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'keeps alive strife and contention, and perverts the remedial pro- [*135] cess 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 confe deracy, 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 kins man, servant, or poor neighbour, out of charity and compassion, with im punity. (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) (25). 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 (26): 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 (27). 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, lge 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 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

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14. The compounding of informations upon penal statutes is an offence

(x) Ff. 48. 10. 20.

(y) 1 Hawk. P. C. 255. (z) Ibid. 257.

(25) In New-York it is a misdemeanor knowingly to take a conveyance of lands or tenements, or of any interest therein, from a person not in possession, while the title is controverted by suit in any court; also to buy or sell, or make or take any agreement to convey any pretended title to lands or tenements, unless the party selling or agreeing to sell, has, or he and those by whom he claims have seen in possession of the same, or of the reversion or remainder, or have received the profits thereof for one year before. This, how. ever, is not to apply to mortgages. (2 R. S. 691, 5, &c.) As to attornies levying claims for the purpose of suing on them, see 2 R. S. 288.

(26) See 1 Haw P. C. c. 3, Co. Litt. 368

(a) Stat. of conspirat. 33 Ed. I.
(b) Ff. 48.7.6.

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 intermed dling 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 contri. vances in order to make a party interested in a suit a witness on the trial, amounts to maintenance. Bell v. Smith, 7 D. and R. 846; 5 B. and C. 188.

(27) If an attorney prosecute an action, to be paid his costs in gross, it should seem t would amount to champerty. Com. Dig. At torney, B. 14. Hob. 117. 1dd Prac. 8 ed 326

of an equivalent nature in criminal causes; and is, besides, an additiona 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 mere. ly to serve his own ends, and not for the public good), he shall forfeit 107 shall stand two hours on the pillory (28), and shall be for ever disabled to sue on any popular or penal statute (29), (30.)

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 (31); for which the party injured may

(28) By 56 Geo. III. c. 138, this punishment is removed from all offences, except perjury and subornation of perjury.

(29) See p. 133. note 22.

(30) 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. 24 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. 8 ed.

604.

(31) 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 misdemeanors at common law, and indict able accordingly, whether the intention is to injure his property, his person, or his charac. ter. See i Hawk. c. 72. s. 2. But no indict ment lies for conspiring to commit a civil trespass on a preserve to take game, though effect ed 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 per former 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 proconcerted 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. 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.

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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 ob struction, compel any person hired or employed in any trade or business to depart from his hiring or employment, or obstruct him from re turning to his work before finished, or prevent, or endeavour to prevent any person from hir ing himself, or from accepting employment ⚫ or by force or threats, &c. molest another in his person or property, to induce him to Le

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 ancient common law (d) to receive what is called the villenous judg ment; 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 dis- [137] use become obsolete; it not having been pronounced for some ages but instead thereof the delinquents are usually sentenced to imprisonment, fine, and pillory. To this head may be referred the offence of sending letters, threatening to accuse any person of a crime punishable with death, transportation, pillory, or other infamous punishment, with a view to extort from him any money or other valuable chattels. This is punishable by statute 30 Geo. II. c. 24, at the discretion of the court with fine, imprisonment, pillory, whipping, or transportation for seven years (32), (33).

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 (34). The law takes no notice of any

(c) See Book III. page 126.
(d) Bro. Abr. tit. Conspiracy, 28

come 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
O 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 de-
crease alter the quantity of work; or to
regula.e the mode of carrying on any manu-
facture, trade, or business in the management
thereof; or by violence or threats, or obstruc
tion, force any person carrying on any busi-
ness, to make any alteration in his mode of
carrying on such business, or to limit his num-
ber of workmen :-such offender and his ac-
cessaries may be imprisoned with or without
hard labour, for not exceeding three calendar
months. By sec. 4. persons may meet to-
gether 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 section 5. the masters of workmen
nay do the same. By sec. 6. offenders against
the act may be called on to give evidence for
the king, or prosecute an informer on any in-
Jormation exhibited under the act. Sec. 7.
gives a summary proceeding before a magis
tae for an offence under the act.

(32) See note 27. p. 136: and p. 144.
(33) In New-York, the only conspiracies
VOL. II.

(e) 1 Hawk, P. O. 193.
(f) 3 Inst. 164.

punishable criminally are the following, and they are made misdemeanors, viz.: conspiracies by two or more, 1. To commit any offence. 2. Falsely and maliciously to indict another for an offence, or to procure him to be charged or arrested therefor. 3. Falsely to move or maintain a suit. 4. To cheat or defraud an other of property by criminal means. 5. Tc cheat and defraud another of property by means which, if executed, would amount to a cheat, or to obtain property or money by false pretences. 6. To commit any act injurious to the public health or morals, or to trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws.

No agreement, except to commit a felony upon the person of another, or to commit ar son or burglary, is a conspiracy, unless som act beside the agreement he done to effect th object. (2 R. S. 691, § 8, &c.)

