Front Page Titles (by Subject) CHAPTER X.: OF OFFENCES AGAINST PUBLIC JUSTICE. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER X.: OF OFFENCES AGAINST PUBLIC JUSTICE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF OFFENCES AGAINST PUBLIC JUSTICE.
*[*127The order of our distribution will next lead us to take into consideration such crimes and misdemeanours as more especially affect the commonwealth, or public polity of the kingdom; which, however, as well as those which are peculiarly pointed against the lives and security of private subjects, are also offences against the king as the pater-familias of the nation, to whom it appertains, by his regal office, to protect the community, and each individual therein, from every degree of injurious violence, by executing those laws which the people themselves, in conjunction with him, have enacted, or at least have consented to by an agreement either expressly made in the persons of their representatives, or by a tacit and implied consent, presumed and proved by immemorial usage.
The species of crimes which we have now before us is subdivided into such a number of inferior and subordinate classes that it would much exceed the bounds of an elementary treatise, and be insupportably tedious to the reader, were I to examine them all minutely or with any degree of critical accuracy. I shall therefore confine myself principally to general definitions or descriptions of this great variety of offences, and to the punishments inflicted by law for each particular offence, with now and then a few incidental observations; referring the student, for more particulars, to other voluminous authors, who have treated of these subjects with greater precision and more in detail than is consistent with the plan of these commentaries.
The crimes and misdemeanours that more especially affect the commonwealth may be divided into five species, viz., *[*128offences against public justice, against the public peace, against public trade, against the public health, and against the public police or economy; of each of which we will take a cursory view in their order.
First, then, of offences against public justice, some of which are felonious, whose punishment may extend to death; others only misdemeanours. I shall begin with those that are most penal, and descend gradually to such as are of less malignity.
1. Embezzling or vacating records, or falsifying certain other proceedings in a court of judicature, is a felonious offence against public justice. It is enacted, by statute 8 Hen. VI. c. 12, that if any clerk or other person shall wilfully take away, withdraw, or avoid any record or process in the superior courts of justice in Westminster hall, by reason whereof the judgment shall be reversed or not take effect, it shall be felony not only in the principal actors, but also in their procurers and abettors.1 And this may be tried either in the king’s bench or common pleas by a jury de medietate,—half officers of any of the superior courts, and the other half common jurors.2 Likewise, by statute 21 Jac. I. c. 26, to acknowledge any fine, recovery, deed enrolled, statute, recognizance, bail, or judgment, in the name of another person not privy to the same, is felony without benefit of clergy. Which law extends only to proceedings in the courts themselves; but, by statute 4 W. and M. c. 4, to personate any other person (as bail) before any judge of assize or other commissioner authorized to take bail in the country, is also felony.3 For no man’s property would be safe if records might be suppressed or falsified, or persons’ names be falsely usurped in courts or before their public officers.
2. To prevent abuses by the extensive power which the law is obliged to repose in gaolers, it is enacted, by statute 14 Edw. III. c. 10, that if any gaoler by too great duress of imprisonment makes any prisoner that he hath in ward **129]become an approver or an appellor against his will; that is, as we shall see hereafter, to accuse and turn evidence against some other person; it is felony in the gaoler.4 For, as Sir Edward Coke observes,(a) it is not lawful to induce or excite any man even to a just accusation of another, much less to do it by duress of imprisonment; and least of all by a gaoler, to whom the prisoner is committed for safe custody.
