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 of fense 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.27* 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 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 corporeal 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 the consequence of such willful perjury, it falls [139] within the guilt of deliberate murder, and deserves an equal punishment, which our ancient law in fact inflicted. But the Montesq., Sp. L., b. 29, ch. 11. i Britton, c. 5. (27) The 56 Geo. III., c. 138, abol- 5 Eliz., c. 9, this could not be done withishes the punishment of pillory in all out a reversal of the judgment, because cases except in perjury and suborna- it was thereby made a part of the puntion of perjury; and the 1 Vict., c. 23, ishment prescribed. I Salk., 289; 5 abolishes it in all cases. By the 3 Geo. Esp. Rep., 94. But now, by the stat. IV., c. 114, hard labor may be added 6 & 7 Vict., c. 85, no person shall be exto the offender's imprisonment. There cluded from giving evidence by reason was, until the recent stat. 6 & 7 Vict., c. of incapacity from crime. 85, another circumstance which attended all convictions for perjury, though it (28) By the present criminal law of formed no part of the judgment at com- France, perjury is punished only with mon law, the incapacity of the offender hard labor for a term of years, unless in to bear testimony as a witness. But cases where the person against whom when the indictment was framed at com- the false evidence was given has in conmon law, a pardon under the great seal sequence thereof been condemned to restored the competency, which the con- any heavier punishment, in which cases viction destroyed, 1 Vent., 349; 4 Harg., the perjurer is to suffer the like punishSt. Tr., 682; 1 Esp. Rep., 94; but where ment. Code Penal, 1. 3, tit. 2, s. 7. the proceedings were grounded on the The punishment of perjury in New York is imprisonment in a state prison for a term not less than ten years, if committed on the trial of an indictment for felony; if committed on any other judicial trial or inquiry, it may be less than ten years, in the discretion of the court.-(2 R. S., 681, § 2.) 17. Bribery. 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 offenses, 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.”29 17. Bribery is the next species of offense against public justice; which is, when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behavior in his office.130 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 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 magistrates 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 [140] his ideal republic," 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. In England, this offense of taking * De Leg., 2, 9. 1 1 Hawk., P. C., 168. (29) See this subject further discussed in p. 196, post.-[CHITTY.] As to false personation of persons in courts of justice, seo ante, p. 128. (30) It is equally a crime to give as to receive a bribe, and in many cases the attempt itself is an offense 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 counselor 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 "De Leg., 1. 12. Pott., Antiq., b. 1, c. 23. Campb., 231. An attempt to bribe at elections to Parliament is criminal for the same reason. 4 Burr., 2500; and see ante, vol. i., p. 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 offense is not, as the learned commentator supposes, confined to bribing judicial officers. See 1 East, 183; 4 Burr., 2494.-[CHITTY.] See 3 & 4 Will. IV., c. 51, s. 8, and 8 B. & Cr., 114, as to bribery of officers of the customs. 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 offense, that the chief justice, Thorpe, was hanged for it in the reign of Edward III. By a statute 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, but contaminated with this sordid vice.* bracery. 18. Embracery is an attempt to influence a jury corruptly to 18. Emone side by promises, persuasions, entreaties, money, entertainments, and the like. 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." verdicts. 19. The false verdict of jurors, whether occasioned by em- 19. False bracery or not, was anciently considered as criminal, and therefore exemplarily punished by attaint in the manner formerly mentioned.st gence of offi 20. Another offense of the same species is the negligence of 20. Negli public officers intrusted with the adminstration of justice, as cers. sheriffs, coroners, constables, and the like, which makes the offender liable to be fined; and in very notorious cases will [141] 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 by a stated fine, or imprisonment, in pursuance of the statute 29 Geo. II., c. 30.3 sion of offi 21. There is yet another offense against public justice which 21. Oppres is a crime of deep malignity; and so much the deeper, as there cers. 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 par P 3 Inst., 147. 9 Ibid., 146. * 1 Hawk., P. C., 259. (31) By the 6 Geo. IV., c. 50, 8. 61, the offense of embracery of jurors, and of jurors willfully and corruptly consenting thereto, is punishable by fine and imprisonment.-[CHITTY.] See vol. iii., p. 402, 403. t1 Hawk., P. C., 168. trates for misconduct, &c., see ante, vol. (32) As to the liabilities of magis- 27. (33) Repealed by 7 & 8 Geo. IV., c. The punishment for receiving bribes by judges, jurors, referees, arbitrators, and the higher state officers, is, besides deprivation of office, imprisonment in a state prison, and the imposition of heavy fines. So the offer or giving of bribes is punished in like manner by fine and imprisonment.(2 R. S., 682.) Attaints upon false verdicts are abolished.-(2 R. S., 421, § 69.) 22. Extortion. tiality of judges, justices, and other magistrates, in the administration and under the color 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 offense committed." 22. Lastly, extortion is an abuse of public justice, which consists in an officer's unlawfully taking, by color 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.us The punishment is fine and imprisonment, and sometimes a forfeiture of the office." u 1 Hawk., P. C., 170. (34) For actions and prosecutions (35) 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 defendant who pleads to a joint information, or above 28. where several are indicted to gether, 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 officers are legal, and may be properly demanded. Co. Lit., 368, b. And, therefore, before the abolition of jail 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, 211. But a prom ise to pay him money for any act of du ty 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 accessories in extortion. 1 Stra., 75.[CHITTY.] See now the stat. 1 Vict., c. 55, as to extortion by sheriffs and their officers. (36) By 3 Edw. I., c. 26, the defendant shall render double to the party ag grieved, and be punished at the king's pleasure. In the construction of this enactment, it has been holden that the double value can not be recovered upon an indictment, but must be sued for by action. Cro. Car., 448. The terms "at the king's pleasure" signify here, as in other provisions where they occur, the discretion of the justices who are to pronounce the sentence. 2 Inst., 210. [CHITTY.] "In Hatch v. Mann, 13 Wendell, 44, the Court for the Correction of Errors in New York reversed a judgment of the Supreme Court sustaining an action by a constable on a promise of compensation for extra official services. 138 CHAPTER XI. OF OFFENSES AGAINST THE PUBLIC PEACE. lic peace. We are next to consider offenses against the public peace; Offenses the conservation of which is intrusted to the king and his of- against pubficers, in the manner and for the reasons which were formerly mentioned at large. These offenses 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, the peace. 1. The riotous assembling of twelve persons, or more, and not Felonious dispersing upon proclamation. This was first made high trea- breaches of son by statute 3 & 4 Edw. VI., c. 5, when the king was a minor, 1. Riotous and a change in religion to be effected; but that statute was assembling. 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 offense 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 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 endeavoring 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 after- [143] ward 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 a Vol. i., pages 117, 268, 350. |