ARTICLE 124.

EXTORTION AND OPPRESSION BY PUBLIC OFFICERS.

1 Every public officer commits a misdemeanor who, in the exercise, or under colour of exercising the duties of his office, does any legal act, or abuses any discretionary power with which he is invested by law from an improper motive, the existence of which motive may be inferred either from the nature of the act, or from the circumstances of the case. But an illegal exercise of authority, caused by a mistake as to the law, made in good faith, is not a misdemeanor within this Article.

If the illegal act consists in taking under colour of office from any person any money or valuable thing which is not due from him at the time when it is taken, the offence is called "extortion."

If it consists in inflicting upon any person any bodily harm, imprisonment, or other injury, not being extortion, the offence is called "oppression."

Illustrations.

(1.)2 The Lord Chief Justice of England passes upon B and C sentences for similar offences so disproportionate as to show partiality. He commits oppression.

(2.) 3 The Governor-General of India wrongfully compels a

1 R. v. Wyat, 1703, 1 Salk. 380; R. v. Bembridge, 1783, 3 Doug. 327, and 22 St. Tr. 1-159; Bacon, Abridgment, tit. "Office and Officer," N.; R. v. Borron, 1820, 3 B. & Ald. 432; and see cases referred to in the Illustrations.

24th Article of impeachment against Scroggs, C.J., 1680, 8 St. Tr. 199. 3 This was the gist of the Cheyte Singh charge in the impeachment of Warren Hastings. It is remarkable that neither in Debrett's History of the Trial, nor in Mr. Mill's History of India, nor in Lord Macaulay's elaborate Essay on Warren Hastings, nor in Marshman's History of India, are the charges against Hastings distinctly stated. It seems to a lawyer natural to give at least an abstract of the indictment in order to render an account of a trial intelligible, but historians are apt to take a different view. Lord Macaulay in particular is so much interested in Burke's rhetoric that he omits to say what it was all about. In Mr. Massey's

native prince to pay sums of money to the Indian Government. He commits extortion.

(3.) 1 A and B, justices of the peace, refuse licences to the keepers of public houses, because they refuse to vote as the justices wish. A and B commit oppression.

(4.) 2 A, a justice of the peace, sends his servant to the house of correction for being saucy and giving too much corn to his horses. A commits oppression.

(5.) 3 A, a justice, acting as such, orders B to be whipped, without such proof or information as the law requires. A commits oppression.

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(6.) A, a constable, having B in custody on a warrant for an assault, obtains money from B upon colour and pretence that A will procure the warrant to be discharged. A commits extor

tion.

(7.) 5 A, a justice, commits B, a pauper, to prison for refusing to answer questions which A had a right to put as to B's settlement, believing in good faith that A had a legal right to commit B. A does not commit a misdemeanor.

(8.) 6 A, a justice, illegally refuses to accept bail for a person entitled to be bailed, under an opinion, hastily adopted in a crisis of real danger, that it was right to do so. A does not commit a misdemeanor.

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ARTICLE 125.

ILLEGALLY IMPRISONING SUBJECTS BEYOND THE SEAS.

Every one commits a misdemeanor who knowingly frames, contrives, writes, seals, or countersigns any warrant for the commitment, detainer, or transportation of any subject of this

History of George III., vol. iii. p. 337, Burke's summary of the ten charges which he opened is given, but Mr. Massey observes that only one of the ten was distinct and substantive. The transactions with Cheyte Singh are described in Mill's British India, iv. 321, &c., in Lord Macaulay's Essays, p. 620 (ed. of 1850), and in Marshman's History, i. 424.

1 R. v. Williams, 1762, 3 Burr. 1317.

2 R. v. Okey, 1722, 8 Mod. 46. According to R. v. Morfit, 1816, R. & R. 307, decided long afterwards, A might have committed his servant for theft.

3 See precedent of indictment, 2 Chit. Crim. Law, 236.

4 Precedent of indictment, 2 Chit. Crim. Law, 292.

5 R. v. Jackson, 1787, 1 T. R. 653.

6 R. v. Badger, 1843, 4 Q. B. 468.

7 31 Car. 2, c. 2, s. 11, the Habeas Corpus Act. The penalty is præmunire, as explained by Coke, 1 Inst. 130 a. 7th Rep. C. L. C. p. 37.

realm resident in England, Wales, or Berwick, as a prisoner in or to Scotland, Ireland, Jersey, Guernsey, or any other place beyond the sea, with or without the Queen's dominions or who so commits, detains, imprisons, or transports any person.

Whoever commits any such misdemeanor is put out of the Queen's protection. His lands, tenements, goods, and chattels are forfeited to the Queen, and he is to be imprisoned for life (or perhaps at the Queen's pleasure).

ARTICLE 126.

FRAUDS AND BREACHES OF TRUST BY OFFICERS.

1 Every public officer commits a misdemeanor who, in the discharge of the duties of his office commits any fraud or breach of trust affecting the public, whether such fraud or breach of trust would have been criminal or not if committed against a private person.

Illustrations.

