Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Offenses Against Public Justice
THE order of our distribution will next lead us to take into consideration such crimes and misdemeanors as more especially affect the commonwealth, or public polity of the kingdom: which however, as well as those which are peculiarly pointed against the lives and security of private subjects, are also offenses against the king, as the pater-familias of the nation; to whom it appertains by his regal office to protect the community, and each individual therein, from every degree of injurious violence, by executing those laws, which the people themselves in conjunction with him have enacted; or at least have consented to, by an agreement either expressly made in the persons of their representatives, or by a tacit and implied consent perfumed and proved by immemorial usage.
THE species of crimes, which we have now before us, is subdivided into such a number of inferior and subordinate classes, that it would much exceed the bounds of an elementary treatise, and be insupportably tedious to the reader, were I to examine them all minutely, or with any degree of critical accuracy. I shall therefore confine myself principally to general definitions or descriptions of this great variety of offenses, and to the punishments inflicted by law for each particular offense; with now and then a few incidental observations: referring the student for more particulars to other voluminous authors; who have treated of these subjects with greater precision and more in detail, than is consistent with the plan of these commentaries.
THE crimes and misdemeanors, that more especially affect the common-wealth, may be divided into five species; viz. offenses against public justice, against the public peace, against public trade, against the public health, and against the public police or economy: of each of which we will take a cursory view in their order.
FIRST then, of offenses against public justice: some of which are felonious, whose punishment may extend to death; others only misdemeanors. I shall begin with those that are most penal, and descend gradually to such as are of less malignity.
1. EMBEZZLING or vacating records, or falsifying certain other proceedings in a court of judicature, is a felonious offense against public justice. It is enacted by statute 8 Hen. VI. c. 12. that if any clerk, or other person, shall willfully take away, withdraw, or avoid any record, or process in the superior courts of justice in Westminster-hall, by reason whereof the judgment shall be reversed or not take effect; it is felony not only in the principal actors, but also in their procurers, and abettors. Likewise by statute 21 Jac. I. c. 26. to acknowledge any fine, recovery, deed enrolled, statute, recognizance, bail, or judgment, in the name of another person not privy to the same, is felony without benefit of clergy. Which law extends only to proceedings in the courts themselves: but by statute 4 W. & M. c. 4. to personate any other person before any commissioner authorized to take bail in the country is also felony. For no man’s property would be safe, if records might be suppressed or falsified, or persons’ names be falsely usurped in courts, or before their public officers.
2. TO prevent abuses by the extensive power, which the law is obliged to repose in jailers, it is enacted by statute 14 Edw. III. c. 10. that if any jailer by too great duress of imprisonment makes any prisoner that he has in ward, become an approver or an appellor against his will; that is, as we shall see hereafter, to accuse and turn evidence against some other person; it is felony in the jailer. For, as Sir Edward Coke1 observes, it is not lawful to induce or excite any man even to a just accusation of another; much less to do it by duress of imprisonment; and least of all by a jailer, to whom the prisoner is committed for safe custody.
3. A THIRD offense against public justice is obstructing the execution of lawful process. This is at all times an offense of a very high and presumptuous nature; but more particularly so, when it is an obstruction of an arrest upon criminal process. And it has been held, that the party opposing such arrest becomes thereby particeps criminis; that is, an accessory in felony, and a principal in high treason.2 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 pretext of their having been ancient palaces of the crown, or the like:3 all of which sanctuaries for iniquity are now demolished, and the opposing of any process therein is made highly penal, by the statutes 8 & 9 W. III. c. 27. 9 Geo. I. c. 28. and 11 Geo. I. c.22. which enact, that persons opposing the execution of any process in such pretended privileged places within the bills of mortality, or abusing any officer in his endeavors to execute his duty therein, so that he receives bodily hurt, shall be guilty of felony, and transported for seven years.
