Gambar halaman

CONSPIRACY, crim. law, torts. An agreement between two or more persons to do an unlawful act, or any of those acts which become by the combination injurious' to others. Formerly this offence was much more circumscribed in its meaning than it is now. Lord Coke describes it as "a consultation or agreement between two or more to appeal or indict an innocent person falsely and maliciously, whom accordingly they cause to be indicted or appealed; and afterwards the party is acquitted by the verdict of twelve men," The crime of conspiracy, according to its modern interpretation, may be of two kinds, namely, conspiracies against the public, or such as endanger the public health, violate public morals, insult public justice, destroy the public peace, or affect public trade or business. To remedy these evils the guilty persons may be indicted in the name of the commonwealth : conspiracies against individuals are such as have a tendency to injure them in their persons, reputation or property.1 The remedy in these cases is either! by indictment or by a civil action. | In order to render the offence com-1 plete there is no occasion that any' act should be done in pursuance of I the unlawful agreement entered into | between the parties, or that any one should have been defrauded or injured by it; the conspiracy is the gist of the crime. 2 Mass. R. 337; Id. 538 ; 6 Mass. R. 74; 3 S. & R. 220; 4 Wend. R. 259; 4 Halst. R. 293; 2 Stew. Rep. 360; 5 Harr. & John. 317; 8 S. & R. 420. By St. 1825, c. 76, § 23, 3 Story's L. U. S., 2006, a wilful and corrupt conspiracy to cast away, burn or otherwise destroy any ship or vessel, with intent to injure any underwriter thereon, or on the goods on board thereof, or any lender of money on such vessel, on bottomry or respondentia, is, by the laws of the United States, made felon y,

I and the offender punishable by fine 1 not exceeding ten thousand dollars, and by imprisonment and confinement at hard labour, not exceeding ten years. By the Revised Statutes of New York, vol. 2, p. 691, 692, it is enacted, that if any two or more persons shall conspire, either, 1, To commit any offence; or, 2, Falsely and maliciously to indict another for any offence; or, 3, Falsely to move or maintain any suit; or, 4, To cheat and defraud any person of any property by any means which are in themselves criminal; or, 5, To cheat and defraud any person of any property, by means which, if executed, would amount to a cheat, or to obtaining property by false pretences; or, 6, To commit any act injurious to the public health, to public morals, or to trade and commerce, or for the perversion or obstruction of justice, or the due administration of the laws; they shall be deemed guilty of a misdemeanor. No other conspiracies are there punishable criminally. And no agreement, except to commit a felony upon the person of another, or to commit arson or burglary, shall be deemed a conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement.

When a felony has been committed in pursuance of a conspiracy, the latter, which is only a misdemeanor, is merged in the former; but when a misdemeanor only has been committed in pursuance of such conspiracy, the two crimes being of equal degree, there can be no legal technical merger. 4 Wend. R. 265. Vide 1 Hawk. 444 to 454; 3 Chit. Cr. Law, 1138 to 1193; 3 Inst. 143; Com. Dig. Justices of the Peace, B, 107; Burn's Justice, Conspiracy; Williams's Justice, Conspiracy; 4 Chit. Blacks. 92; Dick. Justice, Conspiracy; Bac. Ab. Actions on the Case, G ; 2 Russ. on Cr. 553 to 574; 2 Mass. 329; lb. 536; 5 Mass. 106; 2 Day, R. 205; Whart. Dig. Conspiracy; 3 Serg. & Rawle, 220; 7 Serg. & Rawle, 4(59; 4 Halst. R. 293; 5 Harr. & Johns. 317; 4 Wend. 229; 2 Stew. R. 36il. For the French law, see Mori. Rep. mot Conspiration; Code Penal, art. 89.

CONSTABLE, is an officer, generally elected by the people. He possesses power, virtute officii, as a conservator of the peace at common law, and by virtue of various legislative enactments; he may therefore apprehend a supposed offender without a warrant, for treason, felony, breach of the peace, and some misdemeanors less than felony, when committed in his view. 1 Hale, 587; 1 East, P. C. 303; 8 Serg. & Rawle, 47. He may also arrest a supposed offender upon the information of others, without any positive charge on his own knowledge of the circumstances on which the suspicion is founded; but he does so at his peril, unless he can show that a felony has been committed by some person, as well as the reasonableness of the suspicion that the party arrested is guilty. 1 Chit. Cr. L. 27; 6 Binn. R. 316; 2 Hale, 91, 92; 1 East, P. C. 301. Ho has power to call others to his assistance. A constable is also a ministerial officer, bound to obey the warrants and precepts of justices, coroners and sheriffs. Constables are also in some states bound to execute the warrants and process of justices of the peace in civil cases. In England they have many officers, with more or less power, who bear the name of constables; as, lord high constable of England, high constable, head constables, petty constables, constables of castles, constables of the tower, constables of the fees, constable of the exchequer, constable of the staple, tec. In some of the cities of the United States there are officers who are called high constables, who are

the principal police officers where they reside. Vide the various Digests of American law, h. t.; 1 Chit. Cr. L. 20; 5 Vin. Ab. 427; 2 Phil. Ev. 253; 2 Sell. P? 70; Bac. Ab. h. t.; Com. Dig. Justices of the Peace, (B 79); lb. (D 7); lb. Officer, (E 2); Willc. Off. Const.

