CHAPTER THE FOURTEENTH. OF OFFENCES BY PERSONS IN OFFICE. Officers indictable for misconduct. WHERE an officer neglects a duty incumbent on him, either by 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, 1 Salk. 380. Anon. 6 Mod. 96. 3. (b) Rex v. Bembridge, M. 24th Geo. (d) 1 Hawk. P. C. c. 66. s. 1. (f) 4 Blac. Com. 141. A Judge is not indictable for an error in judgment; but this rule extends only to Judges in courts of record, and not to ministerial officers. Rex v. Loggen and another, 1 Str. 74. 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. (g) 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) granting or refusing ale properly. licences im The conduct of justices of the peace in granting or refusing of justices licences to sell ale has been frequently the subject of investigation; and it seems to be clear that though upon this matter the justices have a discretionary jurisdiction given them by the law, 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. (i) 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 (f) Rex v. Palmer and others, 2 Burr. 1162. 1 Blac. Com. 354. note (17), where it is said that in no case will the Court grant an information unless an application for it be made within the second Term after the offence committed, and notice of the application be previously given to the justice, and unless the party injured (g) 1 Blac. Com. 354. note (17). (i) Rex v. Young and Pitts, 1 Burr. (k) Rex v. Williams and Davis, 3 Of gaolers forcing persons to give evidence. Overseers of the poor are punishable for misfeasance in their offices. against them as well for granting a licence improperly as for refusing one in the same manner. (1) To prevent abuses by the extensive power which the law is obliged to repose in gaolers, it is enacted by the statute 14 Edw. 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. (n) An overseer of the poor is also indictable for misfeasance in the execution of his office: as if he relieve the poor where there is no necessity for it; (0) or if he misuse the poor, as by keeping and 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. (q) 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 (1) Rex v. Holland and Forster, I (m) Blac. Com. 128. 3 Inst. 91. (p) Rex v. Wetheril and another, (4) Rex v. Winship and another, Cald. 76. (r) Rex v. Compton, Cald. 246. Rex v. Tarrant, and Rex v. Herbert, 1 East. P. C. c. 11. s. 11. p. 461. (s) Rex v. Commings, 1 Bott. 332. Pl. 372. Rex v. Robinson, 2 Burr. 799. Rex v. Jones, 1 Bott. 337. Pl. 379. 2 Nol. 474. From these authorities it appears that such proceeding may be had in some cases where a particular punishment is created by statute, and a specific method of recovering the penalty is pointed out. But as to this see ante, Book I. Chap. iii. p. 47, 49. pa (1) Rex v. Slaughter, Cald. 246. note (a). And perhaps this offence would not be punishable at all if the woman settled in the defendant's rish previous to the marriage is with child by the man to whom the defendants procure her to be married. 2 Nolan 477. (u) Ante, p. 138. beneficial one; (w) for, by the implied condition that the grantee of an office shall execute it diligently and faithfully, it appears to be clear that he will be liable to a forfeiture of it, not only for doing a thing directly contrary to its design, but also for neglecting to attend his duty at all usual, proper, and convenient times and places, whereby any damage shall accrue to those by or for whom he was made an officer. (2) A coroner neglecting the duties of his office is indictable: (y) and by statute 3 Edw. 1. c. 9. the sheriff, coroner, or any other bailiff concealing felonies, or not arresting felons, or otherwise not doing their duty, are to be imprisoned for a year, and fined at the king's pleasure. (z) And an indictment lies at common law against all subordinate officers for neglect, as well as misconduct, in the discharge of their official duties. A constable is therefore indictable for neglecting the duties required of him by common law or by statute; (a) and when statute requires him to do what without requiring had been his duty, it is not imposing a new duty, and he is indictable at common law for the neglect. (b) And an overseer of the poor is indictable for the wilful neglect of his duty. Thus overseers have been held to be indictable for not providing for the poor; (c) for refusing to account within four days after the appointment of new overseers, under 43 Eliz. c. 2.; (d) for not making a rate to reimburse constables under 14 Car. 2. c. 14.; (e) and for not receiving a pauper sent to them by order of two justices; (f) or disobeying any other order of justices, where the justices have competent jurisdiction. (g) It was the opinion of a majority