with violence, and unusual weapons. By the statute 5 Ric. II. St. 1. c. 8. all forcible entries are punished with imprisonment and ransom at the king’s will. And by the several statutes of 15 Ric. II. c. 2. 8 Hen. VI. c. 9. 31 Eliz. c. 11. and 21 Jac. I. c. 15. upon any forcible entry, or forcible detainer after peaceable entry, into any lands, or benefices of the church, one or more justices of the peace, taking sufficient power of the county, may go to the place, and there record the force upon him own view, as in case of riots; and upon such conviction may commit the offender to jail, till he makes fine and ransom to the king. And moreover the justice or justices have power to summon a jury, to try the forcible entry or detainer complained of: and, if the same be found by that jury, then besides the fine on the offender, the justices shall make restitution by the sheriff of the possession, without inquiring into the merits of the title; for the force is the only thing to be tried, punished, and remedied by them: and the same may be done by indictment at the general sessions. But this provision does not extend to such as endeavor to maintain possession by force, where they themselves, or their ancestors, have been in the peaceable enjoyment of the lands and tenements, for three years immediately preceding.

9. THE offense of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, 2 Edw. III. c. 3. upon pain of forfeiture of the arms, and imprisonment during the king’s pleasure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armor.14

10. SPREADING false news, to make discord between the king and nobility, or concerning any great man of the realm, is punished by common law15 with fine and imprisonment; which is confirmed by statutes Westm. 1. 3 Edw. I. c. 34. 2 Ric. II. St. 1. c. 5. and 12 Ric. II. c. 11.

11. FALSE and pretended prophecies, with intent to disturb the peace, are equally unlawful, and more penal; as they raise enthusiastic jealousies in the people, and terrify them with imaginary fears. They are therefore punished by our law, upon the same principle that spreading of public news of any kind, without communicating it first to the magistrate, was prohibited by the ancient Gauls.16 Such false and pretended prophecies were punished capitally by statute 1 Edw. VI. c. 12. which was repealed in the reign of queen Mary. And now by the statute 5 Eliz. c. 15. the penalty for the first offense is a fine of 100£, and one year’s imprisonment; for the second, forfeiture of all goods and chattels, and imprisonment during life.

12. BESIDES actual breaches of the peace, anything that tends to provoke or excite others to break it, is an offense of the same denomination. Therefore challenges to fight, either by word or letter, or to be the bearer of such challenge, are punishable by fine and imprisonment, according to the circumstances of the offense.17 If this challenge arises on account of any money won at gaming, or if any assault or affray happen upon such account, the offender, by statute 9 Ann. c. 14. shall forfeit all his goods to the crown, and suffer two years imprisonment.

13. OF a nature very similar to challenges are libels, libelli famosi, which, taken in their largest and most extensive sense, signify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule.18 The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed. The communication of a libel to any one person is a publication in the eye of the law:19 and therefore the sending an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace.20 For the same reason it is immaterial with respect to the essence of a libel, whether the matter of it be true or false;21 since the provocation, and not the falsity, is the thing to be punished criminally: though, doubtless, the falsehood of it may aggravate its guilt, and enhance its punishment. In a civil action, we may remember, a libel must appear to be false, as well as scandalous;22 for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offense it may be against the public peace: and therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the sole consideration of the law. And therefore, in such prosecutions, the only facts to be considered are, first, the making or publishing of the book or writing; and secondly, whether the matter be criminal: and, if both these points are against the defendant, the offense against the public is complete. The punishment of such libelers, for either making, repeating, printing, or publishing the libel, is fine, and such corporal punishment as the court in their discretion shall inflict; regarding the quantity of the offense, and the quality of the offender.23 By the law of the twelve tables at Rome, libels, which affected the reputation of another, were made a capital offense: but, before the reign of Augustus, the punishment became corporal only.24 Under the emperor Valentinian25 it was again made capital, not only to write, but to publish, or even to omit destroying them. Our law, in this and many other respects, corresponds rather with the middle age of Roman jurisprudence, when liberty, learning, and humanity, were in their full vigor, than with the cruel edicts that were established in the dark and tyrannical ages of the ancient decemviri, or the later emperors.

