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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 Cro. Car. 146; or if he swears falsely before or proceeding before any tribunal or officer a magistra to induce him lo compel another created by the constitution or by law, or to find sureties for the peace, Hawk. b. 1. c. where any oath may be lawfully required by 69. s. 3. any judicial, executive, or administrative offi. The party must be lawfully sworn, and, as cer. The punishment is disqualification as a above observed, the person by wbom the oath witness : and if the perjury be committed on is administered must have competent authothe trial of an indictment for a capital offencerity to receive it. And, therefore, no false or other felony, then imprisonment for a term swearing before individuals acting merely in not less than 10 years; is committed on any a private capacity, or before officers who have other trial, inquiry, or case, then for a term not no legal jurisdiction to administer the particu. more than 10 years. Suboration of perjury, lar oath in question will amount to the offence where the witness is actually sworn and ex- of perjury. 3 Inst. 166. Cro. C. C. 7th edit. amined, is punished the same as perjury. The 626. And though the officer stands colourably mere attempt to suborn a witness is punish- in the situation which confers a power of reable with imprisonment for 5 years. Any court ceiving an oath on such an occasion, if in fact of record may immediately commit to prison he is not duly appointed, the proceedings will for trial, any party or witness who, it may be be of no avail, Id. ibid. 3 Campb. 432. Wood's reasonably presumed, has committed perjury. Inst. 435; for though it is sufficient prima (2 R. S. 681, 682.)
facie to shew the ostensible capacity in which (35) And no breach of an oath made in a he acted when the oath was taken, the premere private concern, as in entering into a sumption may be rebutted by other evidence, contract, however malicious, is an indictable and ihe defendant, if he succeed, will be enti. . offence, but can only be redressed in an action iled to an acquittal. 3 Campb. 432; see Id. for the individual injury ; nor can any criminal 96. proceeding be inaintained for the violation of (36) If a man swears that he believes that to an oath, taken, however solemnly, to perform be true which he knows to be false, he swears any duties in future, though the offence will as absolutely, and is as criminal, in point of be highly aggravated by the breach of an ob- law, as if he had made a positive assertion ligation so sacred. 3 Inst. 166. 11 Co. Rep. that the fact was, as he swore he believed it 98. And even where an oath is required by to be. 3 Wils. 427. 2 Bla. Rep. 881. I an act of parliament in an extrajudicial pro- Leach, 242. Hawk. b. 1.c. 69. s. 7. n. a. The ceeding, the breach of that obligation does false swearing, however, as to the legal operanot seem to amount to perjury, unless the sta- tion of a deed is not indictable. 1 Esp. Rep. tute contann an express provision to that 280. effect. And it seems an indictment for per- (37) If the subject matter is entirely foreign jury is not sustainable on an oath taken before to the purpose, not tending either to extenuate the house of commons, as they have not any or increase the darnages or the guilt, nor likepower to administer an oath, unless indeed in ly to induce the jury to give a more easy credit those particular cases, in which an express pow. to the substantial part of the evidence, the er is granted to them by statute. But is indict. party will not be liable to an indictment. able to swear falsely in any court of equity, 1 Hawk. b. 1. c. 69. s. 8. To swear falsely as Leach, 50. 1 sid. 418; any ecclesiastical to the character of a witness is sufficiently court, Cro. Eliz. 609; and any other lawful material. Com. Rep. 43. 1 Ld. Raym. 258. court, whether it be of record or otherwise. And in general it is sufficient if the matter be Hawk. b. 1. c. 69. s. 3. So a false oath sub. circumstantially material to the issue, or affect jects the offender to all the penalties of per- the ultimate decision. I Ld. Raym. 258. 2 jury, though it be taken in a stage of the pro. Id. 889. 2 Roll. R. 369. Thus perjury may ceedings when it does not influence the final be committed by falsely swearing that another judgment, but only affects some intermediate witness is entitled to credit if such assertion step to be taken ; thus, if a man offering to conduce to the proof of the point in issue. I bail another swears bis property to be greater Ld. Raym. 258. And it is certain, that there than it is, in order to be received as a surety, 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 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 ; 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 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 be
(3) 3 Inst. 163.