of the learned Judges present at the discussion, that an indictment would not lie against an overseer for not relieving a pauper, unless there were an order for his relief, except in a case of immediate emergency, where there was not time to get an order. (x) But there may be cases in (w) 4 Blac. Com. 140. (x) 1 Hawk. P. C. c. 66. s. 1. And see further as to forfeiture of offices, Com. Dig. Officer, (K. 2.) (K. 3.) and the Earl of Shrewsbury's case, 9 Co. 50. (y) See precedents of indictments against coroners for refusing to take inquisitions, or for not returning inquisitions according to evidence, 2 Chit. Crim. Law, 255. Cro. Circ. Comp. (8th ed.) 170. (7th ed.) 303, 304. (z) Ante, p. 135, 136. And by 3 Hen. 7. c. 1. if any coroner be remiss, and make not inquisition upon the view of the body dead, and certify not, as ordained in the statute, he shall, for every default, forfeit to the king a hundred shillings. (a) Regin. v. Wyat, 1 Salk. 380. Crowther's case, Cro. Eliz. 654; indictment against a constable for refusing to make hue and cry after notice of a burglary. (b) Regin. v. Wyat, 1 Salk. 381. 1 Bott. 333. Rex v. Winship and (d) Rex v. Commings, 5 Mod. 179. (c) Rex v. Barlow, 2 Salk. 609. 1 Bott. 332. The objection was, that the word used in the act is "may," which does not require it as a duty. But the Court held the word "may" to be imperative, and the same as "shall." By 18 Geo. 3. c. 19. constables are now to be paid for parish business out of the poor's rate. (f) Rex v. Davis and Another, 1 Bott. 338. Pl. 409. Say. 163. S. C. (g) 2 Nol. 476. Rex v. Boys, Say. 143. But otherwise where the justices have no jurisdiction, Rex v. Smith, 1 Bott. 403. Pl. 526. (x) Rex v. Meredith and Turner, Russ. and Ry. 46. This case occasioned much doubt and discussion, It came under consideration in Mich. Term, 1802, and was adjourned until Overscers of the poor pu nishable for neglecting to relieve pau pers. Indictment for neglect of duty. which the neglect to provide a pauper with necessaries will render an overseer liable to be indicted. Thus where an indictment stated that the defendant, an overseer, had under his care a poor person belonging to his township, but neglected and refused to provide for her necessary meat, &c. whereby she was reduced to a state of extreme weakness, and afterwards through want of such reasonable and necessary meat, &c. died, the defendant was con victed, and sentenced to a year's imprisonment. (y) And in a case where an overseer was indicted for neglecting to supply medical assistance, when required, to a pauper labouring under dangerous illness, the learned Judge before whom the indictment was tried held that an offence was sufficiently charged and proved, though such pauper was not in the parish workhouse, nor had previously to his illness received or stood in need of parish relief. (z) Upon an indictment against an officer for neglect of duty, it is sufficient to state that he was such officer, and it is not necessary to state his appointment. (/) And in the case of a delinquent in India prosecuted under 24 Geo. 3. c. 25. for neglect of duty, it was held not to be necessary to state that the neglect was corrupt; the statute making it a misdemeanor if it was wilful. (m) And the indictment for neglect of duty need not aver that the defendant had notice of all the facts it states, if it was his duty to have known them. (2) Where some of the charges against the defendant were for disobeying orders, and it was stated that those orders were made and communicated to him, but their continuance in force was not averred, such an averment was insisted upon as essential: but the court said that the orders must be taken to continue in force until they were revoked; and the objection was overruled. (0) Other charges in the same case against the defendant were for not acting upon particular events, within the settlement, as those events made it his duty to act: but it was not averred that he had notice of those events. The Court, however, held that an allegation of notice was not necessary; for as the events happened within a foreign settlement, whilst the defendant was one of the council in such settlement, he was bound to take notice of them. (p) the following Hilary Term, when it was recognizance to appear, and receive judgment when called upon. (y) Rex v. Booth, Russ. and Ry. 47. note (a). (*) Rex v. Warren, cor. Holroyd, J. Worcester Lent Assizes, 1820. In a case where the parents of a bastard child had neglected to provide necessaries for its subsistence, it was decided that the officers of the parish in which the child was born were obliged to provide such necessaries without an order of justices, Hays v. Bryant, 1 H. Blac. 253. (1) Rex v. Holland, 5 T. R. 607. (p) Id. Ibid. |