of procedure is by indictment, and a summary complaint will be dismissed as incompetent. So it was found in the case of A. Ritchie, 21st October 1797. Such a petition, complaining of proceedings as derogatory to the dignity of the Court, is competent only to the public prosecutor, or to the Court ex proprio motu, but not to a private party.2

The same principle extends to the punishment of all those attempts to prejudice either the public prosecutor or the accused in those trials concerning which a strong public feeling has been excited. It is fit that, on all such occasions, the jurymen should, as much as possible, come into Court with their minds unbiassed; and though this, with the general diffusion of newspapers, is by no means easy, yet, whenever a direct and palpable attempt at prejudging the question is detected, the Court will, on a summary application, visit it with condign punishment. For a misdemeanour of this kind, John Gilkie, a writer, was sent to prison for a month, and ordered to find caution for his good conduct. He had been private agent in a case of murder; and, after the pannels were committed, had published memorials, advertisements, and addresses, tending to prejudice the public against the accused.3 In the case of Thomas Mitchell and Robert Morrison, Perth, May 6. 1785, the delinquents, in a similar case, were more leniently dealt with. They had, after the service of the indictment against the prisoners, composed and published a sort of narrative and vindication on his part. This the Court held a palpable infringement on the course of justice; but, in consideration of the confession and penitence of the offenders, visited them only with a fine. More lately, the Court expressed their determination to proceed in a similar manner on occasion of the trial of Robert Emond, February 6. 1830. Bills were circulated through the streets previous to this man's trial, giving an exaggerated and highly inflammatory account of the evidence against him; and, on this being brought under the notice of the Court, by summary motion on the part of the prisoner, they interdicted such proceedings, and declared they would summarily punish any one who should continue them.5

4. Every indictment for subornation of perjury, or at

1 Burnett, 211.-2 A. Ritchie's Case, 29th January 1798; Burnett, 212. 3 Hume, i. 384.— Ibid. i. 385.—5 Unreported.

tempt to commit that crime, should give a distinct and specific account of the crime, and the time, place, and manner of its committal.

In all charges of subornation, the indictment should state the fact or crime to which the subornation applied, the manner and species of the indictment offered; whether the person practised on consented or not; if he did, what followed in pursuance of the criminal design, and the time and place at which these different steps took place. For want of a due specification of this kind, the libel was found not relevant in the case of Procuratorfiscal of Ayrshire v. Guthrie and others, 20th June 1810.J

5. The punishment of subornation is an arbitrary pain, varying according to the magnitude of the case, from a few months imprisonment to transportation.

In former times, the highest pains were frequently applied to this offence as well as to perjury, as in the case of Alexander Cheyne, March 15. 1605, and Graham of Long Boddon, March 8. 1615.2 But, for more than a century and a half, the punishment has been held to be an arbitrary pain only. In the case of James Hog and Thomas Souter, August 1. 1730, the pannels, convicted of repeated attempts to suborn, were fined £250, declared infamous, and banished Scotland for life. The like sentence was passed on Neil Macvicar, February 23. 1739, and James Kerr, February 21. 1745.1 In modern times, there can be no doubt that, in suitable cases, transportation might be awarded.5 Accordingly, in the case of William Hutchinson, July 20. 1831, who pleaded guilty to an extensive series of acts of subornation, transportation for seven years was awarded, being the same pain inflicted on the principal parties convicted of perjury.

1

6

1 Burnett, 211.-2 Hume, i. 384.-3 Ibid. Ibid. Ibid. Unreported.

CHAPTER XXII.

OF DEFORCEMENT.

THE crime of deforcement, one of the best known in the law, consists in the resistance to the officers of justice in the execution of their duty. It is frequently applied, both in ordinary and legal language, to every species of resistance, whether ultimately successful in preventing the execution of the warrant or not; but, since correct phraseology became more usual in drawing indictments, it is usually applied to such instances of resistance as defeat the warrant, while the previous and unsuccessful attempts to defeat it, are charged under the name of resisting and obstructing officers of the law, in the execution of their duty.

