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have a civil action by writ of conspiracy, (of which we spoke in the pre ceding book, (c) or the conspirators, for there must be at least two to form a conspiracy, may be indicted at the suit of the king, and were by the ancient common law, (d) to receive what is called the villenous judgment; viz. to lose their liberam legem, whereby they are discredited and disabled as jurors or witnesses; to forfeit their goods and chattels, and lands for life; to have those lands wasted, their houses razed, their trees rooted up, and their own bodies committed to prison. (e) But it now is the better opic See Book III. pag. 126.

d Bro. Abr. tit. Conspiracy, 28.

e 1 Hawk. P. C. 193.

The offence of conspiracy is not confined to the prejudicing a particular individual, it may be to injure public trade, to affect public health, to violate public policy, to insult public justice, or to do any act in itself illegal. A conspiracy to prevent a prosecution for a felony is an offence, 14 Ves. 165.; so is one to raise the price of the funds. 3 M. & S. 67. So a conspiracy to effect a restraint of trade. 13 East, 230. A combination of journeymen to raise their wages, of wine. merchants to sell pernicious liquor, of parish officers to marry paupers, and of any persons to procure the release of a prisoner by fictitious bail, is indictable as a conspiracy. 8 Mod. 11. 2 Lord Raym. 1179. 6 East, 133. 4 Burr. 2106. An agreement between private individuals to support each other in all undertakings, lawful or otherwise, is illegal. 9 Co. 56. A combination among officers in the East India company to resign is unlawful, and such resignation is no determination of the service. 4 Burr. 2172.

There are many cases in which the act itself would not be cognizable by law if done by a single person, which becomes the subject of indictment when effected by several with a joint design. 6 T. R. 636. Thus each person attending a theatre has a right to express his disapprobation of the piece acted, or a performer on the stage, but if several previously agree to condemn a play, or hiss an actor, they will be guilty of conspiring. 2 Camp. 358. In the case of workmen refusing to proceed unless they receive an advance of wages, it is clear that any one of them tight singly act on this determination, but it is criminal when it follows from a plan preconcerted by inany. 6 T. R 636. See the statute as to combinations among workmen, infra. There are other cases in which, though the act may be morally criminal, it is not illegal, except on the ground of conspiracy; thus the verbal slander of a private individual is not indictable, but it is so where several unite in a scheme to blast his character. 1 Lev. 62. 1 Vent. 304. And in every case that can be adduced of conspiracy, the offence depends on the lawful agreement, and not on the act which follows it, the latter is but evidence of the former. 2 Burr. 993. 3 Burr. 1321.

To constitute a conspiracy, as observed in the text, there must be at least two persons implicated in it; and a husband and wife cannot be guilty of it. 1 Hawk. c. 72 s. 8. If all the persons in the indictment be acquitted except one, and the indictment do not lay the offence as committed jointly with other persons unknown, no judgment can be passed on such one. Poph. 202. 3 Burr. 1262 12 Mod. 262. But one conspirator may be tried singly; as if the others had escaped, or died, before the trial, or the finding of the bill, he may be convicted alone. 1 Stra. 193. 9 Stra. 1227. It is no offence to conspire to prosecute a guilty person. 1 Salk. 174.

It is not necessary to constitute the offence, that any act should be done in pursuance of the conspiracy, 2 Lord Raym. 1167. 8 Mod. 321. 1 Salk. 174. 1 Bla. Rep. 392.; or that any party was actually injured. 1 Leach, 39

Conspiracies and combinations among workmen for a long time engrossed the attention of, and perplexed, the legislature. Until the passing of the 6 Geo. IV. c. 129. the common law relative to such an offence was considered defective. This act, however, repeals all the former acts on the subject of such combinations, and leaves the offence as it before stood at common law. However, by the 3d section, if a person by force, violence, threats, or obstruction, compel any person hired or employed in any trade or business to depart from his hiring or employment, or obstruct him from returning to his work before finished, or prevent, or endeavour to prevent any person from biring himself, or from accepting employment; or by force or threats, &c. molest another in his person or property, to induce him to become a member of any club or association, or to contribute to any common fund, or to pay any fine or penalty, or on account of his not belonging to any particular club or association; or not having contributed, or having refused to contribute to any common fund, or to pay any fine or penalty; or on account of his not having complied, or of refusing to comply, with any regulations, &c. made to obtain an advance, or to reduce the rate of wages, or to lessen or alter the hours of working, or to decrease or after the quantity of work; or to regulate the mode of carrying on any manufacture, trade, or business in the management thereof; or by violence or threats, or obstruction, force any person carrying on any business, to make any alteration in his mode of carrying on such business, or to limit his number of workmen ;such offender and his accessories may be imprisoned with or without hard labour, for not exceeding three calendar months. By sect. 4. persons may meet together for the sole purpose of consulting upon and determining the rate of wages, or hours of work, and may enter into an agree ment for framing the rate of wages or hours of work. And by section 5. the masters of workmen may do the same. By sec. 6. offenders against the act may be called on to give evidence for the king, or prosecute an informer on any information exhibited under the act. Sec. 7. gives a sum mary proceeding before a magistrate for an offence under the act, Chitty 60

