The Online Library of Liberty

A project of Liberty Fund, Inc.

• Lectures On Law,
• Part I.: Lectures On Law.
• Chapter XII.: Of the Common Law.
• Chapter XIII.: Of the Nature and Philosophy of Evidence.
• Part 2.: Lectures On Law.
• Chapter I.: Of the Constitutions of the United States and of Pennsylvania—of the Legislative Department.
• Chapter II.: Of the Executive Department.
• Chapter III.: Of the Judicial Department.
• Chapter IV.: Of the Nature of Courts.
• Chapter V.: Of the Constituent Parts of Courts.—of the Judges.
• Chapter VI.: The Subject Continued. of Juries.
• Chapter VII.: The Subject Continued. of Sheriffs and Coroners.
• Chapter VIII.: The Subject Continued. of Counsellors and Attornies.
• Chapter IX.: The Subject Continued. of Constables.
• Chapter X.: Of Corporations.
• Chapter XI.: Of Citizens and Aliens.
• Chapter XII.: Of the Natural Rights of Individuals.
• Part 3.: Lectures On Law.
• Chapter I.: Of the Nature of Crimes; and the Necessity and Proportion of Punishments.
• Chapter II.: Of Crimes Against the Right of Individuals to Their Property.
• Chapter III.: Of Crimes Against the Right of Individuals to Liberty, and to Reputation.
• Chapter IV.: Of Crimes Against the Right of Individuals to Personal Safety.
• Chapter V.: Of Crimes, Immediately Against the Community.
• Chapter VI.: Of Crimes, Affecting Several of the Natural Rights of Individuals.
• Chapter VII.: Of Crimes Against the Rights of Individuals Acquired Under Civil Government.
• Chapter VIII.: Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred In the Commission of the Same Crime.
• Chapter IX.: Of the Direct Means Used By the Law to Prevent Offences.
• Chapter X.: Of the Different Steps Prescribed By the Law, For Apprehending, Detaining, Trying, and Punishing Offenders.
• Bibliographical Glossary *
• Afterword

CHAPTER VII.

Of Crimes Against the Rights of Individuals Acquired Under Civil Government.

Under civil government, one is entitled not only to those rights which are natural; he is entitled to others which are acquired. He is entitled to the honest administration of the government in general: he is entitled, in particular, to the impartial administration of justice. Those rights may be infringed: the infringements of them are crimes. These we next consider.

1. Extortion is the taking of money by any officer, by colour of his office, either where none is due, or where less is due, or before it is due. At common law, this crime may be severely punished by fine and imprisonment, and by a removal from the office, in the execution of which it was committed.a

2. Oppression under colour of office is a crime of still more extensive and of still more malignant import. Tyrannical partiality is generally its infamous associate. These, at the common law, may be punished with fine, with imprisonment, with forfeiture of office, and with other discretionary censure regulated by the nature and the aggravations of the crimes.b

By a law of the United States, it is enacted, that if any supervisor or other officer of inspection of the excise shall be convicted of extortion or oppression in the execution of his office; he shall be fined not exceeding five hundred dollars, or imprisoned not exceeding six months, or both, at the discretion of the court; and shall also forfeit his office.c

3. Even negligence in publick offices, if gross, will expose the negligent officers to a fine; and, in very notorious cases, to a forfeiture of office.d

4. Embracery is an attempt to influence a jury corruptly, by promises, persuasions, entreaties, money, or entertainments. The person embracing is punished by fine and imprisonment. The yielding juror is distinguished by superiour punishment.e

5. Bribery is, when a judge, or other person employed in the administration of justice, takes any undue reward to influence his behaviour in office. At common law, bribery, in him who offers, in him who gives, and in him who takes the bribe, is punished with fine and imprisonment. In high offices, the punishment has deservedly been higher still.f

Bribery also signifies sometimes the taking or the giving of a reward for an office of a publick nature. Nothing, indeed, can be more palpably pernicious to the publick, than that places of high power and high trust should be filled, not by those who are wise and good enough to execute them, but by those who are unprincipled and rich enough to purchase them.g

By a law of the United States, if any person shall give a bribe to a judge for his judgment in a cause depending before him; both shall be fined and imprisoned at the discretion of the court; and shall for ever be disqualified to hold any office of honour, trust, or profit under the United States.h

6. Perjury is a crime committed, when a lawful oath is administered in some judicial proceeding, by one who has authority, to a person who swears absolutely and falsely, in a matter material to the issue or cause in question.i

An oath, says my Lord Coke, is so sacred, and so deeply concerns the consciences of men, that it cannot be administered to any one, unless it be allowed by the common law, or by act of parliament; nor by any one, who has not authority by common law, or by act of parliament: neither can any oath allowed by the common law, or by act of parliament, be altered, unless by act of parliament.k For these reasons, it is much to be doubted whether any magistrate is justifiable in administering voluntary affidavits, unsupported by the authority of law. It is more than possible, that, by such idle oaths, a man may frequently incur the guilt, though he evade the temporal penalties of perjury.