(1.) 2 A, an accountant in the office of the Paymaster-General, fraudulently omits to make certain entries in his accounts, whereby he enables the cashier to retain large sums of money in his own possession, and to appropriate the interest on such sums to himself after the time when they ought to have been paid to the Crown. A commits a misdemeanor.

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(2.) A, a commissary-general of stores in the West Indies, makes contracts with B to supply stores, on the condition that B should divide the profits with A. A commits a misdemeanor.

ARTICLE 127.

NEGLECT OF OFFICIAL DUTY.

Every public officer commits a misdemeanor who wilfully neglects to perform any duty which he is bound either by

1 See cases in Illustrations.

2 R. v. Bembridge, 1783, 3 Doug. 327; 22 St. Tr. 1-160. This would now be an offence in the case of a private person under 38 & 39 Vict. c. 24, s. 12. See post, Art. 381.

3 R. v. Valentine Jones, 1809, 31 St. Tr. 251.

4 R. v. Wyat, 1702, 1 Salk. 381; R. v. Bembridge, ante; Comyn's Digest, tit. Indictment, D.; 4 Steph. Com. 272.

common law or by statute to perform, provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected

to encounter.

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Illustrations.

(1.) A, the mayor of B, neglects to perform various acts which it was in his power to do, and which a man of ordinary prudence, firmness, and activity, might have been expected to do, in order to suppress riots in B. A is guilty of a misde

meanor.

(2.) 2 A, the Lord Mayor of London, refrains from making the proclamation in the Riot Act, and from ordering soldiers to disperse a mob, because he is afraid to do so, in circumstances in which a man of ordinary courage would not have been afraid. A commits a misdemeanor.

(3.) 3 A, a sheriff, refuses to execute a criminal condemned to death. A commits a misdemeanor.

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(4.) A, a coroner, refuses to take an inquest on a body, after notice that it is lying dead in his jurisdiction. A commits a misdemeanor.

(5.) 5 A, a constable, wilfully refuses to arrest a person who commits a felony in his presence. A commits a misdemeanor.

(6.) 6 A, a clergyman of the Church of England, refuses to solemnise marriage between persons who might lawfully be married and who tender themselves for that purpose. He commits a misdemeanor.

1.

1 R. v. Pinney, 1832, 5 C. & P. 254, and 3 B. & Ad. 947, 3 St. Tr. N. S. This is the case of the Bristol riots. Mr. Pinney was, in fact, acquitted; but the case involves the principle of the illustration.

2 R. v. Kennet, 1781 (Lord Mayor in 1780), printed in 5 C. & P. 282, as a note to R. v. Pinney.

3 R. v. Antrobus, 1835, 2 A. & E. 788.

4 2 Hale, P. C. 57; and see precedent of indictment, 2 Chit. Crim. Law, 255.

5 Hawk, P. C. p. 129; cf. p. 115.

6 R. v. James, 1850, 2 Den. 1. The conviction in this case was quashed on the narrow ground that the parties did not sufficiently tender themselves for marriage. The objection that the offence was only an ecclesiastical one was taken, but no judgment was delivered on it. A refusal to bury would probably stand on the same footing. By 1 Edw. 6, c. 1, it is enacted that a minister "shall not without lawful cause deny" (the Sacrament)" to any person that will devoutly and humbly desire it." An indictment for such a denial would be incongruous and indecent, but it is difficult to find any definite legal ground for saying that it would not lie. See Jenkins v. Cook, 1876, L. R. 1 P. D. 80.

ARTICLE 128.

OFFENCES BY SOLDIERS.

1 Every officer who quarters or causes to be billeted any officer, soldier or horse upon any person otherwise than is allowed by this Act is guilty of a misdemeanor.

2 Every person who negotiates, acts as agent for or otherwise aids or connives at, the sale of a commission, payment for promotion, retirement, or employment or an unlawful exchange, is liable on conviction on indictment to a fine of £100, or imprisonment for six months.

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ARTICLE 129.

OFFENCES BY POST-OFFICE OFFICIALS.

Every person having official duties connected with the Post Office or acting on behalf of the Postmaster-General is guilty of a misdemeanor, who contrary to his duty discloses, or in any way makes known, or intercepts, the contents, or any part of the contents, of any telegraphic messages or any message intrusted to the Postmaster-General for the purposes of transmission.

4 Every person in the employment of a 5 telegraph company is guilty of a misdemeanor and is liable to imprisonment with hard labour or to a fine of £200 who improperly divulges to any person the purport of any telegram.

144 & 45 Vict. c. 58, s. 111.

2 Ibid. s. 155.

3 32 & 33 Vict. c. 73, s. 20.

4 47 & 48 Vict. c. 76, s. 11. see Oke's Synopsis, p. 632.

This offence is also punishable summarily;

Any company, corporation, or persons carrying on the business of sending telegrams for the public under whatever authority or in whatever manner, such company, corporation, or persons may act or be constituted."

6 "A written or printed message or communication, sent to or delivered at, a post-office, or the office of a telegraph company, for transmission by telegraph, or delivered by the Post Office or a telegraph company as a message or communication transmitted by telegraph."