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TITLE XXX

BRIBERY, EMBRACERY, AND EXTORTION.

4 BL. Com. 139.

Ibid. 140.

I. BRIBERY. Bribery, in its most odious sense, is when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behaviour in his office.

In England, this offence of taking bribes is punished, in inferior officers, with fine and imprisonment ; and in those who offer a bribe, though not taken, the same ; but in judges, especially the superior ones, it hath always been looked upon as so benious an offence, that the chief justice Thorp was hanged for it in the reign of Edward 3d. By a statute 11 Henry 4th, all judges and officers of the king, convicted of bribery, shall forfeit treble the bribe, be punished at the king's will, and be discharged from the king's service for ever.

But there is an inferior species of bribery and corrup-' 1758, 6, 64. the stat, tion, to provide against which, we have a provincial stat

ute, which enacts,

1. That if any person shall, directly or indirectly, Ibid. sec. 1.

give or engage to pay any sum of money, or other valuPenalty for giving able consideration, to another, in order to induce such

other person to procure for him, by his interest, influence, or any other means whatsoever, any office or place of trust, within this government, and be thereof convict, shall forfeit a sum not exceeding one hundred pounds, nor less than twenty pounds, at the discretion of the court which shall have cognizance of the same, and be rendered for ever after incapable of sustaining any office or place of trust within this province.

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any money, ete, for any office, etc.

2. If any person shall receive of another any sum of Penalty for receiving money, or other valuable consideration, as a reward for procuring any office, procuring or to procure any office or place of trust, with

Ibid. sec. 2.

any money, etc. for

etc.

1. sec. 4.

What court has cog

offences.

in this government, for any other person, and be thereof convicted, shall forfeit a sum not exceeding one hundred pounds, nor less than twenty pounds, at the discretion of the court which shall have cognizance of the same. And if such offender be in any such office, he shall, on the conviction, be disabled from holding the same, and be for ever after incapable of sustaining any office or place of trust, within this province.

3. And, for the more easy conviction of such offenders, Ibid. sec. 3. if either of the parties offending, as aforesaid, shall give

A criminal party who , information upon oath against the other offending party, informs, freed from and shall duly prosecute said information ; such informer shall be freed from every the penalties aforesaid.

4. All offences against this act shall be heard, tried and Ibid.se determined before the superior court of judicature, court of assize and general jail delivery ; and all pecuniary nizance of the above penalties accruing thereby, shall be one third thereof to the informer, and the other two thirds to the province.

II. EMBRACERY. Embracery is an attempt, to influence a juror corruptly to one side, by promises, persausions, entreaties, inoney, entertainments, and the like. The punishment for the person embracing, and for the juror so embraced, is by fine and imprisonment.

III. EXTORTION. Extortion is an abuse of public justice which consists in an officer's unlawfully taking, by colour of his office, from any man, any money, or thing of value, that is not due to him, or more than is due, or before it is due. The punishment is fine and imprisonment, and sometimes a forfeiture of office. By the statute 1795, c. 41, establishing the last fee bill,

"Sec. 5. it is provided, that if any person shall wilfully and cor

Penalty for receiving ruptly demand and receive any greater fee or fees for greater fees than is.. any of the services, than are by the act allowed and pro- How such penalty is vided, he shall forfeit and pay the sum of thirty dollars for every offence, to be recovered with costs, either by presentment in the supreme judicial court, or court of

4 Bl. Com. 140.

4 Bl. Com. 141.

r greater fees than is

allowed by the fee bill. . How such penalty is

recoverable.

To whose use such penalty accrues.

offender must be pro secuted.

Commonwealth v.
Shed.
1 Mas. Rep. 227,

Ibid. 229.
By the court.

general sessions of the peace, * in which case, the forfeiture shall accrue to the commonwealth ; or by action of debt in the court of common pleas, in which case the forfeiture shall be for the use of any person who may sue

for the same : But no such presentment or action shall Within what time the be sustained, unless made or commenced within one

year next after the time when the offence may be committed.

