Magistrates. Unless by stat. or ancient custom. Coroner. Under-sheriff. Miller. Indictment. The exact sum need not be stated. Collector of duties informally appointed. Such officers cannot take any way concern the administration or execution of justice, or the common good of the subject, or for the king's service. 2 Inst. 209. Also the justices of the peace, whose office was instituted after this act, are bound by their oath of office to take nothing for their office of justice of the peace to be done, but of the king, and fees accustomed, and costs limited by statute. And generally, no public officer shall take any other fees or rewards for doing any thing relating to his office than some statute in force gives him, or else as hath been anciently and accustomably taken; and if he do otherwise, he is guilty of extortion. Dalt. c. 41. 1 Russ. 145. A coroner is guilty of extortion if he refuses to take the view of a dead body till the fees are paid. 1 Russ. 145. So, if an under-sheriff gets his fees by refusing to execute process till they are paid, or takes a bond for his fee before execution is sued out. 1 Russ. ib. So, if a miller, or a ferryman, where custom has ascertained the amount of the respective tolls, takes more than the custom warrants, it is extortion. 1 Russ. ib. Two persons may be indicted jointly for extortion in taking money where no fee is due, for there are no accessaries in extortion. 1 Russ. 146. The indictment must state a sum which the defendant received, but it is not necessary to prove the exact sum as laid in the indictment. 1 Russ. 146. But where a person was appointed collector of certain duties, under stat. 43 G. 3. c. 99., by the proper constituted authorities, and considered himself and was considered by those authorities to be such collector, but whose appointment was informally made, it was decided that he could not be indicted at common law for the receipt of duties by colour and pretence of being collector of such duties, though the money were fraudulently collected and misapplied by him, because he was in fact appointed collector, and in that character received the money. R. v. Dobson, 7 East, 218. Shall take any reward.] Therefore by the statute, they can at more than par- this day take no more for doing their office than hath been since allowed to them by authority of parliament. 2 Inst. 210. liament has allowed. Prescriptions contrà, void. Promise to pay, void. Fees other than for doing his office. No fees on acquittals, &c. All prescriptions which have been contrary to this statute, and to the common law, in affirmance of which it is made, have been always holden to be void. 1 Haw. c. 68. § 2. It has been resolved, that a promise to pay them money for doing of a thing, which the law will not suffer them to take any thing for, is merely void. 1 Haw. c. 68. § 2. To do his office. It is not said, that he shall take no reward generally, but no reward to do his office: thus the fee of 20d., called bar fee, time out of mind taken by the sheriff of every prisoner that is acquitted, is not against this statute; for it is not taken for doing his office. 2 Inst. 210.; but see stat. 14 G. 3. c. 20. post, p. 216. By 55 G. 3. c. 50. 4., prisoners charged with felony or misdemeanor, against whom no indictment is found, or who are acquitted on their trial, shall be discharged without payment of any fee whatever. 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 mis demeanor. 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. 1 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. 41. Shall yield twice as much] 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 at Offences committed during journies, &c. or on boundaries of counties. Etymology. money of Great Britain of and from the said A. O. for case and fa- Indictment for Extortion of a Bailiff. } sent, that A. B. late of· yeoman, being bailiff of the hundred of. on the at in the upon their oath prein the said county, in the said county, year of the reign of 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 next 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. AS to trials of felonies and misdemeanors committed on board 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. Indictment. I. 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 fallan signifieth to offend, and fellnisse 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 which 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) § 6., benefit of clergy with respect to persons convicted of felony is abolished. Clergy 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, and for which no punishment is specially provided, shall be liable, at the discretion of the court, to be transported for seven years, or 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 offence punishable under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labour, as to the court in its discretion shall seem meet." Its punishment where not capital. Court may order hard labour, or soliment, as part of the sentence of imprisonment. tary confine If a person under sentence for another crime is felony, court convicted of § 10. enacts," That wherever sentence shall be passed for felony on a person already imprisoned under sentence for another crime, it shall be lawful for the court to award imprisonment for the subsequent offence, to commence at the expiration of the imprison 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 expiration of first. sequent offence, to commence at the expiration of the imprisonment 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. Definition. Punishment. Signifies a high misdemeanor. Definition. 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 13s. 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. § 4. tit. Gaols, § XI. and antè, p. 212. tit. Extortion. II. Visprision 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. c. 9. If any person will save himself from the crime of misprision, he must discover the offence to a magistrate with all speed that he can. 3 Inst. 140. Misprision in a larger sense is used to signify every considerable misdemeanor, which hath not a certain name given to it in the law. 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. 1 Haw. c. 59. § 5. 1 Russ.210. |