3. A third offence against public justice is, obstructing the execution of lawful process. This is at all times an offence of a very high and presumptuous nature; but more particularly so when it is an obstruction of an arrest upon criminal process. And it hath been holden that the party opposing such arrest becomes thereby particeps criminis; that is, an accessory in felony, and a principal in high treason.(b)5 Formerly, one of the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places where indigent persons assembled together to shelter themselves from justice, (especially in London and Southwark,) under the pretext of their having been antient palaces of the crown, or the like:(c) all of which sanctuaries for iniquity are now demolished, and the opposing of any process therein is made highly penal, by the statutes 8 & 9 W. III. c. 27, 9 Geo. I. c. 28, and 11 Geo. I. c. 22, which enact that persons opposing the execution of any process in such pretended privileged places within the bills of mortality, or abusing any officer in his endeavours to execute his duty therein, so that he receives bodily hurt, shall be guilty of felony, and transported for seven years; and persons in disguise, joining in or abetting any riot or tumult on such account, or opposing any process, or assaulting and abusing any officer executing or for having executed the same, shall be felons without benefit of clergy.6
4. An escape of a person arrested upon criminal process by eluding the vigilance of his keepers before he is put in hold is also an offence against public justice, and the party himself *[*130is punishable by fine or imprisonment.(d) But the officer permitting such escape, either by negligence or connivance, is much more culpable than the prisoner; the natural desire of liberty pleading strongly in his behalf, though he ought in strictness of law to submit himself quietly to custody till cleared by the due course of justice. Officers therefore who, after arrest, negligently permit a felon to escape, are also punishable by fine:(e) but voluntary escapes, by consent and connivance of the officer, are a much more serious offence; for it is generally agreed that such escapes amount to the same kind of offence, and are punishable in the same degree, as the offence of which the prisoner is guilty and for which he is in custody, whether treason, felony, or trespass. And this, whether he were actually committed to gaol or only under a bare arrest.(f) But the officer cannot be thus punished till the original delinquent hath actually received judgment or been attainted, upon verdict, confession, or outlawry, of the crime for which he was so committed or arrested; otherwise it might happen that the officer might be punished for treason or felony, and the person arrested and escaping might turn out to be an innocent man. But, before the conviction of the principal party, the officer thus neglecting his duty may be fined and imprisoned for a misdemeanour.(g)7
5. Breach of prison by the offender himself, when committed for any cause, was felony at the common law;(h) or even conspiring to break it.(i) But this severity is mitigated by the statute de frangentibus prisonam, 1 Edw. II., which enacts that no person shall have judgment of life or member for breaking prison, unless committed for some capital offence. So that to break prison and escape, when lawfully committed for any treason or felony, remains still felony, as at the common law; and to break prison, (whether it be the county-gaol, the stocks, or other usual place of security,) when lawfully confined upon any other inferior charge, is still **131]punishable as a high misdemeanour by fine and imprisonment. For the statute which ordains that such offence shall be no longer capital never meant to exempt it entirely from every degree of punishment.(j)8
6. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is generally the same offence in the stranger so rescuing as it would have been in a gaoler to have voluntarily permitted an escape. A rescue, therefore, of one apprehended for felony is felony; for treason, treason; and for a misdemeanour, a misdemeanour also. But here likewise, as upon voluntary escapes, the principal must first be attainted or receive judgment before the rescuer can be punished, and for the same reason; because, perhaps, in fact it may turn out that there has been no offence committed.