neard only on the side of the prosecution, and use the rack to extort & 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 o the genius of the English law: where the fact is openly discussed between witnesses on both sides, and the evidence for the crown may [*139] be contradicted and disproved by those of the prisoner. Where *indeed the death of an innocent person has actually been the consequence of such wilful perjury, it falls within the guilt of deliberate murder, and deserves an equal punishment: which our ancient law in fac inflicted (2). 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 (40).” 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 (l) (41) In the east it is the custom never to petition any superior for justice, no excepting their kings, without a present. This is calcuated 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. l'he Roman law, though it contained many severe injunctions against bribery, as well for selling a man's vote in the senate or other public assembly, as for the bartering of common justice, yet by a strange indulgence in one instance, it tacitly encouraged this practice: allowing the magistate to receive small presents, provided they did not in the whole exceed a hundred crowns in the year (m): not considering the insinuating nature and gigantic progress of this vice, when once admitted. Plato [140] therefore more wisely, in his ideal republic (n), orders those who take presents for doing their duty to be purished in the severest manner and by the laws of Athens he that offered was also prosecuted, as well as he that received a bribe (o). In England this offence of taking () Britton, c. 5. (k) De Leg. 2. 9. (1) 1 Hawk. P. C. 168. (40) See this subject further discussed in p. 196. post. (41) It is equally a crime to give as to receive, and in many cases the attempt itself is an offence complete 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 prvy counselor to procure a reversionary patent of an offce, grantable by the king under the great seal, is indictable. though it did not (m) Fy. 48. 11. 6. (n) De Leg. 1. 12. succeed. 4 Burr. 2495. 2 Camp. 231. An Dribos is punished, in inferior officers, with fine and imprisonment and in hose 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 heinous an offence, that the chief justice Thorpe was hanged for it in he reign of Edward III. By a statute (q) 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, contaminated with his sordid vice (42). 18. Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like (r). The punishment for the person embracing is by fine and imprisonment; and for the juror so embraced, if it be by taking money, the punishment is (by divers statutes of the reign of Edward III). perpetual infamy, imprisonment for a year, and forfeiture of the tenfold value (43). 19. The false verdict of jurors, whether occasioned by embracery or not was anciently considered as criminal, and therefore exemplarily punished by attaint in the manner formerly mentioned (s) (44). 20. Another offence of the same species is the negligence of public officers intrusted with the administration of justice, as sheriffs, coroners, constables, and the like, which makes the offender liable to be fined; and in very no. torious cases will amount to a forfeiture of his office, if it be a beneficial one (t) (45). Also the omitting to apprehend persons offering stolen *iron, lead, and other metals to sale, is a misdemeanor, and [*141] punishable by a stated fine, or imprisonment, in pursuance of the statute 29 Geo. II. c. 30. 21. There is yet another offence against public justice, which is a crime of deep malignity; and so much the deeper, as there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution. This is the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office. However, when 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 sure to be severely punished with forfeiture of their offices (either consequential or im. mediate), fines, imprisonment, or other discretionary censure, regulated by the nature and aggravations of the offence committed (46). (p) 3 Inst. 147. (q) Ibid. 146. (r) 1 Hawk. P. C. 259. (42) Bribery of any judicial officer and of the higher executive officers, may be punished in New-York by imprisonment not exceeding 0 years, and fine not exceeding 5,000 dollars. The person accepting the bribe raay be punished in the same way, and disqualified from office. (2 R. S. 682, 9, 10.) A juror, arbitrator, or referee, accepting a bribe, is punishable by imprisonment for not more than 5 vears, and fine not exceeding 1,000 dollars: o also is the one offering the bribe. (Id. 11, 12.) (43) By th 6 Geo. IV. c. 50. s. 61. the offence of embracery of jurors, and jurors wilfully and corruptly consenting thereto, is pu (s) See Book III. p. 402, 403 nishable by fine and imprisonment. (44) The writ of attaint against jurors is now utterly abolished by the 6 G. IV. c. 50, ◊ 60; and, by ◊ 61, they are rendered punishable for misconduct by another mode. Vide ante note (43), post, 361. See p. 133. (45) As to the liabilities of magistrates for misconduct, &c. see ante, 1 book, 354. n. 37 of coroners, ante, 1 book, 348. n. 27; of ga ers, id. 346. n. 18; of overseers, &c. id. 360 n. 50. And see 2 R. S. 684, &c.: and 696, 9 38, 39. (46) On motions for informations against magistrates, the question is, not whether the act done might on full investigation be found 22 Lasy, extortion is an abuse of public justice, which consists in un 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 (u) (47). The punishment is fine