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[death of an innocent person has been actually the consequence of such wilful perjury it falls within the guilt of deliberate murder, and deserves an equal punishment; which, it has been said, our antient law in fact inflicted (ƒ). But the mere attempt to destroy life by other means not being capital, there is no reason that an attempt by perjury should be so (g); and therefore, it seems, except perhaps in the instance of deliberate murder by perjury, sufficiently punished by our present law; which has adopted the opinion of Cicero, derived from the law of the Twelve Tables, “perjurii pœna divina exitium, humana dedecus” (h).]

XVI. One species of the offence of bribery is committed when a judge, or other person concerned in the administration of justice, takes any reward to influence his behaviour in his office (i). [In the east, it is the custom never to petition any superior for justice, not excepting even 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. Plato, therefore, more wisely, in his

"to frighten. Evidence was given "that a pistol ball was found "lodged in the trunk of a tree "nearly in the line from where "the accused fired to where the "prosecutor stood. It was after"wards discovered that the ball "had been placed in the tree by "those concerned in the prosecu"tion, in order to supply the "missing link in the prosecution." (f) Britton, c. 5. Vide sup. p. 68, n. (x).

(g) As to attempts to murder, vide sup. p. 79.

(h) De Leg. 2, 9. Until recently the pillory, which had been abolished

in all other cases by 56 Geo. 3, c. 138, was retained for the punishment of perjury and subornation. But this punishment was altogether abolished by 7 Will. 4 & 1 Vict. c. 23. Another consequence that attended a conviction for this crime, until a recent period, was a perpetual disability to bear testimony. But a witness cannot now be excluded from being heard by reason of his having been convicted of crime. Such fact only affects his credibility. (See 6 & 7 Vict. c. 85.)

(i) 3 Inst. 145; Hawk. P. C. b. 1,

c. 67.

[ideal republic, orders those who take presents for doing their duty, to be punished in the severest manner (j); and by the law of Athens, he that offered was prosecuted for the offence, as well as he that received a bribe (k). 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; as it allowed the magistrate to receive small presents, provided they did not in the whole exceed one hundred crowns in a year,— not considering the insinuating nature and gigantic progress of this vice when once admitted (1). 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, by the same (m).] But in judges, it hath always been looked upon as particularly heinous; and there is even a tradition that in the reign of Edward III. Chief Justice Thorpe was hanged for this offence (n). [By a statute of the eleventh year of Henry the fourth, 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 (o). And some notable examples have been made in

(j) De Leg. 1. 12.

(k) Pott. Antiq. b. 1, c. 23. (7) Ff. 48, 11, 6.

(m) 3 Inst. 147. The Report of the Criminal Code Bill Commission (p. 21) says, in reference to the offence of corruption in ministerial officers connected with the administration of justice, that "recent 66 experience has shown that the "punishment awarded to such of"fences by the common law, is not "sufficiently severe."

(n) Blackstone (vol. iv. p. 140) says he was actually hanged; but

Lord Coke (3 Inst. 145) denies that Thorpe was hanged, or could be hanged, for this offence; and Lord Campbell, in his Lives of the Chief Justices (vol. i. p. 91) considers the tradition that sentence of death was actually passed on him, to be unfounded; and to have been invented by Oliver St. John in inveighing against the judges who, in the reign of Charles I., decided in favour of the legality of shipmoney.

(0) See 3 Inst. 147.

[parliament, of persons in the highest stations, and otherwise very eminent and able, but contaminated with this sordid vice (p).

XVII. Another misdemeanor of the same species, is the negligence of public officers intrusted with the administration of justice and the maintenance of public order,as sheriffs, coroners, constables, and the like, — which makes the offender liable to be fined: and in notorious cases, will amount to a forfeiture of his office, if it be a beneficial one (q).

XVIII. There is yet another offence against public justice, which is a misdemeanor 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 otherwise, (according to the rank of the offenders), it is sure to be severely punished with forfeiture of office either consequential or immediate; together with fines, imprisonment, or other discretionary censure, regulated by the nature and aggravations of the offence committed (r).

(p) It is remarked in the Report just mentioned (p. 20), in reference to the offence of judicial corruption, that "as no case of the "kind has occurred (if we except "the prosecutions of Lord Bacon "and Lord Macclesfield) it is not "surprising that the law on the sub"ject should be somewhat vague." As to the offence of bribery and corruption at elections, vide sup. vol. I. p. 377. As to bribery of custom house officers, see 39 & 40 Vict. c. 36, s. 217; of excise officers,

7 & 8 Geo. 4, c. 53, s. 12. As to bribery of public officers in the East Indies, see 33 Geo. 3, c. 52, s. 62.

(9) Hawk. P. C. b. 1, c. 66; and see R. v. Pinney, 3 B. & Ad. 946; R. v. Neale, 9 Car. & P. 431.

(r) Hawk. P. C. b. 1, c. 68; and see R. v. Holland, 5 T. R. 607. Such a prosecution, unless in a case of parliamentary impeachment, would take place by information in the Queen's Bench Division of the High Court of Justice.

[XIX. Lastly, extortion is an abuse affecting the administration of justice; and it 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 for this misdemeanor is fine and imprisonment, and sometimes a forfeiture of the office (s).]

(s) See 3 Edw. 1, c. 26; 3 Inst. 145; R. v. Gilham, 6 T. R. 265; R. v. Jones, 2 Camp. 131. As to extortion by British subjects in the East Indies, in receiving gifts,

see 33 Geo. 3, c. 52, s. 62; Re

Capt. Douglas, 3 Q. B. 825;
Douglas v. Queen, 13 Q. B. 74.
And see on the subject of extor-
tion in general, Bac. Abr. tit.
Fees; Jac. L. Dict. Extortion, &c.

CHAPTER IX.

OF THE MEANS OF PREVENTING OFFENCES.

[WE are now arrived at the fifth general branch or head, under which we were to consider the subject of this Book of our Commentaries (a): viz., the means of preventing the commission of crimes and misdemeanors and really it is an honour, and almost a singular one, to our English laws, that they furnish a title of this sort; since preventive justice is, upon every principle of reason, of humanity and of sound policy, preferable, in all respects, to punishing justice (b); the execution of which, though necessary, and in its consequences a species of mercy to the commonwealth, is always attended with many harsh and disagreeable circumstances.

This preventive justice chiefly consists in obliging those persons, whom there is a probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen: and that, by their finding pledges, or securities for keeping the peace; or for their good behaviour (c).

By the Saxon constitutions these sureties were always at hand, by means of King Alfred's wise institution of decennaries or frank pledges; wherein, as has more than once been observed, the whole neighbourhood, or tithing,

(a) Vide sup. p. 2. (6) Beccar. ch. 41.

(e) The 34 & 35 Vict. c. 112, is entitled "An Act for the more effectual Prevention of Crime," but its provisions do not come within the scope of this chapter.

They have reference chiefly to convicts holding licences under the Penal Servitude Acts; the better identification of criminals; and the punishments of persons twice convicted of crime.

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