ment; but if the offender (as is too frequently the case) belongs to the profession of the law, a barretor who is thus able as well as willing to do mischief, ought also to be disabled from practising for the future. (t) And, indeed, it is enacted by statute 12 Geo. I, c. 29, that if any one who hath been convicted of forgery, perjury, subornation of perjury, or common barretry, shall practise as an attorney, solicitor, or agent, in any suit; the court, upon complaint, shall examine it in a summary way; and, if proved, shall direct the offender to be transported for seven years. Hereunto may also be referred another offence, of equal malignity and audaciousness; that of suing another in the name of a fictitious plaintiff; either one not in being at all, or one who is ignorant of the suit. This offence, if committed in any of the king's superior courts, a high contempt, to be punished at their discretion. But in courts of a lower degree, where the crime is equally pernicious, but the authority of the judges not equally extensive, it is directed by statute 8 Eliz. c. 2, to be punished by six month's imprisonment, and treble damages to the party injured. 12. Maintenance is an offence that bears a near relation to the former; being an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it: (u) a practice that was greatly encouraged by the first introduction of uses. (w) [ *135] This is an offence against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression. And, therefore, by the Roman law, it was a species of the rimen falsi to enter into any confederacy, or do any act to support another's lawsuit, by money, witnesses, or patronage. (x) A man may, however, maintain the suit of his near kinsman, servant, or poor neighbour, out of charity and compassion, with impunity. Otherwise, the punishment by common law is fine and imprisonment; (y) and by the statute 32 Hen. VIII, c. 9, a forfeiture of ten pounds. 13. Champerty, campi-partitio, is a species of maintenance, and punished in the same manner: (z) being a bargain with a plaintiff or defendant campum partire, to divide the land or other matter sued for between them, if they prevail at law; whereupon the champerter is to carry on the party's suit at his own expense. (a) Thus, champart, in the French law, signifies a similar division of profits, being a part of the crop annually due to the landlord by bargain or custom. In our sense of the word it signifies the purchasing of a suit, or right of suing: (15) a practice so much abhorred by our law, that it is one main reason why a ch in action, or thing of which one hath the right but not the possession, is not assignable at common law; because no man shall purchase any pretence to sue in another's right. These pests of civil society, that are perpetually endeavoring to disturb the repose of their neighbours, and officiously interfering in other men's quarrels, even at the hazard of their own fortunes, were severely animadverted on by the Roman law, "qui improbe count in alienam litem, ut quicquid ex condemnatione in rem ipsius redactum fuerit inter eos communicaretur, lege Julia de vi privata tenentur;" (b) and they were punished by the forfeiture of a third part of their goods, and perpetual infamy. Hitherto, also, must be referred the provision of the statute 32 Hen. VIII, c. 9, that no one shall sell or purchase any pretended right or title to land, unless the vendor (t) Ibid. 244. (w) Dr. and St. 203. (z) Ibid. 257. (b) Ff. 48, 7, 6. (15) [See 1 Haw. P. C. c. 3, Co. Litt. 368; 1 Russell, 176, on this subject. The distinction between maintenance and champerty seems to be this: where there is no agreement to divide the thing in suit, the party intermeddling is guilty of maintenance only; but, where he stipulates to receive part of the thing in suit, he is guilty of champerty. It seems that resorting to machinery and contrivances in order to make a party interested in a suit a witness on the trial, amounts to maintenance. Bell v. Smith, 7 D. and R. 846; 5 B. and C. 188.] Upon the subject of champerty and maintenance, the reader is referred to 2 Bish. Cr. L. $ 104-116. The tendency of late has been to confine these offences within bounds somewhat narrower than those indicated by the older authorities. *hath received the profits thereof for one whole year before such grant, [*136] or hath been in actual possession of the land, or of the reversion or remainder; on pain that both purchaser and vender shall each forfeit the value of such land to the king and the prosecutor. These offences relate chiefly to the commencement of civil suits: but, 14. Compounding of informations upon penal statutes is an offence of an equivalent nature in criminal causes; and is, besides an additional misdemeanor against public justice, by contributing to make the laws odious to the people. At once, therefore, to discourage malicious informers, and to provide that offences, when once discovered, shall be duly prosecuted, it is enacted by statute 18 Eliz. c. 5, that if any person, informing under pretence of any penal law, makes any composition without leave of the court, or takes any money or promise from the defendant to excuse him (which demonstrates his intent in commencing the prosecution to be merely to serve his own