IN this, and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity; the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments the pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution,26 is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and god order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will hereby laid upon freedom, of thought or inquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. And to this we may add, that the only plausible argument heretofore used for restraining the just freedom of the press, “that it was necessary to prevent the daily abuse of it,” will entirely lose its force, when it is shown (by a seasonable exertion of the law) that the press cannot be abused to any bad purpose, without incurring a suitable punishment: whereas it never can be used to any good one, when under the control of an inspector. So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press.

NOTES

     1.    Vol. I. pag. 117. 268. 350.

     2.    1 Hawk. P. C. 134.

     3.    Ibid. 136.

     4.    Ibid. 137.

     5.    Ibid. 138.

     6.    3 Inst. 176.

     7.    Bro. Abr. Riot. 4. 5.

     8.    3 Inst. 176.

     9.    1 Hawk. P. C. 159.

   10.    1 Hal. P. C. 161.

   11.    This may be one reason (among others) why the corporation of London has, since the restoration, usually taken the lead in petitions to parliament for the alteration of any established law.

   12.    See Vol. III. pag. 174, etc.

   13.    1 Hawk. P. C. 141.

   14.    Pott. Antiqu. b. 1. c. 26.

   15.    2 Inst. 226. 3 Inst. 198.

   16.    “Habent legibus sanctum, si quis de republica a finitimis rumore aut fama acceperit, uti ad magistratum deferat, neve cum alio communicet: quod saepe homines temerarios atque imperitos falsis rumoribus terreri, et ad facinus impelli, et de summis rebus consilium capere, cognitum est.” [“They make it an inviolable rule, that if any one shall have received any intelligence in the neighborhood concerning the republic by rumour or report, he shall make it known to a magistrate, and not communicate it to any one else: for rash and ignorant men, it is well known, alarmed by false reports, are often driven to violent measures, and interfere in affairs of the highest consequence.”] Caes. de bell. Gall. lib. 6. cap. 19.

   17.    1 Hawk. P. C. 135. 138.

   18.    1 Hawk. P. C. 193.

   19.    Moor. 813.

   20.    2 Brownl. 151. 12 Rep. 35. Hob. 215. Poph. 139. 1 Hawk. P. C. 195.

   21.    Moor. 627. 5 Rep. 125. 11 Mod. 99.

   22.    See Vol. III. pag. 125.

   23.    1 Hawk. P. C. 196.

   24.     Quinetiam lex, Poenaque lata, malo quae nollet carmine quenquam, Describi: — vertere modum formidine fustis. [Moreover the law and punishment are decreed, which forbids any one to write scurrilous verses: they changed their mode of writing through fear of corporal chastisement.] Hor. ad Aug. 152.

   25.    Cod. 9. 36.

   26.    The art of printing, soon after its introduction, was looked upon (as well in England as in other countries) as merely a matter of state, and subject to the coercion of the crown. It was therefore regulated with us by the king’s proclamations, prohibitions, charters of privilege and of license, and finally by the decrees of the court of star chamber; which limited the number of printers, and of presses which each should employ, and prohibited new publications unless previously approved by proper licensers. On the demolition of this odious jurisdiction in 1641, the long parliament of Charles I, after their rupture with that prince, assumed the same powers as the star chamber exercised with respect to the licensing of books; and in 1643, 1647, 1649, and 1652, (Scobell. i. 44, 134. ii 88, 230.) issued their ordinances for that purpose, founded principally on the star chamber decree of 1637. In 1662 was passed the statute 13 & 14 Car. II. c. 33. which (with some few alterations) was copied from the parliamentary ordinances. This act expired in 1679, but was revived by statute 1 Jac. II. c. 17. and continued till 1692. It was then continued for two years longer by statute 4 W. & M. c. 24. but, though frequent attempts were made by the government to revive it, in the subsequent part of that reign, (Com. Journ. 11 Feb. 1694. 26 Nov. 1695. 22 Oct. 1696. 9 Feb. 1697. 31 Jan. 1698.) yet the parliament resisted it so strongly, that it finally expired, and the press became properly free, in 1694; and has ever since so continued.

Continuación

BOOK 4, CHAPTER 10 Of Offenses Against Public Justice

formado por un único campo de gules en que aparecen tres leones pasantes y

contorneados de oro, lampasados y armados o uñados de azur.