and imprisonment, and sometimes a forfeiture of the office (48). CHAPTER XI. OF OFFENCES AGAINST THE PUBLIC PEACE. WE are next to consider offences against the public peace; the conser vation of which is intrusted to the king and his officers, in the manner and for the reasons which were formerly mentioned at large (a). These offences are either such as are an actual breach of the peace: or constructively so, by tending to make others break it. Both of these species are also either felonious, or not felonious. The felonious breaches of the peace are strained up to that degree of malignity by virtue of several modern statutes and, particularly, 1. The riotous assembling of twelve (1) persons, or more, and not dis persing upon proclamation. This was first made high treason by statute 3 & 4 Edw. VI. c. 5, when the king was a minor, and a change in religion to be affected; but that statute was repealed by statute 1 Mar. c. 1. among the other treasons created since the 25 Edw. III.: 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 single felony. These statutes specified and particularized the name of the riots they were meant to suppress; as, for example, such as were set on foot with (u) 1 Hawk. P. C. 170 to be strictly right, but whether it proceeded from oppressive, dishonest, or corrupt motives (under which fear and favour may generally be included,) or from mistake, or error; in either of the latter cases, the court will not grant a rule. Rex v. Barron, 3 B. and A. 432. That case seems to lay down the general rule apon this subject clearly and definitively. (47) See 2 R. S. 650, 5 and 696, 39. (48) By the statute of 3 Edw. I. c. 16. in affirmance of the ancient law, it is enacted, that no sheriff, nor other king's officer, shall take any reward to do his office, but shall be paid of that which they take of the king; and that he who so doth, shall yield twice as much, and shall be punished at the king's pleasure. This act, which thus particularly names the sheriff, extends to every ministerial officer concerned in the administration or execution of justice, the common good of the subject, or the service of the king, 2 Inst. 209. Where a statute annexes a fee to an office, it will be extortion to take more than it specifies. 2 Inst. 210. And seems that if a clerk in the Brown-office demands 13s. 4d. from every de (a) Book I. p. 118. 268. 350 fendant who pleads to a joint information, or above 2s. where several are indicted together, for the venire and entry of the plea for all of them, he will be liable to be indicted. 3 Mod. 247. 3 Inst. 150. But stated and known fees allowed by courts of justice to their own officers are legal, and may be properly demanded. Co. Lit. 368. b. And, therefore, before the abolition of gaol fees by 14 Geo. III. c. 20. on a prisoner's discharge, the bar fee of 20d. was always allowed to the sheriff. 2 Inst. 210 Nor is it criminal for an officer to take a re ward voluntarily offered him for the more diligent or expeditious performance of his duty. 2 Inst. 210, 11. But a promise to pay him money for any act of duty which the law does not suffer him to receive, is absolutely void, however freely it may have been given. 2 Burr. 924. 1 Bla. Rep. 204. There are no accessaries in extortion. 1 Stra. 75. (1) It does not seem necessary that twelve persons should have been guilty, to constitute a riotous assembly within the acts. See Doug! 1 ed. 673. 2 ed 699. 5 T. R. 14. Saund 377. b. n. 12. Jention 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 were commanded by proclamation to disperse, and they did not, was by the statute of Mary made felony, but within the benefit of the clergy; and *also the act indemnified the peace officers and [*143] their assistants, if they killed any of the mob in endeavouring to suppress such riot. This was thought a necessary security in that sanguin ary 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 the First to the death of queen Anne, it was never once thought expedient to revive it but, in the first year of George the First, 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. I. c. 5. enacts, generally, that if any twelve persons are unlawfully assembled to the disturbance of the peace, and any one justice of the peace, sheriff, undersheriff, 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 without benefit of clergy. And farther, 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 of such hinderance, and not dispersing, are felons without benefit of clergy. There is the like 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. And, by a subsequent clause of the new act, if any person, so riotously assembled, begin even before proclamation to pull down any church, chapel, meeting-house, dwelling-house, or out-houses. they shall be felons without benefit of clergy (2). 