If an overt act is necessary to constitute the offence, one or more must be alleged in the in dictment, and the same be proved; but others not alleged may be given in evidence. (Id. 735, § 17.)

(34) In New-York perjury is a wilful and corrupt declaration to any material matte upon oath, affirmation, or declaration legally administered. 1. In any matter, cause, o proceeding, depending in any court of law o. equity, or before any officer thereof. 2. In any case where an oath or affirmation is re quired by law, or is necessary for the prosecu tion or defence of any private right. or for 62

perjury bu 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 est ems all other oaths unnecessary at least, and therefore will not punish the breach of them (35). For which reason it is much to be questioned, how far any magistrate is justifiable in taking a voluntary affidavit in any xtrajudicial 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 conscientiae, 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 (36) not upon surprise, or the like: it also must be in some point material to the question in dispute (37); for if it only be in some trifling

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the ends of public justice. 3. In any matter or proceeding before any tribunal or officer created by the constitution or by law, or where any oath may be lawfully required by any judicial, executive, or administrative officer. The punishment is disqualification as a witness and if the perjury be committed on the trial of an indictment for a capital offence or other felony, then imprisonment for a term not less than 10 years; if committed on any other trial, inquiry, or case, then for a term not more than 10 years. Subornation of perjury, where the witness is actually sworn and examined, is punished the same as perjury. The mere attempt to suborn a witness is punishable with imprisonment for 5 years. Any court of record may immediately commit to prison for trial, any party or witness who, it may be reasonably presumed, has committed perjury. (2 R. S. 681, 682.)

(35) 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 sta. tute 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 pow. er is granted to them by statute. But is indict able 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 per jury, 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 ad:rinister the particu lar oath in question will amount to the offence of perjury. 3 Inst. 166. Cro. C. C. 7th edit. 626. And though the officer stands colourably in the situation which confers a power of : ceiving an oath on such an occasion, if in fact he is not duly appointed, the proceedings will be of no avail, Id. ibid. 3 Campb. 432. Wood's Inst. 435; for though it is sufficient prima facie to shew the ostensible capacity in whick he acted when the oath was taken, the pres sumption may be rebutted by other evidence, and the defendant, if he succeed, will be enti tled to an acquittal. 3 Campb. 432; see Id. 96.

(36) If a man swears that he believes that to be true which he knows to be false, he swears as absolutely, and is as criminal, in point of law, as if he had made a positive assertion that the fact was, as he swore he believed it to be. 3 Wils. 427. 2 Bla. Rep. 881. 1 Leach, 242. Hawk. b. 1. c. 69. s. 7. n. n. The false swearing, however, as to the legal opera tion of a deed is not indictable. 1 Esp. Rep. 280.

(37) 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

collateral circumstance, to which no regard is paid, it is no more penal thar in the voluntary extrajudicial oaths before mentioned. Subornation of perjury is the offence of procuring another to take such [138] a false oath, as constitutes perjury in the principal (38). 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 5 Eliz. c. 9. (if the offender be prosecuted thereon), inflicts the penalty of perpetual infamy, and a fine of 401. 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 law; especially as to the penalties before inflicted, the statute 2 Geo. II. c. 25, superadd 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 (39). It has sometimes been wished, hat perjury, at least upon capital accusations, whereby another's life has Deen 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). 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 (g) 3 Inst. 163.

he sufficient to render the party on whose behalf it is given successful, but it will suffice if that is its evident tendency, 2 Ld. Raym. 889; or if in a civil action it has the effect of increasing or extenuating the damages, comme semble. Wood's Inst 435. In a late case, in an indictment for perjury, in an answer in chancery to a bill filed against the defendant for the specific performance of an agreement relating to the purchase of land, the defendant had relied on the statute of frauds (the agreement not being in writing), and had also denied having ever entered into such an agree. ment, and upon this denial he was indicted; but it was held that the denial of an agreement, which by the statute of frauds was not binding on the parties, was immaterial and irrelevant, and not indictable. 1 Ry. & M. 109.

To constitute perjury at common law, it is not necessary that the false oath should obtain any credit, or occasion any actual injury to the party against whom the evidence is given; for the prosecution is not grounded on the inconvenience which an individual may sustain, but on the abuse and insult to public justice. 2 Leon. 211. 3 Leon. 230. 7 T. R. 315.

In some cases, where a false oath has been taken, the party may be prosecuted by indict. ment 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 o.. it here), in order to mislead our cour's

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

And

of justice, is punishable as a misdemeanor ; and lord Ellenborough, C. J., said, "that he had not the least doubt that any person making use of a false instrument, in order to prevent the due course of justice, was guilty of an offence punishable by indictment. 8 East, 364. 2 Russ. 1759.

(38) 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 unsuc cessful, is a misdemeanor at common law, punishable not only by fine and imprisonment, but by corporal and infamous punishment. 2 East Rep. 17. 1 Hawk. c. 19. s. 10. 6 East, 464.

(39) 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, I Vent 349. 4 Harg. St. Tr. 682. sp. 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 Salk. 289. 5 Esp. Rep. 9t

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