THE order of our distribution will next lead us to take into consideration such crimes and misdemeanors 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 offenses against the king, as the pater-familias [family father] 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 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 offenses, and to the punishments inflicted by law for each particular offense; 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 common-wealth, may be divided into five species; viz. offenses against public justice, 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 offenses against public justice: some of which are felonious, 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 offense against public justice. It is enacted by statute 8 Hen. VI. c. 12. that if any clerk, or other person, shall willfully 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 is felony not only in the principal actors, but also in their procurers, and abettors. 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. & M. c. 4. to personate any other person before any 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 jailers, it is enacted by statute 14 Edw. III. c. 10. that if any jailer by too great duress of imprisonment makes any prisoner that he has in ward, become an approver or an appellor against his will; that is, as we shall see hereafter, to accuse and turn evidence against some other person; it is felony in the jailer. For, as Sir Edward Coke1 observes, 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 jailer, to whom the prisoner is committed for safe custody.

3. A THIRD offense against public justice is obstructing the execution of lawful process. This is at all times an offense of a very high and presumptuous nature; but more particularly so, when it is an obstruction of an arrest upon criminal process. And it has been held, that the party opposing such arrest becomes thereby particeps criminis [criminal participant]; that is, an accessory in felony, and a principal in high treason.2 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:3 all of which sanctuaries for iniquity are now demolished, and the opposing of any process therein is made highly penal, by the statutes 8 & 9 W. 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 endeavors to execute his duty therein, so that he receives bodily hurt, shall be guilty of felony, and transported for seven years.

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 offense against public justice, and the party himself is punishable by fine or imprisonment.4 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;5 but voluntary escapes, by consent and connivance of the officer, are a much more serious offense: for it is generally agreed that such escapes amount to the same kind of offense, and are punishable in the same degree, as the offense 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 jail, or only under a bare arrest.6 But the officer cannot be thus punished, till the original delinquent is actually found guilty or convicted, by verdict, confession, or outlawry, of the crime for which he was so committed or arrested: otherwise it might 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.7

5. BREACH of prison by the offender himself, when committed for any cause, was felony at the common law:8 or even conspiring to break it.9 But this severity is mitigated by the statute de frangentibus prisonam [concerning those breaking prison], 1 Edw. II. which enacts, that no person shall have judgment of life or member, for breaking prison, unless committed for some capital offense. So that to break prison, when lawfully committed for any treason or felony, remains still felony as at the common law; and to break prison, 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 offense shall be no longer capital, never meant to exempt it entirely from every degree of punishment.10

6. RESCUE is the forcibly freeing another from an arrest or imprisonment; and is always the same offense in the stranger so rescuing, as it would have been in the party himself to have broken prison.11 A rescue therefore of one apprehended for felony, is felony; for treason, treason; and for a misdemeanor, a misdemeanor also. But here, as upon voluntary escapes, the principal must first be attainted before the rescuer can be punished: and for the same reason; because perhaps in fact it may turn out that there has been no offense committed.12 By the statute, 16 Geo. II. c. 31. to assist a prisoner in custody for treason or felony with any arms, instruments of escape, or disguise, without the knowledge of the jailer; 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. And by the statutes 25 Geo. II. c. 37. and 27 Geo. II. c. 15. to rescue, or attempt to rescue, any person committed for murder, or for any of the offenses enumerated in that act, or in the black act 9 Geo. I. c. 22. is felony without benefit of clergy.

7. ANOTHER capital offense against public justice is the returning from transportation, or being seen at large in Great Britain before the expiration of the term for which the offender was sentenced to be transported. This is made felony without benefit of clergy by statutes 4. Geo. I. c. 11. 6 Geo. I. c. 23. and 8 Geo. III. c. 15.

8. AN eighth is that of taking a reward, under pretense 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 pretense of helping anyone to stolen goods, shall suffer as the felon who stole them; unless he cause such principal felon to be apprehended and brought to trial, and shall also give evidence against him. Wild, upon this statute, (still continuing in his old practice) was at last convicted and executed.

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,13 that this offense, which is only a misdemeanor at common law, by the statutes 3 & 4 W. & M. c. 9. and 5 Ann. c. 31. makes the offender accessory to the these and felony. But because the accessory cannot in general be 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 offense is by statute 29 Geo. II. c. 30. punishable by transportation for fourteen years.14 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;15 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 o 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.

10. OF a nature somewhat similar to the two last is the offense 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 is now punished only with fine and imprisonment.16 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 furtum celare vellet, et occulte sine judice compositionem ejus admittere.”17 [“Considers him, who conceals a theft, and secretly receives a settlement for it without the knowledge of the judge, in the same light as the thief.”] By statute 25 Geo. II. c. 36. 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 50 £ each.

