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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”, orders those who take presents for doing their duty to be [ 140 ] punished in the severest manner: And by the laws of Athens he that offered was also prosecuted, as well as he that received a bribeo. 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 heinous an offence, that the chief justice Thorpe was hanged for it in the reign of Edward III. (18) By a statute 9 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 for ever. And some notable examples have been made in parliament, of persons in the highest stations, and otherwise very eminent and able, but contaminated with this sordid vice.
18. EMBRACERY is an attempt to influence a jury corruptly to one side by promises, persuasions, [threats,] entreaties, money, entertainments, and the like'. 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) m Fr. 48.11. 6.
P 3 Inst. 147. • De Leg. 1.12.
9 Ibid. 146. • Pott. Antiq. b.l. c.23.
ri Hawk. P.C. c.85. $ 1. (18) Lord Coke (3 Inst. 145.) denies that Thorpe was hanged, or could be hanged, for this offence, though he was certainly condemned to be hanged; and he cites the Parliament Rolls, 10R. 2. 24., to shew that he was then pardoned and restored to all his lands.
(19) It is criminal even to instruct a jury beforehand in the merits of the cause : they are to be influenced only by the strength of evidence, and the arguments of counsel in open court at the trial of the cause.
19. The false verdict of jurors, whether occasioned by embracery or not, was antiently considered as criminal, and therefore exemplarily punished by attaint in the manner formerly mentioned
20. ANOTHER offence of the same species is the negligence of public officers, entrusted 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'. Also the omitting to apprehend persons offering stolen [ 141 ] iron, lead, and other metals to sale, is a misdemesnor, and
punishable by a stated fine, or imprisonment, in pursuance of the statute 29 Geo. II. c. 30. (20)
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
See Vol. III. p. 402, 403. ' 1 Hawk. P.C. c.66. $2.
(20) By the 226.3. c. 58. S. 4., the spirit of this clause is extended to all stolen goods; it enaets, that every person to whom any stolen goods shall be offered for sale, or custody, or in pawn, shall, upon reasonable cause to suspect that they were stolen, apprehend the party, and carry him before a justice of the peace. It was probably intended by this statute to enable any individual to arrest a person who offered goods for sale under suspicious circumstances, and this would have been an enlargement of the common law; but by inserting the word “stolen” before “goods," it is questionable whether it is not made a condition precedent that a felony should have been committed as to the goods by some one. If so, the clause is almost nugatory, because by the common law, where a felony has been committed, he that suspects, upon reasonable grounds, A to be that felon, will be justified in apprehending hini, though, in fact, A should be innocent. Hale, H.P.C. 2.78.
discretionary censure, regulated by the nature and aggravations of the offence committed. (21)
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 ". The punishment is fine and imprisonment, and sometimes a forfeiture of the office.
u 1 Hawk. P.C. c. 68. $ 1.
(21) See post, 259. and Vol. I. p. 354. In order to provide for the due punishment of all malversations in office by governors and magistrates in the subordinate members of the empire, who could not at common law be tried in this country where their offences had not been committed, and for whose trial there may be often no competent tribunal in the province itself, the 42 G. 3. c. 85. has provided that all offences committed by any person employed abroad in the service of his majesty in any public station civil or military, may be prosecuted in the K. B. in England, the offence to be laid as if committed in Middlesex; and, besides the punishment which the party would have suffered for the same crime in England, he is made liable, at the discretion of the court of K. B., to be adjudged incapable of ever serving his majesty again. Other sections provide for the mode of procuring evidence from abroad. And the last section pro. vides, that where the party injured by such offender proceeds against him civilly for damages, he may lay the fact to have been committed in Westminster, or in any county where the defendant shall then reside.
CHAPTER THE ELEVENTH.
OF OFFENCES AGAINST THE PUBLIC
E are next to consider offences against the public peace ;
the conservation of which is intrusted to the king and his officers, in the manner and for the reasons which were formerly mentioned at large. These offences are either such as are an actual breach of the peace; or constructively so, by tending to make others break it. Both of these species are also either felonious, or not felonious. The felonious breaches of the peace are strained up to that degree of malignity by virtue of several modern statutes : and, particularly,
1. The riotous assembling of twelve persons, or more, and not dispersing upon proclamation. This was first made high treason by statute 3 & 4 Edw. VI. c.5., when the king was a minor, and a change in religion to be effected: but that statute was repealed by statute 1 Mar. c.1., among the other treasons created since the 25 Edw. III. ; though the prohibition was in substance re-enacted, with an inferior degree of punishment, by statute 1 Mar. st. 2. c.12., which made the same offence a single felony. These statutes specified and particularized the nature of the riots they were meant to suppress; as, for example, such as were set on foot with intention to offer violence to the privy council, or to change the laws of the kingdom, or for certain other specific purposes : in which cases, if the persons were commanded by proclamation to disperse, and they did not, it was by the statute of Mary made felony, but within the benefit of clergy; and also the act indemnified the peace officers and their assistants, if they killed any of the mob in endeavouring to suppress such riot. This was thought a necessary security in that sanguinary reign, when popery was intended to be re-established, which was likely to produce great discontents : but at first it [ 143 ] was made only for a year, and was afterwards continued for that queen's life. And, by statute 1 Eliz. c.16., when a reformation in religion was to be once more attempted, it was revived and continued during her life also; and then expired. From the accession of James the first to the death of queen Anne, it was never once thought expedient to revive it : but, in the first year of George the first, it was judged necessary, in order to support the execution of the act of settlement, to renew it, and at one stroke to make it perpetual, with large additions. For, whereas the former acts expressly defined and specified what should be accounted a riot, the statute i Geo. I. st. 2. c.5. enacts, generally, that if any twelve persons are unlawfully assembled to the disturbance of the peace, and any one justice of the peace, sheriff, under-sheriff, or mayor of a town, shall think proper to command them by proclamation to disperse, if they contemn his orders and continue together for one hour afterwards, such contempt shall be felony without benefit of clergy. And farther, if the reading of the proclamation be by force opposed, or the reader be in any manner wilfully hindered from the reading of it, such opposers and hinderers are felons without benefit of clergy: and all persons to whom such proclamation ought to have been made, and knowing of such hinderance, and not dispersing, are felons without benefit of clergy. There is the like indemnifying clause, in case any of the mob be unfortunately killed in the endeavour to disperse them ; being copied from the act of queen Mary. And, by a subsequent clause of the new act, if any persons, so riotously assembled, begin even before proclamation to pull down any church, chapel, meeting-house, dwelling-house, or out-houses, they shall be felons without benefit of clergy. (1)
a Vol. I. p. 118. 268. 350.