4. AN escape of a person arrested upon criminal process, by eluding the vigilance of his keepers before he is put in hold, is also an offense against public justice, and the party himself is punishable by fine or imprisonment.4 But the officer permitting such escape, either by negligence or connivance, is much more culpable than the prisoner; the natural desire of liberty pleading strongly in his behalf, though he ought in strictness of law to submit himself quietly to custody, till cleared by the due course of justice. Officers therefore who, after arrest, negligently permit a felon to escape, are also punishable by fine;5 but voluntary escapes, by consent and connivance of the officer, are a much more serious offense: for it is generally agreed that such escapes amount to the same kind of offense, and are punishable in the same degree, as the offense of which the prisoner is guilty, and for which he is in custody, whether treason, felony, or trespass. And this, whether he were actually committed to jail, or only under a bare arrest.6 But the officer cannot be thus punished, till the original delinquent is actually found guilty or convicted, by verdict, confession, or outlawry, of the crime for which he was so committed or arrested: otherwise it might happen, that the officer might be punished for treason or felony, and the person arrested and escaping might turn out to be an innocent man. But, before the conviction of the principal party, the officer thus neglecting his duty may be fined and imprisoned for a misdemeanor.7
5. BREACH of prison by the offender himself, when committed for any cause, was felony at the common law:8 or even conspiring to break it.9 But this severity is mitigated by the statute de frangentibus prisonam, 1 Edw. II. which enacts, that no person shall have judgment of life or member, for breaking prison, unless committed for some capital offense. So that to break prison, when lawfully committed for any treason or felony, remains still felony as at the common law; and to break prison, when lawfully confined upon any other inferior charge, is still punishable as a high misdemeanor by fine and imprisonment. For the statute, which ordains that such offense shall be no longer capital, never meant to exempt it entirely from every degree of punishment.10
6. RESCUE is the forcibly freeing another from an arrest or imprisonment; and is always the same offense in the stranger so rescuing, as it would have been in the party himself to have broken prison.11 A rescue therefore of one apprehended for felony, is felony; for treason, treason; and for a misdemeanor, a misdemeanor also. But here, as upon voluntary escapes, the principal must first be attainted before the rescuer can be punished: and for the same reason; because perhaps in fact it may turn out that there has been no offense committed.12 By the statute, 16 Geo. II. c. 31. to assist a prisoner in custody for treason or felony with any arms, instruments of escape, or disguise, without the knowledge of the jailer; or any way to assist such prisoner to attempt an escape, though no escape be actually made, is felony, and subjects the offender to transportation for seven years. And by the statutes 25 Geo. II. c. 37. and 27 Geo. II. c. 15. to rescue, or attempt to rescue, any person committed for murder, or for any of the offenses enumerated in that act, or in the black act 9 Geo. I. c. 22. is felony without benefit of clergy.
7. ANOTHER capital offense against public justice is the returning from transportation, or being seen at large in Great Britain before the expiration of the term for which the offender was sentenced to be transported. This is made felony without benefit of clergy by statutes 4. Geo. I. c. 11. 6 Geo. I. c. 23. and 8 Geo. III. c. 15.
8. AN eighth is that of taking a reward, under pretense of helping the owner to his stolen goods. This was a contrivance carried to a great length of villainy in the beginning of the reign of George the first: the confederates of the felons thus disposing of stolen goods, at a cheap rate, to the owners themselves, and thereby stifling all farther inquiry. The famous Jonathan Wild had under him a well disciplined corps of thieves, who brought in all their spoils to him; and he kept a sort of public office for restoring them to the owners at half price. To prevent which audacious practice, to the ruin and in defiance of public justice, it was enacted by statute 4 Geo. I. c. 11. that whoever shall take a reward under the pretense of helping anyone to stolen goods, shall suffer as the felon who stole them; unless he cause such principal felon to be apprehended and brought to trial, and shall also give evidence against him. Wild, upon this statute, (still continuing in his old practice) was at last convicted and executed.
9. RECEIVING of stolen goods, knowing them to be stolen, is also a high misdemeanor and affront to public justice. We have seen in a former chapter,13 that this offense, which is only a misdemeanor at common law, by the statutes 3 & 4 W. & M. c. 9. and 5 Ann. c. 31. makes the offender accessory to the these and felony. But because the accessory cannot in general be tried, unless with the principal, or after the principal is convicted, the receivers by that means frequently eluded justice. To remedy which, it is enacted by statute 1 Ann. c. 9. and 5 Ann. c. 31. that such receivers may still be prosecuted for a misdemeanor, and punished by fine and imprisonment, though the principal felon be not before taken, so as to be prosecuted and convicted. And, in case of receiving stolen lead, iron, and certain other metals, such offense is by statute 29 Geo. II. c. 30. punishable by transportation for fourteen years.14 So that now the prosecutor has two methods in his choice: either to punish the receivers for the misdemeanor immediately, before the thief is taken;15 or to wait till the felon is convicted, and then punish them as accessories to the felony. But it is provided by the same statutes, that he shall only make use of one, and not both o these methods of punishment. By the same statute also 29 Geo. II. c. 30. persons having lead, iron, and other metals in their custody, and not giving a satisfactory account how they came by the same, are guilty of a misdemeanor and punishable by fine or imprisonment.