11. COMMON barretry is the offense of frequently exciting and stirring up suits and quarrels between his majesty’s subjects, either at law or otherwise.18 The punishment for this offense, 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 practicing for the future.19 Hereunto maybe referred an offense 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 offense, 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 no 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 offense, 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:20 a practice, that was greatly encouraged by the first introduction of uses.21 This is an offense against public justice, as it keeps alive strife 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 [forgery] to enter into any confederacy, or do any act to support another’s lawsuit, by money, witnesses, or patronage.22 A man may however maintain the suit of his near kinsman, servant, or poor neighbor, out of charity and compassion, with impunity. Otherwise the punishment by common law is fine and imprisonment;23 and, by the statute 32 Hen. VIII. c. 9. a. forfeiture of ten pounds.

13. CHAMPERTY, campi-partitio, is a species of maintenance, and punished in the same manner:24 being a bargain with a plaintiff of defendant campum partire, to divide the land or other matter sued for between them, if they prevail at law; whereupon the champertor is to carry on the party’s suit at his own expense.25 Thus champart, in the French law, signifies a similar division of profits, being a part of the crop annually due to the landlord by bargain or custom. In our sense of the word, it signifies the purchasing of a suit, or right of suing: a practice so much abhorred by our law, that it is one main reason why a chose in action, or thing of which one has the right but not the possession, is not assignable at common law; because no man should purchase any pretense to sue in another’s right. These pests of civil society, that are perpetually endeavoring to disturb the repose of their neighbors, and officiously interfering in other men’s quarrels, even at the hazard of their own fortunes, were severely animadverted on by the Roman law: “qui improbe coeunt in alienam litem, ut quicquid ex communicatione in rem ipsius redactum fuerit, inter eos communicaretur, lege Julia de vi privata tenentur” [“those who fraudulently interfere in other men’s lawsuits to share whatever may be awarded by the verdict, are liable to the Julian law of secret influence”];26 and they were punished by the forfeiture of a third part of their goods, and perpetual infamy. Hitherto also must be referred the provision of the statute 32 Hen. VIII. c. 9. that no one shall sell or purchase any pretended right or title to land, unless the vendor has received the profits thereof for one whole year before such grant, or has been in actual possession purchaser and vendor shall each forfeit the value of such land to the king and the prosecutor. These offenses relate chiefly to the commencement of civil suits: but

14. THE compounding of informations upon penal statutes are an offense of an equivalent nature in criminal causes; and are, besides, an additional misdemeanor against public justice, by contributing to make the laws odious to the people. At once therefore to discourage malicious informers, and to provide that offenses, when once discovered, shall be duly prosecuted, it is enacted by statute 18 Eliz. c. 5. that if any person, informing under pretense of any penal law, makes any composition without leave of the court, or takes any money or promise from the defendant to excuse him (which demonstrates him intent in commencing the prosecution to be merely to serve his own ends, and not for the public good) he shall forfeit 10£, shall stand two hours on the pillory, and shall be forever disabled to sue on any popular or peal statute.

15. A CONSPIRACY also to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted, is a farther abuse and perversion of public justice; for which the party injured may either have a civil action by writ of conspiracy, (of which we spoke in the preceding book27) or the conspirators, for there must be at least two to form a conspiracy, may be indicted at the suit of the king, and were by the ancient common law28 to receive what is called the villainous judgment; viz. to lose their liberam legem [legal liberty], whereby they are discredited and disabled to be jurors or witnesses; to forfeit their goods and chattels, and lands for life; to have those lands wasted, their houses razed, their trees rooted up, and their own bodies committed to prison.29 But it now is the better opinion, that the villainous judgment is by long disuse become obsolete; it not having been pronounced for some ages: but instead thereof the delinquents are usually sentenced to imprisonment, fine, and pillory. To this head may be referred the offense of sending letters, threatening to accuse any person of a crime punishable with death, transportation, pillory, or other infamous punishment, with a view to extort from him any money or other valuable chattels. This is punishable by statute 30 Geo. II. c. 24. at the discretion of the court, with fine, imprisonment, pillory, whipping, or transportation for seven years.