ends, and not for the public good), he shall forfeit 107., shall stand two hours on the pillory, and shall be forever disabled to sue on any popular or penal statute. (16) 15. A conspiracy, also, to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted, is a farther abuse and perversion of public justice; (17) for which the party injured may either have a civil action by writ of conspiracy (of which we spoke in the preceding book), (c) or the conspirators, for there must be at least two to form a conspiracy, may be indicted at the suit of the king, and were by the ancient common law (d) to receive what is called the villenous judgment; viz., to lose their liberam legem, whereby they are discredited and disabled as jurors or witnesses; to forfeit their goods and chattels, and lands for life; to have those lands wasted, their houses (16) [This statute does not apply to offences cognizable only before magistrates, 1 B. and A. 282; it applies only to common informers, and not to cases where the penalty is given to the party grieved. 1 Šalk. 30; 2 Hawk. 279. The taking the penalty is an offence within the act though there is no action or proceeding for it. Russ. and R. C. Č. 84; 3 Burn, J. 24th ed. 85. A notice of action required by a penal statute is no commencement of the suit, so as to subject the plaintiff, or his agent, to an attachment for attempting to compound an offence previous to the suing out of the writ. 2 Bla. Rep. 781. As to the mode of obtaining leave to compound, see Tidd's Prac. 8th ed. 604.] This subject was considered and the previous cases examined by Ch. J. Tindal, in Keir v. Leeman, 9 Q. B. 392, where the conclusion was that "in all offences which involve damages to an injured party. for which he may maintain an action, it is competent for him, notwithstanding they are also of a public nature, to compromise and settle his private damage in any way he may think fit;" but that an agreement to pay money in consideration of a prosecution for riot and assault being abandoned, was illegal and void. On the same subject, see Jones v. Rice, 18 Pick. 440. (17) The instance pointed out by the learned commentator is not the only one in which parties may be indicted for a conspiracy; and it may be stated, as a general rule, that all confederacies wrongfully to prejudice another, are misdemeanors at common law, and indictable accordingly, whether the intention is to injure his property, his person or his character. See 1 Hawk. c. 72, s. 2. But no indictment lies for conspiring to commit a civil trespass on a preserve to take game, though effected in the night, and with destructive weapons. 13 East, 228. The offence of conspiracy is not confined to the prejudicing a particular individual; it may be to injure public trade, to affect public health, to violate public policy, to insult public justice, or to do any act in itself illegal. In the There are many cases in which the act itself would not be cognizable by law if done by a single person, which become the subject of indictment when effected by several with a joint design. 6 T. R. 636. Thus, each person attending a theater has a right to express his disapprobation of the piece acted, or a performer on the stage; but if several previously agree to condemn a play, or hiss an actor, they will be guilty of conspiring. 2 Camp. 358. case of workmen refusing to proceed unless they receive an advance of wages, it is clear that any one of them might singly act on this determination, but it is criminal when it follows from a plan preconcerted by many. 6 T. R. 636. See the statute as to combinations among workmen, infra. There are other cases in which, though the act may be morally criminal, it is not illegal, except on the ground of conspiracy; thus the verbal slander of a private individual is not indictable, but it is so where several unite in a scheme to blast his character. 1 Lev. 62; 1 Vent. 304. And in every case that can be adduced of conspiracy, the offence de377 VOL. II.-42 razed, their trees rooted up, and their own bodies committed to prison. (e) But [*137] it now is the better opinion, that the villenous judgment is by long *disuse become obsolete; it not having been pronounced for some ages: but instead thereof the delinquents are usually sentenced to imprisonment, fine, and pillory. To this head may be referred the offence of sending letters, threatening to accuse any person of a crime punishable with death, transportation, pillory, or other infamous punishment, with a view to extort from him any money or other valuable chattels. This is punishable by statute 30 Geo. II, c. 24, at the discretion of the court, with fine, imprisonment, pillory, whipping, or transportation for seven years. (18) 16. The next offence against public justice is when the suit is past its commencement, and come to trial. And that is, the crime of wilful and corrupt perjury which is defined by Sir Edward Coke, (f) to be a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue or point in question. The law takes no notice of any 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. (19) For which reason it is much to be questioned, how far any magistrate is justifiable in taking a vountary affidavit in any extra-judicial 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 conscientia incur the guilt, and at the same time evade the temporal penalties, of perjury. The per pends on the unlawful agreement, and not on the act which follows it; the latter is but evidence of the former. 