(h) Montesq. Sp. L. b. 29, c. 11.
be sufficient to render the party on whose be- of justice, is punishable as a misdemeanor ; hall it is given successful, but it will suffice and lord Ellenborough, C. J., said, “ that he if that is its evident tendency, 2 Ld. Raym. had not the least doubt that any person making 889; or if in a civil action has the effect of use of a false instrument, in order to prevent increasing or extenuating the damages, comme the due course of justice, was guilty of an semble. Wood's Inst. 435. In a late case, in offence punishable by indictment. & East, an indictment for perjury, in an answer in 364. 2 Russ. 1759. chancery to a bill filed against the defendant (38) To render the offence of subornation
for the specific performance of an agreement of perjury complete, either at common law or · relating to the purchase of land, the defend- on ihe statute, the false oath must be actually
ant had relied on the statute of frauds (the taken, and no abortive attempt to solicit will agreement not being in writing), and had also bring the offender within its penalties. 3 Mod, denied having ever entered into such an agree. 122. I Leach, 455. notes. But the criminal ment, and upon this denial he was indicted; solicitation to commit perjury, though unsucbut it was held that the denial of an agree- cessful, is a misdemeanor at common law, ment, which by the statute of frauds was not punishable not only by fine and imprisonment, binding on the parties, was immaterial and but by corporal and infamous punishment. 2 irrelevant, and not indictable. | Ry. & M. East Rep. 17. I Hawk. c. 19. s. 10. 6 East, 109.
464. To constitute perjury at common law, it is (39) The statute now in force is 7 & 8 not necessary that the false oath should obtain Geo. IV. c. 27. There is another circumstance any credit, or occasion any actual injury to which attends all convictions for perjury, the party against whom the evidence is given; though it forms no part of the judgment at for the prosecution is not grounded on the in- common law, the incapacity of the offender to convenience which an individual may sustain, bear testimony as a witness. But when the but on the abuse and insult to public justice. indictment is framed at common law, a pardon 2 Leon. 211. 3 Leon. 30. 7 T. R. 315. under the great seal restores the competency,
In some cases, where a false oath has been which the conviction destroyed, 1 Vent 349. taken, the party may be prosecuted by indict. 4 Harg. St. Tr. 682. 1 Esp. Rep. 94; but ment at common law, though the offence may where the proceedings are grounded on the not amount lo perjury. Thus it appears to 5 Eliz. c. 9. this cannot be done without a rehave been holden, that any person making versal of the judgment, because it is here or knowingly using any false affidavit taken made a part of the punishment prescribed. 1 abroad (though a perjury could not be assign- Salk. 289. 5 Esp. Rep. 94. ed on it here), in order to mislead our courts
tween witnesses on both sides, and the evidence for the crown may [*139 ] be contradicted and disproved by those of the prisoner. Where *in
deed 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 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 (6). In England this offence of taking (i) Britton, c. 5.
(m) F. 48. 11. 6. (k) De Leg. 2. 9.
(n) De Leg. l. 12. (1) I Hawk. P. C. 168.
(0) Pott. Antiq. b. 1, c. 23.
(40) See this subject further discussed in p. succeed. 4 Burr. 2495. 2 Camp. 231. An
attempt to bribe at elections to parliament is (41) It is equally a crime to give as to re- criminal for the same reason. 4 Burr, 2500; ceive, and in many cases the attempt itself is and see ane, 1 book, 179. So a promise of an offence complete on the side of him who money to a corporator to vote for a member of offers it. 4 Burr. 2500. 2 East. 5. Russ. & a corporation is criminal, 2 Lord Raym. 1377, R. C. C. 107. Thus an attempt to bribe a 4 Burr. 2501; and the offence is not, as the privy counsellor to procure a reversionary pa- learned commentator supposes, confined to tent of an office, grantable by the king under bribing judicial officers. " 'See 1 East, 183. the great seal, is indictable, thoagh it did not 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 (1) (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.
