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 indictment. Upon this ground the defendant was acquitted: but no other objection was taken to the indictment. (a) 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:(b) and it was found necessary to abolish the supposed privileges and protection of these places by several legislative enactments. The 8 & 9 W. 3. c. 27., 9 Geo. I. c. 28., and II 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.(c) In some proceedings, particularly in those relating to the execution of the revenue laws, (d) 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. (e) The arrest to make a par It should be observed that a party will not be guilty of this offence of obstructing an officer, or the process which such officer may be about to execute, unless the arrest is lawful. And in an ty guilty of an indictment for this offence it must appear that the arrest was made obstruction. by proper authority. Thus where an indictment for an assault, 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 of Olive's crime at the time that he rendered the assistance. (a) 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 (b) The White Friars and its envi- But where the arrest is law ful, though the execution of it be attended with an affray, even a peaceofficer must not interpose and obstruct the officer en deavouring to effect it. 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.(f) Lord Ellenborough, C. J., said, "process ought always to be directed "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; and nothing further appears "in this csse to have been done." (g) 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. (h) 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.(i) Of obstructing In cases where the obstruction of process by the rescue of a process by the rescue of the party arrested is accompanied, as is usually the case, with cirparty arrested. cumstances of violence and assault upon the officer, the offence may be made the subject of a proceeding by indictment: and, as (f) Rex v. Osmer, 5 East. 304. (g) Id. ibid. Judgment was accordingly arrested. (h) 1 East. P. C. c. 5. s. 71. p. 304. 1 East. P. C. c. 5. s. 71. p. 305. will be shewn more fully in a subsequent Chapter, (j) 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.(k) And it has also been the frequent 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. (1) of pound It may be mentioned in this place, that the forcibly rescuing of rescuing goods distrained, and the rescuing cattle by the breach of the goods dispound in which they have been placed, have been considered as trained; and offences at common law, and made the subject of indictment. (m) breach. 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: (n) but, as a mere trespass, without circumstances of violence, is not indictable, (o) it has been doubted whether even a pound-breach, which has been considered as a greater offence at common law than a rescue, (p) is an indictable offence, if unaccompanied by a breach of the peace. (q) But, on the other hand, it has been submitted that, as pound-breach is an injury and insult to public justice, it is indictable as such at common law. (r) 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. (s) 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. (t) 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. (u) (j) Post. Chap. xxxiv. Of Rescue, &c. (k) 6 Bac. Abr. Rescue (C). 6 Com. Dig. Rescous, (D). (1) 6 Bac. Abr. ibid. 6 Com. Dig. Rescous, (D.6). But, in order to ground an attachment for a rescue, it seems there must be a return of it by the sheriff; at least, if it was on an arrest on mesne process, 6 Bac. Abr. ibid. 2 Hawk. P. C. c. 22. s. 34. Anon. 6 Mod. 141. And see, as to the return of the rescue by the sheriff, 6 Com. Dig. Rescous, (D. 4.) (D. 5.) 6 Bac. Abr. Rescue, (E). Rex v. Belt, 2 Salk. 586. Rex v. Elkins, 4 Burr. 2129. Anon. 2 Salk. 586. Rex . Minify, 1 Str. 642. Rex v. Ely, Lord Raym. 35. Anon. 1 Salk. 586. 1 Lord Raym. 589. (m) Cro. Circ. Comp. 409. 2 Star kie's Crim. Pl. 617. 2 Chit. Crim. L. (n) Ante, 51. Anon. 3 Salk. 187. (p) Mirror, c. 2. s. 26. (r) 2 Chit. Crim. L. 204. note (b.) (8) See, as to the proceedings upon this statute, Bradby on Distresses, 282. et sequ. 6 Bac. Abr. Rescue (C.) (t) F. N. B. 102 G. 6 Com. Dig. Rescous, (D. 3.) (u) Ante, 289. Disobedience sessions, SECT. II. 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. (w) In this case it was moved, in arrest of judgment, that, as the act of parliament (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. (x) Disobedience council. Upon the same principle it was holden that, where an act of to an order of parliament 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. (y) Disobedience Disobeying an order of one or more Justices, when duly made, to an order of is also a common law offence, and therefore punishable by indictjustices. ment. (*) 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. (a) 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. (b) So a power to remove a pauper being given to two Justices, by the 13 & 14 Car. 2. c. 12., the not removing him is a disobedience of that statute for which an indictment will lie. (c) And, by Foster, J. "In all cases where a Justice has 66 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.” (d) Where such an order is made, any person mentioned in it, and required to act under it, should, upon its being duly served upon (w) Rex v. Robinson, 2 Burr. 799, v. Fearnley, 1 T. R. 316. (a) Id. ibid. 800. (x) Id. ibid. See the principles upon which this decision proceeded ante, 47, et sequ. (y) Rex v. Harris, 4 T. R. 202. Leach. 549. (b) Reg. v. Gould, 1 Salk. 381. 2 Nol. c. 33. s. 3. (c) Rex v. Davis, 1 Bott. 338. Say. 4 Burn. Just. Poor. Sect. XIX. 2 163. 2. i. (z) Rex v. Balme, Cowp. 650. Rex (d) 4 Burn. Just. ibid. 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. until they had ceased to be stewards, yet it was still obligatory upon them, as members of the society, to attempt to reinstate the complainant; and that their having ceased to be stewards was no justification of entire neglect on their part. (e) Lord Ellenborough, C. J., said, at the trial, "The order is not confined to the stewards alone, but is made upon "all the members of the society; and the defendants were mem"bers of the society independently of their being stewards, and "were bound, as members, to see that the order was obeyed; or, at least, to have taken some steps for that purpose. As "members, they might have done something; as stewards in"deed, they might, with greater facility, have enforced obe"dience to the order; but each member had it in his power to "lend some aid for the attainment of that object." And when in the ensuing term a motion was made that a verdict might be entered for the defendants, on the ground that, having ceased to be stewards when the notice was served, they had not been guilty of a criminal default; the court said, that if the defendants had shewn that they did every thing in their power to restore the party, in obedience to the order, they might have given it in evidence by way of excuse. (ƒ) There must be personal service of an order on all persons who are charged with a contempt of it: and it was held, upon demurrer, to be a decisive objection to an indictment for a disobedience and contempt of an order of sessions, that it charged a contempt by six persons of an order which was only stated to have been served on four of them. (g) any act, should carry it into effect. lend his aid to The order should be personally served. ment. It appears to have been holden not to be necessary, in an in- Of the indictdictment against a public officer for disobedience of orders, to aver that the orders have not been revoked; for the orders, being stated to have been given by those who were empowered by certain statutes to give them, must be taken to remain in force until they were revoked or contradicted. (h) But an indictment for disobeying an order of justices must shew explicitly that an order was made; and it is not sufficient to state the order by way of recital. (i) It is said to be more safe to aver that the defendant was requested (e) Rex v. Gash and another, 1 Starkie 441. (f) Id. ibid. The motion was also made on another ground; namely, a defect in the jurisdiction of the magistrates: two magistrates of the county of Middlesex, where the meetings of the society were held, having made the order, though the society had been originally established in London, and its rules enrolled at the sessions for London. But the court de cided that the magistrates of Middlesex (g) Rex v. Kingston and others, 8 (h) Rex v. Holland, 5 T. R. 607. 624., a case of an indictment against the defendant for malversations in office while he was one of the council at Madras. (i) Rex v. Crowhurst, 2 Lord Raym. 1363. |