CONTEMPTS AGAINST COURTS OF JUSTICE. now, however, repealed as to this punishment by the statute 9 Geo. IV. c. 31.' W Striking in the superior courts of justice, in Westminsterhall, or at the assizes, was still more penal than even in the royal palace. The reason seems to be, that those courts being anciently held in the palace and before the sovereign himself, striking there included the former contempt against the royal palace, and something more, viz., the disturbance of public justice. For this reason, by the ancient common law before the Conquest, striking in the king's court of justice, or drawing a sword therein, was a capital felony: and our modern law retained so much of the ancient severity as only to exchange the loss of life for the loss of the offending limb. Therefore a stroke or blow in such a court of justice, whether blood be drawn or not, or even assaulting a judge sitting in the court, by drawing a weapon, without any blow struck, was punishable with the loss of the right hand, imprisonment for life, and forfeiture of goods and chattels, and of the profits of his lands during life. A rescue also of a prisoner from any of the said courts, without striking a blow, was punished with perpetual imprisonment, and forfeiture of goods, and of the profits of lands during life: being looked upon as an offence of the same nature with the last; but only, as no blow was actually given, the amputation of the hand was excused. For the like reason, an affray, or riot, near the said courts, but out of their actual view, is punished only with fine and imprisonment;2 'which is the punishment which may now be inflicted for any offence against the courts of justice.' 127 Not only such as are guilty of an actual violence, but of [126] LL. Inae. c. 6; LL. Canut. 65; LL. Alured. c. 7. Staund. P. C. 38; 3 Inst. 140, 141. 1 Hawk. P. C. 57. Cro. Car. 373. Lord Thanet and others were prosecuted by an information filed by the attorney-general for a riot, at the trial of Arthur O'Connor and others for high treason, under a special commission at Maidstone. Two of the defendants were found guilty generally. The three first counts charged (inter alia) that the defendants did riotously make an assault on one J. R., and did then and there beat, bruise, wound, and ill-treat the said Injuries to those under protection of courts of justice. Dissuading witnesses to give evidence, &c. threatening or reproachful words to any judge sitting in the courts, are guilty of a high misprision, and have been punished with large fines, imprisonment, and corporal punishment." And, even in the inferior courts, an affray or contemptuous behaviour is punishable with a fine by the judge there sitting; as by the steward in a court-leet, or the like." Likewise all such, as are guilty of any injurious treatment to those who are immediately under the protection of a court of justice, are punishable by fine and imprisonment: as if a man assaults or threatens his adversary for suing him, a counsellor or attorney for being employed against him, a juror for his verdict, or a gaoler, or other ministerial officer for keeping him in custody, and properly executing his duty: which offences, when they proceeded farther than bare threats, were punished in the Gothic constitutions with exile and forfeiture of goods.d Lastly, to endeavour to dissuade a witness from giving evidence; to disclose an examination before the Privy Council; or, to advise a prisoner to stand mute (all of which are impediments of justice), are high misprisions and contempts of the sovereign's courts, and punishable by fine and imprisonment. And anciently it was held, that if one of the grand jury disclosed to any person indicted the evidence that peared against him, he was thereby made accessory to the offence, if felony, and in treason a principal. And at this day it is agreed, that he is guilty of a high misprision, and liable to be fined and imprisoned.' a Cro. Car. 503. As to the extent of the powers of courts of record of punishing for contempts, see Rex v. Clement, 4 B. & Ald. 218.' b 1 Hawk. P. C. 58. As to contempts in the county courts, see 9 & 10 Vict. c. 95, s. 113.' e 3 Inst. 141, 142. d Stiern. de Jure Goth. 1. 3, c. 3. f 1 Hawk. P. C. 59. Towards the ар jury. He immediately communicated the circumstance to the judge, who, upon consulting the judge in the other court, was of opinion that public justice in this case required that the evidence, which the witness had given before the grand jury, should be disclosed, and the witness was committed for perjury, to be tried upon the testimony of the gentlemen of the grand jury. It was held, that the object of this concealment was only to prevent the testimony produced before them, from being contradicted by subornation of perjury on the part of the persons against whom bills were found. This is a privilege which may be waived by the Crown.