10. OF a nature somewhat similar to the two last is the offense of theft-bote, which is where the party robbed not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute. This is frequently called compounding of felony, and formerly was held to make a man an accessory; but is now punished only with fine and imprisonment.16 This perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment. And the Salic law “latroni eum similem habuit, qui furtum celare vellet, et occulte sine judice compositionem ejus admittere.”17 By statute 25 Geo. II. c. 36. even to advertise a reward for the return of things stolen, with no questions asked, or words to the same purport, subjects the advertiser and the printer to a forfeiture of 50 £ each.
11. COMMON barretry is the offense of frequently exciting and stirring up suits and quarrels between his majesty’s subjects, either at law or otherwise.18 The punishment for this offense, in a common person, is by fine and imprisonment: but if the offender (as is too frequently the case) belongs to the profession of the law, a barretor, who is thus able as well as willing to do mischief, ought also to be disabled from practicing for the future.19 Hereunto maybe referred an offense of equal malignity and audaciousness; that of suing another in the name of a fictitious plaintiff; either one not in being at all, or one who is ignorant of the suit. This offense, if committed in any of the king’s superior courts, is left, as a high contempt, to be punished at their discretion. But in courts of a lower degree, where the crime is equally pernicious, but the authority of the judges no equally extensive, it is directed by statute 8 Eliz. c. 2. to be punished by six months imprisonment, and treble damages to the party injured.
12. MAINTENANCE is an offense, that bears a near relation to the former; being an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it:20 a practice, that was greatly encouraged by the first introduction of uses.21 This is an offense against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression. And therefore, by the Roman law, it was a species of the crimen falsi to enter into any confederacy, or do any act to support another’s lawsuit, by money, witnesses, or patronage.22 A man may however maintain the suit of his near kinsman, servant, or poor neighbor, out of charity and compassion, with impunity. Otherwise the punishment by common law is fine and imprisonment;23 and, by the statute 32 Hen. VIII. c. 9. a. forfeiture of ten pounds.
13. CHAMPERTY, campi-partitio, is a species of maintenance, and punished in the same manner:24 being a bargain with a plaintiff of defendant campum partire, to divide the land or other matter sued for between them, if they prevail at law; whereupon the champertor is to carry on the party’s suit at his own expense.25 Thus champart, in the French law, signifies a similar division of profits, being a part of the crop annually due to the landlord by bargain or custom. In our sense of the word, it signifies the purchasing of a suit, or right of suing: a practice so much abhorred by our law, that it is one main reason why a chose in action, or thing of which one has the right but not the possession, is not assignable at common law; because no man should purchase any pretense to sue in another’s right. These pests of civil society, that are perpetually endeavoring to disturb the repose of their neighbors, and officiously interfering in other men’s quarrels, even at the hazard of their own fortunes, were severely animadverted on by the Roman law: “qui improbe coeunt in alienam litem, ut quicquid ex communicatione in rem ipsius redactum fuerit, inter eos communicaretur, lege Julia de vi privata tenentur“;26 and they were punished by the forfeiture of a third part of their goods, and perpetual infamy. Hitherto also must be referred the provision of the statute 32 Hen. VIII. c. 9. that no one shall sell or purchase any pretended right or title to land, unless the vendor has received the profits thereof for one whole year before such grant, or has been in actual possession purchaser and vendor shall each forfeit the value of such land to the king and the prosecutor. These offenses relate chiefly to the commencement of civil suits: but
14. THE compounding of informations upon penal statutes are an offense of an equivalent nature in criminal causes; and are, besides, an additional misdemeanor against public justice, by contributing to make the laws odious to the people. At once therefore to discourage malicious informers, and to provide that offenses, when once discovered, shall be duly prosecuted, it is enacted by statute 18 Eliz. c. 5. that if any person, informing under pretense of any penal law, makes any composition without leave of the court, or takes any money or promise from the defendant to excuse him (which demonstrates him intent in commencing the prosecution to be merely to serve his own ends, and not for the public good) he shall forfeit 10£, shall stand two hours on the pillory, and shall be forever disabled to sue on any popular or peal statute.
15. A CONSPIRACY also to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted, is a farther abuse and perversion of public justice; for which the party injured may either have a civil action by writ of conspiracy, (of which we spoke in the preceding book27) or the conspirators, for there must be at least two to form a conspiracy, may be indicted at the suit of the king, and were by the ancient common law28 to receive what is called the villainous judgment; viz. to lose their liberam legem, whereby they are discredited and disabled to be jurors or witnesses; to forfeit their goods and chattels, and lands for life; to have those lands wasted, their houses razed, their trees rooted up, and their own bodies committed to prison.29 But it now is the better opinion, that the villainous judgment is by long disuse become obsolete; it not having been pronounced for some ages: but instead thereof the delinquents are usually sentenced to imprisonment, fine, and pillory. To this head may be referred the offense of sending letters, threatening to accuse any person of a crime punishable with death, transportation, pillory, or other infamous punishment, with a view to extort from him any money or other valuable chattels. This is punishable by statute 30 Geo. II. c. 24. at the discretion of the court, with fine, imprisonment, pillory, whipping, or transportation for seven years.
