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By 9., any clerk of assize, clerk of the peace, &c., or their Exacting them deputies or other officers exacting such fees, are rendered inca- a misdemeanor. pable of holding their offices, and are declared guilty of a misdemeanor.
It cannot be intended to be the meaning of the statute to restrain Regular fees the courts of justice, in whose integrity the law always reposes the allowable. highest confidence, from allowing reasonable fees for the labour and attendance of their officers; the chief danger of oppression is from officers being left at their liberty to set their own rates on their labour, and make their own demands; but there cannot be so much fear of these abuses, while they are restrained to known and stated fees, settled by the discretion of the courts, which will not suffer them to be exceeded, without a proper resentment. I Haw. c. 68. § 3.
But in the ecclesiastical court a person was libelled against for Courts cannot fees, and upon motion a prohibition was granted, for that it was establish fees at holden that no court had a power to establish fees; the judge of their discretion. a court may think them reasonable, but that is not binding; but if on a quantum meruit a jury think them reasonable, then they become established fees. Gifford's case, 1 Salk.333.
The fees in sessions, for traversing, trying, or discharging indictments, discharging recognizances, and the like, do vary according to the different customs in different places. Dalt. c. 4}.
Shall yield twice as muih] At the common law this offence is Punishment of severely punishable at the king's suit by fine and imprisonment, extortion. and also by a removal from the office in the execution whereof it was committed. And this statute doth add a greater penalty than Double the common law did give ; for hereby the plaintiff shall recover damages. his double damages. 2 Inst. 210. 1 Haw. c. 68. $ 5.
And by stat. 31 El. c. 5., actions for extortion may be laid in any 31 El. c. 5. county:- N. B. This is doubted see 1 Russ. 146.
At the king's pleasure.] That is, by the king's justices, before whom the cause depends. 2 Inst. 210.
Indictment for Extortion in a Gaoler. County of THE jurors for our lord the king upon their oath present, that A. O. late of
in the said county, yeoman, on the day of —, in the year of the reign of was taken up on suspicion of having committed certain felony, by
constable of in the said county, by virtue of a warrant directed to the said under the hand and seal of Sir William Dalston, knight, then and yet one of the justices of our sovereign lord the king assigned to keep the peace in the said county, and was on the same day in the year aforesaid committed by him the said Sir William Dalston to A.G. keeper of the goal of our said sovereign lord the king at in the said county, under the custody of him the said A. G. to be safely kept, upon suspicion of the felony aforesaid, and the said A. O. wus detained in that prison under the custody of the said A. G. from the time that he was committed to the said
prison for one month from thence next ensuing, upon suspicion of the said felony; nevertheless the said A. G., being such keeper as aforesaid, in no wise regarding the statute in that case made, and the penalty therein contained, did on the
aforesaid, in the said county, demand and receive pounds of lawful
money of Great Britain of and from the said A. O. for ease and favour in the said gaol for the said time, in contempt of our said sovereign lord the king, and against the form of the statute aforesaid, and against the peace of our said sovereign lord the king, his crown and dignity.
Indictment for Extortion of a Bailiff. of
sent, that A. B. late of in the said county, yeoman, being bailiff of the hundred of
in the said county, day of in the year of the reign of
at in the said county, by pretext and colour of his said office, did unjustly and by extortion take and extort 5s. of one A. I. of
in the said county, yeoman, one of the freeholders qualified to serve upon juries in the said county, to excuse the said A. I. from attending or appearing at the assizes that were then nert to be holden in and for the said county, when in fact the said A. I. was not returned by the sheriff of the said county in any panel of jurors, and also when indeed no such sum of money was due to the said A. B. for his fee for excusing the attendance or appearance of the said A. I. at the assizes aforesaid, to the evil example of other offenders, to the great damage of him the said A. I., and against the peace of our said lord the king, his crown and dignity. False Pretelices,
See tit. Cheat.
Fees. See Ertortion.
Offences committed during journies, &c. or on boundaries of counties.
[14 G. 3. c. 20.-7 & 8 G. 4. c. 28.)
[7 G.4. c. 64.]
vessels employed on inland navigations, stage coaches, and stage waggons, &c., or on the boundaries of counties, see stat. 7 G. 4. c. 64. $$ 12, 13. tit. Jndictment.
