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CHAPTER THE TWENTY-FIRST.
OF EMBRACERY, AND DISSUADING A WITNESS FROM GIVING
EMBBACERY is another species of maintenance, and consists in Embracerysuch practices as tend to affect the administration of justice by Corrupting or
influencing improperly working upon the minds of jurors. It seems clear that any attempt whatsoever to corrupt or influence, or instruct a jury in the cause beforehand, or in any way to incline them to be more favourable to the one side than to the other by money, promises, letters, threats, or persuasions, except only by the strength of the evidence and the arguments of the counsel in open Court, at the trial of the cause, is a proper act of embracery, whether the jurors on whom such attempt is made give any verdict or not, or whether the verdict given be true or false. (a) .And it has been adjudged that the bare giving of money to another, to be distributed among jurors, is an offence of the nature of embracery, whether any of it be afterwards actually so distributed or not. It is also clear that it is as criminal in a juror as in any other person to endeavour to prevail with his companions to give a verdict for one side by any practices whatsoever; except only by arguments from the evidence which may have been produced, and exhortations from the general obligations of conscience to give a true verdict. And there can be no doubt but that all fraudulent contrivances whatsoever to secure a verdict are high offences of this nature; as where persons by indirect means procure themselves or others to be sworn on a tales in order to serve one side. (6)
It is said that generally the giving of money to a juror after the verdict, without any precedent contract in relation to it, is an offence savouring of the nature of embracery: but this does not apply to the reasonable recompence usually allowed to jurors for their expenses in travelling. (c)
The law will not suffer a mere stranger so much as to labour a How far jusjuror to appear, and act according to his conscience: but it seems tifiable. clear that a person who may justify any other act of maintenance,(d) may safely labour a juror to appear and give a verdict according to his conscience; but that no other person can justify intermeddling
so far. And no one whatsoever can justify the labouring a juror
not to appear. (e) Punishment of Offences of this kind subject the offender to be indicted and embracery.
punished by fine and imprisonment in the same manner as all other kinds of unlawful maintenance do by the common law. They are also restrained by statutes: the 5 Edw. 3. c. 10. enacting that any juror taking of the one party or the other, and being duly attainted, shall not be put in any assizes, juries, or inquests, and shall be commanded to prison, and further ransomed at the king's will; and the 34 Edw. 3. c. 8. enacting that a juror attainted of such offence shall be imprisoned for a year. A subsequent statute 38 Edw. 3. c. 12. enacts that if any jurors, sworn in assizes and other inquests, take any thing, and be thereof attainted, every such juror shall pay ten times as much as he hath taken. - And that “ all the embraceors to bring or procure such inquest in the coun“ try, to take gain or profit, shall be punished in the same manner “ and form as the jurors; and if the juror or embraceor so attainted " have not whereof to make gree in the manner aforesaid, he shall “ have the imprisonment of one year.” (g) The statute 32 Hen. 8. c. 9. also enacts that no person shall embrace any freeholders or jurors upon pain of forfeiting ten pounds, half to the king, and
half to him that shall sue within a year. Dissuading a All who endeavour to stifie the truth, and prevent the due witness from giving evi
execution of justice, are highly punishable; and therefore the disdence.
suading or endeavouring to dissuade a witness from giving evidence
(h) 1 Hawk. P. C. c. 21. s. 15. Rex (f) Id. s. 7. 4 Bl. Com. 140. v. Lawley, 2 Str. 904. See as to mere
(g) Upon the construction of these allempts to commit crimes, ante, p. statutes, and respecting the action of 44,45. And see an indictment for disdecies tantum, see 1 Hawk. P. C. c. 85. suading a witness from giving evidence s. 11. et sequ. And see also 32 Hen. 8. against a person indicted, 2 Chit. Crim. c. 9. which enacts that all statutes L. 235: aud an indictment for a contheretofore made concerning mainte- spiracy to prevent a witness from givnance, champerty, and embracery, or ing evidence, Rex v. Steventon and any of them, then standing and being in others, 2 East. R. 369. And see Rex their full strength and force, shall be v. Edwards, post, Book V. Chap. i. put in due execution.
