XXII. Another offence to be here noticed is the negligence of a public officer, intrusted with the administration of justice, as a sheriff, coroner, constable, and the like, which makes the offender liable to be fined; and may entail a forfeiture of his office, if it be a beneficial

XXII. Negligence of officers.

one (c). (671)

for misconduct, ante, vol. i. (c) 1 Hawk. P. C. 168. As to the liabilities of magistrates, of coroners, and other officials

Coulter, Wright (Ohio), 421; State v. Goff, id. 78; Blight v. Fisher, Peters' C. C. 41; Lott v. Burrel, 2 Mill (S. C.), 167; Stansbury v. Marks, 2 Dall. 213; 12 Albany Law Jour. 213-216. Contempts are constructive when they are committed not in presence of the court, and As illustrations of this class of when they tend, by their open action, to interrupt, obstruct, embarrass, or prevent the due Whittem v. State, 36 Ind. 196. administration of justice. contempts may be mentioned the refusal of a witness to obey the process of the court (Com. v. Deskins, 4 Leigh [Va.], 689; State v. Trumbull, 1 South. [N. J.] 139; Delaney v. Regulators, 1 Yeates [Penn.], 403); refusal by sheriffs and like officers to serve or return process (State v. Williams, 2 Speers [S. C.], 26; People v. Marsh, 2 Cow. 493; Ex parte Summers, 5 Ired. [N. C.] 149; Rice v. McClintock, Dudley [S. C.], 354); or to pay money collected (Conner v. Archer, 1 Speers [S. C.], 89; Matter of Stephens, 1 Kelley [Ga.], 584); or an abuse in serving a precept (State v. Tipton, 1 Blackf. [Ind.] 166); or the making of a false return. So, it is a contempt of this kind to disobey an injunction (Davis v. Mayor of N. Y., 1 Duer, 451; People v. Compton, id. 512; Gates v. McDaniel, 3 Port. [Ala.] 356); or a decree to make a conveyance (Buffum's Case, 13 N. H. 14); or an order to perform the award of referees (Yates v. Russell, 17 Johns. 461; Shriver v. State, 9 Gill & J. [Md.] 1); or other similar command. Sherman v. Cohen, 2 Strobh. (S. C.) 553; Livingston v. Fitzgerald, 2 Barb. 396; Ex parte Langdon, 25 Vt. 680; Ex parte Walker, 25 Ala. 81; Philips v. Harris, J. J. Marsh. (Ky.) 122. And see other illustrations in Whittem v. The State, 36 Ind. 196, 213. In cases of constructive contempt a rule to show cause is necessary, and affidavits must be presented, or information presented by the proper officer, to prove the facts. See Hollingsworth v. Duane, Wall. C. C. 141; Whittem v. State, 36 Ind. 196, 213; 3 Whart. Crim. Law, § 3449.

The court against whom the contempt is committed, alone has power to proceed against it. See Jordan v. State, 14 Texas, 436; In re Cooper, 32 Vt. 253; Ex parte Adams, 25 Miss. 883; Yates v. Lansing, 9 Johns. 395; State v. Mott, 4 Jones (N. C.), 449. And the punishment is usually fine or imprisonment, or both, at the discretion of the judge. See People v. Bennet, 4 Paige, 282. In case of attorneys, the court has power to strike their names from the roll, or suspend them for a fixed period. State v. Williams, 2 Speers (S. C.), 26; see Com. v. Barry, Hardin (Ky.), 229; People v. Turner, 1 Cal. 188. See, as to contempt of witness, U. S. v. Caton, 1 Cranch, 150. And in respect to perjury, see Wells v. Com., 21 Gratt. 500; Brinkley v. Brinkley, 47 N. Y. (2 Sick.) 40. As it regards appeals by statute in proceedings for contempt, see id.; Whittem v. State, 36 Ind. 196; Erie Railway Co. v. Ramsey, 45 N. Y. (6 Hand) 637; Sudlow v. Knox, 7 Abb. N. S. 411. Many acts are at the same time both contempts of court and indictable crimes; but the indictment and the proceeding for contempt are wholly distinct, and neither will bar or impede the other. State v. Williams, 2 Speers (S. C.), 26; State v. Woodfin, 5 Ired. (N. C.) 199; State v. Yancey, 1 Car. Law Repos. 519; Foster v. Com., 8 Watts & S. (Penn.) 77; Vertner v. Martin, 10 Smed. & M. (Miss.) 103. A person brought in on process of contempt has the privilege of purging his contempt. And a declaration under oath, that nothing improper was intended, and that the party acted in good faith, is in many instances sufficient (People v. Few, 2 Johns. 290; St. Clair ▾. Piatt, Wright [Ohio], 532; State v. Coulter, id. 421; State v. Goff, id. 78); but not where a private right is to be enforced. Buffum's Case, 13 N. H. 14; People v. Compton, 1 Duer, 512; and see People v. Freer, 1 Caines, 485; U. S. v. Coolidge, 2 Gall. 364.

