Unnecessary oaths having been thus abolished in very many cases, it has, by the statute 14 & 15 Vict. c. 99, s. 16, been enacted that "every court, judge, justice, officer, commissioner, arbitrator, or other person, now or hereafter having, by law or by consent of parties, authority to hear, receive, and examine evidence," may administer an oath to any witness legally called before him. And although, in virtue of various statutes (v), the necessity * of [* 155] taking a formal oath may sometimes be dispensed with, the penalties of perjury will attach to any person making a wilfully false affirmation or declaration, in lieu of an oath, under statutory authority. In order that an indictment for the offence under consideration may be maintainable, it must appear that the alleged perjury was corrupt (that is, committed malo animo), wilful, positive, and absolute (x); not upon surprise, or the like: it must also have been in a point material to the question in dispute (y); for if it were only in some trifling collateral circumstance, it is no more penal than in the voluntary extrajudicial oaths already mentioned. Subornation of perjury is the offence of procuring another to take a false oath, as would constitute perjury in the principal (z). (665) *The statute 14 & 15 Vict. c. 100, s. 19, amending and extending the [*156] provisions of the 23 Geo. 3, c. 11, and 31 Geo. 3, c. 3, enacts, that it shall be lawful for a superior court of common law or equity, or any judge thereof, or for any justice, or commissioner of assizes, nisi prius, oyer and terminer, or gaol delivery, or for any justice of the peace, recorder or deputy recorder, chairman, or other judge, holding any general or quarter sessions of the peace, or for any commissioner of bankruptcy, or for any judge or deputy judge of any county court or any court of record, or for any justice of the peace (v) As to persons objecting on account of religious scruples to be sworn, see the following statutes: 9 Geo. 4, c. 32, s. 1; 3 & 4 Will. 4, cc. 49 and 82; 5 & 6 Will. 4, c. 62; 1 & 2 Vict. c. 77; also 1 & 2 Vict. c. 105, whereby every person is bound by the oath taken by him in any proceeding, civil or criminal, if taken in such form as he may declare to be binding; and may, in case of wilful false swearing, be convicted of perjury in the same manner as if the oath had been administered in the form and with the ceremonies commonly adopted; 17 & 18 Vict. c. 125, ss. 20, 21, and 24 & 25 Vict. c. 66, ss. 1, 2, by which persons refusing from conscientious motives to be sworn in civil and in criminal proceedings respectively are permitted to make a solemn affirmation or declaration in lieu of the ordinary oath. 32 & 33 Vict. c. 68, s. 4. (x) 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. Miller's Case, 3 Wils. 427; Hawk. P. C., b. 1, c. 69, s. 7, n. (a). False swearing, however, as to the legal operation of a deed is not indictable. R. v. Crespigny, 1 Esp. 280. (y) 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. P. C. b. 1, c. 69, s. 8. (2) 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. R. v. Hinton, 3 Mod. 122. But the criminal solicitation to commit perjury, though unsuccessful, is a misdemeanor at common law. 1 Hawk. P. C. c. 19, s. 10. In most of the States of the Union there are statutes relating to the subject of perjury, and in some of the States the statutes make the offense felony. See DeBernie v. The State, 19 Ala. 23; A. v. B., R. M. Charlt. (Ga.) 228. (665) See Com. v. Smith, 11 Allen (Mass.), 243, 256; U. S. v. Staats, 8 How. (U. S.) 41. In this offense the same rules as to materiality of testimony prevail as in perjury. Com. v. Smith, 11 Allen (Mass.), 243. And the offense of perjury must be actually committed by the person suborned, to render the suborner guilty. Com. v. Douglass, 5 Metc. (Mass.) 241; Stewart v. State, 22 Ohio St. 477. in special or petty sessions, or for any sheriff or his lawful deputy before whom any writ of inquiry or writ of trial from any of the superior courts shall be executed, in case it shall appear to him or them that any person has been guilty of wilful and corrupt perjury in any evidence given, or in any affidavit, deposition, examination, answer, or other proceeding made or taken before him or them, to direct such person to be prosecuted for such perjury, in case there shall appear to be a reasonable cause for such prosecution, and to commit such person so directed to be prosecuted until the next session of oyer and terminer or gaol delivery for the county or other district within which such perjury was committed, unless he shall enter into a recognisance to appear and take his trial according to the requirements of the act. 