Extortion is taking 3. Extortion. § 1574. Extortion, in its general sense, signifies any oppression by color of right; but technically it may be defined to be the taking of money by an officer, by reason of his office,' either where none is due, or where none is yet due. The offence of compounding crimes has been already considered. money unjustly by an official. § 1575. The summary penalties attached in each State to extortion have not generally taken away the common law remedy. Statutes do not ordi his appearauce; it is not enough to allege that the magistrate discharged the offender upon his finding sureties in a small and trifling sum, to wit, fifty dollars. The offence cannot be charged argumentatively or inferentially. Ibid. Indictments against supervisors, etc., for neglects as to roads, are considered, supra, § 1473; infra, § 1584 a. That this is essential, see R. v. Baines, 6 Mod. 192. In U. S. v. Deaver, 4 Crim. Law Mag. 209, the qualification, "for his own use," is added. But it would be no defence to a charge of extortion that the object was to give the money to another. In State v. Vasel, 47 Mo. 416, aff. Ibid. 444, it was held that a constable cannot lawfully force payment of untaxed costs. That a de facto officer is so indictable, see State v. McEntyre, 3 Ired. 171. That person acting as officer cannot deny he was such, see supra, § 1570; Whart. Crim. Ev. § 833.. That a railroad company that exacts an illegal fare may be, under the New York statute, proceeded against for extortion, see Lewis v. R. R. 49 Barb. 330. 4 Supra, § 1559. Com. v. Bagley, 7 Pick. 279. In Pennsylvania, by an act of assembly already noticed (act of 21st March, 1806; 4 Smith, 332; Purd. 66; see 2 See People v. Whaley, 6 Cow. 661; supra, §§ 25 et seq.), it is provided that Com. v. Mitchell, 3 Bush, 39. 31 Hawk. c. 68, s. 1; Co. Lit. 363b; Stevens v. Rothmel, 3 B. & B. 145; Com. v. Bagley, 7 Pick. 279; People v. Whaley, 6 Cow. 661; State v. Maires, 33 N. J. L. 142; Williams v. State, 2 Sneed, 160; Cross v. State, 1 Yerg. 261. In Pennsylvania there is an early case intimating that custom may sustain the demanding of fees in advance of services. Resp. v. Hannum, 1 Yeates, 71. But see contra, R. v. Baines, 6 Mod. 192; Lincoln v. Shaw, 17 Mass. 410; Com. v. Bagley, ut sup.; State v. Maires, ut sup., and cases last cited. "In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly, the directions of the said act shall be pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect." Under this act it was held, that as a qui tam action was given to an informer by the fee bill, in cases where a justice was guilty of extortion, the remedy at common law was absorbed. Com. v. Evans, 13 S. & R. The multitudinous statutes on this topic it is impracticable here to examine. We must content ourselves with noticing one or two points of principle. Motive must be corrupt. § 1576. The taking Illegal fees on the part of a public officer may often result from mistake. When the statute makes the bare act of taking an illegal fee indictable, then the defendant may be convicted, no matter what may have been his motive.' But to extortion at common law, and under most of the statutes, corrupt motive is essential. And if there be no such motive, and the money be voluntarily given for extra work, the indictment is not sustainable at common law. This distinction, however, is one of great delicacy, and should be carefully guarded, lest corruption be sheltered under the disguise of usage or extra work.1 Corruption is to be inferred from the facts.5 § 1577. A mere agreement, it is said, to pay, will not sustain a charge of extortion. But if such an agreement might be made the 426. To remedy this defect, an act was passed (25th March, 1831; Pamph. 211; Purdon, 448) restoring the common law provision. 1 State v. Cutter, 36 N. J. L. 125, citing Bowman v. Blyth, 7 E. & B. 26; R. v. Hall, 3 C. & P. 409; R. v. Read, C. & M. 306; Com. v. Shed, 1 Mass. 228; Com. v. Bradford, 9 Metc. 268. See supra, §§ 84, 85, 85 a, 87, where the question is discussed on principle. That to insist on being paid the fee in advance is extortion, see R. v. Harrison, 1 East P. C. 382; Com. v. Bagley, 7 Pick, 279; State v. Maires, 4 Vroom, 142; State v. Vasel, 47 Mo. 416, 444; Jacobs v. Com., 2 Leigh, 709. 2 Supra, § 85. Com. v. Shed, 1 Mass. 228; Runnells v. Fletcher, 15 Ibid. 525; Lincoln v. Shaw, 17 Ibid. 410; Shattuck v. Woods, 1 Pick. 171; Com. v. Bagley, 7 Ibid. 279; People ». Coon, 15 Wend. 277; Resp. v. Hannum, 1 Yeates, 71; Jacobs v. Com., 2 Leigh, 709; State v. Gardner, 2 Mo. 22; State v. Porter, 3 Brev. 175; though see contra, State v. Dickens, 1 Hayw. 406; State v. Stotts, 5 Blackf. 460. Hence ignorant and honest belief that the fee is right, as based on usage, is a defence at common law, unless such belief be negligent. Bowman v. Blyth, 7 El. & B. 26; Resp. v. Hannum, 1 Yeates, 71; State v. Cutter, 36 N. J. L. 125. In Massachusetts, however, it has been held that usage is no defence. Com. v. Bagley, 7 Pick. 279; Lincoln v. Shaw, 17 Mass. 410. Otherwise under statute, supra, § 1576. 3 R. v. Baines, 6 Mod. 192; Evans v. Trenton, 4 Zab. 764; Dutton v. City, 9 Phila. 