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CHAPTER THE FOURTEENTH.

OF OFFENCES BY PERSONS IN OFFICE.

Officers in- WHERE an officer neglects a duty incumbent on him, either by dictable for

common law or by statute, he is indictable for his offence; and this, misconduct.

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. (f) 4 Blac. Com. 141. A Judge is Anon. 6 Mod. 96.

not indictable for an error in judg(6) Rex v. Bembridge, M. 24th Geo. mient; but this rule extends only to 3. 1 Salk. 380. pote (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. (c) 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, O. 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 justiccs 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 ref

" licences imjustices 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. (0) 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

ale

I) 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 (8) 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. sence 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, evidence,

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) Overseers of 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; (o) 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 (8) 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 created by statute, and a (1) Rex v. Holland and Forster, I specific method of recovering the peT. R. 692. And see 1 Buro's Just. tit. nalty is pointed out. But as to this Alehouses, Sect. II.

see ante, Book I. Chap. iii. p. 47, (m) 4 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. PI. 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 (9) 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.

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. (x) 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. (2) 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 a 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. (8)

It was the opinion of a majority of the learned Judges present Overscers of at the discussion, that an indictment would not lie against an the poor puoverseer for not relieving a pauper, unless there were an order for neglecting to his relief, except in a case of immediate emergency, where there relieve pauwas not time to get an order. (x) But there may be cases in pers.

(w) 4 Blac. Com. 140..

i Bott. 333. Rex v. Winship and () i Hawk. P. C. c. 66. s. I. And Another, Cald. 72. see further as to forfeiture of offices, (d) Rex v. Commings, 5 Mod. 179. Com. Dig. Officer, (K. 2.) (K. 3.) and 2 Nol. 453, 476. where it is observed the Earl of Shrewsbury's case, 9 Co. in the note (3) that this case occurred 50.

prior to 17 Geo. 2. c. 38. (y) See precedents of indictments (c) Rex v. Barlow, 2 Salk. 609. against coroners for refusing to take i Bott. 332. The objection was, that inquisitions, or for not returning in the word used in the act is “may,” quisitions according to evidence, 2 which does not require it as a duty. Chit. Crim. Law, 255. Cro. Circ. Comp. But the Court held the word “may” (81h ed.) 170. (7th ed.) 303, 304. to be imperative, and the same as

(2) Ante, p. 135, 136. And by 3 “ shall.” By 18 Geo. 3. c. 19. conHen. 7. c. 1. if any coroner be remiss, stables are now to be paid for parish and make not inquisition upon the business out of the poor's rate. view of the body dead, and certify (f) Rex v. Davis and Another, 1 not, as ordained in the statute, he Bott. 338. Pl. 409. Say. 163. S. C. shall, for every default, forfeit to the (g) 2 Nol. 476. Rex v. Boys, Say. king a hundred shillings.

143. But otherwise where the jus(a) Regin. v. Wyat, 1 Salk. 380. tices have no jurisdiction, Rex v. Crowther's case, Cro. Eliz. 654; in- Smith, 1 Bott. 403. Pl. 526. dictment against a constable for re- (x) Rex v. Meredith and Turner, fusing to make hue and cry after no- Russ. and Ry. 46. This case occatice of a burglary.

sioned much doubt and discussion, (6) Regin. v. Wyat, 1 Salk. 381. It came under consideration in Mich. (c) 2 Nolan 476. Tawney's case, Term, 1802, and was adjourned until

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. (2) Indictment for Upon an indictment against an officer for neglect of duty, it is neglect of

sufficient to state that he was such officer, and it is not necessary duty.

to state his appointment. (1) 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 de-
fendant had notice of all the facts it states, if it was his duty to
have known them. (11) 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 con-
tinuance 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 recognizance to appear, and receive
was further adjourned, as there was a judgment when called upon.
a difference of opinion among the ly) Rex v. Booth, Russ. and Ry. 47.
Judges. Lord Ellenborough, C. J. note (a).
Lord Alvanley, C. J, Heath, J. Rooke, (z) Rex v. Warren, cor. Holroyd, J.
J. and Graham, B. seemed to be of Worcester Lent Assizes, 1820. In a
opinion that the indictment was good, case where the parents of a bastard
and the conviction proper, the over- child had neglected to provide neces-
seer having taken the pauper under saries for its subsistence, it was de-
his care: but M.Donald, C. B. Grose, cided that the officers of the parish
J. Thoinson, B. Lawrence, J. Le in which the child was born were
Blanc, J. and Chambre, J. thought obliged to provide such necessaries
otherwise, and were of opinion, that, without an order of justices, Hays v.
except in a case of immediate and Bryant, 1 H. Blac. 253.
urgent necessity, the overseer was (1) Rex v. Holland, 5 T. R. 607.
only bound to act under an order of (m) Id. Ibid.
justices, in a case where such an order (n) Id. Ibid.
could be had. It was agreed that the (0) Id. Ibid.
defendant should enter into his own (p) Id. Ibid.

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