2. By statute 1 Hen. VII. c. 7. unlawful hunting in any legal forest, park, or warren, not being the king's property, *by night, or [*144 ] with painted faces, was declared to be single felony. But now by the statute 9 Geo. I. c. 22, to appear armed in any inclosed forest or place, where deer are usually kept, or in any warren for hares or conies, or in any high road, open heath, common, or down, by day or night, with (2) These provisions were, by subsequent statutes, extended to every description of mills and the works attached to them; to buildings or machinery for carrying on any kind of trade or manufacture, or for ware-housing goods or merchandize; and to houses, shops, and buildings, with the fixtures, furniture, goods, and commodities whatsoever contained therein. And now by 7 and 8 Geo. IV. c. 30, § 8, it is provided, that if any persons, riotously and tumultuously assembled together, to the disturbance of the public peace, shall unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down, or destroy, any church or chapel, or an chapel for the religious worship of persons dissenting from the united church of England and Ireland, duly registered, or recorded, or any house, stable, couch-house, out-house, ware-house, office, shop, mill, malt-house, hop-oast, barn or granary, or any building or erection used in carrying on any trade or manufacture, or any machinery, fixed or moveable, prepared for or employed in any manufacture, or any steam engine, or other engine for sinking, draining, or working any mine, or any staith, building, or erection used in conducting the busineз of any mine, or any bridge, wagon-way, or trunk for conveying minerals from any mine, every such offender shall be guilty of fe.ony and, on conviction, shall suffer death as a felon faces blacked or otherwise disguised, or (being so disguised) to huL wound, kill, or steal any deer, to rob a warren, or to steal fish, or to procure by gift or promise of reward any person to join them in such unlawful act, is felony without benefit of clergy (3). I mention these offences in this place, not on account of the damage thereby done to private property, but of the manner in which that damage is committed: namely, with the face blacked or with other disguise, and being armed with offensive weapons, to the breach of the public peace, and the terror of his majesty's subjects. 3. Also by the same statute 9 Geo. I. c. 22, amended by statute 27 Geo. II. c. 15, knowingly to send any letter without a name, or with a fictitious name, demanding money, vension, or any other valuable thing, or threatening (without any demand) to kill any of the king's subjects, or to fire their houses, out-houses, barns, or ricks, is made felony without benefit of clergy (4). This offence was formerly high treason by the statute 8 Hen. V. c. 6 (5). 4. To pull down or destroy any lock, sluice, or floodgate erected by authority of parliament on a navigable river, is by statute 1 Geo. II. st. 2. c. 19. made felony, punishable with transportation for seven years. By the statute 8 Geo. II. c. 20, the offence of destroying such works, or rescuing any person in custody for the same, is made felony without benefit of cler gy; and it may be inquired of and tried in any adjacent county, as if the fact had been therein committed. By the statute 4 Geo. III. c. 12, maliciously to damage or destroy any banks, slucies, or other works on such navigable river, to open the floodgates or otherwise obstruct the navigation, is again made felony, punishable with transportation for seven [*145] years. And by the statute 7 Geo. III. c. 40. *(which repeals all former acts relating to turnpikes), maliciously to pull down or otherwise destroy any turnpike-gate or fence, toll-house or weighing-engine thereunto belonging, erected by authority of parliament, or to rescue any person in custody for the same, is made felony without benefit of clergy; and the indictment may be inquired of and tried in any adjacent county (6), (7). The remaining offences against the public peace are merely misdemeanors, and no felonies; as, (3) The 9 G. I. c. 22, and 27 G. II. c. 15, depriving parties committing these offences of benefit of clergy, were repealed by 4 Geo. IV. c. 54, 3, which subjected the party to transportation or imprisonment at the discretion of ine court; the latter Act, however, is repealed, (except as to sending letters threatening to kill or murder, or to burn, or destroy property, and as to accessaries to such offencer, and as to rescues, vide infra, note 4), by i and 8 Geo. IV. c. 27. All the statutes relating to these offences are repealed and consolidated by 7 and 8 Geo. IV. c. 27, and c. 29: and by 7 and 8 G. IV. c. 29, § 26. stealing, or attempting to kill or wound any deer, kept in any enclosed ground, is declared felony, and the guilty party is liable to be punished as in the case of simple larceny; and committing the same offence in unenclosed grounds is punishable summarily by fine not exceeding 50., and repeating such offence is deemed elony, and punishable as a simple larceny. (4) The statute now in force upon this subject is the 7 and 8 G. IV. c. 29, by § 8 of which, persons sending letters containing menacing demands, or threatening to accuse a party of any crime, punishable with death, transportation, or pillory, or of any other infa mous crime, to extort money, shall be guilty of felony, and, on conviction thereof, be lia ble, at the discretion of the court, to transpor tation for life, or not less than seven years, of imprisonment for any term not exceeding four years; and, if males, to one, two, or three public whippings, in addition to such imprisonment. S. 9 defines what shall be deemed an infamous crime. Sending a letter threatening to accuse the prosecutor of having made overtures to the prisoner to commit sodomy with him, does not threaten to charge such an infamous crime as to be within the Act. Rex v. Hickman, R. and M. C. C. 34. But see Rex v. Wagstaffe, R. and R. C. C. 398; Rex v. Paddle, Id. 454 (5) In New-York it is considered an attempt to rob, and is punishable with imprisonment not exceeding five years. (2 R. S. 678, § 58.) There are no statutes in New York against the two offences first mentioned in this chapter. (6) By 7 and 8 Geo. IV. c. 30, amentias (7) In New-York these offences are misdemeanors. (2 R. S. 695, § 30, ore 1 |