In regard to this subject, it may be observed,

1. That the thirty cents, taken by officers for levying executions, in addition to the poundage, is not authorised by statute. But where it has been customary to take it, the demand and receipt of it by the officer, is not of itself evidence of a corrupt intention.

2. If an officer receives greater fees than the statute allows, yet, unless the excess were wilfully and corruptly demanded and received, it is not within the statute. As if the officer took it from a mistake in computation ; or if he thought he had a right to take it, although he had not a strict legal right.

3. If an officer demand and take greater fees than is allowed by the statute, although the excess was not taken corruptly, and so not within the statute, yet the equitable action of money had and received will lie against the officer to recover back the amount of such excess.

4. If the person of whom are demanded larger fees alth v. than are allowed by the statute, make to the officer demand

ing them, a negotiable promissory note, for the amount demanded, this will not support an indictment against the officer for extortion : For the note was of no value ; and was, when made, ipso facto, void ; the consideration for which it was given, being against law.

* By stat. 1803, c. 155 sec. 3, the court of common pleas has jurisdiction of this offence.

By the court,
in commonwealth
Cony.
2 Mas. Rep. 523.

TITLE XXXI.

BURGLARY AND OTHER HOUSE-BREAKINGS.

1. What is burglary, at common law.
. 2. Of the punishment of burglary by statute.

3. Punishment for breaking and entering in the day time; or entering in the night time without breaking ; any house, shop, vessel, &c. with a felonious intent.

1. What is burglary at common law.

Burglary is the breaking and entering a mansion house 4 Bl. Com. 224: in the night time, with intent to commit a felony. In this definition there are four things to be considered; the time, the place, the manner, and the intent.

1. The time. This must be by night, and not by day ; Ibid. for in the day time their is no burglary. As to what is reckoned night, and what day, for this purpose : Antiently the day was accounted to begin only at sunrising, and to end immediately upon sunset; but the better opinion seems to be, that if there be day light or crepusculum enough, begun or left, to discern a man's face withal, it is no burglary. But this does not extend to moon light; for then many midnight burglaries would go unpunished : And besides, the malignity of the offence does not so properly arise from its being done in the dark, as at the dead of night, when all the creation, except beasts of prey, are at rest, when sleep has disarmed the owner, and rendered his castle defenceless.

2. The place. It must be in a mansion or dwelling A B Com.224. house ; for no distant barn, warehouse, or the like, are under the same privileges, nor looked upon as a man's castle of defence: nor is a breaking open of houses wherein

Ibid. 225.

Ibid.

no man resides, and which therefore, for the time being, are not mansion houses, attended with the same circumstances of midnight terror. A house, however, wherein a man sometimes resides, and which the owner hath only left for a short season, animo revertendi, is the object of burglary ; though no one be in it at the time of the fact committed.

A room or lodging, in any private house, is the mansion for the time being of the lodger; if the owner doth not himself dwell in the house, or if he and the lodger enter by different outward doors. But, if the owner himself lies in the house, and hath but one outward door at which he and his lodgers enter, such lodgers seem only to be inmates, and all their apartments to be parcel of the one dwelling house of the owner.

So the house of a corporation, inhabited in separate apartments by the officers of the body corporate, is the mansion house of the corporation and not of the respective officers. But if I hire a shop, parcel of another man's house, and work or trade in it, but never lie there, it is no dwelling house, nor can burglary be committed therein : For by the lease it is severed from the rest of the house, and therefore is not the dwelling house of him who occupies the other part ; neither can I be said to dwell therein, when I never lie there.

Neither can burglary be committed in a booth or tent erected in a market or fair ; though the owner may lodge therein : For the law regards, thus highly, nothing but permanent edifices; and though it may be the choice of the owner to lodge in so fragile a tenement, yet his lodging there no more makes it burglary to break it open, than it would be to uncover a tilted waggon in the same circumstances.

3. As to the manner of committing burglary: There must be both a breaking and an entry to complete it. But they need not to be both done at once : For if a hole be

4 BI. Com. 226.

Ibid.

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