*264]

*CHAPTER THE TWENTY-FIRST.

OF EMBRACERY, AND DISSUADING A WITNESS FROM GIVING EVIDENCE.

EMBRACERY is another species of maintenance, and consists in such practices as tend to affect the administration of justice by 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 favorable 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 endeavor 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 savoring of the nature of embracery; but this does not apply to the reasonable recompense usually allowed to jurors for their expenses in travelling.(c)

The law will not suffer a mere stranger so much as to labor a juror to appear, and act according to his conscience; but it seems clear that a person who may justify any other act of maintenance, (d) may safely labor 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 laboring 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 main

*265] tenance 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. The 38 Edw. 3, c. 12, enacts, that if any jurors, sworn in assizes and other inquests, take anything, and be thereof attainted, every such juror shall pay ten times as much as he hath taken. "And that all the embracers 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 embracer so attainted have not whereof to make gree in the manner aforesaid, he shall have the imprisonment of one year.(g) The 32 Hen. 8, c. 9, 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.

The 6 Geo. 4, c. 50, s. 62, repeals so much of the 5 Edw. 3, c. 10, as relates to the punishment of a corrupt juror," and so much of the 34 Edw. 3, c. 8, "as

1 Saund. 301.

(a) 1 Hawk. P. C. c. 86, s. 1, 5; 4 Blac. Com. 140.
(b) 1 Hawk. P. C. c. 85, s. 4; The King v. Opie,
(c) 1 Hawk. P. C. c. 85, s. 3.

(e) 1 Hawk. P. C. c. 85, s. 6.

(d) Ante, 256, et seq.
(f) Id. s. 7; 4 Bac. Com. 140.

(g) Upon the construction of these statutes, see 1 Hawk. P. C. c. 85, s 11, et seq.

1 State v. Sales, 2 Nev. 268.

directs the proceedings against jurors taking a reward to give their verdict ;" and so much of the 38 Edw. 3, c 12, "as ordains the penalty on corrupt jurors and embracers," and enacts and declares, by sec. 61, that " notwithstanding anything herein contained, every person who shall be guilty of the offence of embracery, and every juror who shall wilfully or corruptly consent thereto, shall and may be respectively proceeded against by indictment or information, and be punished by fine. and imprisonment, in like manner as every such person might have been before the passing of this Act."

All who endeavor to stifle the truth, and prevent the due execution of justice, are highly punishable; and therefore the dissuading or endeavoring to dissuade a witness from giving evidence against a person indicted is an offence at common law, though the persuasion should not succeed.(h)1

*CHAPTER THE TWENTY-SECOND.

[*266

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

A BARRATOR is defined to be a common mover, exciter, or maintainer of suits or quarrels, in courts of record, or other courts, as 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 rumors and calunnies whereby discord and disquiet may grow among neighbors.(a) But one act of this description will not make any one a barrator, as it is necessary in an indictment for this offence to charge the 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 color, 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)

(h) 1 Hawk. P. C. c. 21, s. 15; Rex v. Lawley, 2 Str. 904, See as to mere attempts to commit crimes, see ante, p. 83. 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, 2 East R. 362. And see Rex r. Edwards, post, "Perjury."

(a) Rex v. Urlyn, 2 Saund. 308, note (1); 1 Hawk. P. C. c. 81, ss. 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 Bac. Abr. tit. Barratry (A).

(b) 8 Co. 36; Rex v. Hardwicke, 1 Sid. 282; Reg. v. Hannon, 6 Mod. 311.

(c) Roll. Abr. 355.

(e) 1 Hawk. P. C. c. 81, s. 4.

(d) 1 Hawk. P. C. c. 81, s. 3.

4State v. Keyes, 8 Verm. 57; State v. Carpenter, 20 Ibid. 9.

The books are not perfectly explicit, whether three acts of barratry are absolutely, and in all cases, necessary to constitute the perpetrator of them a common barrator. The commencing of three suits, where one may serve every justifiable purpose, may be evidence of three acts of barratry, if particular directions were given to the attorney, with a malicious design to harass and oppress the debtor. But if there is no evidence of such direction, from which an inference may be drawn of an intention to oppress, the indictment cannot be supported, for without such evidence there is no barratry: Comm. v. M'Culloch, 15 Mass. Rep. 227. See State v. Chitty, 1 Bailey 379; where in the opinion three acts seems considered as necessary. The moving and exciting of criminal prosecutions is barratry; and this, though a wrong may have been done, or petty offence committed, if the motive were bad. A magistrate as well as a private person, is liable to be indicted for this offence: State v. Chitty, 1 Bailey 379.

