CHAPTER THE THIRTY-FIRST.

OF OBSTRUCTING PROCESS, AND OF DISOBEDIENCE TO ORDERS OF
MAGISTRATES.

A party opposing an

arrest upon criminal

SECT. I.

Of Obstructing Process.

The obstructing the execution of lawful process is an offence against public justice of a very high and presumptuous nature; and more particularly so when the obstruction is of an arrest upon criminal process. So that it has been holden that the party opposcomes particeps ing an arrest upon criminal process becomes thereby particeps criminis; that is, an accessory in felony, and a principal in high treason. (a)

process be

criminis.

And it should seem that the giving assistance to a person suspected of felony and pursued by the officers of justice, in order to enable such person to avoid being arrested, is an offence of the degree of misdemeanor, as being an obstruction to the course of public justice. Thus, an indictment was preferred against the defendant for a misdemeanor in the obstruction of public justice by rendering assistance to one Olive, who was suspected of forgery and pursued by the officers of justice, in order to enable Olive to avoid being arrested. It appeared in evidence that Olive had committed a forgery, as stated in the indictment; and had afterwards, in a state of desperation, thrown himself from the top of a house, by which he was greatly hurt; and that the defendant, who was a relation and commiserated his wretched condition, conveyed him secretly on board a barge from Gloucester to Bristol, and was actively employed at the latter place in endeavouring to enable him to escape from this country in a West India vessel. It also appeared that advertisements had been printed and circulated, stating the charge against Olive, and offering a large reward for his apprehension: but it was not proved that any one of these advertisements had come to the knowledge of the defendant, or that the defendant was acquainted with the particular charge against Olive, or knew that he had been guilty of forgery, as alleged in the

(a) 4 Bla. Com. 128. 2 Hawk. P. C. c. 17, s. 1, where Hawkins submits that it is reasonable to understand the books which seem to contradict this opinion to

intend no more than that it is not felony in the party himself, who is attacked in order to be arrested, to save himself from the arrest by such resistance.

indictment. Upon this ground the defendant was acquitted: but no other objection was taken to the indictment. (b)

Formerly, one of the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places, where indigent persons assembled together to shelter themselves from justice (especially in London and Southwark) under the pretence of their having been ancient palaces of the Crown, or the like: (c) and it was found necessary to abolish the supposed privileges and protection of these places by several legislative enactments. The 8 & 9 Wm. 3, c. 27, 9 Geo. 1, c. 28, and 11 Geo. 1, c. 22, enact that persons opposing the execution of any process in the pretended privileged places therein mentioned, or abusing any officer in his endeavours to execute his duty therein, so that he receives bodily hurt, shall be guilty of felony, and transported for seven years: and persons in disguise, joining in or abetting any riot or tumult on such account, or opposing any process, or assaulting and abusing any officer executing, or for having executed the same, are declared to be felons without benefit of clergy. (d)

In some proceedings, particularly in those relating to the execution of the revenue laws, (e) the Legislature has made especial provision for the punishment of those who obstruct officers and persons acting under proper authority. But in ordinary cases, where the offence committed is less than felony, the obstruction of officers in the apprehension of the party will be only a misdemeanor, punishable by fine and imprisonment. (f)

to make a

party guilty

It should be observed that a party will not be guilty of this The arrest offence of obstructing an officer, or the process which such officer must be lawful may be about to execute, unless the arrest is lawful. And in an indictment for this offence it must appear that the arrest was made of an obstrucby proper authority. Thus where an indictment for an assault, tion. false imprisonment, and rescue, stated that the judges of the court of record of the town and county, &c. of P. issued their writ, directed to T. B., one of the serjeants at mace of the said town and county, to arrest W., by virtue of which T. B. was proceeding to arrest W. within the jurisdiction of the said Court, but that the defendant assaulted T. B. in the due execution of his office, and prevented the arrest; the Court held that it was bad, as it did not appear that T. B. was an officer of the Court; a serjeant at mace ex vi termini meaning no more than a person who carries a mace for some one or other. And the Court also held that there could not be judgment, after a general verdict on such a count, as for a common assault and false imprisonment; because the jury must be taken to have found that the assault and imprisonment were for the cause therein stated; and that cause appeared to have been the attempt by the officer to make an illegal arrest. (g) Lord Ellenborough, C. J., said, "process ought always to be directed

(b) Rex v. Buckle, cor. Garrow, B, Gloucester Spring Ass. 1821. Olive had died by suicide soon after the defendant's attempt to prevent his arrest, so that the defendant could not have been effectively prosecuted as an accessory after the fact to the forgery, even if it could have been proved that he knew of Olive's crime at the

time that he rendered the assistance.

