collateral circumstance, to which no regard is paid, it is no more penal than in the voluntary extrajudicial oaths before mentioned. Subornation of perjury is the offence of procuring another to take such [* 138] a false oath, as constitutes perjury in the principal (38). The punishment of perjury and subornation, at common 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 six months' imprisonment, perpetual infamy, and a fine of 201., or to have both ears nailed to the pillory. But the prosecution is usually carried on for the offence at common law; espe-cially 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 (39). 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 capital, 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 (g) 3 Inst. 163.

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. Raym. 889; or if in a civil action it has the effect of increasing or extenuating the damages, comme semble. Wood's Inst. 435. 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 agree. ment, 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 prosecution is not grounded on the inconvenience which an individual may sustain, but on the abuse and insult to public justice. 2 Leon. 211. 3 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

(h) Montesq. Sp. L. b. 29, c. 11.

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.

(38) To render the offence of subornation of perjury complete, either at common law or on the statute, the false oath 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.

(39) The statute now in force is 7 & 8 Geo. IV. c. 27. 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 prescribed. 1 Salk. 289. 5 Esp. Rep. 94.

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 [*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 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 (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 () (41). In the east it is the custom never to petition any superior for justice, not 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. The 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 magis trate 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 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 (o). In England this offence of taking

(i) Britton, c. 5. (k) De Leg. 2. 9.

(2) 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 privy counsellor to procure a reversionary patent of an office, grantable by the king under the great seal, is indictable, though it did not

(m) Ff. 48. 11. 6.

(n) De Leg. 1. 12.
(0) Pott. Antiq. b. I, c. 23.

succeed. 4 Burr. 2495. 2 Camp. 231. 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 Raym. 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.

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 heinous 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, contaminated with this 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 notorious 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 immediate), 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 10 years, and fine not exceeding 5,000 dollars. The person accepting the bribe may 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 years, and fine not exceeding 1,000 dollars: so also is the one offering the bribe. (Id. ◊ 11, 12.)

(43) By the 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.
(t) 1 Hawk. P. C. 168.

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 gaolers, id. 346. n. 18; of overseers, &c. id. 360. n. 50. And see 2 R. S. 684, &c. and 696, ◊ 38, 39.

(46) On motions for informations against magistrates, the question is, not whether the act done might on full investigation be found

22. Lastly, extortion is an abuse of public justice, which consists in any 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 conservation 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 of fences 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 dispersing 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 upon 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 it seems that if a clerk in the crown-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 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 offcers 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 reward 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 Dougl 1 ed. 673. 2 ed. 699. 5 T. R. 14. 2 Saund. 377. b. n. 12.

intention 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, it 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 sanguinary 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 build ings 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 cominodities 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 any 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 steamengine, or other engine for sinking, draining, or working any mine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, wagon-way, or trunk for conveying minerals from any mine, every such offender shall be guilty of felony, and, on conviction, shall suffer death as a felon.