1 ARTICLE 148.

EXTORTION AND OPPRESSION BY PUBLIC OFFICERS.

2 [Every public officer commits a misdemeanor who, in the exercise, or under color of exercising the duties of his office, does any illegal 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.

3 If the illegal act consists in taking under color 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.) 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.) The Governor-General of India wrongfully compels a native prince to pay sums of money to the Indian government. He commits extortion.

1 S. D. Art. 119.

2 [R. v. Wyat, 1 Salk. 380; R. v. Bembridge, 3 Doug. 327, and 22 St. Tr. 1-159; Bacon, Abridgment, tit. "Office and Officer," N.; R. v. Borron, 3 B. & Ald. 434; and see cases referred to in the Illustrations.]

3 R. v. Tisdale, 20 U. C. Q. B. 272; Parsons v. Crabbe, 31 U. C. C. P. 151.

4 [4th Article of impeachment against Scroggs, C.J., 8 St. Tr. 199.

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]

[(3).1 A and B, justices of the peace, refuse licenses 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.

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

(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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7 ARTICLE 149.

FRAUDS AND BREACHES OF TRUST BY OFFICERS.

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.

[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 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, 3 Burr. 1317.

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

3 See precedent of indictment, 2 Chit. Crim. Law, 236. Precedent of indictment, 2 Chit. Crim. Law, 293.

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

R. v. Badger, 4 Q. B. 475.]

7S. D. Art. 121.

[See cases in Illustrations.] As to telegraph operators divulging, without lawful authority, the contents of telegrams, see R. S. C. c. 134, ss. 3, 4.

Illustrations.

[(1.) 1A, 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.

(2.) 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.

3 ARTICLE 150.

NEGLECT OF OFFICIAL DUTY.

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

(2.) 6 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.) A, a sheriff, refuses to execute a criminal condemned to death. A commits a misdemeanor.

1 [R. v. Bembridge, 3 Doug. 332; 22 St. Tr. 1-159. This would now, in England, be an offence in the case of a private person under 38 & 39 Vict. c. 24, s. 2. See S. D. Art. 352. 2 R. v. Valentine Jones, 31 St. Tr. 251.]

3 S. D. Art. 122.

[R. v. Wyat, 1 Salk. 331; R. v. Bembridge, 3 Doug. 332; 22 St. Tr. 1-159; Comyn's Digest, tit. Indictment, D.; R. v. Jones, Strange, 1146; 4 Steph. Com. 326.

5 R. v. Pinney, 5 C. & P. 254, and 3 B. & Ad. 947. This is the case of the Bristol riots. Mr. Pinney was, in fact, acquitted; but the case involves the principle of the illustration. R. v. Kennett (Lord Mayor in 1780), printed in 5 C. & P. 282, as a note to R. v. Pinney. 7 R. v. Antrobus, 2 A. & E. 798.]

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[(4.) 1 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.) 2 A, a constable, wilfully refuses to arrest a person who commits a felony in his presence. A commits a misdemeanor.

(6.) 3 A, a clergyman of the Church of England, refuses to solemnize marriage between persons who might lawfully be married and who tender themselves for that purpose. He commits a misdemeanor.]

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(7.) * A, an overseer of the poor, wilfully neglects to perform the duty imposed upon him of accounting for money received by him as such overseer. A commits a misdemeanor.

ARTICLE 151.

MISCONDUCT OF OFFICERS INTRUSTED WITH EXECUTION OF WRITS.

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Every one is guilty of a misdemeanor, and liable to a fine and imprisonment, in the discretion of the court, who, being a sheriff, deputy sheriff, coroner, elisor, bailiff, constable or other officer intrusted with the execution of any writ, warrant or process, wilfully misconducts himself in the execution of the same, or wilfully and without the consent of the person in whose favor the writ, warrant or process was issued, makes any false return thereto.

[2 Hale, P. C. 58; and see precedent of indictment, 2 Chit. Crim. Law, 255. 22 Hawk. P. C. p. 129; cf. p. 115.

3 R. v. James, 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, L. R. 1 P. D. 80.)]

4 R. v. Matthews, 2 Kerr 543.

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R. S. C. c. 173, s. 29: As to disobedience of orders and neglect of duty by certain peace officers, see R. S. C. c. 45, s. 18 (North-West Mounted Police); 23 Vict. (P.C.) c. 29, s. 4; R. S. C. c. 38, s. 55, and 51 Vict. (D.) c. 29, s. 286 (railway constables); R. S.IC. c. 89, s. 5 (harbor and river police, Quebec); R. S. C. c. 184, s. 6 (Dominion police). As to peace officers not conveying to custom house goods detained by them as liable to seizure under the Customs Acts, see R. S. C. c. 32, s. 219. As to defaults, &c., by census officers, see R. S. C. c. 58, s. 15.

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1 ARTICLE 152.

REFUSAL TO SERVE AN OFFICE.

2 [Every one commits a misdemeanor who unlawfully refuses or omits to take upon himself and serve any public office which he is by law required to accept if duly appointed; but this Article does not extend to cases in which any other penalty is imposed by law for such refusal or neglect, or to any case in which by law or by custom any person is permitted to make any composition in place of serving any office.

Illustration.

A person may be indicted for refusing to exercise the office of overseer of the poor or parish constable.]

1 S. D. Art. 123.

2 [R. v. Bower, 1 B. & C. 585: and see 5th Report, C. L. C. 41, where many authorities are cited. Also 1 Russ. Cr. 307-8.]