(8) See Book III. p. 402, 403.
(q) Ibid. 146.
(42) Bribery of any judicial officer and of nishable by fine and imprisonment. the higher executive officers, may be punished (44) The writ of attaint against jurors is in New York by imprisonment not exceeding now utterly abolished by the 6 G. IV. c. 50, 30 years, and fine not exceeding 5,000 dollars. 0 60; and, by $ 61, they are rendered punishThe person accepting the brive may be pu. able for misconduct by another mode. Vide nished in the same way, and disqualified from ante note (43), post, 361. See p. 133. office. (2 R. S. 682, Ø 9, 10.) A juror, arbi- (45) As to the liabilities of magistrates for trator, or referee, accepting a bribe, is punish- misconduct, &c. see ante, 1 book, 354. n. 37; able by imprisonmeni for not more than 5 of coroners, ante, 1 book, 348. n. 27; of gaol. years, and fine not exceeding 1,000 dollars : ers, id. 346. n. 18; of overseers, &c. id. 360. so also is the one offering the bribe. (Id. n. 50. And see 2 R. S. 684, &c.: and 696, $ 11, 12.)
$ 38, 39. (43) By the 6 Geo. IV. c. 50. s. 61. the of. (46) On motions for informations against fence of embracery of jurors, and jurors wil. magistrates, the question is, not whether the fully and corruptly consenting thereto, is pu- act done might on full investigation be found
22. Lastly, ertortion 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).
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 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
(a) Book I. p. 118. 268. 350.
(u) I Hawk. P. C. 170.
to be strictly right, but whether it proceeded fendant wbo pleads to a joint information, or from oppressive, dishonest, or corrupt motives abore 2s. where several are indicted together, (under which fear and favour may generally for the venire and entry of the plea for all of be included.) or from inistake, or error; in them, he will be liable to be indicted. 3 Mod. either of the latter cases, the court will not 247. 3 Inst. 150. But stated and known fees grant a rule. Rex v. Barron, 3 B. and A. 432. allowed by courts of Justice to their own offi. That case seems to lay down the general rule cers are legal, and may be properly demanded. upon this subject clearly and definitively. Co. Lit. 368. b. And, therefore, before the (47) See 2 R. S. 650, $ 5:
and 696, 0 39. abolition of gaol fees by 14 Geo. III. 20. on (48) By the statute of 3 Edw. I. c. 16. in a prisoner's discharge, the bar fee of 20d. was affirmance of the ancient law, it is enacted, always allowed to the sheriff. 2 Inst. 210. that no sheriff, nor other king's officer, shall Nor is it criminal for an officer to take a retake any reward to do his office, but shall be ward voluntarily offered him for the more dili. paid of that which they take of the king; and gent or expeditious performance of his duty. that he who so doth, shall yield twice as much, ž Inst. 210, 11. But a promise to pay him and shall be punished at ihe king's pleasure. money for any act of duty which the law does This act, which thus particularly names the not suffer him to receive, is absolutely void, sheriff, extends to every ministerial officer however freely it may have been given. 2 concerned in the administration or execution Burr. 924. 1 Bla. Rep. 204. There are no of justice, the common good of the subject, or accessaries in extortion. 1 Stra. 75. the service of the king, 2 Inst. 209. Where (1) It does not seem necessary that twelve a statute annexes a fee to an office, it will be persons should have been guilty, to constitute extortion to take more than it specifies. 2 a riotous assembly within the acts. See Doug! Inst. 210. And it seems that if a clerk in the 1 ed. 673. 2 ed. 699.3 T. R. 14. 2 Saund. crown-office demands 13s. 4d. from every de. 377. b. 1. 12.