CONSTAT, English law. The name of a certificate, which the clerk of the pipe and auditors of the exchequer make at the request of any person who intends to plead or move in the court for the discharge of any thing; and the effect of it is, the certifying what constat (appears) upon record touching the matter in question. A constant is held to be superior to an ordinary certificate, because it contains nothing but what is on record. An exemplification under the great seal, of the enrolment of any letters-patent is called a constant. Co. Litt. 225. Vido Exemplification f Inspeximus.

CONSTITUENT, he who gives authority to another to act for him. The constituent is bound with whatever his attorney does by virtue of his authority. The electors of a member of the legislature are his constituents, to whom he is responsible for his legislative acts.

TO CONSTITUTE, contr. To empower, to authorise. In the common form of letters of attorney, these words occur, "I nominate, constitute and appoint."

CONSTITUTED AUTHORITIES. Those powers which the constitution of each people has estab. lished to govern them, to cause their rights to be respected, and to maintain those of each of its members. They are called constituted to distinguish them from the constituting authority which has created or organized them, or has delegated to an authority, which it has itself created, the right of establishing or regulating their movements. The officers appointed under the constitution are also collectively called the constituted authorities.

CONSTITUTION, in government, is the fundamental law of the state, containing the principles upon which the government is founded, and regulating the divisions of the sovereign powers, directing to what persons each of these powers is to be confided, and the manner it is to be exercised; as, the constitution of the United States. See Story on the Constitution; Rawle on the Const. The words constitution and government (q. v.) are sometimes employed to express the same idea, the manner in which sovereignty is exercised in each state. Constitution is also the name of the instrument containing the fundamental laws of the state. By constitution the civilians, and, from them, the common law writers mean some particular law; as the constitutions of the emperors contained in the Code.

CONSTITUTION OF THE UNITED STATES OF AMERICA. The fundamental law of the United States. It was framed by a convention of the representatives of the people, who met at Philadelphia, and finally adopted it on the 17th day of September, 1787. It became the law of the land on the first Wednesday in March, 1789. 5 Wheat. 420.

A short analysis of this instrument so replete with salutary provisions for insuring liberty and private rights, and public peace and prosperity, will here be given.

The preamble declares that the people of the United States, in order to form a more perfect union, establish justice, insure public tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity, do ordain and

establish this constitution for the United States of America.

1. The first article is divided into ten sections. By the first the legislative power is vested in congress. The second regulates the formation of the house of representatives, and declares who shall be electors. The third provides for the organization of the senate, and bestows on it the power to try impeachments. The fourth directs the times and places of holding elections; and the time of meeting of congress. The fifth determines the power of the respective houses. The sixth provides for a compensation to members of congress, and for their safety from arrests; and disqualifies them from holding certain offices. The seventh directs the manner of passing bills. The eighth defines the powers vested in congress. The ninth contains the following provisions; 1st, that the migration or importation of persons shall not be prohibited prior to the year 1808; 2dly, that the writ of habeas corpus shall not be suspended, except in particular cases; Molly, that no bill of attainder, or ex post facto law shall be passed; 4thly, the manner of laying taxes; 5thly, the manner of drawing money out of the treasury; 6thly, that no title of nobility shall be granted; 7thly, that no officer shall receive a present from a foreign government. The tenth forbids the respective states to exercise certain powers there enumerated.

2. The second article is divided into four sections. The first vests the executive power in the president of the United States of America, and provides for his election and that of the vice-president. The second section confers various powers on the president. The third defines his duties. The fourth provides for the impeachment of the president, vicepresident, and all civil officers of the United States.

3. The third article contains three sections. The first vests the judicial power in sundry courts, provides for the tenure of office by the judges, and for their compensation. The second provides for the extent of the judicial power, vests in the supreme court original jurisdiction in certain cases, and directs the manner of trying crimes. The third defines treason, and vests in congress the power to declare its punishment.

4. The fourth article is composed of four sections. The first relates to the faith which state records, &c, shall have in other states. The second secures the rights of citizens in the several states—for the delivery of fugitives from justice or from labour. The third for the admission of new states, and the government of the territories. The fourth guaranties to every state in the union the republican form of government, and protection from invasion or domestic violence.

5. The fifth article provides for amendments to the constitution.

6. The sixth article declares that the debts due under the confederation shall be valid against the United States—that the constitution and treaties made under its powers shall be the supreme law of the land—that public officers shall be required by oath or affirmation to support the constitution of the United States— that. no religious test shall be required as a qualification for office.