(671) A sheriff cannot be held criminally liable for the conduct of his deputy. Overholtzer v. Mc Michael, 10 Barr (Penn.), 139; Com. v. Lewis, 4 Leigh (Va.), 664; State v. Berkshire, 2 Ind. 207.

XXIII. There is yet another offence against public justice, of deep malignity; and so much the deeper, as there are many opportunities of putting it in pracXXXIII. Oppres- tice, and the power and wealth of an offender may often deter sion of officers. the injured from a legal prosecution. This is the oppression and tyrannical partiality of a judge, justice, or other magistrate, in the administration and under the colour of his office. However, when prosecuted, either by [*162] impeachment in parliament, or by information in the court *of Queen's Bench (according to the rank of the offender) this misconduct is sure to be severely punished with forfeiture of office (either consequential or immediate), fine, imprisonment, or other discretionary censure, regulated by the nature and aggravations of the offence committed.

XXIV. Lastly, extortion is an abuse of public justice, which consists in an officer's unlawfully taking, by colour 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 (d). The punishment for this offence is fine and imprisonment, and sometimes a forfeiture of office (e). (672)

XXIV. Extortion.

(d) 1 Hawk. P. C. 170.

(e) By 3 Edw. 1, c. 26, the defendant shall render double to the party aggrieved, and be

punished at the king's pleasure, i.e., at the discretion of the justices who are to pronounce the sentence. 2 Inst. 210.

(672) This offense may be committed by sheriffs and their deputies. Com. v. Bayley, 7 Pick. (Mass.) 279; constables, State v. Merritt, 5 Sneed (Tenn.), 67; clerks of courts, see Com. v. Rodes, 6 B. Monr. (Ky.) 171; justices of the peace, People v. Whaley, 6 Cow. 661; county treasurers, State v. Burton, 3 Ind. 93, or generally by any person holding office.

But to constitute the offense, the thing extorted must be procured by the officer under color of his office. See Runnells v. Fletcher, 15 Mass. 525; Evans v. Trenton, 4 Zabr. (N. J.) 764. And the act must proceed from a corrupt motive. People v. Whaley, 6 Cow. 661; Com. v. Shed, 1 Mass. 228; Lincoln v. Shaw, 17 id. 410; People v. Coon, 15 Wend. 277; State v. Statts, 5 Blackf. (Ind.) 460. It is enough if any thing valuable is received (id.); but a mere agreement to pay will not sustain a charge of extortion. Com v. Cony, 2 Mass. 523; Com. v. Pease, 16 id. 91.

The summary penalties attached to the offense of extortion, by statute in the various States, have not generally abrogated the common law remedy. See Com. v. Bagley, 7 Pick. (Mass.) 279; Shattuck v. Woods, 1 id. 171. As to Pennsylvania, see Com. v. Evans, 13 Serg & R. 426; Illinois, Hankey v. People, 1 Scam. (Ill.) 80.

There may be an extortion from a county or other corporation, as well as from an individual. State v. Moore, 1 Ind. 548.

* CHAPTER X.

OFFENCES AGAINST THE PUBLIC PEACE.