(k)9 By statute 11 Geo. II. c. 26, and 24 Geo. II. c. 40, if five or more persons assemble to rescue any retailers of spirituous liquors, or to assault the informers against them, it is felony, and subject to transportation for seven years. By the statute 16 Geo. II. c. 31, to convey to any prisoner in custody for treason or felony any arms, instruments of escape or disguise, without the knowledge of the gaoler, though no escape be attempted, or any way to assist such prisoner to attempt an escape, though no escape be actually made, is felony, and subjects the offender to transportation for seven years; or if the prisoner be in custody for petit larceny or other inferior offence, or charged with a debt of 100l., it is then a misdemeanour, punishable with fine and imprisonment.10 And, by several special statutes,(l) to rescue, or attempt to rescue, any person committed for the offences enumerated in those acts, is felony without benefit of clergy; and to rescue, or attempt to rescue, the body of a felon executed for murder, is single felony, and subject to transportation for seven years. Nay, even if any person be charged with any of the offences against the black-act, 9 Geo. I. c. 22, and being required, by order of the privy council, to surrender himself, neglects so to do for forty days, both he and all that knowingly conceal, aid, abet, or succour him, are felons without benefit of clergy.11
*[*1327. Another capital offence against public justice is the returning from transportation, or being seen at large in Great Britain before the expiration of the term for which the offender was ordered to be transported, or had agreed to transport himself. This is made felony without benefit of clergy in all cases, by statutes 4 Geo. I. c. 11, 6 Geo. I. c. 23, 16 Geo. II. c. 15, and 8 Geo. III. c. 15, as is also the assisting them to escape from such as are conveying them to the port of transportation.12
8. An eighth is that of taking a reward under pretence of helping the owner to his stolen goods. This was a contrivance carried to a great length of villainy in the beginning of the reign of George the First; the confederates of the felons thus disposing of stolen goods, at a cheap rate, to the owners themselves, and thereby stifling all further inquiry. The famous Jonathan Wild had under him a well-disciplined corps of thieves, who brought in all their spoils to him, and he kept a sort of public office for restoring them to the owners at half-price. To prevent which audacious practice, to the ruin and in defiance of public justice, it was enacted, by statute 4 Geo. I. c. 11, that whoever shall take a reward under the pretence of helping any one to stolen goods shall suffer as the felon who stole them, unless he causes such principal felon to be apprehended and brought to trial, and also gives evidence against them. Wild, still continuing in his old practice, was upon this statute at last convicted and executed.(m)13
9. Receiving of stolen goods, knowing them to be stolen, is also a high misdemeanour and affront to public justice. We have seen in a former chapter(n) that this offence, which is only a misdemeanour at common law, by the statute 3 & 4 W. and M. c. 9, and 5 Anne, c. 31, makes the offender accessory to the theft and felony. But because the accessory cannot in general be tried, unless with the principal or after the principal is convicted, the receivers by that means frequently eluded justice. To remedy which, it is enacted, by statute 1 Anne, c. 9, and 5 Anne, c. 31, that such receivers may still be prosecuted for a misdemeanour, and punished by fine and imprisonment, **133]though the principal felon be not before taken, so as to be prosecuted and convicted. And, in case of receiving stolen lead, iron, and certain other metals, such offence is, by statute 29 Geo. II. c. 30, punishable by transportation for fourteen years.(o) So that now the prosecutor has two methods in his choice: either to punish the receivers for the misdemeanour immediately, before the thief is taken,(p) or to wait till the felon is convicted, and then punish them as accessories to the felony. But it is provided, by the same statutes, that he shall only make use of one, and not both, of these methods of punishment. By the same statute, also, 29 Geo. II. c. 30, persons having lead, iron, and other metals in their custody, and not giving a satisfactory account how they came by the same, are guilty of a misdemeanour, and punishable by fine or imprisonment. And, by statute 10 Geo. III. c. 48, all knowing receivers of stolen plate or jewels, taken by robbery on the highway, or when a burglary accompanies the stealing, may be tried as well before as after the conviction of the principal, and whether he be in or out of custody, and, if convicted, shall be adjudged guilty of felony, and transported for fourteen years.14
10. Of a nature somewhat similar to the two last is the offence of theft bote, which is where the party robbed not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute. *[*134This is frequently called compounding of felony, and formerly was held to make a man an accessory; but it is now punished only with fine and imprisonment.(q) This perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment. And the Salic law, “latroni eum similem habuit, qui furtum celare vellet, et occulte sine judice compositionem ejus admittere.”(r) By statute 25 Geo. II. c. 36, even to advertise a reward for the return of things stolen, with no questions asked, or words to the same purport, subjects the advertiser and the printer to a forfeiture of 50l. each.
