testant Dissenters, but in order to be entitled to the benefits of it, they must first qualify as is therein directed; and therefore it was said by Holt, chief justice, (a) that if a man be a professed (a) In Britton v. churchman, and his conscience will permit him sometimes to go Standi. 190. to meetings, instead of coming to church, the Toleration Act shall not excuse him, for it was not made for such sort of people. + Sect. 29. That a devise of an annuity to the minister of a Attorney-Gebaptist meeting-house is a good charitable use, and that the court neral v. Cock, 2 Vesey, 273. of Chancery will enforce its execution. + Sect. 30. That if a house be granted to a dissenting minister Rex v. Bonner, and others in trust, to suffer the said meeting-house to be for the 2 Burr. 1265. public worship of God by such congregation of Protestant dissenters, commonly called Presbyterians, as shall attend the said minister, or his successors, regularly and fairly chosen and appointed to be the minister in the said meeting, the court will grant a mandamus to the trustees to admit a minister regularly elected, or to restore one improperly displaced; but in order to Rex v. Jotham, obtain a mandamus to be restored, it is necessary for the dissent- 3 Term Rep. ing minister to shew a prima facie title to the office. 275, + Sect. 31. That if a certain tenement be certified to the quar- Rex v. Justices ter-sessions as a place set apart for the meeting of Protestant of Derbyshire, 1 Black. Rep. dissenters, the court will grant a mandamus to the justices to re- 606. gister such place pursuant to the Toleration Act; for in such case 2 Burr. 1043. the justices are merely ministerial. Ld. Ray. 125. Sect. 52. That the court of King's Bench also will grant an Gibson, 304. information for disturbing a congregation assembled for the purpose of divine worship in any meeting registered pursuant to the Toleration Act. 66 Sect. 33. And by the statute 1 Geo. 1. st. 2. c. 5. "If any persons unlawfully, riotously, and tumultuously assembled together, to the disturbance of the public peace, shall unlawfully, "and with force, demolish and pull down, or begin to demolish " and pull down, any church or chapel, or any building for religi"ous worship certified and registered according to the Toleration "Act, every such demolishing or pulling down, or beginning to "demolish or pull down, shall be felony without clergy;"-and See post, tit. the hundred is made liable to pay the damage thereby done. By statute of 53 Geo. S. c. 160. sect. 1. which is an act made in favour of Unitarian dissenters, it is enacted, "That so much of 66 " Riot." Geo. 3. c. 160. an act passed in the 1st of W. & M. entitled 'An act for exempt- Penalties for ing his majesty's Protestant subjects dissenting' from the Church "denying the "of England from the penalties of certain laws,' as provides that pealed by st. 53 Trinity" re"that act, or any thing therein contained, should not extend, or "be construed to extend, to give any ease, benefit, or advantage "to persons denying the Trinity as therein mentioned, &c. be, "and the same is thereby repealed." By sect. 2. of the same act, the act of 9 and 10 of K. W. entitled "An act for the more effectual suppressing blasphemy and profaneness," so far as the same relates to persons denying as therein respecting the Holy Trinity, is also repealed. CHAP. Co. Lit. 233, 234. the King v. Bambridge, Mich. Term, information for CHAP. XXVII. OF OFFENCES AGAINST THE PUBLIC JUSTICE OFFENCES against the public justice of the kingdom, are, 2. Such as are committed by common persons, without any re- OFFENCES BY OFFICERS seem reducible to the following heads: SECONDLY, Bribery. THIRDLY, Extortion. As to the first of these offences, viz. Neglect, or breach of duty. Sect. 1. I take it to be agreed, that in the grant of every office whatsoever, there is this condition implied by common reason, Vide the case of that the grantee ought to execute it diligently and faithfully; for since every office is instituted, not for the sake of the officer, but for the good of some other, nothing can be more just than that 23 Geo. 3. on an he who either neglects or refuses to answer the end for which his office was ordained, should give way to others, who are both able and willing to take care of it. And therefore it is certain, that an the pay-office, officer is liable to a forfeiture of his office, not only for doing a thing directly contrary to the design of it, but also for neglecting to attend his duty at all usual, proper, and convenient times and places, whereby any damage shall accrue to those by, or for, whom he was made an officer. misfeasance as accountant at Whitehall. 9 Co. 50. 2 Roll, 153. 2 And. 119. 2 H. 7. 11. And some have gone so far as to hold, that an office concerning the administration of justice, or the commonwealth, shall be forfeited for a bare non-user, whether any special damage be occasioned thereby or not; but this opinion doth not appear to be warranted by any resolution in point, and the authorities (a) which are cited to maintain it do not seem to come up to it. However it cannot but be very reasonable, that he who so far neglects a public office, as plainly to appear to take no manner of care of it, should rather be immediately displaced, than the L. Quin. Ed. 4. public be in danger of suffering that damage which cannot but be expected some time or other from his negligence. Plowden, 379. 