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more ancient appellation 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. (f) It is said to have been anciently punishable as felony; but is now punished only with fine and imprisonment, unless it be accompanied with some degree of maintenance given to the felon, which makes the party an accessory after the fact. (g) But the barely taking again one's own goods which have been stolen, is no offence at all unless some favour be shewn to the thief. (h)
It may be observed, that to take any reward for helping a person to stolen goods is made felony by 4 Geo. 1, c. 11.; and to advertise a reward for the return of things stolen, incurs a forfeiture of fifty
pounds by 25 Geo. 2. c. 36. (a) Compounding An agreement to put an end to a misdemeanor has been conmisdemeanors. sidered to be illegal, as impeding the course of public justice; (i)
but it is sometimes done after conviction, with the sanction of the Court, in cases where the offence principally and more immediately affects an individual; the defendant being permitted to speak with the prosecutor before any judgment is pronounced, and a trivial punishment being inflicted if the prosecutor declares himself satistied. (k) And where, in a case of an indictment for ill treating a parish apprentice, a security for the fair expenses of the prosecution had been given by the defendant after conviction, upon an understanding that the Court would abate the period of his imprisonment, the security was held to be good, upon the ground that it was given with the sanction of the Court, and to be considered as part of the punishment suffered by the defendant in expiation of
his offence, in addition to the imprisonment inflicted on him. (1) Of compound
The compounding of informations on penal statutes is a misdeing informations on penal meanor against public justice, by contributing to make the laws statutes. odious to the people. (m) Therefore, in order to discourage mali
cious informers, and to provide that offences, when once discovered, shall be duly prosecuted, it was enacted by the statute 18 Eliz. c. 5. s. 4. that if any informer, by colour or pretence of process, or without process upon colour or pretence of any manner of offence against any penal law, make any composition, or take any money, reward, or promise of reward, without the order or consent of the Court, he shall stand two hours in the pillory, (n) be for ever disabled to sue on any popular or penal statute, and shall forfeit ten pounds. This severe statute extends even to penal actions, where
(f) i Hawk, P. C. c. 59. s. 5. 4 tract or security made in consideraBlac. Com. 133.
tion of dropping a criminal prosecu(g) 1 Hawk. P.C. c. 59. s. 6. 2 Hale tion, suppressing evidence, soliciting a 400.
pardon, or compounding any public (h) i Hawk. P. C. c. 59. s. 7. offence, without leave of the Court, is
(a) See these statutes more at large, invalid. i Chit. Crim. Law, 4. post, Book IV. Chap. xxi.
(m) 4 Blac. Com. 136. (i) Collins v. Blantern, 2 Wils. 341-9. (n) This part of the punishment canEdgecombe v. Rodd and others, 5 East.
not now, by 56 Geo, 3. c. 138. be inr298, 302.
flicted. But sect. 2. of that statute (k) 4 Blac. Com. 363, 364.
empowers the Court to pass such sen(1) Beeley v. Wingfield, 11 East. 46. tence of fine or imprisonment, or of and see also Baker v. Townshend, 7 both, in lieu of the sentence of pillory, Taunt. 422. But in general any con- as to the Court shall seem proper.
the whole penalty is given to the prosecutor. (0) But it does not apply to penalties which are only recoverable by information before justices; and an indictment for making a composition in such a case was holden bad, in arrest of judgment. (a)
In a case where it was held that threatening, by letter or otherwise, to put in motion a prosecution by a public officer to recover penalties for selling Fryer's Balsam without a stamp, (p) for the purpose of obtaining money to stay the prosecution, (not being such a threat as a firm and prudent man might not be expected to resist,) was not in itself an indictable offence at common law, though it was alleged that money was obtained, it seems to have been considered that such an offence would be indictable under the foregoing section of this statute of Elizabeth. (9) But no indictment for any attempt to commit such a statutable misdemeanor can be sustained as a misdemeanor at common law, without at least bringing the offence intended within, and laying it to be against, the statute. Though if the party so threatened had been alleged to be guilty of the offence imputed, within the statute imposing the duty and creating the penalty, such an attempt to compound and stifle a public prosecution for the sake of private lucre, in fraud of the revenue, and against the policy of the statute (which gives the penalty as auxiliary to the revenue, and in furtherance of public justice for the sake of example,) might also, upon general principles, have been deemed a sufficient ground on which to have sustained the indictment at common law. (r)
It has been holden that a party is liable to the punishment prescribed by this statute of 18 Eliz, c. 5. for taking the penalty imposed by a penal statute, though there is no action or proceeding for the penalty. The prisoner applied to one Round, and demanded five pounds, as a penalty, which Round had incurred under the general turnpike act, by suffering his waggon to be drawn on a turnpike road by more than four horses. Round had incurred such a penalty, and the prisoner obtained the money by way of composition to prevent any legal proceedings: and it further appeared that no process had been sued out, and that no information had been laid before a magistrate. The prisoner having been convicted, judgment was respited by Le Blanc, J. upon a doubt whether the offence was within the statute, so as to subject the prisoner to the specific punishment therein prescribed, inasmuch as no action or proceeding was depending in which the order or consent of any Court in Westminster-hall for a composition could have been obtained. But the Judges were all of opinion that the conviction was right, and that the statute applies to all cases of taking a penalty incurred, or pretended to be incurred, without leave of a Court at Westminster, or without judgment or conviction. (3)
(m) 4 Blac. Com. 136. note (3). (9) Rex v. Southerton, 6 East 126.
