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: (2) 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 champerter 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 suing: (14) 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. These pests of civil society, that are perpetually endeavoring 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 count in alienam litem, ut quic quid 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 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 [*136] 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 vender 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. Compounding of informations upon penal statutes is an offence of an equivalent nature in criminal causes; and is, besides, an additional misdemeanor 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 107., shall stand two hours on the pillory, and shall be forever disabled to sue on any popular or penal statute. (15)

15. A conspiracy, also, to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted, is a farther abuse and perversion of public justice; (16) for which the party injured may either have a (y) Hawk. P. C. 255. (z) Ibid. 257.

(a) Stat. of conspirat, 33 Ed. L

(b) Ff. 48, 7, 6.

(14) This subject is fully discussed by Mr. Bishop. The tendency of late has been to confine these offences within bounds somewhat narrower than those indicated by the older authorities.

(15) This subject was considered and the previous cases examined by Ch. J. Tindal, in Keir v. Leeman, 9 Q. B., 392, where the conclusion was that "in all offenses which involve damages to an injured party, for which he may maintain an action, it is competent for him, notwithstanding they are also of a public nature, to compromise and settle his private damage in any way he may think fit;" but that an agreement to pay money in consideration of a prosecution for riot and assault being abandoned, was illegal and void. On the same subject, see Jones v. Rice, 18 Pick., 440.

(16) This offense is not confined to the instance given above. 1 Hawkins P. C., c. 72, states that all conspiracies whatsoever, wrongfully to prejudice the rights of a third person, are highly criminal at law. In Commonwealth v. Hunt, 4 Met., 111; S. C., 88 Am. Dec., 346, it is said: "It is a criminal and indictable offense for two or more to confederate and combine together by concerted means to do that which is unlawful and criminal, to the injury of the public, or portions or classes of the community, or even to the rights of the indívid

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 ancient 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 disuse become obsolete; it not having been pronounced for some ages: but instead thereof the delinquents are usually sentenced [*137] 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. (17)

*

*

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 willful 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 willfully, 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. (18) For which reason it is much to be questioned, how far (c) See book III, 126. (d) Bro. Abr. tit. Conspiracy, 28. (e) 1 Hawk. P. C. 193. (f) 8 Inst. 164. ual." * "A conspiracy must be a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means.' See further, on what constitutes this offense, O'Connell v. Queen, 11 Cl. & Fin., 155; Collins v. Commonwealth, 3 Serg. & R., 220; Mifflin v. Commonwealth, 5 W. & S., 461; S. C., 40 Am. Dec., 527; State v. Rowley, 12 Conn., 101; Alderman v. People, 4 Mich., 414; State v. Younger, 1 Dev., 357; S. C., 17 Am. Dec., 571; State v. Murphy, 6 Ala., 765; S. C., 41 Am. Dec., 79; People v. Mather, 4 Wend., 229; S. C., 21 Am. Dec., 122; State v. Rickey, 4 Halst., 293; State v. Straw, 42 N. H., 393; Smith v. People, 25 Ill., 17; People v. Powell, 63 N. Y., 88. The thing proposed to be done by conspirators need not be an indictable offense. State v. Burnham, 15 N. H., 396; State v. Buchanan, 5 Har. & J., 217; S. C., 9 Am. Dec., 534; State v. Rowley, 12 Conn., 101. Conspiracy must be the act of more than one person, but husband and wife, without others, cannot commit the offense. 1 Hawkins P. C., ch. 72. The mere combination completes the crime. The intended acts need not be done. Rex v. Best, 1 Salk., 174; Commonwealth v. Judd, 2 Mass., 329; Hazen v. Commonwealth, 23 Penn. St., 355. If two are jointly charged with conspiracy, the acquittal of one works the acquittal of both. State v. Tom, 2 Dev., 569. But one may be convicted after the other is dead. Reg. v. Kenrick, 1 Dav. & M., 208: Rex v. Niccolls, 2 Stra., 1227. All concerned in one conspiracy need not be indicted or tried together. Rex v. Cooke, 5 B. & C., 538.

(17) Stat. 24 and 25 Vic., c. 100, covers this subject.