[*163]

WE are next to consider offences against the public peace; the conservation of which is intrusted to the sovereign and the executive, in the manner and for the reasons which were formerly mentioned (a). An offence falling within the limits of this chapter is either an actual breach of the peace, or constructively so, by tending to make others break it. It is either felonious, or not felonious. The felonious breaches of the peace are strained up to that degree of malignity by the statute law: and particularly,

I. Riotous assembling.

I. The riotous assembling of twelve persons, or more, and not dispersing upon proclamation. This was first made high treason by statute 3 & 4 Edw. 6, c. 5, when the king was a minor, and a change in religion to be effected: but that statute was repealed by statute 1 Mar. c. 1, among the other treasons created since the 25 Edw. 3: though the prohibition was in substance re-enacted, with an inferior degree of punishment, by statute 1 Mar. st. 2, c. 12, which made the same offence a felony. These statutes specified and particularized the nature of the riots they were meant to suppress; as, for example, such as were set on foot with intention to offer violence to the privy council, or to change the laws of the kingdom, or for certain other specific purposes: in which cases, if the persons implicated were [*164] commanded by proclamation to disperse, and did not, it was by the statute of Mary made felony, but within the benefit of clergy; and also the act indemnified the police officers and their assistants, if they killed any of the mob in endeavouring to suppress such riot. This was thought a necessary security in that sanguinary reign, when popery was intended to be re-established, which was likely to produce great discontents: but at first it was made only for a year, and was afterwards continued for that queen's life. And, by statute 1 Eliz. c. 16, when a reformation in religion was to be once more attempted, it was revived and continued during her life also; and then expired. From the accession of James I. to the death of queen Anne, it was never thought expedient to revive it: but, in the first year of George I., it was judged necessary, in order to support the execution of the act of settlement, to renew it, and at one stroke to make it perpetual, with large additions. For, whereas the former acts expressly defined and specified what should be accounted a riot, the statute 1 Geo. 1, st. 2, c. 5, enacts, generally (s. 1), that any twelve persons are unlawfully assembled to the disturbance of the peace, and any one justice of the peace, sheriff, under-sheriff, or mayor of a town, shall think proper to command them by proclamation to disperse, if they contemn his orders and continue together for one hour afterwards, such contempt shall be felony. And, further, if the reading of the proclamation be by force opposed, or the reader be in any manner wilfully hindered from the reading of it, such opposers and hinderers are felons without benefit of clergy: and all persons to whom such proclamation ought to have been made, and knowing

if

(a) Vol. i. chaps. 6, 7.

of such hindrance, and not dispersing, are felons (b). There is the like [*165] * indemnifying clause, in case any of the mob be unfortunately killed in the endeavour to disperse them; being copied from the act of queen Mary (c).

II. Destruction of

II. Besides the Riot Act, various enactments have been made buildings by with a view to checking the destruction of property by rioters

rioters.

and others:

By statute 24 & 25 Vict. c. 97 (d), if "any persons riotously and tumultuously assembled together to the disturbance of the public peace shall unlawfully and with force demolish, or pull down or destroy, or begin to demolish, pull down or destroy," any church, meeting-house, or other place of divine worship, or any house, outhouse, office, shop, mill, malthouse, or any building used in farming land, or in carrying on any trade or manufacture, or any building other than such as before-mentioned, belonging to any county, city, borough, poor law union, parish, or place, or to any university, college, or inn of court, or any machinery or mining engine, every such offender shall be guilty of felony (e): or if the jury find that the accused was guilty only of injuring or damaging any such building or thing as aforesaid, of a misdemeanor (ƒ)—punishable, in either case, as undermentioned.

Each of the following offences, analogous to the preceding and involving a breach of the public peace, has also been constituted a statutory felony:

[* 166]

*The unlawfully and maliciously setting fire to any church, meeting-house, or other place of divine worship, or to any county, civic, parochial, or collegiate building (g).

The breaking and entering any such place of worship as aforesaid, and committing a felony therein, and breaking out of the same (h), or breaking and entering such place of worship with intent to commit a felony therein (i).

The unlawfully and maliciously damaging or destroying any sea, river, or canal bank, whereby any land or building shall be or shall be in danger of being overflowed, and the unlawfully and maliciously destroying any quay, wharf, floodgate, or other work belonging to any port, harbour, dock, or reser

(b) The punishment of death is taken away, by the 1 Vict. c. 91, s. 1, from these offences; they are now subjected to penal servitude for life, or for any term not less than five years, -or imprisonment for any term not exceed ing three years.