11. Common barretry is the offence of frequently exciting and stirring up suits and quarrels between his majesty’s subjects, either at law or otherwise.(s)15 The punishment for this offence in a common person is by fine and imprisonment; 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 sueing 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, is left, as 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 months’ 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 *[*135no 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) 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 crimen 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 champertor 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 sueing;16 a practice so much abhorred by our law, that it is one main reason why a chose in action, or thing of which one hath the right but not the possession, is not assignable at common law; because no man should purchase any pretence to sue in another’s right.17 These pests of civil society, that are perpetually endeavouring 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 coeunt 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 **136]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 hath received the profits thereof for one whole year before such grant, or hath been in actual possession of the land, or of the reversion or remainder, on pain that both purchaser and vendor 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. The compounding of informations upon penal statutes is an offence of an equivalent nature in criminal causes, and is, besides, an additional misdemeanour 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 10l., shall stand two hours on the pillory, and shall be forever disabled to sue on any popular or penal statute.18
15. A conspiracy also to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted, is a further abuse and perversion of public justice,19 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 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 is the better opinion, that the villenous judgment is by long **137]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 now too frequent upon every petty occasion; since it is more than possible 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;23 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 extrajudicial oaths before mentioned. Subornation of perjury is the offence of procuring another to *[*138take such a false oath as constitutes perjury in the principal.24 The punishment of perjury and subornation at common 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 be 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 40l. 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 20l., 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 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 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 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 opinion 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.(l)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 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) *[*140orders 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.(o) 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 hemous an offence that the chief justice Thorpe was hanged for it in the reign of Edw. 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. 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
20. Another offence of the same species is the negligence of public officers, in trusted 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 *[*141iron, 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 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.30
[1 ] The 8 Hen. VI. c. 12, s. 3 is now repealed, by 7 & 8 Geo. IV. c. 27, by sect. 21 of which it is enacted that “if any person shall steal, or shall for any fraudulent purpose take from its place of deposit for the time-being, or from any person having the lawful custody thereof, or shall unlawfully and maliciously obliterate, injure, or destroy, any record, writ, return, panel, process, interrogatory, deposition, affidavit, rule, order, or warrant of attorney, or any original document whatsoever, of or belonging to any court of record, or relating to any matter civil or criminal begun, depending, or terminated in any such court, or any bill, answer, interrogatory, deposition, affidavit, order, or decree, or any original document whatsoever, of or belonging to any court of equity, or relating to any cause or matter begun, depending, or terminated in any such court, every such offender shall be guilty of a misdemeanour, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to suffer such other punishment by fine or imprisonment, or by both, as the court shall award; and it shall not in any indictment for such offence be necessary to allege that the article in respect of which the offence is committed is the property of any person, or that the same is of any value.”—Chitty.
[2 ] It is a high misprision in an officer to alter the enrolment of a memorial of an annuity-deed without the sanction of the court. 3 Taunt. 543.
By the 5 Geo. IV. c. 20, s. 10, persons in the post-office embezzling or destroying parliamentary proceedings, &c. sent by post will be guilty of a misdemeanour punishable with fine and imprisonment.—Chitty.
But, by stat. 7 & 8 Geo. IV. c. 29, this statute, so far as it relates to this offence, is repealed; and it is enacted, by s. 21 and 1 Vict. c. 90, s. 5, that stealing or maliciously obliterating any record, writ, affidavit, or document belonging to any court of law or equity shall be a misdemeanour punishable with transportation for seven years, or fine or imprisonment,—and now with penal servitude, (16 & 17 Vict. c. 99;) and, by stat. 2 W. IV. c. 34, ss. 9, 19, and 1 Vict. c. 90, s. 5, where a person having been convicted of any offence relating to the coin shall afterwards be indicted of any offence committed subsequent to such conviction, any clerk or officer of the court where the offender was first convicted, certifying a false copy of any indictment, knowing the same to be false, was liable to be transported for fourteen nor less than seven years, or to be imprisoned for any term not exceeding two years,—and now to penal servitude. By 1 & 2 Vict. c. 94, s. 19, any person employed in the public-record office who shall certify any writing as a true copy, knowing the same to be false in any material part, or any person who shall counterfeit the signature of the assistant record-keeper or who shall counterfeit the seal of the said office, on being convicted thereof, might be transported for life or for not less than seven years, or be imprisoned for not more than four years. By 14 & 15 Vict. c. 99, s. 15, if any officer under that act shall wilfully certify any document as being a true copy or extract, knowing the same not to be so, he shall be guilty of a misdemeanour, and shall be liable on conviction to imprisonment for any term not exceeding eighteen months.—Stewart.