(18) The oath must be taken in the course of justice. Commonwealth v. Warden, 11 Met., 406. But every one who appears in any court and is duly sworn, whether compellable to testify or not, is liable for perjury if he willfully swears falsely. Commonwealth v. Knight, 12 Mass., 274; Chamberlain v. People, 23 N. Y., 85. Even though he be a witness for himself when, legally, his evidence is not admissible. State v. Molier, 1 Dev., 263; VanSteenbergh v. Kortz, 10 Johns., 167. The oath must be administered by an officer duly authorized. Rex v. Hanks, 3 C. & P., 419; McGregor v. State, 1 Ind., 232; State v. McCroskey, 3 McCord, 308. The case must be one over which the magistrate before whom it is has jurisdiction. State v. Hayward, 1 Nott & McCord, 546; State v. Furlong, 26 Me., 69; Commonwealth v. White, 8 Pick., 453. As to sufficiency of allegation of jurisdiction, see Commonwealth v. Knight, 12 Mass., 273; S. C., 7 Am. Dec., 72. An unnecessary and unimportant oath to a bill in equity, though false, is not perjury. Gaige v. People, 26 Mich., 30.

any magistrate is justifiable in taking a voluntary affidavit in any extra-judicial matter, as is now too frequent upon every petty occasion: since it is more than possible, that by such idle oaths a man may frequently in foro conscientice 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 (19) not upon surprise, or the like: it also must be in some point material to the question in dispute; (20) for if it only be in some trifling collateral circumstance, to which no regard is paid, it is no more penal than in the voluntary extra-judicial oaths before mentioned. Subornation of perjury is the offence of procuring another to take such a false oath, as constitutes perjury in the [*138] principal. (21) The punishment of perjury and subornation, at common law, has been various. It was anciently death; afterwards banishment, or cutting out the tongue; then forfeiture of goods; and now it is fine and imprisonment, and never more to be capable of bearing testimony. (g) But the statute of 5 Eliz. c. 9 (if the offender be prosecuted thereon), inflicts the penalty of perpetual infamy, and a fine of 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 201., or to have both ears nailed to the pillory. But the prosecution is usually carried on for the offence at common

(g) 3 Inst. 163,

(19) Mere negligence or carelessness in swearing to the witness' belief, when proper pains would have enabled him to ascertain the truth to be otherwise, seems not to be perjury, inasmuch as the specific willful intent is wanting. U. S. v. Shellmire, 1 Bald., 378; U. §. v. Babcock, 4 McLean, 113; State v. Cockran, 1 Bailey, 50. See State v. Lea, 3 Ala., 602; Commonwealth v. Brady, 5 Gray, 78.

(20) That the testimony should be pertinent and material, see State v. Dodd, 3 Murph., 226; Commonwealth v. Parker, 2 Cush., 212; Bullock v. Koon, 4 Wend., 531; Pollard v. People, 69 Ill., 148; Nelson v. State, 47 Miss., 621; State v. Mooney, 65 Mo., 494; Plath v. Braunsdorff, 40 Wis., 107; State v. Mumford, 1 Dev., 519; S. C., 17 Am. Dec., 573.

"It seemeth clear that if the oath for which a man is indicted for perjury be wholly foreign from that purpose, or altogether immaterial, and neither any way pertinent to the matter in question, nor tending to aggravate or extenuate the damages, nor likely to induce the jury to give a readier credit to the substantial part of the evidence, it cannot amount to perjury, because it is merely idle and insignificant.' 1 Hawk. P. C., ch. 65, § 8. But the testimony may be material enough to warrant an indictment for perjury, if it affect any collateral issue in the case. State v. Keenan, 8 Rich., 456; State v. Lavalley, 9 Mo., 824; State v. Shupe, 16 Ia., 36; Commonwealth v. Pollard, 12 Met., 225; Commonwealth v. Grant, 116 Mass., 17. The late English cases qualify the doctrine as stated by Hawkins. In Reg. v. Mullany, Leigh & C., 593, it was held that any false testimony in a judicial proceeding, with intent to mislead, whether material or not, would amount to perjury. In Reg. v. Gibbon, Leigh & C., 109, it was held that certain evidence had been wrongly admitted, but that the witness might be indicted for perjury on it. In Reg. v. Philpott, 5 Cox C. C., 363; S. C., 3 C. & K., 135; on which the foregoing depend, the court uses this language: "This brings us to the question whether it is less perjury if the document turns out not to be admissible in evidence, and the judge has done wrong in admitting it. If that were so, it would, as has been already observed, make the commission of the offense depend upon the decision of a nice question of law upon a bill of exceptions in the house of lords. Here the evidence was offered to procure the admission of a document; that document, if admissible, would be material to the question being tried; and the evidence was false. Here, therefore, are all the elements of the crime of perjury.' Mr. Bishop, Cr. L., 5th ed., § 1036, says: "The true view is to consider whether the evidence, assuming it to have been rightly admitted, could have properly influenced the judge or the jury, to whom it was addressed. If it could, and it is false, it should subject the witness to indictment." See Ibid., 7th ed., § 1030, et seq.

By statutes in most of the United States the offense is made broader, and includes false affidavits made in matters outside of, as well as in, court proceedings.