(c) The White Friars and its environs,
the Savoy, and the Mint in Southwark,
were of this description.

(d) 4 Bla. Com. 128, 129.
(e) Ante, p. 111, et seq.
(f) 2 Chit. Cr. L. 145, note (a).
(y) Rex v. Osmer, 5 East, 304.

But where

the arrest is lawful, though the execution of it be at

tended with an a peace-officer

affray, even

must not

interpose and obstruct the officer endeavouring to effect it.

Of obstructing process by

the rescue of

the party arrested.

to a proper known officer; otherwise, if it may be directed to any stranger, it might be resisted for want of knowledge that the party is an officer of the Court. Then, taking the whole count together, the jury in effect find that there was an assault and imprisonment, but committed under circumstances which justified the defendant. For if a man without authority attempt to arrest another illegally, it is a breach of the peace; and any other person may lawfully interfere to prevent it, doing no more than is necessary for that purpose; (h) and nothing further appears in this case to have been done." (i)

But where the process is regular, and executed by the proper officer, it will not be competent even for a peace officer to obstruct him, on the ground that the execution of it is attended with an affray and disturbance of the peace; for it is an established principle that if one, having a sufficient authority, issue a lawful command, it is not in the power of any other, having an equal authority in the same respect, to issue a contrary command; as that would be to legalize confusion and disorder. (k) The following case upon an indictment for an assault and rescue proceeded upon this principle. Some sheriff's officers having apprehended a man by virtue of a writ against him, a mob collected, and endeavoured by violence to rescue the prisoner. In the course of the scuffle, which was at ten o'clock at night, one of the bailiffs, having been violently assaulted, struck one of the assailants, a woman, and it was thought for some time that he had killed her; whereupon, and before her recovery was ascertained, the constable was sent for, and charged with the custody of the bailiff who had struck the woman. The bailiffs, on the other hand, gave the constable notice of their authority, and represented the violence which had been previously offered to them; notwithstanding which the constable proceeded to take them into custody upon the charge of murder, and at first offered to take care also of their prisoner; but their prisoner was soon rescued from them by the surrounding mob. The next morning, the woman having recovered, the bailiffs were released by the constable. Upon these facts, Heath, J., was clearly of opinion that the constable and his assistants were guilty of the assault and rescue, and directed the jury accordingly. (7)

In cases where the obstruction of process by the rescue of a party arrested is accompanied, as is usually the case, with circumstances of violence and assault upon the officer, the offence may be made the subject of a proceeding by indictment: and, as will be shown more fully in a subsequent Chapter, (m) the rescue, or attempt to rescue a party arrested on a criminal charge is usually punished by that mode of proceeding. And the offence of rescuing a person arrested on mesne process, or in execution after judgment, subjects the offender to a writ of rescous, or a general action of trespass vi et armis, or an action on the case; in all which damages are recoverable. (n) And it has also been the fre

(h) Sed quare, and see post, tit. Manslaughter in Resisting Officers.

(i) Rex v. Osmer, 5 East, 304. Judg

ment was accordingly arrested.

(k) 1 East, P. C. c. 5, s. 71, p. 304.

(1) Anon. Exeter Sum. Ass. 1793 1 East. P. C. c. 5, s. 71, p. 305. (m) Post, chap. xxxiv. Of Rescue, &c. (n) Bac. Abr. tit. Rescue (C). Com. Dig. tit. Rescous (D).

quent practice of the Courts to grant an attachment against such wrongdoers, it being the highest violence and contempt that can be offered to the process of the Court. (0)

breach.

It may be mentioned in this place, that the forcibly rescuing of rescuing goods distrained, and the rescuing cattle by the breach of the trained; and pound in which they have been placed, have been considered of poundas offences at common law, and made the subject of indictment. (p) It has before been stated, that an indictment will lie for taking goods forcibly, if such taking be proved to be a breach of the peace: (q) but, as a mere trespass, without circumstances of violence, is not indictable, (r) it has been doubted whether even a pound-breach, which has been considered as a greater offence at common law than a rescue, (s) is an indictable offence, if unaccompanied by a breach of the peace. (t) But, on the other hand, it has been submitted that, as a pound-breach is an injury and insult to public justice, it is indictable as such at common law. (u)

way

Where a hayward had distrained a horse damage feasant on an inclosed piece of pasture, and it was rescued from him on the to the pound, and before it was impounded; it was held that this was not indictable, for till the horse got to the pound, the hayward was merely acting as the servant of the owner of the land; but it was said that if the hayward had driven cattle, which he had found straying in the lanes, to the pound, they would have been in the custody of the law from the first, and the rescue of them on the way to the pound would have been indictable. (v)