(c) The duties of magistrates and others during a time of riotous disturbance, are set forth in Reg. v. Pinney, 2 Townsend, St. Tr. 272; 5 Car. & P. 254.

parties in these cases against the hundred, see stat. 7 & 8 Geo. 4, c. 31, ss. 2, 3, cited ante, vol. iii.

(g) 24 & 25 Vict. c. 97, ss. 1,5. Punishment: penal servitude for life or for not less than five years, or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping. See also ss. 7, 8.

(h) 24 & 25 Vict. c. 96, s. 50. Punishment: penal servitude for life, or for not less than five years, or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.

(i) 24 & 25 Vict. c. 96, s. 57. Punishment: penal servitude for not more than seven nor less than five years, or imprisonment as in the preceding note.

voir, or to any navigable river or canal (k), and the so destroying any bridge, viaduct or aqueduct (7).

III. The following persons also are by various recent enactments declared to be guilty of felony:

III. Sending

ters, or using menaces, &c.

1. Whosoever "shall maliciously send, deliver, or utter threatening let- * or directly or indirectly cause to be received, know[* 167] ing the contents thereof, any letter or writing," threatening to kill or murder any person (m), threatening to burn or destroy any house, or other building, or any stack of agricultural produce, or any such produce in any building, or any ship or vessel, or to kill, maim, or wound any cattle (n), or demanding of any person with menaces, and without any reasonable or probable cause, any property, money, or valuable thing (0), or accusing or threatening to accuse any person of any crime punishable by law with death or penal servitude for not less than seven years, or of any assault with intent to commit rape, or of any attempt or endeavour to commit it, or of any infamous crime (p), with a view to extort by means of such letter or writing any property, money, or valuable thing from any person (q).

2. Whosoever shall with menaces or by force demand any property, money, or valuable thing of any person, with intent to steal the same (r), or shall accuse or threaten to accuse, either the person to whom such accusation or threat shall be made or any other person, of any * of the infamous or [* 168] other crimes before-mentioned, with the view to extort from such person so accused or threatened to be accused, or from any other person, any property, money, or valuable thing (s), or with intent to defraud or injure any other person, shall, by any unlawful violence to or restraint of, or threat of violence to or restraint of, the person of another, or by accusing or threatening to accuse any person of any treason, felony, or infamous crime (†), compel or induce any person to execute, make, accept, indorse, alter, or destroy

(k) 24 & 25 Vict. c. 97, s. 30. Punishment: penal servitude for life or for not less than five years, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement, and if a male under the age of sixteen years, with or without whipping. See also, ss. 31, 32.

(1) 24 & 25 Vict. c. 97, s. 33. Punishment: as in n. (k), supra. The unlawfully and maliciously destroying any turnpike-gate or toll-bar (s. 34), or any work of art (s. 39), is constituted a misdemeanor. See also, s. 52.

(m) 24 & 25 Vict. c. 100, s. 16. Punishment: penal servitude for not more than ten nor less than five years,- -or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whip. ping.

(n) 24 & 25 Vict. c. 97, s. 50. Punishment: same as in preceding note.

(0) 24 & 25 Vict. c. 96, s. 44. Punishment: penal servitude for life or for not less than five years, or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary VOL. II. 56

confinement, and, if a male under the age of sixteen years, with or without whipping.

(p) The crime against nature, and every assault with intent to commit the said crime, and every attempt or endeavour to commit it, and every solicitation, persuasion, promise, or threat offered or made to any person whereby to move or induce such person to commit or permit it, is to be deemed an infamous crime within the meaning of the above enactment, 24 & 25 Vict. c. 96, s. 64.

(g) 24 & 25 Vict. c. 96, s. 46. Punishment: as above, n. (0).

(r) 24 & 25 Vict. c. 96, s. 45. Punishment: penal servitude for five years,—or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. See Reg. v. Walton, L. & C. 288; Reg. v. Robertson, lb. 483.

(8) 24 & 25 Vict. c. 96, s. 47. Punishment: penal servitude for life, or for not less than five years, or imprisonment for any term not exceeding two years, with or without hard labour, and, if a male under the age of sixteen years, with or without whipping. See R. v. Redman, 35 L. J. M. C. 89. (t) Supra, n. (p).