16. THE next offense against public justice is when the suit is past its commencement, and come to trial. And that is the crime of willful and corrupt perjury; which is defined by Sir Edward Coke,30 to be a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears willfully, absolutely and falsely, in a matter material to the issue or point in question. The law takes no notice of any perjury but such as is committed in some court of justice, having power to administer an oath; or before some magistrate or proper officer, invested with a similar authority, in some proceedings relative to a civil suit or a criminal prosecution: for it esteems all other oaths unnecessary at least, and therefore will not punish the breach of them. For which reason it is much to be questioned how far any magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as is now too frequent upon every petty occasion: since it is more than possible, that by such idle oaths a man may frequently in foro conscientiae incur the guilt, and at the same time evade the temporal penalties, of perjury. The perjury must also be willful, positive, and absolute; not upon surprise, or the like: it also must be in some point material to the question in dispute; for if it only be in some trifling collateral circumstances, to which no regard is paid, it is no more penal than in the voluntary extrajudicial oaths before-mentioned. Subornation of perjury is the offense of procuring another to take such a false oath, as constitutes perjury in the principal. The punishment of perjury and subornation, at common law, has been various. It was anciently death; afterwards banishment, or cutting out the tongue, then forfeiture of goods; and now it is fine and imprisonment, and never more to be capable of bearing testimony.31 But the statute 5 Eliz. c. 9. (if the offender be prosecuted thereon) inflicts the penalty of perpetual infamy, and a fine of 40£ on the suborner; and, in default of payment, imprisonment for six months, and to stand with both ears nailed to the pillory. Perjury itself is thereby punished with six months imprisonment,
perpetual infamy, and a fine of 20£ or to have both ears nailed to the pillory. But the prosecution is usually carried on for the offense at common law; especially as, to the penalties before inflicted, the statute 2 Geo. II. c. 25. super-adds a power, for the court to order the offender to be sent to the house of correction for seven years, or to be transported for the same period; and makes it felony without benefit of clergy to return or escape within the time. It has sometimes been wished, that perjury, at least upon capital accusations, whereby another’s life has been or might have been destroyed, was also rendered capital, upon a principle of retaliation; as it is universally by the laws of Frances.32 And certainly the odiousness of the crime pleads strongly in behalf of the French law. But it is to be considered, that there they admit witnesses to be heard only on the side of the prosecution, and use the rack to extort a confession from the accused. In such a constitution therefore it is necessary to throw the dread of capital punishment into the other scale, in order to keep in awe the witnesses for the crown; on whom alone the prisoner’s fate depends: so naturally does one cruel law beget another. But corporal and pecuniary punishments, exile and perpetual infamy, are more suited to the genius of the English law, where the fact is openly discussed between witnesses on both sides, and the evidence for the crown may be contradicted and disproved by those of the prisoner. Where indeed the death of an innocent person has actually been the consequence of such willful perjury, it falls within the guilt of deliberate murder, and deserves an equal punishment: which our ancient law in fact inflicted.33 But the mere attempt to destroy life by other means not being capital, there is no reason than an attempt by perjury should: much less that this crime should in all judicial cases be punished with death. For to multiply capital punishments lessens their effect, when applied to crimes of the deepest dye; and, detestable as perjury is, it is not by any means to be compared with some other offenses, for which only death can be inflicted: and therefore it seems
already (except perhaps in the instance of deliberate murder by perjury) very properly punished by our present law; which has adopted the opinion of Cicero,34 derived from the law of the twelve tables, “perjurii poena divina, exitium; humana, dedecus.”