1. The person resisted must be a lawful officer, or a person aiding and assisting a lawful officer.

It is not cuivis e populo that the law communicates the high privilege of not being resisted without incurring the serious penalties of deforcement. The person deforced must be a lawful officer, one of the regular and proper executors of that sort of diligence which is hindered. If he be an ordinary individual who has arrogated to himself the character of servant of the law, or if he be in cursu only of being appointed, or if he has been deposed or suspended, or, though a lawful officer, if he be meddling with a business which does not belong to his official duty, as if a sheriff-officer be executing letters under the Signet, or a constable executing the sheriff's precept, or either acting beyond their own bounds; in all these situations the crime of deforcement, or obstructing and resisting, is not committed. Even if a warrant be addressed to a private in

1 Hume, i. 386.-2 Ibid. 387.

dividual, it would rather appear that the man does not by such a course become an officer; but if a regular officer be on the spot, and proceeding in a lawful manner, the protection of the law extends to his concurrents or assistants, because they are considered as the hands by which he acts, and any opposition offered to them is considered in the same light as opposition to himself. By the uniform style of indictment, accordingly, the resisting, obstructing or deforcing, officers of the law, is followed by "or those employed by them in the execution of their duty." But though these concurrents, acting with and under the officer, are considered in the same light as the officer himself, yet it is not to be imagined that they become, merely by having been called to his assistance, independent persons in the execution of the warrant, or entitled to act in the same way of their own authority, as he is in its execution, On the contrary, they can only aid and assist him in the execution of the duty, and therefore, if he is absent, or has declined or failed to discharge his duty, they cannot, merely upon the pretence of having been summoned to his assistance, pretend to act as officers pro hac vice. But, on the other hand, if he has taken them with him, and is in cursu of carrying the warrant into execution, the assistants are all protected though he is not at the moment present, being perhaps engaged in another part of the premises, or conducting another part of the duty. It is not necessary, nor is it usual, to libel on the officer's appointment; and his oath, that he is an officer of the law, is good evidence of the fact without production of his commission, as every day's practice demonstrates; but if the commission be libelled on and produced, any error or informality in it will be fatal to the charge of deforcement. So it was found by Lord Justice-Clerk Boyle, at Dumfries, spring 1824, in the case of Hugh Graham and others. The species facti there was, that a water-bailie with his assistants had seized a net, employed in illegal fishing on the River Annan, and the prisoners were indicted for breaking into his house and carrying away the net. The indictment libelled on the act appointing the water-bailie, and set forth that he had been regularly appointed; but, as it turned out upon examination of the document that the appointment was by one instead of two justices,'

1 Hume, i. 387.

which the act required, it was held that the whole charge, based on that alleged regular appointment, must fall to the ground.1

2. The officer must not only be possessed of a lawful commission, but at the time of the resistance he must be executing something to which he is bound by that com

mission.

The principle on which the law in regard to deforcement rests is, that it is the authority of the law which is set at nought by the resistance which is offered. The officer, therefore, must not only be vested with a lawful commission, but he must, at the time he is obstructed, be in the execution of something to which he is bound by that commission, and in which he cannot be repulsed, without bringing the authority of the law itself into contempt.2 Thus, a constable or sheriffofficer has not the benefit of this high protection in any accidental broil or quarrel in which he may be engaged; on all such occasions, utitur jure communi, he is in no better situation than an ordinary individual. Then only is he protected when he is in the execution of one of those acti legitimi, or formal and solemn proceedings, which take place under regular and written authorities, and he alone can perform. It follows that a sheriff-officer or constable has not the protection of the law more than an ordinary individual, if he is only acting tanquam quilibet, in the execution even of official duty; as, for example, if he is carrying a packet of letters from the sheriff, or has been sent to a certain quarter of the country to make private inquiries or commence a precognition about a crime.1

Nay, the same principle goes the length of excluding the officer's high privilege, in situations which approach much more nearly to his protected duties. Thus suppose he is attacked in his own house, and has the letters of caption or warrant taken from him; or that he is met half way on the road, and there waylaid and robbed of his warrant; such proceedings, though undoubtedly an aggravated species of assault, are not deforcement. In short, to be within the protection of this law, he must be either engaged in executing a warrant or in actu

Unreported.-2 Hume, i, 387.-3 Ibid. — Ibid.