Voz. II.

[137] nion, that the villenous judgment is by long disuse become obso. lete; it not having been pronounced for some ages; but, instead thereof the delinquents are usually sentenced to imprisonment, fine, and pillory." To this head may be referred the offence of sending letters, threatening to accuse any person of a crime punishable with death, trans. portation, pillory, or other infamous punishment, with a view to extort from him any money or other valuable chattels. This is punishable by statute 30 Geo. II. c. 24., at the discretion of the court, with fine, imprisonment, pillory, whipping, or transportation for seven years."

16. The next offence against public justice is when the suit is past its commencement, and come to trial. And that is the crime of wilful and corrupt perjury: which is defined by sir Edward Coke, (f) to be a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue or point in question. The law takes no notice of any perjury but such as is committed in some court of justice, having power to admi. nister an oath; or before some magistrate or proper officer, invested with a similar authority, in some proceedings relative to a civil suit or a criminal prosecution for it esteems all other oaths unnecessary at least, and therefore will not punish the breach of them." For which reason it is much to

fS Inst. 164.

(2) The punishment of pillory is now abolished by the 56 Geo. III. c. 138 By the $ Geo. IV. c. 114. persons convicted of an assault committed in pursuance of any conspiracy to raise the price of wages, may be sentenced to hard labour. An attorney has been struck off the roll after conviction for a conspiracy. 1 Chit. Rep. 557 On conviction of conspiracy the defendant becomes incompetent to give evidence, 1 Leach, 442. 349. sed quære, see 1 D & R. N. P. C. 5. but his competence may be restored by a pardon. 1 Hale, 306. 2 Hale, 278.

(21) See post, 144. as to this offence.

(22) And no breach of an oath inade in a mere private concern, as in entering into a contract, however malicious, is an indictable offence, but can only be redressed in an action for the indivi dual injury; nor can any criminal proceeding be maintained for the violation of an oath, taken, however solemnly, to perform any duties in future, though the offence will be highly aggravated by the breach of an obligation so sacred. 3 Inst. 166 11 Co. Rep. 98. And even where an oath is required by an act of parliament in an extrajudicial proceeding, the breach of that obli gation does not seem to amount to perjury, unless the statute contain an express provision to that effect. Mr. Christian's note. And it seems an indictment for perjury is not sustainable on an oath taken before the house of commons, as they have not any power to administer an oath, unless indeed in those particular cases, in which an express power is granted to them by statute.-Mr. Christian's note. It has also been doubted whether an indictinent lies for perjury on a deposition taken de bene esse. 1 P Wms. 568. And an indictment dues not lie for perjury commit ted on the trial of a cause where the plaintiff died after issue joined, but which was not suggested on the record, such trial being thereby extrajudicial 1 Stark. C. N. P. 511. But it is indicta ble to swear falsely in any court of equity, 1 Leach, 50. 1 Sid. 418; any ecclesiastical court, Cro. Eliz. 609; and any other lawful court, whether it be of record or otherwise. Hawk. b. 1. c. 69. s. S. So a false oath subjects the offender to all the penalties of perjury, though it be taken in a stage of the proceedings when it does not influence the final judgment, but only affects some intermediate step to be taken; thus, if a man offering to bail another swears his property to be greater than it is, in order to be received as a surety, Cro. Car. 146. or if he swears falsely before a magistrate to induce him to compel another to find sureties for the peace, Hawk. b. 1. c. 69. s. 8. 1 Campb. 404.; or where a person forswears himself before commissioners appointed by the king to inquire of forfeitures of estates, &c. whereby he renders them liable to be seized by exchequer process, Noy, 100.; or before persons appointed by the king to inquire of defective titles in order to remedy them by his patent, he is guilty of an indictable offence, though, in the latter case, rather as a misdemeanor abusing the purposes of the crown than as a regular and legal perjury. Hob. 62. It is also perjury to swear falsely before a sheriff on a writ of inquiry for assessment of damages, Hawk. b. 1. c. 69 s. S. ; in an affidavit to hold to bail, Peake N P. 112., in obtaining a marriage licence at doctors commons, 1 Leach. 63., though not so if the oath be taken before a surrogate, R & R. C. C. 459. ;. in obtaining administration to a seaman, 1 Leach, 327; in taking the oath as a voter at an election, 6 East, 323. 2 Campb. 135. 2 Smith, 526.; and before a committee of the house of commons, who are invested with the power of administerMy oaths to the witnesses before them, by 10 Geo. III. c. 16. s. 18.