CHAPTER THE TWENTY-SECOND.
OF BARRATRY, AND OF SUING IN THE NAME OF A FICTITIOUS
A BARRATOR is defined to be a common mover, exciter, or main- Definition of tainer, of suits or quarrels, in courts of record, or other courts, as barratry. the county court, and the like; or in the country, by taking and keeping possession of lands in controversy, by all kinds of disturbance of the peace, or by spreading false rumours and calumnies whereby discord and disquiet may grow among neighbours. (a) But one act of this description will not make any one a barrator, What persons as it is necessary in an indictment for this offence to charge the may commit defendant with being a common barrator, which is a term of art "
+ the offence. appropriated by law to this crime. (b) It has been holden, that a man shall not be adjudged a barrator in respect of any number of false actions brought by him in his own right:(c) but this is doubted, in case such actions be merely groundless and vexatious, without any manner of colour, and brought only with a design to oppress the defendants. (d)
An attorney cannot be deemed a barrator in respect of his maintaining another in a groundless action, to the commencing whereof he was in no way privy. (e) And it seems to have been holden that a feme covert cannot be indicted as a common barrator: (f) but this opinion is considered as questionable. (g)
In an indictment for this offence it seems to be unnecessary to Indictment allege it to have been committed at any certain place; because, and proceedfrom the nature of the crime, consisting in the repetition of several 15
ings. acts, it must be intended to have happened in several places; wherefore it is said that the trial ought to be by a jury from the body of the county. (h) As the indictment may be in a general form, stating the defendant to be a common barrator, without
(a) Rex v. Urlyn, 2 Saund. 308, note 1 Sid. 282. Reg. v. Hannon, 6 Mod. (1). I Hawk. P. C. c. 81. s. 1, 2. Co. 311. Lit. 368. 8 Rep. 36. Barrator is said (c) Roll. Abr. 355. to be a forensic term taken from the id) i Hawk. P. C. c. 81. s. 3. Normans. The Islandic and Scandina. (e) i Hawk. P. C. c. 81. s. 4. vian baratta, the Anglo-Norman baret, (f) i Bac. Abr. Baron and Femc (6) and the Italian baratta, are all words in the notes, citing Roll. Rep. 39. signifying a quarrel or contention. See (g) 1 Hawk. P. C. c. 81. s. 6. the notes to 1 Bac. Abr. 508, Barratry (h) Parcel's case, Cro. Eliz. 195. 1 (A).
Hawk. P. C. c. 81. s. II. 1 Bac. Abr. (6) 8 Co. 36. Rcx v. Hardwicke, 509, Barratry (B).
shewing any particular facts, it is clearly settled that the prosecutor must, before the trial, give the defendant a note of the particular acts of barratry which he intends to prove against him ; and that, if he omit to do so, the Court will not suffer him to proceed in the trial of the indictment. () And the prosecutor will be confined to his note of particulars; and will not be at liberty to give evidence of any other acts of barratry than those which are
therein stated. (K) Trial may be It has been adjudged that justices of peace, as such, have, by before justices virtue of the commission of the peace, authority to inquire and
hear this offence, without any special commission of oyer and ter
miner. (1) Punishment. The punishment for this offence in common persons is by fine
and imprisonment, and binding them to their good behaviour; and in persons of any profession relating to the law, a further punishment by being disabled to practise for the future.(m) And it may be observed that by 12 Geo. 1. c. 29. s. 4. if any person convicted of common barratry shall practise as an attorney, solicitor, or agent, in any suit or action in England, the Judge or Judges of the Court where such suit or action shall be brought shall, upon complaint or information, examine the matter in a summary way in open Court; and, if it shall appear that the person complained of has offended, shall cause such offender to be transported for
seven years. (n) Of suing in In this place may be mentioned another offence of equal maligthe name of nity and audaciousness; that of suing another in the name of a a fictitious
fictitious plaintiff; either one not in being at all, or one who is plaintiff.