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, at the discretion of the court. The statutes below cited (a) have further empowered the court to award penal servitude for such offence. ing witnesses from giving evidence, &c. * XVIII. Other offences which may here be specified are the endeav[*157] ouring to dissuade a witness from giving evidence; the disclosing an XVIII. Dissuad- examination before the privy council; the advising a prisoner to stand mute, all of which are impediments of justice, are high misprisions, and contempts of the queen's courts, and punishable by fine and imprisonment (b). (666) Anciently it was held, that if one of the grand jury disclosed to any person indicted the evidence that appeared against him, he was thereby made accessory to the offence, if felony: and in treason a principal. And at this day it is agreed, that he is guilty of a high misprision (c), and is liable to be fined and imprisoned (d). (667) (a) 2 Geo. 2, c. 25; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47; et vide 5 Eliz. c. 9; 29 Eliz. c. 5, s. 2, and 21 Jac. 1, c. 28, s. 8; as to which, consult 26 & 27 Vict. c. 125. (b) The mere attempt to stifle evidence is criminal, though the persuasion should not succeed, on the principle now fully established, that an incitement to commit any The uncorroborated testimony of a perjured party is not sufficient to secure the conviction of the alleged suborner. People v. Evans, 40 N. Y. (1 Hand) 1; see Warren v. Haight, 62 Barb. 490. In some of the States subornation of perjury is, by statute, made a separate offense. See Com. v. Smith, 11 Allen (Mass.), 243. (666) The attempt to induce a witness to give false testimony, though unsuccessful, is an indictable offense. See 2 Bish. Crim. Law, § 1056. So, it is an indictable offense to dissuade a witness from attending the trial of a cause (State v. Carpenter, 20 Vt. 9; State v. Keys, 8 id. 57); or to spirit away a witness. See State v. Early, 3 Harr. (Del.) 562. (667) But a witness may now be indicted for perjury for swearing falsely before a grand jury (People v. Young, 31 Cal. 514; State v. Fassett, 16 Conn. 457; Thomas v. Com., 2 Rob. [Va.] 795); and the grand jurors are not only competent but compellable to give evidence of what was sworn to before them. State v. Broughton, 7 Ired. (N. C.) 96; Perkins v. State, 4 Ind. 222; Com. v. Hill, 11 Cush. (Mass.) 137; Com. v. Mead, 12 Gray (Mass.), 167; Hinde koper v. Cotton. 3 Watts (Penn.), 56. But see Imlay v. Rogers, 2 Halst. (N. J.) 347; State v. Baker, 20 Mo. 338. VOL. II.-55 XIX. Bribery. XIX. Bribery is a species of offence which may be levelled against public justice; as when a judge, or other person concerned in its administration, takes a reward to influence his behaviour in his office (e). (668) In the East it is the custom never to petition any superior for justice, not excepting their kings, without a present. This may be calculated for the genius of despotic countries; where the true principles of government are never understood, and it is imagined 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 [* 158] 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, 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 (f): not considering the insinuating nature and gigantic progress of this vice, when once admitted. Plato therefore more wisely, in his ideal republic (g), orders those who take presents for doing their duty to be punished in the severest manner: and by the laws of Athens he who offered was prosecuted, as well as he who received a bribe (h). 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 (i). But in judges, especially the superior ones, it has been always looked upon as a heinous offence, and by a statute of 11 Hen IV., it was enacted that all judges and officers of the king, convicted of bribery, should forfeit treble the bribe, be punished at the king's will, and be discharged from the king's service for ever (k). And some notable examples have been made in parliament, of persons in the highest stations, and otherwise very eminent and able, who were contaminated with this sordid vice (?). XX. Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like (m). (e) 1 Hawk. P. C. 168. It is equally a crime to give as to receive a bribe, and in many cases the attempt itself is an offence complete on the side of him who offers it. Thus an attempt to bribe a privy councillor to procure a reversionary patent of an office, grantable by the crown under the great seal, is indictable though it did not succeed. R. v. Vaughan, 4 Burr. 2491; cited in R. v. Pollman, 2 Campb. 