This party must be lawfally sworn, and as abore observed, the person by whom the oath is a

be questioned, how far any magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as is now too frequent upon every petty occasion; since it is more than possible, that by such idle oaths a man may frequently in foro conscientiae, incur the guilt, and at the same time evade the temporal penalties of perjury. The perjury must also be corrupt (that is, committed malo animo), wilful, positive, and absolute; not upon sur. prise, or the like it also must be in some point material to the question in dispute; for if it only be in some trifling collateral circumstance, to which



ministered must have competent authority to receive it. And, therefore, no false swearing be fore individuals acting merely in a private capacity, or before officers who have no legal jurisdiction to administer the particular oath in question will amount to the offence of perjury. 3 Inst. 166. Cro. C. C. 7th edit. 626. And though the officer stands colourably in the situation which confers a power of receiving an oath on such an occasion, if in fact he is not duly appointed, the proceedings will be of no avail, Id. ibid. 3 Campb. 432. Wood's inst. 435. ; for though it is sufficient prima facie to shew the ostensible capacity n which he acted when the oath was taken, the presumption may be rebutted by other evidence, and the defendant, if he succeed, will be. entitled to an acquittal. 3 Campb. 432; see Id 96. But a false oath taken before persons, who being originally commissioned to examine witnesses, happen to proceed after the demise of the king from whom their commission proceeded, and before they had notice of that fact, may, it is said, be indicted for perjury. Cro. Car. 97. 8, 9.; sed quære. To make false swearing perjury it is not necessary that the oath should have been taken as a witness for another, but may be upon an affidavit or in answer to questions in a court of law or equity, or respecting some collateral matter in some way affecting a judicial proceeding. 1 Leach, 50. Hawk b. 1. c. 69. s. 5. A party may be indicted for perjury though he have not complied with the rules and orders of a court, which are inerely directory. and therefore where a party swore falsely in an affidavit which could not, from certain omissions in the jurat, be received in the court in which it was sworn, it was held he was indictable, the perjury being complete at the time of swearing. 1 Ry. & M. Rep. 94. Chitty.

(25) If a man swears that he believes that to be true which he knows to be false, he swears as absolutely, and is as criminal, in point of law, as if he had made a positive assertion that the fact was, as he swore he believed it to be. 3 Wils. 427 2 Bla. Rep 881. 1 Leach, 242. Hawk. b. 1 c. 69. s. 7. n. a. The false swearing, however, as to the legal operation of a deed is not indictable. 1 Esp. Rep. 280.

