Page images

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. 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 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." (9) 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, Embracers an “as relates to the punishment of a corrupt juror," and so much of corrupt jurors the 34 Edw. 3, c. 8, “ as directs the proceedings against jurors taking line and ima reward to give their verdict;" and so much of the 38 Edw. 3, prisonment. c. 12, “ as ordains the penalty on corrupt jurors and embracers," and enacts and declares, by s. 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 endeavour to stifle the truth, and prevent the due ex- Dissuading a ecution of justice, are highly punishable ; and therefore the dissuad- witness from ing, or endeavouring to dissuade a witness from giving evidence giving eviagainst a person indicted is an offence at common law, though the persuasion should not succeed. (h)


(1) Id. s. 7. 4 Bl. Com. 140.

(9) Upon the construction of these statutes, see I Hawk. P. C. c. 85, s. II, s*q.

(h) 1 Hawk. P. C. c. 21, s. 15. Rex v. Lawley, 2 Str. 904. See as to mere attempts to commit crimes, antz, p. 46, 47.

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. Ste-
venton and others, 2 East, R. 362. And
see Rex v. Edwards, post, Book V. Chap. i.




[blocks in formation]

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 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, 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. (6) 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 common barrator: (f) 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

(a) Rex v. Urlyn, 2 Saund. 308, note 282. Reg. v. Hannon, 6 Mod. 311.
(1) 1 Hawk. P. Č. c._8), s. 1, 2. Co. (c) Roll. Abr. 355.
Lit. 368. 8 Rep. 36. Barrator is said to (d) I Hawk. P. C. c. 81, s. 3.
be a forensic term taken from the Normans. (e) i Hawk. P. C. c. 81, s. 4.
The Islandic and Scandinavian buratta, (f) Bac. Abr. tit. Baron and Feme (G)
the Anglo-Norman baret, and the Italian in the notes, citing Roll. Rep. 39.
baratta, are all words signifying a quarrel (9) 1 Hawk. P. C. c. 81, s. 6.
or contention. See the notes to Bac. Abr. (h) Parcel's Cro. Eliz. 195.
tit. Bartatry (A).

Hawk. P. C. C. 81, s. 11. Bac. Abr. (6) 8 Co 26. Rex v. Hardwicke, 1 Sid. tit. Barratry (B).

Indictment and proceedings.



indictment.(i) 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 Trial may be virtue of the commission of the peace, authority to inquire and hear before justices this offence, without any special commission of oyer and terminer. (1)

The punishment for this offence in common persons is by fine Punishment. 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 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 malig- Of suing in the nity and audaciousness; that of suing another in the name of a ficti- name of a ficti

tious plaintiff. tious 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)


(i) Rex v. Grove, 5 Mod. 18. J'Anson v. Stuart, 1 T. R, 718, per Buller, J. And per Heath, J., in Rex v. Wylie and another, I New R. 95.

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

(1) Barnes v. Constantine, Yelv. 46. Cro. Jac. 32. S. C. recognized in Bushy t. 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

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

(n) This act was revived and made perpetual by 21 Geo. 2, c. 3.

(0) 4 Blac. Com. 134.



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 Ed. 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 mensd et thoro. The 9 Geo. 4, c. 31, therefore repeals the statute of James, and by s. 22, enacts, “that if any person, 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 elsewhere, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years; (b) and any such offence may be dealt with, inquired of, tried, determined, and punished in the county where the offender shall be apprehended, or be in custody, as if the offence had been actually committed in that county; provided always, that nothing herein contained shall extend to any second marriage contracted out of England by any other than a subject of his 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.” The statute of James is however still in force with respect to offences committed before or upon the last day of June, 1828.

9 Geo. 4, C. 31, s. 22. Bigamy.



(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, noteb. And see Bac. Abr. tit. Bigamy, in the notes.

(6) See as to accessories, post p. 219.

It was held under the 1 Jac. 1, that if a woman married a hus- Construction of band in Ireland, and afterwards, such husband still living, married the statute of another husband 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;(c) but the 9 Geo. 4, makes the second marriage whether “in England or elsewhere,” bigamy. 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. (d) The proviso in the new statute contains exceptions in respect of Exceptions 1st.

Second marfour cases, in which a second marriage is no felony within the statute.

riage out of The first exception is that the statute shall not extend“ to any second England by marriage contracted out of England by any other than a subject of other than subhis Majesty.” The second exception is that it shall not extend to “any realm.

jects of this person marrying a second time, whose husband or wife shall have 2d. Where been continually absent from such person for the space of seven busband me years then last past, and shall not have been known by such person absent for to be living within that time.” Here, by the express words of the seven years, clause, the party marrying again must have no knowledge of the and not known former husband or wife being alive; and it does away with the

to be living. 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. (e) But ihe 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. (f) The third exception provides that the act shall 3d. Divorce, not extend “to any person who at the time of such second marriage,

a vinculo shall have been divorced from the bond of the first marriage.” A

matrimonii. divorce, therefore, a mensá et thoro, which was held sufficient under the 1 Jac. 1,(g) is now no longer an exception. It was held under the 1 Jac. 1, that if there be a divorce a vinculo matrimonii, and an appeal by one of the parties, though this suspends the sentence, and may possibly repeal it, yet a marriage pending that appeal will be aided by the exception. (h) In a case upon the 1 Jac. 1, the ques

(c) i Hale, 692, 693. 1 East, P. C. c. mature consideration. 12, s. 2, p. 465.

(9) I Hale, 694. 3 Inst. 89. i Hawk. (d) Lady Madison's case, 1 Hale, 693. P. C. c. 42, s. 5. 4 Blac. Com. 164.

(e) i Hale, 693. 3 Inst. 88. 4 Blac. Middleton's case, Old Bailey, 14 Car. 2. Com. 164. This is remarked upon as an Kel. 27. And see 1 East, P. C. c. 12, s. extraordinary provision in 1 East, P. C. c. 5, p. 467. 12, s. 3, p. 466.

ih) 3 Inst. 89. i Hale, 694, citing Co. (f) See 1 East, P. C. c. 12, s. 4, p. 457, P. C. c. 27, p. 89, and stating further that where Mr. East says, that they are ques- if the sentence of divorce be repealed, a tions which he does not find any where marriage afterwards is not aided by the louched upon ; but which seem worthy of exception, though there was once a divorce.


« PreviousContinue »