(a) Rex v. Crisp and others, i Bar. But qu. and see Rex v. Crisp and others, ne. and Alders, 282.
1 Barne. and Alders. 286, 287. () By the 4. Geo. 3. c. 56. it was
(r) Id. Ibid. prohibited to be vended without a (z) Rex v. Gotley, East. T. 1805. staipped label.
Russ. and Ry. 81.
CHAPTER THE FOURTEENTH.
OF OFFENCES BY PERSONS IN OFFICE,
WHERE an officer neglects a duty incumbent on him, either by dictable for misconduct.
common law or by statute, he is indictable for his offence; and this, whether he be an officer of the common law, or appointed by act of Parliament:(a) and a person holding a public office under the king's letters patent, or derivatively from such authority, has been considered as amenable to the law for every part of his conduct, and obnoxious to punishment for not faithfully discharging it. (b) And it is laid down generally, that any public officer is indictable for misbehaviour in his office. (c) There is also the further punishment of the forfeiture of the office for the misdemeanor of doing any thing directly contrary to its design. (d) And in the case of a coroner, the statute 25 Geo. 2. c. 29. s. 6. makes particular provision; and enacts, that when convicted of extortion, or wilful neglect of duty, or misdemeanor in office, he may be removed from office by the judgment of the Court in which he is convicted, unless such office be annual, or annexed to some other office. Where a duty is thrown upon a body of several persons, and they neglect it, each is individually liable to prosecution for the neglect. (e)
It is proposed to treat shortly, in the present Chapter, of oppression, negligence, fraud, and extortion, by persons in office; and of the refusal of persons to execute the duties of their offices when properly appointed ; leaving the subjects of buying and selling
offices, and of bribery, for subsequent Chapters. Oppression by The oppression and tyrannical partiality of judges, justices, and public officers. other magistrates in the administration, and under colour of their
offices, may be punished by impeachment in Parliament, or by information or indictment, according to the rank of the offenders, and the circumstances of the offence. (f) Thus if a justice of peace abuses the authority reposed in him by law, in order to gratify his
(a) Regin. v. Wyat, i Salk. 380. (f) 4 Blac. Com. 141. A Judge is Anon. 6 Mod. 96.
not indictable for an error in judge (6) Rex v. Bembridge, M. 24th Geo. mient; but this rule extends only to 3. i Salk. 380. note (a).
Judges in courts of record, and not (c) Anon. 6 Mod. 96.
to ministerial officers. Rex v. Loggen (d) I Hawk. P. C. c. 66. S. J.
and another, I Str. 74. (e) Rex v. Holland, 5 T. R. 607.
