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perjury but such as is committed in some court of justice, having power to administer 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 (35). For which reason it is much to 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 (36) not upon surprise, or the like: it also must be in some point material to the question in dispute (37); for if it only be in some trifling


the ends of public justice. 3. In any matter or proceeding before any tribunal or officer created by the constitution or by law, or where any oath may be lawfully required by any judicial, executive, or administrative officer. The punishment is disqualification as a witness and if the perjury be committed on the trial of an indictment for a capital offence or other felony, then imprisonment for a term not less than 10 years; if committed on any other trial, inquiry, or case, then for a term not more than 10 years. Subornation of perjury, where the witness is actually sworn and examined, is punished the same as perjury. The mere attempt to suborn a witness is punishable with imprisonment for 5 years. Any court of record may immediately commit to prison for trial, any party or witness who, it may be reasonably presumed, has committed perjury. (2 R. S. 681, 682;)

(35) And no breach of an oath made 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 individual 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.


And even where an oath is required by an act of parliament in an extrajudicial proceeding, the breach of that obligation does not seem to amount to perjury, unless the statute contain an express provision to that effect. 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. But is indict able 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. 3. 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. 3.

The party must be lawfully sworn, and, as above observed, the person by whom the oath is administered must have competent authority to receive it. And, therefore, no false swearing before individuals acting merely in a private capacity, or before officers who have no legal jurisdiction to administer the particu lar 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 in 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.

(36) 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. I 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.

(37) 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. h. 1. c. 69. s. 8. 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. I Ld. Raym. 258. And it is certain, that there is no necessity that the false evidence should

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 40l. 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; 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 (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 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 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 (1) (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 magistrate 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. 1, 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 an e, 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 (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 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.

(7) 1awk. 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 of fence 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).



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 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 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 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 offi cers are legal, and may be properly demanded. Co. Lit. 368. b. And, therefore, before the abolition of gaol fees by 14 Geo. III. o, 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.

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