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version of public justice, for which the party injured may either have a civi action by writ of conspiracy, (of which we spoke in the preceding book,)(c) or
(e) See book iii. page 126.
19 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 misdemeanours 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 destruo tive 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.
There are many cases in which the act itself would not be cognizable by law if done by a single person, which becomes the subject of indictment when effected by several with a joint design. 6 T. R. 636. Thus, each person attending a theatre 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. In the 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 depends on the unlawful agreement and not on the act which follows it: the latter is but evidence of the former. 2 Burr. 993. 3 Burr. 1321.
To constitute a conspiracy, as observed in the text, there must be at least two persons implicated in it; and a husband and wife cannot be guilty of it. 1 Hawk. c. 72, s. 8. lf 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 Stra. 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.
Conspiracies and combinations among workmen for a long time engrossed the attention of, and perplexed, the legislature. Until the passing of the 6 Geo. IV. c. 129, the common law relative to such an offence was considered defective. This act, however, repeals all the former acts on the subject of such combinations, and leaves the offence as it before stood at common law. However, by the 3d section, if a person, by force, violence, threats, or obstruction, compel any person, hired or employed in any trade or business, to depart from his hiring or employment, or obstruct him from returning to his work before finished, or prevent, or endeavour to prevent, any person from hiring himself, or from accepting employment; or by force, or threats, &c., molest another in his person or property, to induce him to become a member of any club or association, or to contribute to any common fund, or to pay any fine or penalty, or on account of his not belonging to any particular club or association; or not having contributed, or having refused to contribute, to any common fund, or to pay any fine or penalty; or on account of his not having complied, or of refusing to comply, with any regulations, &c. made to obtain an advance, or to reduce the rate of wages, or to lessen or alter the hours of working, or to decrease or alter the quantity of work; or to regulate the mode of carrying on any manufacture, trade, or business, in the management thereof; or by violence, or threats, or obstruction, force any person carrying on any business to make any alteration in his mode of carrying on such business, or to limit his number of workmen; such offender and his accessories may be imprisoned, with or without hard labour, for not exceeding three ca lendar months. By sect. 4, persons may meet together for the sole purpose of consulting upon and determining the rate of wages, or hours of work, and may enter into an agree ment for framing the rate of wages or hours of work. And, by sect. 5, the masters of workmen may do the same. By sect. 6, offenders against the act may be called on to give evidence for the king, or prosecute an informer on any information exhibited under the act. Sect. 7 gives a summary proceeding before a magistrate for an offence under the act--CHITTY.
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 antient 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 razed, their trees rooted up, and their own bodies committed to prison.(e) But it now *137] 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.20
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.21 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
(d) Bro. Abr. tit. Conspiracy, 28.
() 1 Hawk. P. C. 193.
()3 Inst. 164.
20 By stat. 6 & 7 Vict. c. 96, s. 3, also the publishing, or threatening to publish, a libel, or proposing to abstain from publishing any thing with intent to extort money or any appointment or office of profit, is punishable by imprisonment for any term not exceed ing three years. STEWART.
And no breach of an oath made in a mere private concern, as in entering into a con. tract, 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 where an oath is required by an act of parliament in an extrajudicial 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. Eliz. 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 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. Cro. C. Ĉ. 7th ed. 626. And though the officer stands colourably 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. ibid. 3 Camp. 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 acquit tal. 3 Camp. 432; see id. 96.—CHITTY.
now too frequent upon every petty occasion; since it is more than possib.e that by such idle oaths a man may frequently in foro conscientiæ 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:22 not upon surprise, or the like: it also must be in some point material to the question in dispute; for if it only be in some trifling collateral circum stance, 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 a false oath as constitutes perjury in the principal." The punishment of perjury and subornation at common [*138
law has been various. It was antiently death; afterwards banishment, or cutting out the tongue; then forfeiture of goods; and now it is fine and imprisonment and never more to bo 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 407. 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;
(*) 3 Inst. 163.
22 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 had 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.-CHITTY.
23 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. 2 Roll. R. 369. Thus, perjury may be committed 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 agree ment, 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. & 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 Leon. 230. 7 T. R. 315.
In some cases, where a false oath has been taken, the party may be prosecuted by in dictment 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 falsə 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 misdemeanour; 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.-CHITTY.
24 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 misdemeanour 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.-CHITTY
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.25 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 ether 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 *139] 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 antient 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 pinion of Cicero,(k) derived from the law of the twelve tables, "perjurii pœna 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) 26 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
25 The statute now in force is 7 & 8 Geo. IV. c. 27. 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.-CHITTY.
By stat. 1 Vict. c. 23, the punishment of the pillory is abolished; and, by stat. 16 & 17 Vict. c. 99, penal servitude may be substituted for transportation.-STEWART.
26 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. & 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, 1 book, 179. So a promise of money to a corporator to vote for a member of a corporation is criminal, (2 Ld. Raym 1377. 4 Burr. 2501;) and the offence is not, as the learned commentator supposes, co fined to bribing judicial officers. See 1 East, 183. 4 Burr. 2494.-CHITTY.
justice, yet by a strange indulgence in one instance t 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 [*140 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.(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 Edw. III. By a statute(g) 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.27
19. The false verdict of jurors, whether occasioned by embracery or not, was antiently considered as criminal, and therefore exemplarily punished by attaint, in the manner formerly mentioned. (s) 28
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 misdemeanour, and 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.29
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
Ff. 48, 11, 6.
(*) De Leg. 1. 12.
(*) Pott. Antiq. b. i. c. 23.
() Ibid. 146.
() 1 Hawk. P. C. 259.
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.-CHITTY.
The writ of attaint against jurors is now utterly abolished, by the 6 Geo. IV. c. 50 60; and, by 61, they are rendered punishable for misconduct by another mode.CHITTY.
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 favour may generally be included,) or from mistake, or error: in either of the latter cases the court will