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CHAPTER THE TWENTY-FIRST.

OF EMBRACERY, AND DISSUADING A WITNESS FROM GIVING

EVIDENCE.

jurors.

EMBBACERY is another species of maintenance, and consists in Embracerysuch practices as tend to affect the administration of justice by Corrupting or improperly working upon the minds of jurors. It seems clear that influencing 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. (b)

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

(a) 1 Hawk. P. C. c. 85. s. 1, 5. 4 King v. Opie and others, 1 Saund. 301.

Blac. Com. 140.

(b) 1 Hawk. P. C. c. 85. s. 4. The

(c) 1 Hawk. P. C. c. 85. s. 3.
(d) Ante, 177, et sequ.

Punishment of embracery.

Dissuading a witness from giving evidence.

so far. And no one whatsoever can justify the labouring a juror not to appear. (e)

Offences of this kind subject the offender to be indicted and punished by fine and imprisonment in the same manner as all other kinds of unlawful maintenance do by the common law. (f) 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 country, 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.

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All who endeavour to stifle the truth, and prevent the due execution of justice, are highly punishable; and therefore the dissuading or endeavouring to dissuade a witness from giving evidence against a person indicted is an offence at common law, though the persuasion should not succeed. (h)

(e) 1 Hawk. P. C. c. 85. s. 6.
(f) Id. s. 7. 4 Bl. Com. 140.
(g) Upon the construction of these
statutes, and respecting the action of
decies tantum, see 1 Hawk. P. C. c. 85.
s. 11. et sequ. And see also 32 Hen. 8.
c. 9. which enacts that all statutes
theretofore made concerning mainte-
nance, champerty, and embracery, or
any of them, then standing and being in
their full strength and force, shall be
put in due execution.

(h) 1 Hawk. P. C. c. 21. s. 15. Rex v. Lawley, 2 Str. 904. See as to mere attempts to commit crimes, ante, p. 44, 45. And see an indictment for dissuading a witness from giving evidence against a person indicted, 2 Chit. Crim. L. 235: and an indictment for a conspiracy to prevent a witness from giving evidence, Rex v. Steventon and others, 2 East. R. 362. And see Rex v. Edwards, post, Book V. Chap. i.

CHAPTER THE TWENTY-SECOND.

OF BARRATRY, AND OF SUING IN THE NAME OF A FICTITIOUS

PLAINTIFF.

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 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)

the offence.

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 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). 1 Hawk. P. C. c. 81. s. 1, 2. Co. Lit. 368. 8 Rep. 36. Barrator is said to be a forensic term taken from the Normans. The Islandic and Scandinavian baratta, the Anglo-Norman baret, and the Italian baratta, are all words signifying a quarrel or contention. See the notes to 1 Bac. Abr. 508, Barratry (A).

1 Sid. 282. Reg. v. Hannon, 6 Mod.
311.

(c) Roll. Abr. 355.

(d) 1 Hawk. P. C. c. 81. s. 3.
(e) 1 Hawk. P. C. c. 81. s. 4.
(f) 1 Bac. Abr. Baron and Feme (G)
in the notes, citing Roll. Rep. 39.

(g) 1 Hawk. P. C. c. 81. s. 6.
(h) Parcel's case, Cro. Eliz. 195.
Hawk. P. C. c. 81. s. 11. 1 Bac. Abr.

(b) 8 Co. 36. Rex v. Hardwicke, 509, Barratry (B).

Trial may be

shewing any particular facts, it is clearly settled that the cutor must, before the trial, give the defendant a note of the parproseticular 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)

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 terminer. (1)

of the peace.

Punishment.

Of suing in the name of a fictitious plaintiff.

And

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) 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)

In this place may be mentioned another offence of equal malignity and audaciousness; that of suing another in the name of a fictitious plaintiff; either one not in being at all, or one who is 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
v. Stuart, 1 T. R. per Buller, J. And
per Heath, J. in Rex v. Wylie and an-
other, 1 New R. 95.

(k) Goddard v. Smith, 6 Mod. 262.
(4) Barnes v. Constantine, Yelv. 46.
Cro. Jac. 32. S. C. recognized in Busby
v. Watson, 2 Blac. R. 1050. See Rex
v. Urlyn, 2 Saund. 308. note (1). In

Hawk. P. C. c. 81. s. 8. there is a quære to this point, as having been ruled differently in Rolle's Reports.

(m) 34 Edw. 3. c. 1. 1 Hawk. P. C.
(C). 4 Blac. Com. 134.
c. 81. s. 14. 1 Bac. Abr. 509, Barralry

perpetual by 21 Geo. 2. c. 3.
(n) This act was revived and made
(0) 4 Blac. Com. 134.

CHAPTER THE TWENTY-THIRD.

OF BIGAMY.

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 per-
haps 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, (b) it appears still to
have been left of doubtful temporal cognizance, until the statute
1 Jac. 1. c. 11. declared that such offence should be felony.
The first section of this statute, after reciting the mischiefs of
the offence, enacts, "that if any person or persons within his
Majesty's dominions of England and Wales, being married, or
"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
thing therein contained, shall extend to any person or persons

66

(4) Bigamy, in its proper signification, is said to mean only being twice married, and not having a plurality of wives at once. According to the canonists, bigamy consisted in marrying two virgins successively, one after the death of the other; or in once marrying a widow. 4 Blac. Com. 163. note b. And see 1 Bac. Abr. 525. Bigamy, in the notes.

(b) This statute adopted and explained a canon of the council of Lyons in 1274, in the time of Pope Gregory X. by which persons guilty of bigamy were omni privilegio clericali nudati et coercioni fori secularis addicti. But the cognizance of the plea of bigamy was declared by statute is Edw. 3. st. 3.c.2. to belong to the Court Christian,

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like that of bastardy. And by i Edw.
6. c. 12. s. 16. bigamy was declared to
be no impediment to the claim of cler-
gy, as it had been taken to be in con-
sequence of the statute 4 Edw. 1. st. 3.
c. 5. See note b. to p. 163, of 4 Blac.
Com. (13th Ed.) But see 5 Evans' Col.
Stat. 347. where it is said that the
enactment in 4 Ed. 1. c. 5. did not re-
late to marriage during the life of a
former husband or wife as being a sub-
stantive felony, but to the excluding
from the privilege of clergy persons
convicted of any other felony who had
been twice married, or who had mar-
ried a widow or widower; which by
the later statute 1 Edw. 6. c. 12. s. 16.
was abrogated.

2 (vulgo 1) Jac. 1. c. 11. Bigamy made felony.

Sect. 2. makes where the hus

an exception

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