[3 ] See also 11 Geo. IV. and 1 W. IV. c. 66, s. 11. And the false personation of voters at elections is a misdemeanour. 6 & 7 Vict. c. 18, s. 33.—Stewart.
The merely personating bail before a judge at chambers, or acknowledging bail in a false name, is only a misdemeanour, unless the bail are filed, (2 East, P. C. 109;) and putting in bail in the name of a person not in existence is not within the act. 1 Stra. 304. The courts will not vacate the proceedings against the party personated until the offender is convicted, (T. Jones, 64. 1 Ventr. 501. 3 Keb. 694. 1 Ld. Raym. 445;) and a conviction cannot take place until the bail-piece is filed. 2 Sid. 90.—Chitty.
[4 ] This act of Edw. III. is now repealed, by the 4 Geo. IV. c. 64, s. 1.—Chitty.
[(a) ] 3 Inst. 91.
[(b) ] 2 Hawk. P. C. 121.
[5 ] By the 25 Geo. II. c. 37, s. 9, attempting to rescue a person convicted of murder whilst proceeding to execution is felony, and punishable with death. By the 43 Geo. III. c. 58, s. 1, shooting at or levelling loaded fire-arms at a person and attempting to discharge the same, or stabbing or cutting with intent to obstruct, resist, or prevent the lawful apprehension and detainer of the person so stabbing, &c. or the lawful apprehension and detainer of his accomplice, is a felony, without benefit of clergy. It seems the right of the party to arrest should be proved to bring a party resisting within the meaning of the act. 1 Stark. C. N. P. 246. If a cutting or wounding, &c. takes place in an attempt to apprehend the prisoner, without a due notification of the warrant or authority by which the person acts, it does not fall within the meaning of the act, as it is not a wilful resistance of a lawful apprehension. 3 Camp. 68, per lord Ellenborough, C. J., at Maidstone, Aug. 8, 1816.
By 9 Geo. IV. c. 31, s. 25, it is enacted that where any person shall be charged with and convicted of, as a misdemeanour, any assault upon any person with intent to resist or prevent the lawful apprehension or detainer of the party so assaulting, or of any other person, for any offence for which he or they may be liable by law to be apprehended or detained, the court may sentence the offender to be imprisoned, with or without hard labour, for any term not exceeding two years, and may also fine the offender, and require him to find sureties for keeping the peace. See 1 & 2 Geo. IV. c. 88, s. 2. 3 Geo. IV. c. 114, 1 Burn’s J. 230, et seg.
[(c) ] Such as White-Friars and its environs, the Savoy, and the Mint in Southwark.
[6 ] And, by stat. 9 Geo. IV. c. 31, s. 25, the preventing the apprehension of an offender is a misdemeanour, punishable with fine or imprisonment for two years.—Stewart.
[(d) ] 2 Hawk. P. C. 122.
[(e) ] 1 Hal. P. C. 600.
[(f) ] Ibid. 590. 2 Hawk. P. C. 134.
[(g) ] 1 Hal. P. C. 588, 589. 2 Hawk. P. C. 134, 135.
[7 ] There must be an actual arrest, as well as a lawful arrest, to make an escape criminal in an officer. 2 Hawk. c. 19, ss. 1, 2. It must also be for a criminal matter, (id. s. 3;) and the imprisonment must be continuing at the time of the offence. Id. s. 4. 1 Russ. 531. 1 Hale, 594. In some cases it is an escape to suffer a prisoner to have greater liberty than can by law be allowed him; as, to admit him to bail against law, or to suffer him to go beyond the limits of the prison, though he return. 2 Hawk. c. 19, s. 5. A retaking will not excuse an escape. Id. s. 13.