16. THE next offense against public justice is when the suit is past its commencement, and come to trial. And that is the crime of willful and corrupt perjury; which is defined by Sir Edward Coke,30 to be a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears willfully, absolutely and falsely, in a matter material to the issue or point in question. The law takes no notice of any perjury but such as is committed in some court of justice, having power to administer an oath; or before some magistrate or proper officer, invested with a similar authority, in some proceedings relative to a civil suit or a criminal prosecution: for it esteems all other oaths unnecessary at least, and therefore will not punish the breach of them. For which reason it is much to be questioned how far any magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as is now too frequent upon every petty occasion: since it is more than possible, that by such idle oaths a man may frequently in foro conscientiae [in the court of conscience] incur the guilt, and at the same time evade the temporal penalties, of perjury. The perjury must also be willful, positive, and absolute; not upon surprise, or the like: it also must be in some point material to the question in dispute; for if it only be in some trifling collateral circumstances, to which no regard is paid, it is no more penal than in the voluntary extrajudicial oaths before-mentioned. Subornation of perjury is the offense of procuring another to take such a false oath, as constitutes perjury in the principal. The punishment of perjury and subornation, at common law, has been various. It was anciently death; afterwards banishment, or cutting out the tongue, then forfeiture of goods; and now it is fine and imprisonment, and never more to be capable of bearing testimony.31 But the statute 5 Eliz. c. 9. (if the offender be prosecuted thereon) inflicts the penalty of perpetual infamy, and a fine of 40£ on the suborner; and, in default of payment, imprisonment for six months, and to stand with both ears nailed to the pillory. Perjury itself is thereby punished with six months imprisonment, perpetual infamy, and a fine of 20£ or to have both ears nailed to the pillory. But the prosecution is usually carried on for the offense at common law; especially as, to the penalties before inflicted, the statute 2 Geo. II. c. 25. super-adds a power, for the court to order the offender to be sent to the house of correction for seven years, or to be transported for the same period; and makes it felony without benefit of clergy to return or escape within the time. It has sometimes been wished, that perjury, at least upon capital accusations, whereby another’s life has been or might have been destroyed, was also rendered capital, upon a principle of retaliation; as it is universally by the laws of Frances.32 And certainly the odiousness of the crime pleads strongly in behalf of the French law. But it is to be considered, that there they admit witnesses to be heard only on the side of the prosecution, and use the rack to extort a confession from the accused. In such a constitution therefore it is necessary to throw the dread of capital punishment into the other scale, in order to keep in awe the witnesses for the crown; on whom alone the prisoner’s fate depends: so naturally does one cruel law beget another. But corporal and pecuniary punishments, exile and perpetual infamy, are more suited to the genius of the English law, where the fact is openly discussed between witnesses on both sides, and the evidence for the crown may be contradicted and disproved by those of the prisoner. Where indeed the death of an innocent person has actually been the consequence of such willful perjury, it falls within the guilt of deliberate murder, and deserves an equal punishment: which our ancient law in fact inflicted.33 But the mere attempt to destroy life by other means not being capital, there is no reason than an attempt by perjury should: much less that this crime should in all judicial cases be punished with death. For to multiply capital punishments lessens their effect, when applied to crimes of the deepest dye; and, detestable as perjury is, it is not by any means to be compared with some other offenses, for which only death can be inflicted: and therefore it seems already (except perhaps in the instance of deliberate murder by perjury) very properly punished by our present law; which has adopted the opinion of Cicero,34 derived from the law of the twelve tables, “perjurii poena divina, exitium; humana, dedecus.” [“The divine punishment of perjury is death; the human punishment, disgrace.”]

17. BRIBERY is the next species of offense against public justice; which is when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behavior in his office.35 In the east it is the custom never to petition any superior for justice, not excepting their kings, without a present. This is calculated for the genius of despotic countries; where the true principles of government are never understood, and it is imagined that there is no obligation from the superior to the inferior, no relative duty owing from the governor to the governed. The Roman law, though it contained many severe injunctions against bribery, as well for selling a man’s vote in the senate or other public assembly, as for the bartering of common justice, yet by a strange indulgence in one instance, it tacitly encouraged this practice; allowing the magistrate to receive small presents, provided they did not in the whole exceed a hundred crowns in the year:36 not considering the insinuating nature and gigantic progress of this vice, when once admitted. Plato therefore more wisely, in his ideal republic,37 orders those who take presents for doing their duty to be punished in the severest manner: and by the laws of Athens he that offered was also prosecuted, as well as he that received a bribe.38 In England this offense of taking bribes is punished, in inferior officers, with fine and imprisonment; and in those who offer a bribe, though not taken, the same.39 But in judges, especially the superior ones, it has been always looked upon as so heinous an offense, that the chief justice Thorpe was hanged for it in the reign of Edward III. By a statute40 11 Hen. IV, all judges and officers of the king, convicted of bribery, shall forfeit treble the bribe, be punished at the king’s will, and be discharged from the king’s service forever. And some notable examples have been made in parliament, of persons in the highest stations, and otherwise very eminent and able, but contaminated with this sordid vice.