The civil remedy, however, given by the 2 W. & M. c. 5, s. 4, will, in most cases of a pound-breach, or a rescue of goods distrained for rent, be found the most desirable mode of proceeding, where the offenders are responsible persons. That statute enacts that, upon pound-breach, or rescous of goods distrained for rent, the person grieved shall, in a special action of the case, recover treble damages and costs against the offenders, or against the owner of the goods, if they come to his use. (w)

It is laid down in the books that, if a rescue be made upon a distress, &c., for the king, an indictment lies against the rescuer. (x) And we have seen that a lessee, resisting with force a distress for rent, or forestalling or rescuing the distress, will be guilty of the offence of a forcible detainer. (y)

as to the return of the rescue by the sheriff, Com. Dig. tit. Rescous, (D 4.) (D 5.) Bac. Abr. tit. Rescue, (E). Rex v. Belt, 2 Salk. 586. Rex v. Elkins, 4 Burr. 2129. Anon. 2 Salk. 586. Rex v. Minify, 1 Str. 642. Rex v. Ely, 1 Lord Raym. 35. Anon. 1 Salk. 586. 1 Lord Raym. 589.

(p) Cro. Circ. Comp. 198. 2 Starkie's Crim. pl. 617. 2 Chit. Crim: L. 201, precedents of indictments for rescuing goods distrained for rent: and Cro. Circ. Comp. 199. 2 Chit. Crim. L. 204, 206, precedents of indictments for pound-breaches. (q) Ante, 53. Anon. 3 Salk. 187.

(r) Ante, 53.

(8) Mirror, c. 2, s. 26.

(t) 2 Chit Crim. L. 204, note (b) referring to 4 Leon. 12.

(u) 2 Chit. Crim. L. 204, note (b) and the authorities there cited.

(v) Rex v. Bradshaw, 7 C. & P. 233,
Coleridge, J. The learned judge seemed
to think that if the horse had been rescued
after it had been put in the pound, it would
have been indictable.

(w) See, as to the proceedings upon this
statute, Bradby on Distresses, 282, et seq.
Bac. Abr. tit. Rescue (C.) See 5 & 6
Wm. 4, c. 50. s. 75, which imposes a penalty
on persons breaking the pound to rescue
cattle, &c., found trespassing on highways.
(x) F. N. B. 102 (G). Com. Dig. tit.
Rescous, (D 3.)
(y) Ante, 310.

Disobedience

sessions.

SECT. IL

Of Disobedience to Orders of Magistrates.

Disobedience to an order of the justices of the peace at their to an order of sessions, made by them in the due exercise of the powers of their jurisdiction, is an indictable offence. Thus, a party has been holden to be guilty of an indictable offence, in disobeying an order of sessions for the maintenance of his grandchildren. (2) In this case it was moved in arrest of judgment that, as the 43 Eliz. c. 2, s. 7, had annexed a specific penalty, and a particular mode of proceeding, the course prescribed by the act ought to have been adopted, and that there could be no proceeding by indictment: but, after able argument, and great deliberation, the Court were of opinion that the prosecutor was at liberty to proceed at common law, or in the method prescribed by the statute; and that there could be no doubt but that an indictment would lie, at common law, for disobedience to an order of sessions. (a)

Disobedience

council.

Upon the same principle it was holden that, where an act of Parto an order of liament gave power to the king in council to make a certain order, and did not annex any specific punishment to the disobeying it, such disobedience was an indictable offence, punishable as a misdemeanor at common law. (b)

Disobedience

justices.

Disobeying an order of one or more justices, when duly made, is to an order of also a common law offence, and therefore punishable by indictment. (c) Thus, it has been holden to be an indictable offence to disobey an order of justices directing a highway to be widened, under the 13 Geo. 3, c. 78. (d) And it seems that an indictment will lie for disobedience to an order of justices placing out an apprentice pursuant to the statute, when such disobedience is either by not receiving, turning off, or not providing for such apprentice. (e) So a power to remove a pauper being given to two justices by the 13 & 14 Car. 2, c. 12, the not receiving him is a disobedience of that statute for which an indictment will lie. (ƒ) And, by Foster, J., " In all cases where a justice has power given him to make an order, and direct it to an inferior ministerial officer, and he disobeys it, if there be no particular remedy prescribed, it is indictable." (g)

Every person
required by an
order to do
any act,

should lend
his aid to
carry it into
effect.

Where such an order is made, any person mentioned in it, and required to act under it, should, upon its being duly served upon him, lend his aid to carry it into effect. Thus where, upon a complaint made by an excluded member of a friendly society, two persons, A. and B., the then stewards of the society, were summoned, and an order made by two justices that such stewards and the other members of the society should forthwith reinstate the complainant ; it was holden, that though this order was not served upon A. and B.