7. The seventh article directs what shall be a sufficient ratification of this constitution by the states.

In pursuance of the fifth article of the constitution, articles in addition to, and amendment of, the constitution, were proposed by congress and ratified by the legislatures of the several states. These additional articles are to the following import:

1. Relates to religious freedom; the liberty of the press; the right of the people to assemble and petition.

2. Secures to the people the right to bear arms.

3. Provides for the quartering of soldiers.

4. Regulates the right of search and of arrest on criminal charges.

5. Directs the manner of being held to answer for crimes, and provides for the security of the life, liberty and property of the citizens.

6. Secures to the accused the right to a fair trial by jury.

7. Provides for a trial by jury in civil cases.

8. Directs that excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.

9. Secures to the people the rights retained by them.

10. Secures the rights to the states or to the people the rights they have not granted.

11. Limits the powers of the courts as to suits against one of the United States.

12. Points out the manner of electing the president and vice-president.

CONSTITUTIONAL, that which is consonant to, and agrees with the constitution. When laws are made in violation of the constitution, they are null and void: but the courts will not declare such a law void unless there appears to be a clear and unequivocal breach of the constitution. 4 Dall. R. 14; 3 Dall. R. 399 ; 1 Cranch, R. 137; 1 Binn. R. 415 ; 6 Cranch, R. 87,136 ; 2 Hall's Law Journ. 96, 255, 262; 3 Hall's Law Journ. 267; Wheat. Dig. tit. Constitutional Law; 2 Pet. R. 522; 2 Dall. 309; 12 Wheat. R. 270; Charlt. R. 175, 235; 1 Breese, R. 70, 209; 1 Blackf. R. 206; 2 Porter, R. 303; 5 Binn. 355; 3 S. & R. 169; 2 Penna. R. 184; 19 John. R. 58; 1 Cowen, R. 550; 1 Marsh. R. 290; Pr. Dec. 64, 89 ; 2 Litt. R. 90; 4 Munr. R. 43; 1 South. R. 192; 7 Pick. R. 466; 13 Pick. R. 60; 11 Mass. R. 396; 9 Greenl. R. 60; 5 Hayw. R. 271; 1 Harr. & J. 236; 1 Gill & J. 473; 7 Gill & J. 7; 9 Yerg. 490; 1 Rep. Const. Ct. 267; 3 Dessaus. R. 476; 6 Rand. R. 245; 1 Chip. R. 237, 257; 1 Aik. R. 314; 3 N. H. Rep. 473; 4 N. H. Rep. 16 ; 7 N. H. Rep. 65; 1 Murph. R. 58. See 3 Law Intell. 65, for a list of decisions made by the supreme court of the United States, declaring laws to be unconstitutional.

CONSTITUTOR, civil law. He who promised by a simple pact to pay the debt of another; and this is always a principal obligation. Inst. 4, 6, 9.

CONSTRAINT. In the civil and Scottish law, by this term is understood what in the common is known by the name of duress. It is a general rule that when one is compelled into a contract, there is no effectual consent, though ostensibly there is the form of it. In such case the contract will be declared void. The constraint requisite thus to annul a contract, must be a vis aut metui qui cadet in constantem virum, such as would shake a man of firmness and resolution. 3 Ersk. 1, § 16; and 4, 1, § 26; 1 Bell's Com. B. 3, part 1, c. 1, s. 1, art. 1, page 295.

CONSTRUCTION, practice, is defined by Mr. Powell to be "the drawing an inference by the act of reason, as to the intent of an instrument, from given circumstances, upon principles deduced from men's general motives, conduct and action." This definition may perhaps not be sufficiently complete, inasmuch as the term instrument generally implies something reduced into writing, whereas construction is equally necessary to ascertain the meaning of engagements merely verbal. In other respects it appears to be perfectly accurate. The Treatise of Equity, defines interpretation to be

the collection of the meaning out of signs the most probable. 1 Powell on Con. 370. In the supreme court of the United States the rule which has been uniformly observed "in construing statutes is to adopt the construction made by the courts of the country by whose legislature the statute was enacted. This rule may be susceptible of some modification when applied to British statutes which are adopted in any of these states. By adopting them, they become our own, as entirely as if they had been enacted by the legislature of the state. The received construction in England, at the time they are admitted to operate in this country, indeed, to the time of our separation from the British empire, may very properly be considered as accompanying the statutes themselves, and forming an integral part of them. But however we may respect the subsequent decisions, (and certainly they are entitled to great respect,) we do not admit their absolute authority. If the Eng. lish courts vary their construction of a statute, which is common to the two countries, we do not hold ourselves bound to fluctuate with them." 5 Pet. R. 280.

The great object which the law has in all cases in contemplation, as furnishing the leading principle of the rules to be observed in the construction of contracts, is, that justice is to be done between the parties, by enforcing the performance of their agreement, according to the sense in which it was mutually understood and relied upon at the time of making it. When the contract is in writing, the difficulty lies only in the construction of the words; when it is to be made out by parol testimony, that difficulty is augmented by the possible mistakes of the witnesses as to the words used by the parties; but still when the evidence is received, it must be admitted to be perfectly cor

« SebelumnyaLanjutkan »