« EelmineJätka »
and the same if a ferry-man take more than is due by custom for the use of his ferry. (e) And it was held that if the farmer of a market erects so many stalls, as not to leave sufficient room for the market people to stand and sell their wares, so that for want of room they are forced to hire the stalls of the farmer, the taking money for the use of the stalls in such case is extortion. (f)
In a recent case it was decided, that the question of exemption from toll could not be tried on an indictment against a turnpikekeeper for extortion in taking the toll; the general right to demand toll not having been denied, nor the ground of exemption notified,
at the time when the toll was taken. (8) 33 G. 3. c. 52. The 33 Geo. 3. c. 52. s. 62. enacts that the demanding or reEast Indies.
ceiving any sum of money, or other val able thing, as a gift or present, or under colour thereof, whether it be for the use of the party receiving the same, or for or pretended to be for the use of the East India Company, or of any other person whatsoever, by any British subject holding or exercising any office or employment under his Majesty, or the company, in the East Indies, shall be deemed to be extortion and a misdemeanor at law, and punished as such. The offender is also to forfeit to the king the present so received, or its full value : but the court may order such present to be restored to the party who gave it, or may order it, or any part of it, or of any fine which they shall set upon the offender, to
be paid to the prosecutor or informer. Two persons
Two persons may be indicted jointly for extortion where no fee
was due ; and there are no accessories in this offence. In a case dicted jointly for extortion, where the indictment was against the chancellor and also against and there are the registrar of a bishop, it was objected that the offices of the deno accessories. fendants were distinct, that what might be extortion in one might
not be so in the other, and that therefore the indictment ought not to be joint. But by Parker, C. J. this would be an exception if they were indicted for taking more than they ought; but it is only against them for contriving to get money where none is due : and this is an entire charge. For there are no accessories in extortion : but he that is assisting is as guilty as the extortioner, as
he that is party to a riot is answerable for the act of others. (1) Trial.
It is said, that an indictment for extortion may be laid in any county by the 31 Eliz. c. 5. 8. 4.: (i) but this position has been questioned. (k) It may be tried and determined by justices of the peace at their sessions by virtue of the term extortions” in
Their commission. (1) The indictment must state a sum which Not material the defendant received: but it is not material to prove the exact to prove the
sum as laid in the indictment; so that if a man be indicted for exact sum laid.
taking extorsively twenty shillings, and there be proof but of one shilling, it will be sufficient. (m) And the extorsive agreement is
may be in
(e) Rex v. Roberts, 4 Mod. 101. Rex v. Atkinson and another, Lord (f) Rex v. Burdett, 1 Lord Raym. Raym. 1248. 1 Salk. 382.
(1) i Hawk. P.C. c. 68. s. 6. note(s); (8) Rex v. Hamlyn, 4 Campb. 379. 2 Burn's Just. 344, Extortion, Stark.
(h) Rex v. Loggen and another, 1 Crim. Plead. 585, note (k). Str. 75. Qu. Whether this was not an (k) 2 Hawk. P. C. c. 26. s. 50. 2 Chit. indictment for a conspiracy to de- Crim. Law, 294, in the note. fraud, and not for extortion. But as (1) Rex v. Loggen and another, 1 to the rule that several persons may Stra. 73. be jointly indicted for extortion, see (m) Rex v. Burdett, I Lord Raym.