17. BRIBERY is the next species of offense against public justice; which is when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behavior in his office.35 In the east it is the custom never to petition any superior for justice, not excepting their kings, without a present. This is calculated for the genius of despotic countries; where the true principles of government are never understood, and it is imagined that there is no obligation from the superior to the inferior, no relative duty owing from the governor to the governed. The Roman law, though it contained many severe injunctions against bribery, as well for selling a man’s vote in the senate or other public assembly, as for the bartering of common justice, yet by a strange indulgence in one instance, it tacitly encouraged this practice; allowing the magistrate to receive small presents, provided they did not in the whole exceed a hundred crowns in the year:36 not considering the insinuating nature and gigantic progress of this vice, when once admitted. Plato therefore more wisely, in his ideal republic,37 orders those who take presents for doing their duty to be punished in the severest manner: and by the laws of Athens he that offered was also prosecuted, as well as he that received a bribe.38 In England this offense of taking bribes is punished, in inferior officers, with fine and imprisonment; and in those who offer a bribe, though not taken, the same.39 But in judges, especially the superior ones, it has been always looked upon as so heinous an offense, that the chief justice Thorpe was hanged for it in the reign of Edward III. By a statute40 11 Hen. IV, all judges and officers of the king, convicted of bribery, shall forfeit treble the bribe, be punished at the king’s will, and be discharged from the king’s service forever. And some notable examples have been made in parliament, of persons in
the highest stations, and otherwise very eminent and able, but contaminated with this sordid vice.
18. EMBRACERY is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like.41 The punishment for the person embracing is by fine and imprisonment; and, for the juror so embraced, if it be by taking money, the punishment is (by diverse statutes of the reign of Edward III) perpetual infamy, imprisonment for a year, and forfeiture of the tenfold value.
19. THE false verdict of jurors, whether occasioned by embracery or not, was anciently considered as criminal, and therefore exemplarily punished by attaint in the manner formerly mentioned.42
20. ANOTHER offense of the same species is the negligence of public officers, entrusted with the administration of justice, as sheriffs, coroners, constables, and the like: which makes the offender liable to be fined; and in very notorious cases will amount to a forfeiture of his office, if it be a beneficial one.43 Also the omitting to apprehend persons, offering stolen iron, lead, and other metals to sale, is a misdemeanor and punishable by a stated fine, or imprisonment, in pursuance of the statute 29 Geo. II. c. 30.
21. THERE is yet another offense against public justice, which is a crime of deep malignity; and so much the deeper, as there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution. This is the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the color of their office. However, when prosecuted, either by impeachment in parliament, or by information in the court of king’s bench, (according to the rank of the offenders) it is sure to be severely punished with forfeiture of their offices, fines, imprisonment, or other discretionary censures, regulated by the nature and aggravations of the offense committed.
22. LASTLY, extortion is an abuse of public justice, which consists in any officer’s unlawfully taking, by color of his office, from any man, any money or thing of value, that is not due to him, or more than is due, or before it is due.44 The punishment is fine and imprisonment, and sometimes a forfeiture of the office.
1. 3 Inst. 91.
2. 1 Hawk. P. C. 121.
3. Such as White-Friers, and its environs; the Savoy; and the Mint in Southwark.
4. 2 Hawk. P. C. 122.
5. 1 Hal. P. C. 600.
6. 1 Hal. P. C. 590. 2 Hawk. P. C. 134.
7. 1 Hal. P. C. 588, 9. 2 Hawk. P. C. 134, 5.
8. 1 Hal. P. C. 607.
9. Bract. l. 3. c. 9.
10. 2 Hawk. P. C. 128.
11. Ibid. 139.
12. 1 Hal. P. C. 607.
13. See pag. 38.
14. See also statute 2 Geo. II. c. 28. § 12. for the punishment of receivers of goods stolen by bum-boats, etc. in the Thames.
15. Foster. 373.
16. 1 Hawk. P. C. 125.
17. Stiernh. de jure Goth. L. 3. t. 5.
18. 1 Hawk. P. C. 243.
19. 1 Hawk. P. C. 244.
20. Ibid. 249.
21. Dr. & St. 203.
22. Ff. 48. 10. 20.
23. 1 Hawk. P. C. 255.
24. Ibid. 257.
25. Stat. of conspirat. 33 Edw. I.
26. Ff. 48. 7. 6.
27. See Vol. III. pag. 126.
28. Bro. Abr. t. conspiracy. 28.
29. 1 Hawk. P. C. 193.
30. 3 Inst. 164.
31. 3 Inst. 163.
32. Montesq. Sp. L. b. 29. ch. 11.
33. Britton. c. 5.
34. de Leg. 2. 9.
35. 1 Hawk. P. C. 168.
36. Ff. 48. 11. 6.
37. de Lig. l. 12.
38. Port. Antiqu. b. 1. c. 23.
39. 3 Inst. 147.
40. Ibid. 146.
41. 1 Hawk. P. C. 259.
42. See Vol. III. pag. 402.
43. 1 Hawk. P. C. 168.
44. 1 Hawk. P. C. 170.