must be in some point material to the question in dispute;1 for if it only be in some trifling collateral circumstance, to which no regard is paid, it is no more penal than in the voluntary extra-judicial oaths before mentioned.

Subornation of perjury is the offence of procuring another [*138] to *take such a false oath, as constitutes perjury in the principal. 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 of 5 Eliz. c. 9 (if the offender be prosecuted thereon), inflicts the penalty of perpetual infamy, and a fine of 40%. 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 207., 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 in

(g) 3 Inst. 163.

1 That the testimony should be pertinent and material, see State v. Dodd, 3 Murph. 226; Commonwealth v. Parker, 2 Cush. 212; Bullock v. Koon, 4 Wend. 531; Pollard v. People, 69 Ill. 148; Nelson v. State, 47 Miss. 621; State v. Mooney, 65 Mo. 494; Plath v. Braunsdorff, 40 Wis. 107; State v. Mumford, 1 Dev. 519; S. C., 17 Am. Dec. 573.

"It seemeth clear that if the oath for which a man is indicted for perjury be wholly foreign from that purpose, or altogether immaterial, and neither any way pertinent to the matter in question, nor tending to aggravate or extenuate the damages, nor likely to induce the jury to give a readier credit to the substantial part of the evidence, it cannot amount to perjury, because it is merely idle and insignificant." 1 Hawk. P. C., ch. 65, § 8. But the testimony may be material enough to warrant an indictment for perjury, if it affect any collateral issue in the case. State v. Keenan, 8 Rich. 456; State v. Lavalley, 9 Mo. 824; State v. Shupe, 16 Ia. 36; Commonwealth v. Pollard, 12 Met. 225; Commonwealth v. Grant, 116 Mass. 17. The late English cases qualify the doctrine as stated by Hawkins. In Reg. v. Mullany, Leigh & C. 593, it was held that any false testimony in a judicial proceeding, with intent to mislead, whether material or not, would amount to perjury. In Reg. v. Gibbon, Leigh & C. 109, it was held that certain evidence had been wrongly admitted, but that the witness might be indicted for perjury on it. In Reg. v. Philpott, 5 Cox, C. C. 363; S. C., 3 C. & K. 135, on which the foregoing depend, the court

uses this language: "This brings us to the question whether it is less perjury if the document turns out not to be admissible in evidence, and the judge has done wrong in admitting it. If that were so, it would, as has been already observed, make the commission of the offense depend upon the decision of a nice question of law upon a bill of exceptions in the house of lords. Here the evidence was offered to procure the admission of a document; that document, if admissible, would be material to the question being tried; and the evidence was false. Here, therefore, are all the elements of the crime of perjury." Mr. Bishop, Cr. L., 5th ed.,

1036, says: "The true view is to consider whether the evidence, assuming it to have been rightly admitted, could have properly influenced the judge or the jury, to whom it was addressed. If it could, and it is false, it should subject the witness to indictment." See Ibid., 7th ed., § 1030. et seq.

By statutes in most of the United States the offense is made broader, and includes false affidavits made in matters outside of, as well as in, court proceedings.

2 To constitute subornation of perjury, the party charged must have procured the commission of perjury by inciting, instigating or persuading the guilty party to commit the crime. Cominonwealth v. Douglass, 5 Met. 241; United States v. Staats, 8 How. 41; Commonwealth v. Smith, 11 Allen, 243. Mere solicitation is a misdemeanor at common law. Reg. v. Darby, 7 Mod. 100.

flicted, the statute 3 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 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 there 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 an innocent person has actually been [*139] 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. (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 pœna divina, exitium; humana, dedecus" (the divine punishment of perjury is death; the human punishment, disgrace).

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. () In the East it is the custom never to petition any superior for justice, not excepting 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,

(h) Montesq. Sp. L. b. 29, c. 11. (1) 1 Hawk. P. C. 168.

(i) Britton, c. 5.

1 See, as to these offenses, stat. 20 and 21 Vic., c. 3; 27 and 28 Vic., c. 47.

2 The offense of bribery is not confined to influencing judicial officers. "Any attempt to influence an officer in his official conduct, whether in the

(k) De Leg, 2, 9.

executive, legislative or judicial department of the government, by the offer of a reward or pecuniary compensation, is an indictable common law misdemeanor." State v. Ellis, 33 N. J. 102; Rex v. Plympton, Lord Raym.

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 therefore more wisely, in his ideal republic, (n) *orders those who take presents for doing their [*140] 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 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 Thorp was hanged for it in the reign of Edward III. By a statute (2) 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 forever. 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.

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.

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)

20. Negligence of officer.- 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) Also the omitting to apprehend persons offering stolen *iron, lead and other metals to sale, is a misdemeanor, and punishable

[*141]

by a stated fine, or imprisonment, in pursuance of the statute 29 Geo. II, c. 30.

21. Malfeasance in office. 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 the 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.

22. Extortion.- 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) The punishment is fine and imprisonment, and sometimes a forfeiture of the office.1

*CHAPTER XI.

OF OFFENCES AGAINST THE PUBLIC PEACE.

[*142]

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. Rioting. The riotous assembling of twelve persons, or more, and not dispersing upon proclamation. This was first made high

(u) 1 Hawk. P. C. 170. 1 Extorting an agreement to pay money or deliver something of value seems not sufficient to make out the offense. Commonwealth v. Cony, 2 Mass. 523; Commonwealth v. Pease, 16 Mass. 91. Nor does the receiving of a reward voluntarily given. State v. Stotts. 5 Blackf. 460; Evans v. Trenton, 24 N. J. 764. A custom to take larger fees than the law permits is no defense to the officer who has demanded and received them. Lincoln v. Shaw, 17 Mass. 410; Commonwealth v. Bagley, 7 Pick. 279. The taking must be willful

(a) Book I, pp. 118, 268, 350.

and corrupt. State v. Gardner, 2 Mo. 23; People v. Coon, 15 Wend. 277; United States v. Waitz, 3 Sawy. 473.

In the United States corrupt misconduct by judges of courts of record is punishable by impeachment. Inferior judicial officers are punishable by indictment, and possibly in some states by impeachment.

2[The celebrated anarchist case, Spies v. People, 122 Ill. 1, although in form a murder case, because death ensued, involved a riot. See Id., p. 198.]

treason by statute 3 and 4 Edw. VI, c. 5, when the king was a minor, and a change in religion to be effected; but that statute was repealed by the 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 nature of the riots they were meant to suppress; as, for example, such as were set on foot with 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 [*143] Mary, made felony, but within the benefit of clergy; and *also the act indemnified the peace officers and 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, stat. 2, 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, under-sheriff, 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

1 The punishment is now reduced to transportation or imprisonment (statute 1 Vic., c. 91), or penal servitude may be substituted. Statute 16 and 17 Vic., c. 99.

2 Subsequent statutes embrace other cases than these here mentioned, and the punishment is now reduced to penal servitude.