not the offence, but the taking ; for a pardon after the agreement, and before the taking, does not pardon the extortion. (n)
The offence of extortion is punishable at common law by fine Punishment. and imprisonment; and also by a removal from the office in the execution of which it was committed; (0) and there is a further additional punishment by the statute of Westm. 1. c. 26. by which it is enacted “that no sheriff nor other king's officer shall take “any reward to do his office, but shall be paid of that which they “take of the king; and that he who so doth shall yield twice as
much, and shall be punished at the king's pleasure.” (p) And an action lies to recover this double value. (9)
The refusal of persons to execute ministerial offices to which Refusal to exethey are duly appointed, and from the execution of which they cute oflices. have no proper ground of exemption, seems in general to be an indictable offence. Thus it has been held to be indictable for a constable, after he has been duly chosen, to refuse to execute the office, (r) or to refuse to take the oath for that purpose. (s) And the statute 1 Geo. 4. c. 37. which authorizes justices in cases of tumult, riot, &c. to appoint special constables, enacts by s. 2. that any person appointed and neglecting to take the office, and act, shall be liable to the same punishment as persons refusing the ofice of constable. So a person is indictable for refusing to take upon himself the office of overseer of the poor. (t) For though the statute 43 Eliz. c. 2. says only that certain persons therein described shall be overseers, and gives no express indictment for a refusal of office; yet upon the principles of common law, which are that every man shall be indicted for disobeying a statute, the refusal to serve when duly appointed is indictable. (u) But there should be previous notice of the appointment; and the indictment should shew that the defendant was bound to undertake the office by setting forth how he was elected. (w) And if an indictment for refusing to serve the office of constable on being thereto chosen by a corporation do not set forth the prescription of the corporation so to choose, it is bad; for a corporation has no power of common right to choose a constable. (2) 149; and see Rex v. Gillham, 6 T. R. 7 Mod. 410. I Bott. 338. 267.
(u) Rex v. Jones, 1 Bott. 338. (n) By Holt, C. J. in Rex v. Burdett, (w) Rex v. Harpur, 5 Mod. 96. In I Lord Raym. 149.
Rex v. Burder, 4 T. R. 778. it was (0) 1 Hawk. P.C. c. 68. s. 5. 3 Bac. held that an appointment of an overAbr. 109. Extorlion.
seer of the poor for the year next en(p) By the “ king's pleasure" is suing must be understood to be for meant by the king's justices before the overseer's year: and an indictwhom the cause depends, and at their ment that the defendant was appointed discretion, 2 Inst. 210.
overseer of the poor of the parish (9) 3 Com. Dig. 323.
" of A.," and that he afterwards re(r) Rex v. Lowe, 2 Stra. 92. Rex v. fused “ to take the said office of overChapple, 3 Campb. 91. Rex v. Genge, seer of the parish to which he was Cowp. 13. Rex v. Clerke, 1 Keb. 393. so appointed,” was held good on (s; Rex o. Harpur, 5 Mod. 96. Flet- demurrer. Ingram, 5 Mod. 127.
(x) Rex v. Bernard, 2 Salk. 52. I (1) Rex v. Jones, 2 Stra. 1145. S.C. Lord Raym. 94.
CHAPTER THE FIFTEENTH.
OF BUYING AND SELLING OFFICES.
CONCERNING the sale of offices of a public nature, it has been well observed, that nothing can be more palpably prejudicial to the good of the public, than to have places of the highest concernment, on the due execution whereof the happiness of both king and people depends, disposed of, not to those who are most able to execute them, but to those who are most able to pay for them ; nor can any thing be a greater discouragement to industry and virtue than to see those places of trust and honour, which ought to be the rewards of persons who by their industry and diligence have qualified themselves for them, conferred on those who
have no other recommendation but that of being the highest bidders; neither can any thing be a greater temptation to officers to abuse their power by bribery and extortion, and other acts of injustice, than the consideration of having been at a great expense in gaining their places, and the necessity of sometimes straining a point to
make their bargain answer their expectations. (a) Offence at The buying and selling of such offices has therefore been concommon law. sidered as an offence malum in se, and indictable at common
law. (b) In a late case of an indictment for a conspiracy to obtain money, by procuring from the lords of the treasury the appointment of a person to an office in the customs, it was proposed to argue on behalf of one of the defendants, that the indictment was bad on the face of it, as it was not a misdemeanor at common law to sell or to purchase an office like that of coastwaiter. But Lord Ellenborough, C. J. said that if that were to be made a question, it must be debated on a motion in arrest of judgment, or on a writ of error: but that, after reading the case of Rex v. Vaughan, (c) it would be very difficult to argue that the offence charged in the indictment was not a misdemeanor. And Grose, J. afterwards, in passing sentence, said that there could be no doubt but that the cffence charged was clearly a misdemeanor
at common law. (d) Attempt to The case of Rex v. Vaughan, cited by Lord Ellenborough, was bribe a minis- an uttempt only to bribe a cabinet minister and a meniber of the ter to give an office.