18. EMBRACERY is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like.41 The punishment for the person embracing is by fine and imprisonment; and, for the juror so embraced, if it be by taking money, the punishment is (by diverse statutes of the reign of Edward III) perpetual infamy, imprisonment for a year, and forfeiture of the tenfold value.

19. THE false verdict of jurors, whether occasioned by embracery or not, was anciently considered as criminal, and therefore exemplarily punished by attaint in the manner formerly mentioned.42

20. ANOTHER offense of the same species is the negligence of public officers, entrusted with the administration of justice, as sheriffs, coroners, constables, and the like: which makes the offender liable to be fined; and in very notorious cases will amount to a forfeiture of his office, if it be a beneficial one.43 Also the omitting to apprehend persons, offering stolen iron, lead, and other metals to sale, is a misdemeanor and punishable by a stated fine, or imprisonment, in pursuance of the statute 29 Geo. II. c. 30.

21. THERE is yet another offense against public justice, which is a crime of deep malignity; and so much the deeper, as there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution. This is the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the color of their office. However, when prosecuted, either by impeachment in parliament, or by information in the court of king’s bench, (according to the rank of the offenders) it is sure to be severely punished with forfeiture of their offices, fines, imprisonment, or other discretionary censures, regulated by the nature and aggravations of the offense committed.

22. LASTLY, extortion is an abuse of public justice, which consists in any officer’s unlawfully taking, by color of his office, from any man, any money or thing of value, that is not due to him, or more than is due, or before it is due.44 The punishment is fine and imprisonment, and sometimes a forfeiture of the office.

NOTES

     1.    3 Inst. 91.

     2.    1 Hawk. P. C. 121.

     3.    Such as White-Friers, and its environs; the Savoy; and the Mint in Southwark.

     4.    2 Hawk. P. C. 122.

     5.    1 Hal. P. C. 600.

     6.    1 Hal. P. C. 590. 2 Hawk. P. C. 134.

     7.    1 Hal. P. C. 588, 9. 2 Hawk. P. C. 134, 5.

     8.    1 Hal. P. C. 607.

     9.    Bract. l. 3. c. 9.

   10.    2 Hawk. P. C. 128.

   11.    Ibid. 139.

   12.    1 Hal. P. C. 607.

   13.    See pag. 38.

   14.    See also statute 2 Geo. II. c. 28. § 12. for the punishment of receivers of goods stolen by bum-boats, etc. in the Thames.

   15.    Foster. 373.

   16.    1 Hawk. P. C. 125.

   17.    Stiernh. de jure Goth. L. 3. t. 5.

   18.    1 Hawk. P. C. 243.

   19.    1 Hawk. P. C. 244.

   20.    Ibid. 249.

   21.    Dr. & St. 203.

   22.    Ff. 48. 10. 20.

   23.    1 Hawk. P. C. 255.

   24.    Ibid. 257.

   25.    Stat. of conspirat. 33 Edw. I.

   26.    Ff. 48. 7. 6.

   27.    See Vol. III. pag. 126.

   28.    Bro. Abr. t. conspiracy. 28.

   29.    1 Hawk. P. C. 193.

   30.    3 Inst. 164.

   31.    3 Inst. 163.

   32.    Montesq. Sp. L. b. 29. ch. 11.

   33.    Britton. c. 5.

   34.    de Leg. 2. 9.

   35.    1 Hawk. P. C. 168.

   36.    Ff. 48. 11. 6.

   37.    de Lig. l. 12.

   38.    Port. Antiqu. b. 1. c. 23.

   39.    3 Inst. 147.

   40.    Ibid. 146.

   41.    1 Hawk. P. C. 259.

   42.    See Vol. III. pag. 402.

   43.    1 Hawk. P. C. 168.

   44.    1 Hawk. P. C. 170.

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