It is a part of the foregoing definition of perjury, that it must be when the person swears absolutely. In addition to this, it has been said, that the oath must be direct, and not as the deponent thinks, or remembers, or believes.l This doctrine has, however, been lately questioned; and, it seems, on solid principles. When a man swears, that he believes what, in truth, he does not believe, he pronounces a falsehood as much, as when he swears absolutely that a thing is true, which he knows not to be true. My Lord Chief Justice De Grey, in a late case, said, that it was a mistake, which mankind had fallen into, that a person could not be convicted of perjury for deposing on oath according to his belief.m It is certainly true, says my Lord Mansfield, that a man may be indicted for perjury, in swearing that he believes a fact to be true, which he must know to be false.n

At common law, the punishment of perjury has been very various. Anciently it was punished with death; afterwards with banishment, or cutting out the tongue; afterwards by forfeiture; now by fine and imprisonment, and incapacity to give testimony.o To these last mentioned punishments, that of the pillory is added by a law of thep United States.q

7. Subornation of perjury is the crime of procuring another to take such a false oath as constitutes perjury. It is punished as perjury.r

8. Conspiracy is a crime of deep malignity against the administration of justice. Not only those, who falsely and maliciously cause an innocent man to be indicted and tried, are properly conspirators; but those also are such, who conspire to indict a man falsely and maliciously, whether they do or do not any act in the prosecution of the conspiracy.s From the description of this crime it is obvious, that at least two persons are necessary to constitute it.t

He who is convicted of a conspiracy to accuse another of a crime which may touch his life, shall have the following judgment pronounced against him: that he shall lose liberam legem, the freedom and franchise of the law, by which he is disqualified to be a juror or a witness, or even to appear in a court of justice: that his houses and lands and goods shall be forfeited during his life: that his trees shall be rooted up, his lands shall be wasted, his houses shall be rased, and his body shall be imprisoned. This is commonly called the villainous judgment: and is given by the common law.u By that law, all confederacies whatever wrongfully to prejudice a third person are highly criminal.v

9. Common barratry is another offence against the administration of justice. A common barrator is a common mover, or exciter, or maintainer of suits or quarrels, either in courts, or in the country. One act only will not constitute a barrator. He must be charged as a common barrator.w He is the common nuisance of society under a civil government.

A common barrator is to be fined, imprisoned, and bound to his good behaviour: if he be of the profession of the law, he is also to be further punished by being disabled, in future, to practise.x

10. At common law, the embezzling, defacing, or altering of any record, without due authority, was a crime highly punishable by fine and imprisonment.y

By a law of the United States, if any person shall feloniously steal, take away, alter, falsify, or otherwise avoid any record, writ, process, or other proceedings in any of the courts of the United States, by means of which any judgment shall be reversed, made void, or not take effect; such person shall be fined not exceeding five thousand dollars, or imprisoned not exceeding seven years, and whipped not exceeding thirty nine stripes.z

11. To obstruct the execution of lawful process, is a crime of a very high and presumptuous nature: to obstruct an arrest upon criminal process, is more particularly so. It has been holden, that the party opposing such an arrest becomes a partner in the crime—an accessory in felony, and a principal in treason.a

By a law of the United States, if any person shall knowingly and wilfully obstruct, resist, or oppose any officer of the United States in serving or attempting to serve any mesne process or warrant, or any rule or order of any of the courts of the United States, or any other legal or judicial writ or process whatsoever; or shall assault, beat, or wound any officer, or other person duly authorized, in serving or executing any such writ, rule, order, process, or warrant; he shall be imprisoned not exceeding twelve months, and fined not exceeding three hundred dollars.b