27. 11 Ed. 4. 1. (b) 9 Co. 50. Sect. 2. But it would be endless to enumerate all the particular instances wherein an officer may be discharged or fined; and it also seems needless to endeavour it, because they are generally so obvious to common sense as to need no explication; for what can be more plain than that a gaoler deserves to be discharged and fined for (b) voluntarily suffering his prisoners to escape, or for (c) barbarously misusing them? What can be more evident than that a (d)sheriff is justly punishable for persuading a jury to underprize "Officer." underprize goods in the execution of fieri facias, &c.? And there- See 4 Comyns's fore I shall leave the particular cases of this nature to every Digest. tit. man's own judgment, which, from the consideration of the general rules above-mentioned, and the various circumstances of every case, will easily discern how far each offence of this kind deserves to be punished. Under this head may be ranked another offence of deep malignity, namely, the oppression and tyrannical partiality of judges, justices, and other magistrates in the administration of, and under colour of their offices. However, when this offence is 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 punished with forfeiture of their office, either consequential or immediate, fines, imprisonment, or other discretionary censure, regulated by the nature and aggravations of the offence committed. Bl. Com. vol. 4. c. 10. Duress by Gaolers. Under this head may also be classed duress by gaolers; since it is the duty of a gaoler to treat his prisoner with all the huma nity and kindness not inconsistent with his safe custody, or with the sentence of the law by which he is confined, and to prevent abuses, &c. become an ap To prevent abuses by the extensive power which the law is Gaoler compelobliged to repose in gaolers, it is enacted by 14 Edw. 3. c. 10. ling prisoner to "That if any keeper of a prison, or under-keeper, by too great prover. "duress of imprisonment, and by pain, make any prisoner that 1 Hale, 640, " he hath in his ward to become an appellor against his will, he "is guilty of felony." 641.601. S. P. C. 36. C. 3 Inst. 91. 2 Inst. 589. Sect. 2. And it is said to be no way material, whether the ap- 381. provement be true or false, or whether the appellee be acquitted or condemned; but at common law this offence was esteemed a misprision only, unless the appellee were hanged by reason of the appeal. 4 Ed. 3. c. 10. Sect. 8. It has been determined, that gaolers, as well de facto as de jure, are liable to attachment for contempt of court, 2 Inst. 43. 53. and to fine, imprisonment, and forfeiture of office for gross and 381. palpable abuses; as in treating criminals with barbarity, extort- Co. Lit. 233. ing money, not making lawful deliverance, or suffering them to 9 Co. 50. escape; and that if death be the consequence of their harsh Ray. 216. treatment, it is felonious homicide. 4 Co. 44. Lev. 71. 2 Hawk. 151. 3 Mod. 143. 3 Inst. 91. Fost. 321. + Sect. 4. By 31 Car. 2. c. 2. s. 9. "If any person shall be When only to "committed to any prison, for any criminal or supposed criminal be removed. "offence, he shall not be removed from thence, unless it be by "habeas corpus, or some other legal writ: or where he is removed "from one prison or place to another, within the same county, "in order to his trial or discharge; or in case of sudden fire or "infection, or other necessity; on pain that the person signing "any warrant for such removal, and the person executing the 66 same, Debtors and separate. same, shall forfeit for the first offence one hundred pounds, "and for the second two hundred pounds, to the party grieved." + Sect. 5. But by 19 Car. 1. c. 4. s. 2. "On emergent occa❝sions, as in case of infectious diseases, the sheriff or gaoler, "with the advice and consent of three or more justices may, if they shall find it needful, provide other safe places (with the "owner's consent) for the removal of sick or other persons out "of the usual gaols." + Sect. 6. By 22 and 23 Car. 2. c. 20. s. 13. "The gaoler felons to be kept "shall not put, keep, or lodge prisoners for debt and felons together in one room or chamber; but they shall be put, kept, "and lodged separate and apart from one another in distinct "rooms; on pain of forfeiting his office, and treble damages to "the party grieved." Transports to be kept separate + Sect. 7. And by 31 Geo. 3. c. 46. s. 9. " As long as any person under sentence of transportation shall continue in the from other pri- « common gaol, the gaoler shall separate such convict, as far "as conveniently may be, from every person in his custody, "except prisoners convicted of felony." soners. Dalt. c. 170. Dalt. c. 170. 8 Co. 100. To prevent extortion in gaolers, vide 32 G. 3. c. 28. 3 Inst. 145. 