Private individuals who have persons lawfully in their custody are guilty of an escape if they suffer them illegally to depart, (1 Hale, 595;) but they may protect themselves from liability by delivering over their prisoner to some legal and proper officer. 1 Hale, 594, 595. A private person thus guilty of an escape, the punishment is fine, or imprisonment, or both. 2 Hawk. c. 20, s. 6.
By the 52 Geo. III. c. 156, persons aiding the escape of prisoners of war are guilty of felony and liable to transportation. It has been held that the offence of aiding a prisoner of war to escape is not complete if such prisoner is acting in concert with those under whose charge he is, merely to detect the defendant, and has no intention to escape. Russ. & R. C. C. 196.—Chitty.
[(h) ] 1 Hal. P. C. 607.
[(i) ] Bract. l. 3, c. 9.
[(j) ] 2 Hawk. P. C. 128.
[8 ] An actual breaking is the gist of this offence, and must be stated in the indictment. It must also appear that the party was lawfully in prison, and for a crime involving judgment of life or member: it is not enough to allege that he “feloniously broke prison.” 2 Inst. 591. 1 Russell, 381. If lawfully committed, a party breaking prison is within the statute, although he may be innocent: as if committed by a magistrate upon strong suspicion. 2 Inst. 590. 1 Hale, P. C. 610. 1 Russell, 378. To constitute a felonious prison-breach, the party must be committed for a crime which is capital at the time of the breaking. 1 Russell, 379, Cole’s case. Plowd. Comm. 401. A constructive breaking is not sufficient: therefore, if a person goes out of prison without obstruction, as by a door being left open, it is only a misdemeanour. 1 Hale, P. C. 611. An actual intent to break is not necessary. The statute extends to a prison in law as well as to a prison in fact. 2 Inst. 589. “Prison-breach or rescue is a common-law felony, if the prisoner breaking prison, or rescued, is a convicted felon; and it is punishable at common law by imprisonment, and, under 19 Geo. III. c. 74, 4, by three times whipping. Throwing down loose bricks at the top of a prison-wall, placed there to impede escape and give alarm, is prison-breach, though they were thrown down by accident.” Rex vs. Haswell, R. & R. C. C. 458.—Chitty.
[(k) ] 1 Hal. P. C. 607. Fost. 344.
[9 ] By 1 & 2 Geo. IV. c. 98, (entitled an “Act to amend the Law of Rescue,”) s. 1, rescuing persons charged with felony is punishable with seven years’ transportation, or imprisonment for not less than one year and not more than three years. And, by s. 1, assaulting any lawful officer, to prevent the apprehension or detainer of persons charged with felony, is punishable with two years’ imprisonment, in addition to other pains and penalties incurred. Vide also 5 Geo. IV. c. 84, 22. This section is repealed by 9 Geo. IV. c. 31, which, by section 25, provides a punishment for these offences. Vide post, 217.
By 9 Geo. IV. c. 4, s. 13, (entitled the Mutiny Act,) persons under sentence of death by court-martial, having obtained a conditional pardon, escaping out of custody, and all parties aiding such escape, are punishable as felons. See Rex vs. Stanley, R. & R. C. C. 432.—Chitty.
[10 ] On an indictment under this act, the offence of delivering instruments of escape to a prisoner has been held to be complete though the prisoner had been pardoned of the offence of which he was convicted, on condition of transportation; and a party may be convicted though there is no evidence that he knew of what offence the prisoner had been convicted. Rex vs. Shaw, R. & R. C. C. 526. This act applies only to cases of attempt, (Tilley’s case, 2 Leach, 662;) and a case where the commitment is on suspicion only is not within it. Greenif’s case, 1 Leach, 363. This act appears virtually to be repealed by 4 Geo. IV. c. 64, s. 43, which makes delivering instruments of escape to any prisoner, whether he actually escape or not, a felony punishable by fourteen years’ transportation.—Chitty.