(21) To constitute subornation of perjury, the party charged must have procured the commission of perjury by inciting, instigating or persuading the guilty party to commit the crime. Commonwealth v. Douglass, 5 Met., 241; United States v. Staats, 8 How., 41; Commonwealth v. Smith, 11 Allen, 243. Mere solicitation is a misdemeanor at common law. Reg. v. Darby, 7 Mod., 100.

law; especially as to the penalties before inflicted, the statute 3 Geo. II, c. 25, superadds a power for the court to order the offender to be sent to the house of correction for a term not exceeding seven years, or to be transported for the same period; and makes it felony without benefit of clergy to return or escape within the time. (22) 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 there they admit witnesses to be heard only on the side of the prosecution, and use the rack to extort a confession from the accused. In such a constitution, therefore, it is necessary to throw the dread of capital punishment into the other scale, in order to keep in awe the witnesses for the crown, on whom alone the prisoner's fate depends; so naturally does one cruel law beget another. But corporal and pecuniary punishments, exile and perpetual infamy, are more suited to the genius of the English law: where the fact is openly discussed between witnesses on both sides, and the evidence for the crown may be contradicted and disproved by those of the prisoner. Where *indeed, the death of an innocent person has actually been the conse[*139] quence of such wilful perjury, it falls within the guilt of deliberate murder, and deserves an equal punishment: which our ancient law in fact inflicted. (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 poena 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) (23) 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

(h) Montesq. Sp. L. b. 29, c. 11.

(1) Britton, c. 5.

(k) De Leg, 2, 9.

(1) 1 Haw. P. C. 168,

(22) See, as to these offenses, stat. 20 and 21 Vic., c. 3; 27 and 28 Vic., c. 47. (23) The offense of bribery is not confined to influencing judicial officers." Any attempt to influence an officer in his official conduct, whether in the executive, legislative or judicial department of the government, by the offer of a reward or pecuniary compensation, is an indictable common law misdemeanor." State v. Ellis, 33 N. J., 102: Rex v. Plympton, Lord Raym., 1377: People ex rel. Purley, 2 Cal., 564: U. S. v. Worrall, 2 Dall., 385. Whether the proposal to receive a bribe is a misdemeanor, see Walsh v. People, 65 Ill., 58; Hutchinson v. State, 36 Tex., 293. An unsuccessful attempt to bribe is an offense. Barefield v. State, 14 Ala., 603. See Rex v. Vaughan, Burr, 2494.

It is a species of bribery for a candidate for office to get votes by offering, if elected, to donate a sum of money to an individual, or to a public corporation. State v. Purdy, 36 Wis., 213. See Harvey v. Tama County, 53 Iowa, 228; State v. Collier, 72 Mo., 18; 8. C., 37 Am. Rep., 417; State v. Church, 5 Oreg., 375.

year: (m) not considering the insinuating nature and gigantic progress of this vice, when once admitted. Plato therefore more wisely, in his ideal republic, [*140] (n) orders those who take presents for doing their duty to be punished in the severest manner: and by the laws of Athens he that offered was also prosecuted, as well as he that received a bribe. (o) In England this offence of taking bribes is punished, in inferior officers, with fine and impris onment; 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 Thorp was hanged for it in the reign of Edward 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. (24) 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.

19. The false verdict of jurors, whether occasioned by embracery or not, was anciently considered as criminal, and therefore exemplarily punished by attaint in the manner formerly mentioned. (s)

20. Another offence of the same species is the negligence of public officers, intrusted with the administration of justice, as sheriffs, coroners, constables and the like, which makes the offender liable to be fined; and in very notorious cases will amount to a forfeiture of his office, if it be a beneficial one. (t) [*141] Also the omitting to apprehend persons offering stolen *iron, lead and other metals to sale, is a misdemeanor, and punishable by a stated fine, or imprisonment, in pursuance of the statute 29 Geo. II, c. 30.

21. There is yet another offence against public justice, which is a crime of deep malignity; and so much the deeper, as there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution. This is the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office. However, when prosecuted, either by impeachment in parliament, or by information in the court of the king's bench (according to the rank of the offenders), it is sure to be severely punished with forfeiture of their offices (either consequential or immediate), fines, imprisonment, or other discretionary censure, regulated by the nature and aggravations of the offence committed.

22. Lastly, extortion is an abuse of public justice, which consists in any offi cer'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. (25)

(25) Extorting an agreement to pay money or deliver something of value seems not suf ficient to make out the offense. Commonwealth v. Cony, 2 Mass., 523; Commonwealth v. Pease, 16 Mass., 91. Nor does the receiving of a reward voluntarily given. State v. Stotts, 5 Blackf., 460; Evans v. Trenton, 24 N. J., 764. A custom to take larger fees than the law permits is no defense to the officer who has demanded and received them. Lincoln v. Shaw, 17 Mass., 410; Commonwealth v. Bagley, 7 Pick., 279. The taking must be willful