ignorant of the suit. This offence, if committed in any of the king's superior Courts, is left, as a high contempt, to be punished at their discretion : but in Courts of a lower degree, where the crime is equally pernicious, but the authority of the Judges not equally extensive, it is directed by the statute 8 Eliz. c. 2. S. 4. to be punished by six months' imprisonment, and treble damages to the party injured. (0)
(i) Rex v. Grove, 5 Mod. 18. J'Anson Hawk. P. C. c. 81. s. 8. there is a quære v. Stuart, 1 T. R. per Buller, J. And to this point, as having been ruled difper Heath, J. in Rex v. Wylie and an- ferently in Rolle's Reports. other, 1 New R. 95.
(m) 34 Edw. 3. c. 1. I Hawk. P.C. (k) Goddard v. Smith, 6 Mod. 262. c. 81. s. 14. Bac. Abr. 509, Barralry
(1) Barnes v. Constantine, Yelv. 46. (C). 4 Blac. Com. 131. Cro. Jac. 32. S. C. recognized in Busby (n) This act was revived and made v. Watson, 2 Blac. R. 1050. See Rex perpetual by 21 Geo. 2. c. 3. v. Urlyn, 2 Saund. 308. note (1). In (0) A Blac. Com. 134.
CHAPTER THE TWENTY-THIRD.
The offence of having a plurality of wives at the same time is more correctly denominated polygamy: but, the name bigamy having been more frequently given to it in legal proceedings, it may perhaps be a means of more ready reference to treat of the offence under the latter title. (a) Originally this offence was considered as of ecclesiastical cognizance only; and though the statute 4 Ed. 1. stat. 3. c. 5. treated it as a capital crime, (6) it appears still to have been left of doubtful temporal cognizance, until the statute I Jac. 1. c. 11. declared that such offence should be felony.
The first section of this statute, after reciting the mischiefs of 2 (vulgo 1) the offence, enacts, “that if any person or persons within his vacancmai
Bigamy made “ Majesty's dominions of England and Wales, being married, or felony. “ which hereafter shall marry, do marry any person or persons, the "former husband or wife being alive: that then every such offence “shall be felony, and the person and persons so offending shall “suffer death, as in cases of felony; and the party and parties so “offending shall receive such and the like proceeding, trial, and “execution, in such county where such person or persons shall be “ apprehended, as if the offence had been committed in such county “ where such person or persons shall be taken and apprehended.”
By the second section it is provided, “ that this act, nor any Sect. 2. makes " thing therein contained, shall extend to any person or persons where the hug
(a) Bigamy, in its proper significa- like that of bastardy. And by i Edw. tion, is said to mean only being twice 6. c. 12. s. 16. bigamy was declared to married, and not having a plurality of be no impediment to the claim of clerwives at once. According to the ca- gy, as it had been taken to be in connonists, bigamy consisted in marrying sequence of the statute 4 Edw. I. st. 3. two virgins successively, one after the c. 5. See note b. to p. 163, of 4 Blac. death of the other; or in once marry. Com. (13th Ed.) But see 5 Evans' Col. ing a widow. 4 Blac. Com. 163. note Stat. 347. where it is said that the b. And see i Bac. Abr. 525. Bigamy, enactment in 4 Ed. 1. c. 5. did not rein the notes.
late to marriage during the life of a (0) This statute adopted and ex- former husband or wife as being a subplained a canon of the council of Lyons stantive felony, but to the excluding in 1274, in the time of Pope Gregory from the privilege of clergy persons X. by which persons guilty of bigamy convicted of any other felony who had were omni privilegio clericali nudati et been twice married, or who had marcoercioni fori secularis addicti. But ried a widow or widower; which ly the cognizance of the plea of bigamy the later statute 1 Edw. 6. c. 12. s. 16. was declared by statute 19 Edw. 3. st. was abrogated. 3.c.2. to belong to the Court Christian,