[(l) ] 6 Geo. I. c. 23. (Transportation.) 9 Geo. I. c. 22. (Black Act.) 8 Geo. II. c. 20. (Destroying turnpikes, &c.) 19 Geo. II. c. 34. (Smuggling. See the 52 Geo. III. c. 143, s. 11.) 2[Editor: illegible character] Geo. II. c. 37. (Murder.) 27 Geo. II. c. 15. (Black Act.)
[11 ] Some of these acts, as far as they relate to the exclusion of benefit of clergy, and to the form of punishment, are altered and amended by 1 & 2 Geo. IV. c. 88, and 5 Geo. IV. c. 84.
By 4 Geo. IV. c. 54, 1, to rescue a party in custody for an offence against the Black Act (9 Geo. I. c. 22) is punishable only with transportation, or imprisonment and hard labour.—Chitty.
By stat. 1 Vict. c. 91, 1 & 2, any person rescuing, or attempting to rescue, any other person who shall be committed or found guilty of murder shall be liable to be transported for life, or for any time not exceeding fifteen years, or to be imprisoned for three; and now penal servitude may be substituted.—Stewart.
[12 ] These provisions are virtually repealed by the 5 Geo. IV. c. 84, which revives and consolidates into one act the laws relative to the transportation of offenders. By the 22d section it is enacted that if any offender, sentenced or ordered to be transported or banished, or having agreed to transport or banish himself, shall be afterwards found at large, without lawful excuse, before the expiration of the term of transportation or banishment, he shall suffer death without benefit of clergy. By sect. 84, the act is not to extend to persons banished, under the 60 Geo. III. and 1 Geo. IV. c. 8, for blasphemous and seditious libels. If the prisoner can show such circumstances of poverty or sickness which amount to an absolute impossibility to transport himself or leave the kingdom, he will not be within the act. 1 Leach, 396. By the 22d sect. of 5 Geo. IV. c. 84, a reward of 20l. is given for prosecuting an offender against the act to conviction.—Chitty.
But these statutes are repealed by stat. 4 & 5 W. IV. c. 67, by which this offence is punishable with transportation for life, and previous imprisonment for any term not exceeding four years; and now penal servitude may be substituted.—Stewart.
[(m) ] See stat. 6 Geo. I. c. 23, s. 9.
[13 ] In Rex vs. Ledbitter, R. & R. C. C. 76, a police-officer was indicted, under 4 Geo. I. c. 11, 4, for taking money under the pretence of helping a person to goods stolen from him, and convicted of felony, though the officer had no knowledge of the felon, and though he possessed no power to apprehend the felon, and though the property was never restored and the officer had no power to restore it.
By statute 7 & 8 Geo. IV. c. 29, 58, it is enacted, “That every person who shall corruptly take any money or reward, directly or indirectly, under pretence, or upon account of helping any person, to any chattel, money, valuable security, or other property what soever, which shall by any felony or misdemeanor have been stolen, taken, obtained, or converted as aforesaid, shall (unless he cause the offender to be apprehended and brought to trial for the same) be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and, if a male, to be once, twice, or thrice, publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment.”
By 59, advertising a reward for the return of any stolen property whatsoever, which shall have been stolen or lost, purporting that no questions shall be asked, or printing such advertisements, renders the offending party liable to a penalty of fifty pounds, and full costs, to any person who will sue for the same by action of debt. This act repeals the 25 Geo. II. c. 36, 1, as far as relates to the advertising rewards for stolen goods.
The 4 Geo. I. c. 11, 4, relating to, and the 1 Geo. IV. c. 115, directing, the degree of punishment for this offence, are also repealed by this statute.—Chitty.
[(n) ] See page 38.
[(o) ] See also stat. 2 Geo. III. c. 28, s. 12, for the punishment of receivers of goods stolen by bumboats, &c. in the Thames.
[(p) ] Foster, 373.
[14 ] The acts mentioned above are mostly repealed by later acts which are nearly similar to them. See 1 & 2 Geo. IV. c. 75; 7 & 8 Geo. IV. c. 29; 3 Geo. IV. c. 24.—Chitty.