And it seems to have been holden that a feme covert cannot be indicted as a common barrator ;(ƒ) but this opinion is considered as questionable.(g)

In an indictment for this offence it seems to be unnecessary to allege it to have been committed at any certain place; because, from the nature of the crime, consisting in the repetition of several 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 showing 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 particu

*267] lars, and will not be at liberty to give evidence of any other acts of barratry

than those which are therein stated.()1

It has been adjudged that justices of peace, as such, have by virtue of the commission of the peace, authority to inquire and hear this offence, without any special commission of oyer and terminer.(7)

The punishment for this offence in common persons is by fine and imprisonment, and binding them to their good behavior; and in persons of any profession relating to the law, a further punishment by being disabled to practice 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 practice 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 8 Eliz. c. 2, s. 4, to be punished by six months' imprisonment, and treble damages. to the party injured.(0)

(f) Bac. Abr. tit. 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; 1 Hawk. P. C. c. 81, s. 11; Bac. Abr. tit. Barratry (B). (i) Rex v. Grove, 5 Mod. 18; J'Anson v. Stuart, 1 T. R. 748, per Buller, J.; and per Heath, J., in Rex v. Wylie, 1 New R. 95.

(k) Goddard v. Smith, 6 Mod. 262.

(1) 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. 81, s. 14; Bac. Abr. tit. Barratry (C); 4 Blac. Com. 134.

(n) Now penal servitude for any term not exceeding seven and not less than three years, by the 20 & 21 Vict. c. 3, s. 2, ante, p. 4. This Act was revived and made perpetual by

21 Geo. 2, c. 3.

(0) 4 Blac. Com. 134.

1 An indictment charging the defendant generally as a common barrator is sufficient. But the prosecutor must before the trial give the defendant a note of particulars. The note is not a matter of technical nicety. If it so identify the several legal proceedings intended to be given in evidence as acts of barratry, that the defendant by pursuing the notice could readily find the records of the several proceedings, it is sufficient: Comm. v. Davis, 11 Pick. 424. This note forms no part of the record, and cannot furnish ground for a motion in arrest of judgment: State v. Chitty, 1 Bailey 379. The st. 32 H. 8, c. 9, limiting suits and prosecutions for bracery, maintenance, champerty, &c., to one year after the offence committed, does not apply to barratry. Ibid.

*CHAPTER THE TWENTY-THIRD

OF BIGAMY.

[*268

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 4 Edw. 1, stat. 3, c. 5, treated it as a capital crime, it appears still to have been left of doubtful temporal cognizance, until the 1 Jac. 1, c. 11, declared that such offence should be felony. The provisions of this statute were in several respects defective. A person whose consort had been abroad for seven years, though known to be living, might have married again with impunity. And so might a person who was only divorced a mensâ et thoro. The 9 Geo. 4, c. 31, therefore repealed the statute of James, and that Act is repealed by the 24 & 25 Vict. c. 95; and by the 24 & 25 Vict c. 100, s. 57, "Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exccding seven years and not less than three years-or to be imprisoned for any term not exceeding two years, with or without hard labor,(b) and any such offence may be dealt with, inquired of, tried, determined, and punished in any county or place in England or Ireland where the offender shall be apprehended or be in custody, in the same manner in all respects as if the offence had been actually committed in that county or place. Provided that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of Her Majesty, or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any Court of competent jurisdiction." (c)

*It was held under the 1 Jac. 1, that if a woman married a husband in

Ireland, and afterwards, such husband still living, married another hus- [*269

band in England, it was within the Act. But that if she married a husband in England, and afterwards, such husband still living, married another husband in Ireland, it was not within the Act: on the ground that the second marriage, which alone constituted the offence, was a fact done within another jurisdiction; and, though inquirable here for some purposes, like all transitory acts, was not cognizable as a crime by the rule of the common law; (d) but the 24 & 25 Vict. c. 100, makes the second marriage whether "in England or elsewhere," bigamy; and so did the 9 Geo. 4, c. 31; so that where the prisoner, a subject of her. Majesty, usually resident at Carlisle, married in Scotland, and according to the law of Scotland, Anne Ashton, also in like manner resident in Carlisle, and afterwards, whilst the said Anne was alive, the prisoner, who continued resident at Carlisle, married in Scotland, according to the law of Scotland, Jane Lister, also usually resident in Carlisle; it was held that he was guilty of bigamy under the 9 Geo. 4, c. 31, s. 22; for at the time of his second marriage he was a person married, and the (a) 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 Bac. Abr. tit. Bigamy, in the notes. (6) As to principals in the second degree, accessories, and hard labor, &c. See ante, pp. 4, 5.