229. (f) Dig. 48, 11, 6. (g) De Leg. 1. 12. (h) Pott. Antiq. b. 1, c. 23. (k) Ibid., 146. The statutes of 11 Hen. 4, are repealed by 26 & 27 Vict. c. 125. (See the proceedings against Lord Bacon, 2 St. Tr. 1087, and against Lord Macclesfield, 16 Id. 767. (m) 1 Hawk. P. C. 259. (668) Bribery is the voluntary giving or receiving of any thing of value in corrupt payment for an official act, done or to be done. 2 Bish. Crim. Law, § 85. And see Dishon v. Smith, 10 Iowa, 212. The offense is complete when an offer is made, although in a matter not within the jurisdiction of the officer. Id.; State v. Ellis, 33 N. J. (4 Vroom) 102. Judges, justices of the peace, and all ministerial officers are indictable for accepting or offering to accept any money or other benefit having a tendency to influence their official conduct. Com. v. Callaghan, 2 Va. Cas. 460; Com. v. Chapman, 1 id. 138; Barefield v. State, 14 Ala. 503, So it is an indictable offense to pay money to a voter to vote at an election for a particular candidate. Com. v. Shaver, 3 Watts & S. (Penn.) 338. Even the attempt to bribe is indictable (Com. v. Harris, 1 Leg. Gaz. Rep. [Penn.] 455); and where an offer is made by letter through the post-office, the writer commits a complete offense at the place he deposits the letter. United States v. Worrall, 2 Dall. 384. By the 6 Geo. 4, c. 50, s. 61, the offence of embracery of jurors, XX. Embracery and of jurors wilfully and corruptly consenting thereto, is punishable by fine and imprisonment. (669) [* 159] *XXI. Contempts against the royal palaces or against courts of justice, have always been looked upon as high misprisions; by the ancient law, before the conquest, fighting in the king's palace, XXI. Contempts against courts or before the king's judges, was punished with death (n): and by of justice. the 25 Edw. 3, st. 5, c. 2, slaying the chancellor or a justice of either bench sitting in the discharge of his judicial duty was constituted treason (0). So too, according to the old Gothic constitutions, there were many places privileged by law, quibus major reverentia et securitas debetur, ut templa et judicia, quæ sancta habebantur,-arces et aula regis,—denique locus quilibet præsente aut adventante rege (p). And, with us, by the statute 33 Hen. 8, c. 12, malicious striking in the king's palace, wherein his royal person resided, whereby blood was drawn, was punishable by perpetual imprisonment, and fine at the king's pleasure; and also with loss of the offender's right hand, the solemn execution of which sentence is prescribed in the statute at length (q). Striking in the superior courts of justice, in Westminster-hall, or at the assizes, was still more penal than even in the king's palace. The reason seems to be, that these courts being anciently held in the king's palace, striking there included the former contempt against the king's palace, and something more; viz. the disturbance of public justice. For this reason, by the ancient common law before the conquest (r), striking in the king's courts of justice, or drawing a sword therein, was a capital *felony; and our modern law retains so much of the ancient severity [* 160] as only to exchange the loss of life for the loss of the offending limb. Therefore a stroke or blow in such a court of justice, whether blood be drawn or not, or even assaulting a judge sitting in the court, by drawing a weapon, without any blow struck, is in strictness punishable with the loss of the right hand, imprisonment for life, and forfeiture of goods and chattels, and of the profits of the offender's lands during life (s). A rescue also of a prisoner from any of the said courts, without striking a blow, is punishable with perpetual imprisonment, and forfeiture of goods, and of the profits of lands during life (t): being looked upon as an offence of the same nature with the last; but only, as no blow is actually given, the amputation of the hand is excused. For Actual violence. (n) 3 Inst. 140. Leg. Alfred. cap. 7; Leg. Canuti, cap. 60. (0) See also 7 Ann. c. 21; 1 Hale, P. C. 231. (p) Stiernh. de Jure Goth. 1. 3, c. 3. (g) See the trial of Sir Edmond Knevet, who was prosecuted soon after the above statute had been enacted, though whether under its provisions seems doubtful. After pleading guilty the accused was pardoned. 