malice, or promote his private interests or ambition, he may be punished by indictment or information. But the Court of King's Bench have expressly declared, that though a justice of peace should act illegally, yet if he has acted honestly and candidly, without oppression, malice, revenge, or any bad view or ill intention whatsoever, the Court will never punish him by the extraordinary course of an information, but will leave the party complaining to the ordinary method of prosecution by action or indictment. (f) And where a justice has committed an involuntary error without any corrupt motive or intention, it has been questioned whether it is an indictable offence; on the ground that the act in that case is either null and void, or the justice is answerable in damages for all its consequences. (8) But in a case where, two sets of magistrates having a concurrent jurisdiction, one set of them appointed a meeting to grant ale licences, and, after such appointment, the other set of magistrates appointed a meeting for the same purpose on a subsequent day, and, having met, granted a licence which had been refused by the first set, it was held that the proceedings of the magistrates appointing the second meeting were illegal, and the subject of an indictment. Lord Kenyon, C. J., said that it was proper the question should be settled whether it were legal for two different sets of magistrates, having a concurrent jurisdiction, to run a race in the exercise of any part of their jurisdiction; and that it was of infinite importance to the public that the acts of magistrates should not only be substantially good, but also that they should be decorous. And Ashhurst, J. said that it was a breach of the law to attempt to wrest the jurisdiction out of the hands of the magistrates who first gave notice of the meeting; for what the law says shall not be done, it becomes illegal to do, and is therefore the subject matter of an indictment, without the addition of any corrupt motives. And that though the want of corruption might be an answer to an application for an information which is made to the extraordinary jurisdiction of the Court, yet it is no answer to an indictment where the Judges are bound by the strict rule of law. (h)
The conduct of justices of the peace in granting or refusing Of justices licences to sell ale has been frequently the subject of investiga- granting or tion; and it seems to be clear that though upon this matter the refusing ale justices have a discretionary jurisdiction given them by the law, properly. and though discretion means the exercising the best of their judgment upon the occasion that calls for it, yet if this discretion be wilfully abused, it is criminal, and under the controul of the Court of King's Bench.) That Court will therefore grant an information against justices who refuse from corrupt and improper motives to grant such licences ; (k) and an information will be granted
() Rex v. Palmer and others, 2 justice, and unless the party injured Burr. 1162. 1 Blac. Com. 354. note will undertake to bring no action. (17), where it is said that in no case (g) i Blac. Com. 354. note (17). will the Court grant an information (h) Rex v. Sainsbury and another, unless an application for it be made 4 T. R. 451. within the second Term after the of- (i) Rex v. Young and Pitts, 1 Burr. fence committed, and notice of the 556, 560, et sequ. application be previously given to the (k) Rex v. Williams and Davis, 3
against them as well for granting a licence improperly as for refus
ing one in the same manner. (1) Of gaolers To prevent abuses by the extensive power which the law is forcing per- obliged to repose in gaolers, it is enacted by the statute 14 Edw. sons to give
3. c. 10. that if any gaoler, by too great duress of imprisonment, makes any prisoner that he hath in ward become an approver or an appellor against his will; that is, to accuse and turn evidence against some other person; it shall be felony in the gaoler. For it is not lawful to induce or excite any man even to a just accusation of another; much less to do it by duress of imprisonment; and least of all by a gaoler, to whom the prisoner is committed for safe custody. (m) And a gaoler may be discharged and fined for voluntarily suffering his prisoners to escape, or for barbarously misusing them. (1)
An overseer of the poor is also indictable for misfeasance in the the poor are execution of his office: as if he relieve the poor where there is no punishable for misfeasance in necessity for it; (c) or if he misuse the poor, as by keeping and their offices. lodging several poor persons in a filthy unwholesome room, with
the windows not in a sufficient state of repair to protect them against the severity of the weather ; (p) or by exacting labour from them when they are unable to work. (9) And if overseers conspire to prevail upon a man to marry a poor woman big with child, for the purpose of throwing the expense of maintaining
her and the issue from themselves upon another parish or township, they may be indicted. (r) And for most breaches of their duty overseers may be punished by indictment or information : (s) but with respect to the proceeding by information, as it is an extraordinary remedy, the Court of King's Bench will not suffer it to be applied to the punishment of ordinary offences, and has long come to a resolution not to grant informations against overseers for procuring
a pauper's marriage with a view to burthen another parish. (t) Negligence by It has been already stated, that an officer neglecting the duties public officers. of his office is guilty of an indictable offence. (u) In some cases
also the offence will amount to a forfeiture of his office, if it be a
Burr. 1317. The licences in this case (s) Rex v. Commings, 1 Bott. 332. had been refused, because the persons Pl. 372. Rex v. Robinson, 2 Burr. applying for them would not give their 799. Rex v.Jones, 1 Bott. 337. Pl. 379. votes for members of parliament as the 2 Nol. 474. From these authorities it justices would have had them. And appears that such proceeding may be see Rex v. Hann and Price, id. 1716, bad in some cases where a particular 1786.
punishment is crcated by statute, and a () Rex v. Holland and Forster, 1 specific method of recovering the peT. R. 692. And see i Buro's Just. tit. nalty is pointed out. But as to this Alehouses, Sect. II.
see ante, Book I. Chap. iii. p. 47, (m) + Blac. Com. 128. 3 Inst. 91. 49. (n) i Hawk. P. C. c. 66. s. 2.
(1) Rex v. Slaughter, Cald. 246. (0) Tawney's case, 16 Vin. Abr. 415. note (a). And perhaps this offence 1 Bott. 333. Pl. 402.
would not be punishable at all if the (p) Rex v. Wetheril and another, woman settled in the defendant's paCald. 432.
rish previous to the marriage is with (1) Rex v. Winship and another, child by the man to whom the de. Cald. 76.
fendants procure her to be married. (r) Rex v. Compton, Cald. 246. Rex 2 Nolan 477. v. Tarrant, and Rex v. Herbert, 1 East. (u) Ante, p. 138. P. C. c. 11. s. 11. p. 461.