1. Felony. Felony is supposed by some to come from the Saxon fel, which signifieth fierce or cruel; of which the verb fell signifieth to throw down or demolish; and the substantive of that name is used to signify a mountain rough and uncultivated. But the same word, with a little variation, runneth through most of the European languages, and signifieth more generally an offence at large ; and the Saxon word fællan signifieth to offend, and fellnissæ an offence or failure; and although felony, as it is now become a technical
term, signifieth in a more restrained sense an offence of a high nature, yet it is not limited to capital offences only, but still retaineth somewhat of this larger acceptation ; for petit larceny is felony, although it is not capital.
According to Sir Henry Spelman's observation, it signifies such an offence for which during the feudal institution a man should lose or forfeit his estate; which he derives of two northern words, fee, which signifies the fief, feud, beneficiary estate, and lon, which signifies price or value.
The correct definition, however, of “ felony,” in our criminal Definition of law, appears to be such an offence as occasions a total forfeiture the offence. of either goods or chattels, or both, at the common law, and to wbich the punishment of death may or may not be superadded. 4 Bl. Com. 95.
Where a statute made any new offence felony, the law implied By statute. that it should be punished with death as well as with forfeiture, unless the offender prayed the benefit of clergy, which all felons were entitled to have once, unless it was expressly taken away by statute. 4 Bl. Com. 98. 1° Russ. 42.
By 7 & 8 G. 4. c. 28. (a) 9 6., benefit of clergy with respect to Clergy persons convicted of felony is abolished.
abolished. By $7., no person convicted of felony shall suffer death, unless Punishment of for some felony that was excluded from the benefit of clergy on felony, where the first day of the session (Feb. 8. 1827), or made punishable with capital. death by some statute passed since.
By $ 8., persons convicted of felony not punishable with death, Its punishment and for which no punishment is specially provided, shall be liable, where not at the discretion of the court, to be transported for seven years, or capital, to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice, or thrice whipped (if the court shall think fit), in addition to such imprisonment.
§ 9. provides,“ That where any person shall be convicted of any Court may offence punishable under this act, for which imprisonment may be order hard awarded, it shall be lawful for the court to sentence the offender labour, or soli
tary confineto be imprisoned, or to be imprisoned and kept to hard labour in
ment, as part of the common gaol or house of correction, and also to direct that the sentence of the offender shall be kept in solitary confinement for the whole or imprisonment. any portion or portions of such imprisonment, or of such imprisonment with hard labour, as to the court in its discretion shall seem meet."
§ 10. enacts, “ That wherever sentence shall be passed for felony If a person unon a person already imprisoned under sentence for another crime, der sentence for it shall be lawful for the court to award imprisonment for the sub- another crime is sequent offence, to commence at the expiration of the imprison. felony, court ment to which such person shall have been previously sentenced; may pass a and where such person shall be already under sentence either of second senimprisonment or of transportation, the court, if empowered to pass tence, to comsentence of transportation, may award such sentence for the sub- mence at exsequent offence, to commence at the expiration of the imprisonment piration of first. or transportation to which such person shall have been previously sentenced, although the aggregate term of imprisonment or transportation respectively may exceed the term for which either of those punishments could be otherwise awarded."
(a) An act for further improving the administration of criminal justice.
Conviction for felony after a previous conviction.
14 G. 3. c. 20. Prisoner acquitted, &c. to be discharged without fee.
0 11.“ That if any person shall be convicted of any felony not punishable with death, committed after a previous conviction for felony, such person shall, on such subsequent conviction, be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and, if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall so think fit, in addition to such imprisonment.”
For allowance of expenses in prosecution for felony, see 7 G. 4. c. 64. $ $ 22. 24. et seq. See tit. Costs.
By stat. 14 G. 3. c. 20., every prisoner charged with any felony or other crime, or as accessary thereto, before any court holding criminal jurisdiction, against whom no bill of indictment shall be found by the grand jury, or who shall on trial be acquitted, or who shall be discharged by proclamation for want of prosecution, shall be immediately set at large in open court, without the payment of any fee or sum of money to the sheriff, gaoler, or keeper; and such fees as have been usually paid shall cease ; and in lieu of such fees the treasurers or proper officers of the county, or of such districts, hundreds, ridings, or divisions of a county as are not usually assessed to the county at large, and of such cities, towns corporate, cinque ports, liberties, franchises, and places not paying to the county rates, shall pay such sum as has been usually paid on that occasion, not exceeding 135.4d. for each prisoner, on certificate signed by a judge or justice before whom such prisoner shall have been discharged, out of the general county rate, or public stock of such city, &c. See also 55 G. 3. c. 50. 9 4. tit. Daois, § XI. and antè, p. 212. tit. Ertortion.