By stat. 14 & 15 Vict. c. 100, 14, on an indictment for jointly receiving any property, persons guilty of separately receiving may be convicted. Separate accessories and receivers may be included in the same indictment in the absence of the principal felon.—Stewart.
[(q) ] 1 Hawk. P. C. 125.
[(r) ] Stiernh. de jure Goth. l. 3. c. 5.
[(s) ] 1 Hawk. P. C. 243.
[15 ] Disturbing the peace, making false inventions, propagating evil reports and calumnies, and spreading false and groundless rumours, whereby discord and disquiet may ensue amongst neighbours, may properly be ranked under the head Barretry. 1 Inst. 368. 1 Hawk. P. C. 243. See 1 Hale, P. C. c. 27, Bac. Abr. Barretry, 1 Russell, 185, on this subject. See also the Case of Barretry, 8 Co. Rep. 36, b. No one can be convicted for a single act of barretry; for every indictment for that offence must charge the defendant with being a common barretor. In a late case in the King’s Bench, where an attorney, without any corrupt or unworthy motives, prepared a special case in order to take the opinion of the court upon the will of a testator, and suggested several facts which had no foundation, he was held to be guilty of a contempt and fined 30l. In re Elsam, 5 D. and R. 389; 3 B. & C. 597.—Chitty.
[(t) ] Ibid. 244.
[(u) ] Ibid. 249.
[(w) ] Dr. & St. 203.
[(x) ]Ff. 48, 10, 20.
[(y) ] 1 Hawk. P. C. 255.
[(z) ] Ibid. 257.
[(a) ] Stat. of Conspirat. 33 Edw. 1.
[16 ] See 1 Hawk. 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 vs. Smith, 7 D. & R. 846; 5 B. & C. 188.—Chitty.
[17 ] If an attorney prosecute an action, to be paid his costs in gross, it should seem it would amount to champerty. Com. Dig. Attorney, B. 14. Hob. 117. Tidd Prac. 8th ed. 326.—Chitty.
[(b) ]Ff. 48, 7, 6.
[18 ] This statute does not apply to offences cognizable only before magistrates, (1 B. & A. 282:) it applies only to common informers, and not to cases where the penalty is given to the party grieved. 1 Salk. 30. 2 Hawk. 279. The taking the penalty is an offence within the act, though there is no action or proceeding for it. Russ. & R. C. C. 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.—Chitty.
[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 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.
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. 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 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 calendar 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 agreement 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.
[(c) ] See book iii. page 126.
[(d) ] Bro. Abr. tit. Conspiracy, 28.
[(e) ] 1 Hawk. P. C. 193.
[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 exceeding three years.—Stewart.
[(f) ] 3 Inst. 164.
[21 ] 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 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. C. 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 acquittal. 3 Camp. 432; see id. 96.—Chitty.
[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 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. & 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 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 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.
[(g) ] 3 Inst. 163.
[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.
[(h) ] Montesq. Sp. L. b. xxix. c. 11.
[(i) ] Britton, c. 5.
[(k) ]De Leg. 2, 9.
[(l) ] 1 Hawk. P. C. 168.
[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, confined to bribing judicial officers. See 1 East, 183. 4 Burr. 2494.—Chitty.
[(m) ]Ff. 48, 11, 6.
[(n) ]De Leg. l. 12.
[(o) ] Pott. Antiq. b. i. c. 23.
[(p) ] 3 Inst. 147.
[(q) ] Ibid. 146.
[(r) ] 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.
[(s) ] See book iii. pp. 402, 403.
[28 ] 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.
[(t) ] 1 Hawk. P. C. 168.
[29 ] 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 not grant a rule. Rex vs. Barron, 3 B. & A. 432. That case seems to lay down the general rule upon this subject clearly and definitively.—Chitty.
[(u) ] 1 Hawk. P. C. 170.
[30 ] 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 doeth 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 2s. where several are indicted together 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 own officers are legal and may be properly demanded. Co. Litt. 368, b. And, therefore, before the abolition of gaol-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 promise to pay him money for an act of duty 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.