1 St. Tr. 443. The 33 Hen. 8, c. 12, was repealed by the 9 Geo. 4, c. 31, so far as regards ss. 6-18, which prescribed the punishment for the above offence. (r) Leg. Inæ. c. 6; Leg. Canut. c. 65; Leg. Alfred. c. 7. (8) Staund. P. C. 38; 3 Inst. 140, 141. (669) To approach jurymen for the purpose of intimidating or influencing them is, at common law, an indictable offense. See Com. v. Simons, 6 Phila. (Penn.) 167; McCullough v. Com., 67 Penn. St. 30; Com. v. Craws, 3 Penn. Law Jour. 459. See State v. Sales, 2 Nev, 268. In the federal courts the offense has, by a statute of the United States, a specific penalty. See 2 Whart. Crim. Law, § 3447. the like reason, an affray, or riot, near the said courts, but out of their actual view, is punishable only with fine and imprisonment (u). Not only such as are guilty of an actual violence, but those also who use threatening or reproachful words to any judge sitting in court, are guilty of a high misprision, and have been punished with large fines, imprisonment and corporal punishment (x). And, even in inferior courts, an affray [*161] or contemptuous behaviour is punishable with a fine by the judge there sitting; as by the steward in a court-leet, or the like (y). A libel upon the administration of justice, moreover, is clearly indictable (z). Likewise all such, as are guilty of any injurious treatment to those who are immediately under the protection of a court of justice, are punishable by fine and imprisonment: as if a man assaults or threatens his adversary for suing him, a counsellor or attorney for being employed against him, a juror for his verdict, or a gaoler or other ministerial officer for keeping him in custody, and properly executing his duty (a): which offences, when they proceeded farther than bare threats, were punished in the Gothic constitutions with exile and forfeiture of goods (b). (670) (u) Waller's Case, Cro. Car. 373. Lord Thanet and others were prosecuted by an information filed by the attorney-general for a riot at the trial of Arthur O'Connor and others for high treason under a special commission at Maidstone. Two of the defendants were found guilty generally. The three first counts charged (inter alia) that the defendants did riotously make an assault on one J. R., and did then and there beat, bruise, wound, and ill-treat the said J. R. in the presence of the commissioners. When the defendants were brought up for judgment, Lord Kenyon expressed doubts, whether upon this information the court was not bound to pronounce the judgment of amputation of (x) Harrison's Case, Cro. Car. 503. (z) R. v. Johnson, 29 St. Tr. 81. (b) Stiernh. de Jure Goth. 1. 3, c. 3. (670) The power to punish for a contempt is inherent in all courts of record (Batchelder v. Moore, 42 Cal. 412; Morrison v. McDonald, 21 Me. 550; Stuart v. People, 3 Scam. [111.] 395; Watson v. Williams, 36 Miss. 331; State v. Matthews, 37 N. H. 450; Ex parte Smith, 28 Ind. 47; In re Moore, 63 N. C. 397; Yates v. Lansing, 9 Jehns. 385); and the authority is held to extend to justices of the peace acting judicially. State v. Applegate, 2 McCord (S. C.), 110; State v. Copp, 15 N. H. 212; Lining v. Bentham, 2 Bay (S. C.), 1; State v. Johnson, id. 385; In re Cooper, 32 Vt. 253. But see Brooker v. Com., 12 Serg. & R. (Penn.) 175; Fitler v. Probasco, 2 Browne (Penn.), 137; Richmond v. Dayton, 10 Johns. 393; People v. Webster, 3 Park. 503. The power to punish contempts also extends to the Senate and House of Representatives of the United States (Anderson v. Dunn, 6 Wheat. 204); and to the corresponding legisla tive bodies of the respective States. State v. Matthews, 37 N. H. 450; Burnham v. Morrissey 14 Gray (Mass.), 226; Falvey v. Massing, 7 Wis. 630. See a most interesting case of this kind, in which a justice of the Supreme Court of the State of New York was summoned before the legislature for an alleged contempt, and in which the judge vindicated the rights of the judiciary in an able, learned and dignified manner. In re Potter, 55 Barb. 625. A contempt is direct when committed before and in the presence of, or so near to the court as to interrupt the proceedings; and such contempts are summarily punished in a summary manner, without evidence, but upon the view and personal knowledge of the presiding judge. Stewart v. People, 3 Scam. (Ill.) 395; Whittem v. The State, 36 Ind. 196. Thus, any disrespectful or insolent behavior toward the presiding judge; any breach of order, decency, or decorum by persons present; or any assault made in view of the court, may be punished summarily. See St. Clair v. Piatt, Wright (Ohio), 532; People v. Turner, 1 Cal. 152; Ex parte Summers, 5 Ired. (N. C.) 149. For further illustrations see State v. |