601. Sect. 8. Nevertheless, it seemeth generally in all cases where a man is committed to prison, especially if it be for felony, or upon an execution, or but for a trespass or other offence, every gaoler ought to keep such prisoner in safe and close custody; safe, that he cannot escape; and close, without conference with others or intelligence of things abroad. + Sect. 9. And therefore if the gaoler shall license a prisoner to go abroad for a time, and then to come again, or to go abroad with a keeper, though he come again, yet these are escapes. (1) To prevent the extortionate practices of sheriff's officers, the statute of 32 Geo. 2. c. 28. enacts many regulations to save unfortunate debtors, when they are arrested, from the exactions of bailiffs and other inferior officers of the law. Of Bribery. Bribery, in a strict sense, is taken for a great misprision of one in a judicial place taking any valuable thing whatsoever, except meat and drink of small value, of any one who has to do before him any way, for doing his office, or by colour of his office, but of the king only. It is lawful for a gaoler to hamper his prisoner with irons to prevent his escape. 1 H. H. And Dalton says, that it is lawful for a gaoler to keep a debtor charged in execution in irons (c. 170.): for this he cites the authority of Lord Coke, 3 Rep. 44. Boyton's case, who there certainly says, "the sheriff may keep them who are in execution in fetters and irons, to the end they may the sooner satisfy their creditors." But this piece of law may well be doubted, because Coke, as his authority, refers to the words of the stat. of W. 2. c. 11. quod carceri manucipientur "in ferris." But it is most clear that by the stat. it only refers to bailiffs, receivers, servants, &c. Sect. who on account are found in arrear, the words being: "De serviantibus ballivis, camerariis et quibus " cunque receptoribus qui ad compotum reddend' tenen"tur; concordatum est et statutum, quod cum domi"nus hujusmodi servient' dederit eis auditores compoti, "et contingat ipsos esse in arreragüis super compotum 66 suum omnibus allocatur et allocandis arrestentur cor"6 pora eorum et mittantur gaole et carceri manucipientur in ferris, et sub bonú custodiá, &c." It is also observable that in the comment upon the stat. of W. 2. Lord Coke does not give it this construction, but expressly says, that at common law a prisoner could not be put in irons; in which he is confirmed by many older authorities. C. Jac. 65. 1 Levinz, 40. Sect. 2. But bribery in a large sense is sometimes taken for 3 Inst. 149. the receiving or offering of any undue reward, by or to any per- Hobart, 9. son whatsoever, whose ordinary profession or business relates to the administration of public justice, in order to incline him to do 2 Salkeld, 695. a thing against the known rules of honesty and integrity; for the 11 Mod. 193. law abhors any the least tendency to corruption in those who are any way concerned in its administration, and will not endure their taking a reward for the doing a thing, which deserves the severest of punishments. (1) Sect. 3. Also bribery sometimes signifies the taking or giving 3 Inst. 148. of a reward for offices of a public nature. And surely nothing can be more palpably prejudicial to the good of the public, than to have places of the highest concernment, on the due execution whereof the happiness of both king and people doth depend, disposed of not to those who are most able to execute them, but those who are most able to pay for them; nor can any thing be a greater discouragement to industry and virtue, than to see those places of trust and honour, which ought to be the rewards of those who by their industry and diligence have qualified themselves for them, conferred on such who have no other recommendation but that of being the highest bidders; neither can any Vide Noy, 102. thing be a greater temptation to officers to abuse their power by Moor, 781. bribery and extortion, and other acts of injustice, than the consideration of the great expense they were at in gaining their places, and the necessity of sometimes straining a point to make their bargain answer their expectation. For these reasons, among many others, it is expressly enacted by 12 Rich. 2. c. 2. "That the chancellor, treasurer, keeper "of the privy seal, steward of the king's house, the king's cham 66 berlain, clerk of the rolls, the justice of the one bench and of "the other, barons of the exchequer, and all other that shall be "called to ordain, name, or make justices of the peace, sheriffs, "escheators, customers, comptrollers, or any other officer or minister of the king, shall be firmly sworn that they shall not ❝ ordain, name, or make any of the above-mentioned officers for any gift or brocage, favour or affection, nor that none which "sueth by himself or by others, privily or openly, to be in any manner of office, shall be put in the same office, or in any other, "but that they make all such officers and ministers of the best " and most lawful men, and sufficient to their estimation and "knowledge." 66 66 By 4 Hen. 4. c. 5. "No sheriff shall let his bailiwick to farm "to any man, for the time that he occupieth such office, &c." 66 66 66 By 5 and 6 Edw. 6. c. 16. it is also enacted, "That if any Vide Noy, 102. person shall bargain or sell, or take any reward, or promise of Moor, 781. any reward, for any office, or the deputation of any office, any way concerning the king's revenue, or the keeping of his castles, "or the administration or execution of justice (unless it be such (1) Therefore to bribe persons, either by giving money or promises, to vote at elections of members of corporations, which are erected for the sake of public government, is an offence for which an "an information will lie. 2 Ld. Ray. 1977. 1 Black. 383. But the court will grant an information for this offence very cautiously, since the additional penalties by statute. 1 Black, 380. Infra, sect. 7. |