12. When one is arrested upon a criminal process, it is an offence even to escape from custody; and this offence may be punished by fine and imprisonment.c But if an officer, or a private person,d who has the custody of another, permits him to escape, either by negligence, or, still more, by connivance; such officer or private person is culpable in a much higher degree. He has not the natural desire of liberty to tempt—he has official obligations to prevent it. If he permits it through negligence, he may be punished by fine: if he permits it by consent or connivance, his conduct is generally agreed to amount to the same kind of crime, and to deserve the same degree of punishment, as the crime of which the prisoner is guilty, and for which he is committed; whether trespass, or felony, or treason.e

13. To break a prison was, at the common law, a capital crime, whatever might have been the cause, for which the person breaking it was committed. The reason assigned was—interest reipublicae ut carceres sint in tuto.f Seldom is there reason to complain of the common, as of a rigorous law. In this instance, however, there is unquestionably reason for complaint. The Mirrour complains of it as a hard law. Its severity was moderated by a statute made in the reign of Edward the second.g By that statute, the breaking of a prison is not a capital crime, unless the party breaking it was committed for a capital crime. But to break prison, when lawfully committed for an inferiour offence, is a misdemeanor, and may be punished with fine and imprisonment.h

14. A rescue is the freeing of another, by force, from imprisonment, or from an arrest. In the person rescuing, it is generally the same crime, as a breach of prison would have been in the person breaking it. There is, however, one exception: a person, who is committed for treason and breaks the prison, is guilty of felony only: he, who rescues him, is guilty of treason.i

By a law of the United States,j if any person rescue one convicted of a capital crime, the person rescuing shall be punished capitally: if he rescue one committed, for, but not convicted of a capital crime, or one committed for, or convicted of a crime not capital; he shall be fined not exceeding five hundred dollars, and imprisoned not exceeding one year.

15. Offences against the courts, have always been considered as offences against the administration of justice. By the ancient common law before the conquest, to strike or to draw a sword in them, was a capital crime:k and the law still retains so much of the ancient severity, as only to exchange the loss of life for that of the offending limb.

If, while the courts in Westminster hall are sitting; or if, before justices of assize, or justices of oyer and terminer, any one shall draw a weapon upon any judge, though he strike not; or if he strike a juror or any other person, with or without a weapon; he shall lose his right hand, shall forfeit all his goods and all the profits of his lands during his life, and shall suffer perpetual imprisonment.l

[a. ]1. Haw. 170. 171.

[b. ]4. Bl. Com. 140.

[c. ]Laws U. S. 1. cong. 3. sess. c. 15. s. 39.

[d. ]1. Haw. 168.

[e. ]4. Bl. Com. 140.

[f. ]4. Bl. Com. 139.

[g. ]1. Haw. 168.

[h. ]Laws U. S. 1. cong. 2. sess. c. 9. s. 21.

[i. ]3. Ins. 164.

[k. ]3. Ins. 165.

[l. ]Id. 166. 1. Haw. 175.

[m. ]Leach 304.

[n. ]Leach 304.

[o. ]4. Bl. Com. 137.

[p. ]1. cong. 2. sess. c. 9. s. 18.

[q. ]By a late act of assembly in Pennsylvania (6. Laws Penn. 513.) it is provided, that persons convicted of perjury, or subornation of perjury, shall forfeit and pay any sum not exceeding five hundred dollars, and suffer imprisonment and be kept at hard labour during any term not exceeding seven years; and further, shall thereafter be disqualified from holding any office of honour, trust, or profit in the commonwealth, and from being admitted as a legal witness in any cause. Ed.

[r. ]4. Bl. Com. 137.

[s. ]1. Haw. 189.

[t. ]Id. 192.

[u. ]1. Haw. 193.

[v. ]Id. 190.

[w. ]Id. 243.

[x. ]Id. 244.

[y. ]Id. 112.

[z. ]Laws U. S. 1. cong. 2. sess. c. 9. s. 15.

[a. ]4. Bl. Com. 129. 2. Haw. 121.

[b. ]Laws U. S. 1. cong. 2. sess. c. 9. s. 22.

[c. ]2. Haw. 122.

[d. ]2. Haw. 138.

[e. ]Id. 134. 1. Hale. P. C. 590.

[f. ]2. Ins. 589. “It concerns the state that prisons be safe places of confinement.”

[g. ]Id. ib. St. 1. Ed. 2. s. 2.

[h. ]2. Haw. 128. 4. Bl. Com. 131.

[i. ]2. Haw. 139. 140.

[j. ]1. Cong. 2. sess. c. 9. s. 23.

[k. ]3. Ins. 140.

[l. ]1. Haw. 57. 3. Ins. 140.