(a) 1 Hawk. P. C. c. 67. s. 3. 5 Bac. (c) 4 Burr. 2494. Abr. 191, Offices and Officers.
(d) Rex v. Pollman and others, 8 (6) Stockwell v. North, Noy. 102. Campb. 229. Moor 781. S.C.
privy council to give the defendant an office in the colonies. (e) And in a case where the defendant, who was clerk to the agent for the French prisoners of war at Porchester Castle, took bribes in order to procure the exchange of some of them out of their turn, it appears to have been made the subject of an indictment. (S)
But it has been endeavoured to prevent the mischiefs of buying Statutes. and selling offices, by the enactments of several statutes. The 12 Rich. 2. c. 2. enacted “that the chancellor, treasurer, 12 Rich.2.c.2.
Chancellor, "keeper of the privy seal, steward of the king's house, the king's Scan be “chamberlain, clerk of the rolls, the justices of the one bench swornthatthey " and of the other, barons of the exchequer, and all other that will not make “shall be called to ordain, name or make, justices of the peace, gift, &c.
officers for any “sheriffs, escheators, customers, comptrollers, or any other officer
or minister of the king, shall be firmly sworn that they shall “not ordain, name, or make, any of the above-mentioned officers " for any gift or brokage, favour or affection; nor that none " which pursueth by himself, or by other, privily or openly, to be
in any manner of office, shall be put into the same office, or in "any other, but that they make all such officers and ministers of “the best and most lawful men, and sufficient to their estimation " and knowledge." (g)
The 4 Hen. 4. c. 5. ordained “ that no sheriff shall let his 4 Hen. 4. c. 5. “ bailiwick to farm to any man for the time that he occupieth « such office.'
But a principal statute relating to this subject is the 5 & 6'Ed. 6. 5 & 6 Ed. 6. c. c. 16., which, for the avoiding corruption which might thereafter 26,lin Persones happen in the officers, in places wherein there is requisite to be relating to the had the true administration of justice or services of trust, and to administration the intent that persons worthy and meet to be advanced should of justice, &c.
shall forfeitthe thereafter be preferred, enacts, that if any person bargain or sell office, and be any office, or deputation of office, or take any money or profit disabled to
have such ofdirectly or indirectly, or any promise, &c. bond, or any assurance to receive any money, &c. for any office or deputation of office, or to the intent that any person should have, exercise, or enjoy, any office, or the deputation of any office, which office, or any part or parcel thereof, shall in anywise concern the administration or execution of justice, or the receipt, controlment, or payment of the king's treasure, rent, revenue, &c. or any the king's customs, or the keeping the king's towns, castles, &c. used for defence, or which shall concern any clerkship in any court of record where justice is ministered; the offender shall not only forfeit all his right to such office or deputation of office, but also shall be adjudged a person disabled to have, occupy, or enjoy, such office or deputation. The statute further enacts that such bargains, sales, bonds, agreements, &c. shall be void ;(h) and pro
(e) 4 Burr. 2494. A criminal in- (f) Rex v. Beale, cited in Rex v. formation was granted against the Gibbs, 1 East. R. 183. defendant for offering the Duke of (g) For the exposition of this staGrafton, then first lord of the trea- tule see the Earl of Macclesfield's trial, sory, the sum of 50001. as a bribe to 6 Sta. Tri. 477. 16 Howell's Sta. Tri. procure the reversion of the office of 767. clerk of the supreme court of the (h) Sect. 3. island of Jamaica.
vides that the act shall not extend to any office whereof any per-
by them as they might have done before the making of this act.(k) Cases decided
It has been held that the offices of chancellor, registrar, and upon this sta- commissary in ecclesiastical courts, are within the meaning of this
statute ;(I) also the place of cofferer, (m) and that of surveyor of
2. B. R. 5 Bac. Abr. 195. Offices and
(7) See I H. Blac. 396., where it is
that the case in 2 Vern, is contrary to
(y) Purdy v. Stacy, 5 Burr. 2698.
and see 5 Bac. Abr. 195. Offices and
Officers (F). But if the office, though (p) Law v. Law, Cas. temp. Talb. in the plantations, had been granted 3 P. Wms. 391. S. C.
under the great seal of England the (9) Macarty v. Wickford, Trin. 9 G. sale of it would have been held cri