(24) If the subject-matter is entirely foreign to the purpose, not tending either to extenuate or increase the damages or the guilt, nor likely to induce the jury to give a more easy credit to the substantial part of the evidence, the party will not be liable to an indictment. Hawk. b. 1. c. 69. 3. 8. It is indeed urged by Hawkins, with great appearance of truth, that this must be intended where the question is put in such a manner that the witness might reasonably apprehend that the sole design of putting it was to acquire information on the substantial part which might induce him, through inadvertency, to take no notice of the circumstantial part of his story, for he argues that the minuteness of a narrative is frequently a great inducement with a jury to give it credit. Hawk. b. 1. c. 69. s. 8. Something perhaps might be urged against this reasoning; it seems to put the legal guilt of perjury on a wrong footing by, confounding it with the moral; and indeed does away entirely the distinction between material and immaterial averments, and sets aside the rule the author has just before endeavoured to establish; for it goes to prove that every man is legally guilty of perjury when he swears falsely before a competent officer, and confounds the impertinency of the false evidence with the absence of an intention of deceiving. We have already seen, that where there is no intention to mislead, even though the false statement be ever so material, the party is not punishable, because the perjury loses all its legal guilt by the absence of a bad design. To resolve one established rule into another is rather suspicious. It is, however, more easy to decide on each particular case than to establish any general principle. To swear falsely as to the character of a witness is sufficiently material. Com. Rep 43. 1 Ld. Raym. 258. And in general it is sufficient if the matter be circumstantially material to the issue, or affect the ultimate decision. 1 Ld Raym. 258 2 Id 889. 2 Roll. R. 369. Thus perjury may be committed by falsely swearing that another witness is entitled to credit if such assertion conduce to the proof of the point in issue. 1 Ld. Raym. 258. And it is certain, that there is no necessity that the false evidence should be sufficient to render the party on whose behalf it is given successful, but it will suffice if that is its evident tendency, 2 Ld Rayın. 889; or if in a civil action it has the effect of increasing or extenuating the damages, comme semble. Wood's Inst. 495. In a late case, in an indictment for perjury, in an answer in chancery to a bill filed against the defendant for the specific performance of an agreement relating to the purchase of land, the defendant had relied on the statute of frauds (the agreement not being in writing), and had also denied having ever entered into such an agreement, and upon this denial he was indicted; but it was held that the denial of an agreement, which by the statute of frauds was not binding on the parties, was immaterial and irrelevant, and not indictable. 1 Ry & M. 109.

To constitute perjury at common law, it is not necessary that the false oath should obtain any credit, or occasion any actual injury to the party against whom the evidence is given; for the


no regard is paid, it is no more penal than in the voluntary extrajudicial oaths before mentioned. Subornation of perjury is the offence of [138] procuring another to take such a false oath, as constitutes perjury in the principal. The punishment of perjury and subornation, at com. mon law, has been various. It was anciently death; afterwards banishment, or cutting out the tongue; then forfeiture of goods; and now it is fine and imprisonment, and never more to be capable of bearing testimony. (g) But the statute 5 Eliz. c. 9. (if the offender be prosecuted thereon), inflicts the penalty of perpetual infamy, and a fine of 401. on the suborner: and in default of payment, imprisonment for six months, and to stand with both ears nailed to the pillory. Perjury itself is thereby punished with sixth months' imprisonment, perpetual infamy, and a fine of 207., or to have both ears nailed to the pillory. But the prosecution is usually carried on for the of fence at common law; especially as to the penalties before inflicted, the statute 2 Geo. II. c. 25. superadds, a power, for the court to order the offender to be sent to the house of correction for a term not exceeding seven years, or to be transported for the same period; and makes it felony without benefit of clergy to return or escape within the time." It has sometimes been wished, that perjury, at least upon capital accusations, whereby another's life has been or might have been destroyed, was also rendered capi tal, upon a principle of retaliation as it is in all cases by the laws of France. (h) And certainly the odiousness of the crime pleads strongly in behalf of the French law. But it is to be considered, that they admit witnesses to be heard only on the side of the prosecution, and use the rack to extort a confession from the accused. In such a constitution therefore it is necessary to throw the dread of capital punishment into the other scale, in order to keep in awe the witnesses for the crown; on whom alone the prisoner's fate depends; so naturally does one cruel law beget another. But corporal and pecuniary punishments, exile and perpetual infamy, are more suited to the genius of the English law where the fact is openly discussed between witnesses on both sides, and the evidence for the crown may be contradicted and disproved by those of the prisoner. Where indeed the death of [139] an innocent person has actually been the consequence of such wil→

g 3 Inst. 163.

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h Montesq. Sp. L. b. 29 c. 11.

prosecution is not grounded on the inconvenience which an individual may sustain, but on the abuse and insult to public justice. 2 Leon. 211. S Leon. 230. 7 T. R. 315.

In some cases, where a false oath has been taken, the party may be prosecuted by indictment at common law, though the offence may not amount to perjury. Thus it appears to have been holden, that any person making or knowingly using any false affidavit taken abroad (though a perjury could not be assigned on it here), in order to mislead our courts of justice, is punishable as a misdemeanor; and lord Ellenborough, C. J., said, "that he had not the least doubt that any person making use of a false instrument, in order to prevent the due course of justice, was guilty of an offence punishable by indictment. 8 East, 364. 2 Russ. 1759. (25) To render the offence of subornation of perjury complete, either at common law or on the Chitty. statute, the false cath must be actually taken, and no abortive attempt to solicit will bring the offender within its penalties. 3 Mod. 122. 1 Leach, 455. notes. But the criminal solicitation to commit perjury, though unsuccessful, is a misdemeanor at common law, punishable not only by fine and imprisonment. but by corporal and infamous punishment. 2 East Rep. 17. 1 Hawk. c. 19. s. 10. 6 East, 464.