(e) This clause is taken from the 9 Geo. 4, c. 31, s. 22, and 10 Geo. 4, c. 34, s. 26 (I). (d) 1 Hale 692, 693; 1 East P. C. c. 12, s. 2, p. 465.

second marriage, although it took place in Scotland, was clearly an offence within the statute.(e) In another case it was ruled, that if A. takes B. to husband in Holland, and then, in Holland, takes C. to husband living B., and then B. dies, and then A. living C. marries D., this is not marrying a second husband, the former being alive; the marriage to C. living B. being simply void. But if B. had been living, it would have been felony to have married D. in England.(ƒ)

The proviso in the new statute contains exceptions in respect of four cases, in which a second marriage is no felony within the statute.

The first exception is that the statute shall not extend "to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of her Majesty."

The second exception is that it shall not extend to "any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time." Here, by the express words of the clause, the party marrying again must have no knowledge of the former husband or wife having been alive; and it does away with the absurd construction put upon the first exception in the 1 Jac. 1, that if the husband or wife were abroad for seven years, it was no offence, though the party remaining in England knew that the other was living (g) But the obligation of a party to use reasonable diligence to inform himself of the fact, and the question whether if he neglect or refuse to avail himself of palpable means of acquiring such information, he will stand excused, are points which do not appear to be settled. (h) Where the first marriage *was in 1824, and the parties separated in 1827, and did not again live *270] together, and the second marriage was in 1840, and there was evidence that. the prisoner and his first wife were walking together in 1834; Patteson, J., held that the true construction of the proviso was. not that the party must know, at the time when he contracts the second marriage, that the first wife has been alive during the seven years, but that he must have been ignorant during the whole of those seven years that she was alive. If it had been meant that he should not, "at the time of such second marriage," know that the first wife was alive, those words would have been used. (1) And where the first wife left the prisoner sixteen years before his second marriage, and the second wife had known the prisoner about ten years, living in service as a single man, and never knew or heard that he had had a wife, and the first wife had lived seventeen miles from the place where the prisoner lived; Cresswell, J., held that the prisoner came within the proviso, as there was no proof that the prisoner knew that his first wife was living.(k)

Upon an indictment for bigamy the first marriage was with J. Briggs in 1844, at Altonbury; the second in 1856, at Cambridge. The prisoner on both occasions was married by her maiden name, and the second husband swore that she had represented herself to him as a single woman. Altonbury and Cambridge are about twenty-four miles apart. J. Briggs was a laboring man, considerably older than the prisoner, living in lodgings, and working at a farm about two miles from Altonbury, sometimes absent from it for a month at a time. A witness said that the prisoner left him at the end of four months from the marriage, and he had not seen her subsequently. The jury were asked whether in their opinion the prisoner knew her husband to be alive at the time she contracted the second marriage; and if not, whether she had the means of acquiring the knowledge; and were directed that, even if they thought her ignorant in fact of her husband's being alive, still

(e) Reg. v. Topping, Dears. C. C. 647.

(f) Lady Madison's case, 1 Hale 693.

(g) Hale 693; 3 Inst. 88; 4 Blac. Com. 164. This is remarked upon as an extraordinary provision in 1 East P. C. c. 12, s. 3, p. 466.

(h) See 1 East P. C. c. 12. s. 4, p. 467.

(i) Reg. v. Cullen, 9 C. & P. 681 (38 E. C. L. R.). The jury found that the prisoner and his wife were walking together in 1834. If they had found otherwise, Patteson, J., would have reserved the question whether the prisoner was bound to prove that he had made due inquiries as to his first wife being alive when he was married a second time. (k) Reg. v. Jones, C. & M. 614 (41 E. C. L. R.).