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razed, their trees rooted up, and their own bodies committed to prison. (e) But it now is the better opinion, that the villenous judgment is by long *dis[*137] use 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, (ƒ) 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. as, if the others had escaped, or died, before the convicted alone. 1 Stra. 193; 2 id. 1227. It is no person. 1 Salk. 174.
But one conspirator may be tried singly; trial, or the finding of the bill, he may be offence to conspire to prosecute a guilty
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 principal. (22) The punishment of perjury and subornation, at common [*138] 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 407. on the suborner: and, in default of payment, imprison
(g) 3 Inst. 163.
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 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 Campb. 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; sec 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 dainages 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 affeet the ultimate decision. 1 Ld. Raym. 258; 2 id. 889; 2 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 agree ment 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; 3id. 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 *indeed, the death of an innocent person has actually been the conse[*139] quence of such wilful perjury, it falls within the guilt of deliberate murder, and deserves an equal punishment: which our ancient law in fact inflicted.() 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 pana 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. (1) (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 au 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.
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 duty to be punished in the severest man- [*140] ner: and by the laws of Athens he that offered was also prosecuted, as well as he that received a bribe. (0) 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 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 forever. (25) 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. (26)
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. (27)
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. 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 by a stated fine, or im- [*141] prisonment, 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 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. (28)
(m) Ff. 48, 11, 6. (4) Ibid. 146.
(n) De Leg. l. 12.
(r) 1 Hawk, P. C. 259.
(0) Pott. Antiq. b. 1, c. 23.
(p) 3 Inst. 147.
(25) This statute is repealed by 26 and 27 Vic. c. 125. (26) [See the proceedings against Lord Bacon, 2 St. Tr. 1087, and against Lord Macclesfield, 16 id. 767.]
(27) [By the 6 Geo. IV, c. 50, s. 61, the offence of embracery of jurors, and jurors wilfully and corruptly consenting thereto. is punishable by fine and imprisonment.]
(28) [On motions for informations against magistrates, the question is, not whether the act done might on full investigation be found to be strictly right, but whether it proceeded from oppressive, dishonest, or corrupt motives (under which fear and favor may generally be in cluded), 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.]
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) The punishment is fine and imprisonment, and sometimes a forfeiture of the office. (29)
OF OFFENCES AGAINST THE PUBLIC PEACE.
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 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 reenacted, 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 par ticularized 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 [*143] 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 afterwards continued for the 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, 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, (u) 1 Hawk. P. C. 170.
(a) Book I, pp. 118, 268, 350.
(29) Extorting an agreement to pay money or deliver something of value seems not suffi cient to make out the offence. 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, 4 Zab. 764. A custom to take larger fees than the law permits is no defence 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 wilful and corrupt. State v. Gardner, 2 Mo. 22; People v. Coon, 15 Wend. 277.
(1) [It does not seem necessary that twelve persons should have been guilty, to constitute a riotous assembly within the acts. See Doug. 1st ed. 673; id. 2d ed. 699; 5 T. R. 14; 2 Saund. 377, b. n. 12.]