2 Burr. 993; 3 id. 1321. To constitute a conspiracy, as observed in the text, there must be at least two persons implicated in it; and a husband and a wife cannot be guilty of it. 1 Hawk. c. 72, s. 8. If all the persons in the indictment be acquitted except one, and the indictment do not lay the offence as committed jointly with other persons unknown, no judgment can be passed on such one. Poph. 202; 3 Burr. 1262; 12 Mod. 262. But one conspirator may be tried singly; as, if the others had escaped, or died, before the trial, or the finding of the bill, he may be convicted alone. 1 Stra. 193; 2 id. 1227. It is no offence to conspire to prosecute a guilty person. 1 Salk. 174. It is not necessary to constitute the offence, that any act should be done in pursuance of the conspiracy: 2 Lord Raym. 1167; 8 Mod. 321; 1 Salk. 174; 1 Bla. Rep. 392; or that any party was actually injured. 1 Leach, 39.] As to what shall constitute conspiracy, see further O'Connell v. Queen, 11 Cl. and Fin. 155; Commonwealth v. Hunt, 4 Met. 111; Collins v. Commonwealth, 3 S. and R. 220; State v. Rowley, 12 Conn. 101; Alderman v People, 4 Mich. 414; State v. Younger, 1 Dev. 357; State v. Murphy, 6 Ala. 765; People v. Mather, 4 Wend. 229; State v. Rickey, 4 Halst. 293; State v. Straw, 42 N. H. 393; Smith v. People, 25 Ill. 17. (18) This subject is covered by statute 24 and 25 Vic. c. 100. (19) [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. 98. And even when an oath is required by an act of parliament in an extra-judicial 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 it is indictable to swear falsely in any court of equity (1 Leach, 50; 1 Sid. 418); any ecclesiastical court (Cro. Eli. 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 jury must also be corrupt (that is, committed malo animo), wilful, positive, and absolute: (20) not upon surprise, or the like: it also must be in some point material to the question in dispute; (21) 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 to *take such a false oath, as constitutes perjury in the [*138] principal. (22) 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, imprison (g) 8 Inst. 163. administered must have competent authority to receive it. And, therefore, no false swearing Defore individuals acting merely in a private capacity, or before officers who have no legal jurisdiction to administer the particular oath in question, will amount to the offence of perjury. 3 Inst. 166. And though the officer stands colorably 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.; 3 Carapb. 432; Wood's Inst. 435; for though it is sufficient prima facie to show 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.] And mere negligence or carelessness in swearing to the witness's belief, when proper pains would have enabled him to ascertain the truth to be otherwise, seems not to be perjury, inasmuch as the specific wilful intent is wanting. U. S. v. Shellmire, 1 Bald. 378; U. S. v. Babcock, 4 McLean, 113; State v. Cockran, 1 Bailey, 50. See State v. Lea, 3 Ala. 602; Commonwealth v. Brady, 5 Gray, 78. (20) [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; 1 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.] (21) [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. b. 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; Roll R. 369. Thus perjury may be permitted by falsely swearing that another witness is entitled to credit, if such assertion conduce to the proof of the point in issue. 1 Ld. Raym. 258. And it is certain, that there is no necessity that the false evidence should 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. and 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 id. 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 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.] (22) 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.] ment 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 20%, 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 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.(23) 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.() 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 consitution, 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 [*139] *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 pæna divina, exitium; humana, dedecus.” 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. (7) (24) 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, no relative duty owing from the governor to the governed. The Roman law, though (h) Montesq. Sp. L b. 29 c. 11. (i) Britton, c. 5. (k) De Leg, 2. 9. (2) 1 Haw. P C., 168. (23.) [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.] For the punishment of the offences here mentioned, see also statutes 20 and 21 vic. c. 3; 27 and 28 Vic. c. 47. (24) [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. and 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 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, book 1, 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. 2494.1 See also Whart. Cr. L. 6 2815. |