-[CHRISTIAN.] CHAPTER X. OF OFFENCES AGAINST PUBLIC JUSTICE. THE order of our distribution will next lead us to take into [127] 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 out against the lives and security of private subjects, are also offences against the sovereign, as the paterfamilias 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 presumed 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 offences, and to the punishments inflicted by law for each particular offence; 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 commonwealth, may be divided into five species: viz., offences against public justice, against the public peace, against public trade, against the public health, and against the public VOL. IV. K [ 128 ] 1. Offences against public justice. 1. Injuries to records, and falsifying proceedings of courts. police or economy: of each of which we will take a cursory view in their order. First, then, of offences against public justice: some of which are felonious, 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 offence against public justice. It was enacted by statute 8 Hen. VI. c. 12, that if any clerk, or other person, should wilfully take away, withdraw, or avoid any record, or process in the superior courts of justice in Westminster Hall, by reason whereof the judgment should be reversed or not take effect, it should be felony, not only in the principal actors, but also in their procurers and abettors. 'This act extended only to the courts expressly mentioned in it, and to the Court of Chancery only so far as it proceeded according to the rules of the common law; and was repealed (so far as relates to this offence) by the statute 7 & 8 Geo. IV. c. 27. The statute on this subject is now the 7 & 8 Geo. IV. c. 29, which enacts (s. 21), that any person who shall steal, or for any fraudulent purpose remove from its place of deposit, or obliterate, injure, or destroy any record, writ, &c., affidavit, rule, order, or other document relating to any court of law or equity, shall be guilty of a misdemeanor, punishable with transportation for seven years, or with fine and imprisonment.' 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, was felony without benefit of clergy: but the punishment for this offence was reduced by the statute 1 Will. IV. c. 66, s. 11, to transportation for life, or not less than seven years, or imprisonment for not more than four nor less than two years.' The statute of James the First extended only to proceedings in the courts themselves: but by statutes 4 W. & M. c. 4, and 1 Will. IV. c. 66, s. 11, to personate any other person as bail before any court' judge or other 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." 'A variety of statutes provide for the punishment of the crime of forging official documents. The earliest of these was the statute 8 Rich. II. c. 4, which imposed penalties for making false entries in records. Passing over intervening statutes, it may be observed that, by the statute 8 & 9 Vict. c. 113, the forgery of the seal, stamp, or signature of any certificate, official or public document, or forging the signature of any judge of any of the superior courts of equity or common law to any order, decree, certificate, or other judicial or official document is made a felony, punishable by transportation for seven years, or imprisonment for not more than three nor less than one year. This punishment was subsequently extended by the statute 12 & 13 Vict. c. 106 to the forgery of the signatures of the commissioner, registrar, or other officer of the Court of Bankruptcy, or the seal of that court; while similar provisions (15 & 16 Vict. c. 89) exist with respect to forging the signature or seal of the Registrar in Lunacy, and of the seal or process of the County Courts (9 & 10 Vict. c. 95). Similar punishment is also provided (12 & 13 Vict. c. 109, and 15 & 16 Vict. c. 86) with respect to documents and proceedings in the Courts of Chancery, and also (14 & 15 Vict. c. 99) to the forgery of the seal or signature to foreign and colonial acts of state, and judgments, orders, and other judicial proceedings of any court of justice in any foreign state or British colony. The forgery of certificates of previous convictions for felony was made a felony by the statute 7 & 8 Geo. IV. c. 28, and by the statute 2 Will. IV. c. 34, s. 19, any clerk or officer who knowingly certifies a false copy of a former indictment (the certificate of such clerk or officer being made evidence by the Act), is liable to transportation for any term not exceeding fourteen nor less than seven years, or imprisonment for any term not exceeding Sir William Blackstone here adds that, to prevent abuses by the extensive power which the law is obliged to repose in gaolers, it was enacted by stat. 14 Edw. III. c. 10, that if any gaoler, by too great duress of imprisonment, made any prisoner that he had in ward become an approver or an appellor against his will, that is, to accuse and turn evidence against some other per son, it was felony in the gaoler. For, as Sir Edward Coke observes (3 Inst. 91), 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 gaoler, to whom the prisoner is committed for safe custody. This Act of Edw. III. is repealed by the statute 4 Geo. IV. c. 64. |