II. Pisprision of Felony. Misprision of felony (from the French word mespris, a neglect or contempt) is the concealing of a felony which a man knows, but never consented to; for if he consented, he is either a principal or accessary in the felony, and consequently guilty of misprision of felony, and more. 3 Inst. 36. 1 Hale, 374.
For it is said that every felony includes misprision of felony, and may be proceeded against as a misprision only, if the king please. 1 Haw. c. 59. § 1.
The punishment of misprision of felony in a common person, is fine and imprisonment; in an officer, as sheriff or bailiff of liberties, imprisonment for a year, and ransom at the king's pleasure, by the statute of Edw. 1.
If any person will save himself from the crime of misprision, he must discover the offence to a magistrate with all speed that he
3 Inst. 140. Misprision in a larger sense is used to signify every misdemeanor, which hath not a certain name given to it in the
Signifies a high misdemeanor.
III. Theftbote or Compounding, Theftbote (from the Saxon words theft and bote, boot or amends) is, where one not only knows of a felony, but takes his goods again, or other amends, not to prosecute. i Haw. c. 59. $ 5.
1 Russ. 210.
ap- 7 G. 4. c.
But the bare taking of one's own goods again, which have been Favour shewn stolen, is no offence, unless some favour be shewn to the thief. lo the thief. i Haw. c. 59. Ø 7.
This offence is very nearly allied to felony, and is said to have Punishment. been anciently punished as such: but at this day it is punishable only with ransom and imprisonment, unless it were accompanied with some degree of maintenance given to the felon, which makes the party an accessary after the fact.
IV. Rewards for apprehending Felons.
c. 64. pear to any court of oyer and terminer, gaol delivery, superior cri. Court may minal court of a county palatine or court of great sessions, to have order rewards been active in or towards the apprehension of any person charged have been active with murder, or with feloniously and maliciously shooting at, or in apprehendattempting to discharge any kind of loaded fire-arms at any other ing. person, or with stabbing, cutting, or poisoning, or with administering any thing to procure the miscarriage of any woman, or with rape, or with burglary or felonious house-breaking, or with robbery on the person, or with arson, or with horse-stealing, bullockstealing, or sheep-stealing, or with being accessary before the fact to any of the offences aforesaid, or with receiving any stolen property knowing the same to have been stolen, every such court is hereby authorised and empowered, in any of the cases aforesaid, to order the sheriff of the county in which the offence shall have been committed to pay to the person or persons, who shall appear to the court to have been active in or towards the apprehension of any person charged with any of the said offences, such sum or sums of money as to the court shall seem reasonable and sufficient to compensate such person or persons for his, her, or their expenses, exertions, and loss of time, in or towards such apprehension ; and where any person shall appear to any court of sessions of the peace to have been active in or towards the apprehension of any party charged with receiving stolen property, knowing the same to have been stolen, such court shall have power to order compensation to such person in the same manner as the other courts herein-before mentioned: Provided always, that nothing herein contained shall pre- Proviso as vent any of the said courts from also allowing to any such persons, expenses. if prosecutors or witnesses, such costs, expenses, and compensation, as courts are by this act empowered to allow to prosecutors and witnesses respectively."
And by § 29. it is enacted, “ That every order for payment to any Officer to be person in respect of such apprehension as aforesaid, shall be forth- paid 5s. for the with made out and delivered by the proper officer of the court order, and the unto such person, upon being paid for the same the sum of 5s. and
reward to be no more ; and the sheriff of the county for the time being is hereby sheriff, who is
paid by the authorised and required, upon sight of such order, forthwith to to be repaid by pay to such person, or to any one duly authorised on his or the treasurer. her behalf, the money in such order mentioned; and every such sheriff may immediately apply for repayment of the same to the comunissioners of his majesty's treasury, who, upon inspecting such order, together with the acquittance of the person entitled to receive the money thereon, shall forthwith order repayment to the sheriff of the money so by him paid, without any fee or reward whatsoever."