(26) The 56 Geo. III. c. 138. abolishes the punishment of pillory in all cases except in perjury and subornation of perjury. By the 3 Geo. IV. c. 114. hard labour may be added to the offender's imprisonment. There is another circumstance which attends all convictions for perjury, though it forms no part of the judgment at common law, the incapacity of the offender to bear testimony as a witness. But when the indictment is framed at common law, a pardon under the great seal restores the competency, which the conviction destroyed, 1 Vent. 349 4 Harg. St. Tr. 682. 1 Esp. Rep. 94.; but where the proceedings are grounded on the 5 Eliz. c. 9. this cannot be done without a reversal of the judgment, because it is here made a part of the punishment preEcribed. 1 Salk. 289. 5 Esp. Rep. 94. Chitty.

ful perjury, it falls within the guilt of deliberate murder, and deserves an equal punishment: which our ancient law in fact inflicted. (i) But the mere attempt to destroy life by other means not being capital, there is no reason that an attempt by perjury should; much less that this crime should in all judicial cases be punished with death. For to multiply capital punishments lessens their effect, when applied to crimes of the deepest dye; and, detestable as perjury is, it is not by any means to be compared with some other offences, for which only death can be inflicted; and therefore it seems already (except perhaps in the instance of deliberate murder by perjury) very properly punished by our present law, which has adopted the opinion of Cicero, k) derived from the law of the twelve tables, "perjurii poena divina, exitium: humana, dedecus.'

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99 27


17. Bribery is the next species of offence against public justice; which is when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behaviour in his office. (1) In the east it is the custom never to petition any superior for justice, not except. ing their kings, without a present. This is calculated for the genius of despotic countries; where the true principles of government are never understood, and it is imagined that there is no obligation from the superior to the inferior, no relative duty owing from the governor to the governed. The Roman law, though it contained many severe injunctions against bri. bery, as well for selling a man's vote in the senate or other public assem. bly, as for the bartering of common justice, yet by a strange indulgence in one instance, it tacitly encouraged this practice; allowing the magistrate to receive small presents, provided they did not in the whole exceed a hun. dred crowns in the year: (m) not considering the insinuating nature and gi. gantic progress of this vice, when once admitted. Plato therefore more wisely, in his ideal republic, (n) orders those who take pre- [140] sents for doing their duty to be punished in the severest manner: And by the laws of Athens he that offered was also prosecuted as well as he that received a bribe. (0) In England this offence of taking bribes is punished, in inferior officers, with fine and imprisonment; and in those who offer a bribe, though not taken, the same. (p But in judges, especially the superior ones, it hath been always looked upon as so henious an offence, that the chief justice Thorpe was hanged for it in the reign of Edward III. By a statute (9) 11 Hen. IV. all judges and officers of the king, convicted of bribery, shall forfeit treble the bribe, be punished at the king's will, and be discharged from the king's service for ever. And some notable examples have been made in parliament, of persons in the highest stations, and otherwise very eminent and able, but contaminated with this sordid vice. 18. Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like. (r) & De Leg 2. 9. 11 Hawk. P. C. 163. m Ff. 48. 11.6.

i Britton. c. 5.
n De Leg. l. 12.
PS last. 147.


q Ibid. 146.

(27) See this subject further discussed in p. 196 post.

o Pott. Antiq. b. 1. c. 23.
r1 Hawk, P. C. 259.

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(29) It is equally a crime to give as to receive, and in many cases the attempt itself is an offence completely on the side of him who offers it. 4 Burr. 2500. 2 East, 5. Russ. & R. C. C 107. Thus an attempt to bribe a privy counsellor to procure a reversionary patent of an office, grant. able by the king under the great seal, is indictable, though it did not succeed. 4 Burr. 2495. 2 Camp. 251. An attempt to bribe at elections to parliament is criminal for the same reason. 4 Burr. 2500.; and see ante, 1 Book, 179. So a promise of money to a corporator to vote for a member of a corporation is criminal, 2 Lord. Rayın. 1377. 4 Burr. 2501.; and the offence is not, as the learned commentator supposes, confined to bribing judicial officers. See 1 East, 183. 4 Burr. 2494. Christian,

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