597; Williams v. State, 2 Sneed, 160; Leeman v. State, 35 Ark. 438. See infra, § 1582, for other cases. The defence of custom, as set up in Lord Bacon's case, is discussed with much acuteness by Macaulay in his essay on Bacon. Infra, § 1580. Com. v. Pease, 16 Mass. 91; Com. v. Cony, 2 Ibid. 523. basis of a suit, the law is otherwise. Act must be complete. valuable thing is received. And it is enough if any No doubt, however, an in complete act of extortion could be indicted as an attempt, if there be any overt act provable." § 1578. The offence being a misdemeanor, all concerned, if guilty at all, are guilty as principals. This rule results from cerned are the familiar doctrine so often announced, that in misdemeanors there are no accessaries. As to the joinder All con principals. of defendants, it has been held that, if there be concurrence in the extortion, the parties may be joined, though the parts assigned to each be distinct." How far indictment must be special. § 1579. The weight of authority in England is that the sum stated in the indictment is not material; proof of a less sum will sustain the indictment. In several of the United States it has been held that the indictment must aver particularly the sum received, and how much of it, if any, was the legal charge. But such precision does not seem to be necessary in North Carolina. The term "extorsively" suffi ciently implies corruption." 66 Corruptly" need not be averred if it can be supplied from other averments.10 4. Negligence. § 1580. Negligence in those charged with specific duties has been already considered." It is important, however, to distinguish 1 R. v. 5 Blackf. 460. 3 Supra, § 173. • Supra, § 223. See R. v. Tisdale, 20 Up. Can. (Q. B.) 272. See, however, Whart. Cr. Pl. & Pr. § 303. 6 R. v. Burdett, 1 Ld. Raym. 148; and see R. v. Gillham, 6 T. R. 265; R. v. Higgins, 4 C. & P. 247. People v. Rust, 1 Caines, 131; State r. Halsey, 1 South. 324; State v. Maires, 33 N. J. L. 142; State v. Coggswell, 3 Blackf. 55. That a variance in description of the money received may be fatal, see Garner v. State, 5 Yerg. 160; Johnson v. State, Mart. & Yerg. 129. State v. Dickens, 1 Hayw. 406. Where an officer is charged with extortion, on the ground "that he oppressively sued out an execution," it is necessary that the facts which constituted the oppression should be set forth in the indictment and found by the jury. State v. Fields, Mart. & Yerg. 137. Leeman v. State, 35 Ark. 438. 10 Supra, § 1573; R. v. Wadsworth, 5 Mod. 13; R. v. Tisdale, 20 Up. Can. (Q. B.) 272. Supra, §§ 125, 1563. Need be no injury caused in cases of between an indictment for a crime produced by negligence, and an indictment for negligence itself. To sustain a conviction for a crime produced by negligence, a causal connection, under conditions which have been already set forth, must be established between the negligence and the crime. It is otherwise when the indictment is for the negligence as a substantive offence. Here the indictment is sustainable, if the offence be so constituted by statute, though no mischief occurred from the negligence.2 negligence. § 1581. Absence of malice is essential to the idea of negligence. Whenever there is malice, negligence ceases, and the Need not offence becomes a malicious misdemeanor.3 be malice. § 1582. A man who undertakes a public office is bound to know the law, and to possess himself diligently of all the facts Mistake of necessary to enable him in a given case to act prudently law or fact and rightly. If he do not, and through mistake of law no defence. or of fact be guilty of negligence, he commits a penal offence. This seems hard law, but it is essential to the safety of the State. If an officer, enjoying the emoluments of office and wielding its occasionally vast powers, should be able to plead in defence of negli gence that he mistook either law or fact, not only is there no negligence that could be punished, but ignorance and incompetency would be the masks under which all sorts of official misconduct could be sheltered. In municipal trusts, for instance, to plunder triumphantly, it would be only necessary to secure officers conveniently ignorant and inert. But this the policy of the law does not permit. It says: "You are bound to know the law and the facts: and if you lean on advisers or subalterns who mislead you, this is the very thing for which you are to be punished." It is necessary for the State that it should have at its command knowledge and vigilance in the guardians of its liberties and its treasures. In those holding public office, want of either knowledge or of vigilance, resulting in negligence, is a penal offence. And, independently of these views, it is a general principle that wherever the law makes a 1 Supra, §§ 152 et seq. Resp. v. Montgomery, 1 Yeates, 419; State v. Littlejohn, 1 Bay, 316; State v. Glascow, Conf. R. 38; Com. v. Mitchell, 3 Bush, 39; McBride v. Com. 4 Ibid. 331. Compare cases cited supra, §§ 84-88. 3 Supra, §§ 125 et seq. 4 Supra. § 84. naked act indictable, irrespective of intent, ignorance as to either law or fact is no defence. At the same time, if the indictment charge a negligent ignorance of the law, the defendant is entitled to an acquittal if he can show that he showed the diligence common to specialists of his class. And where corrupt motive is essential to the offence, then, if it can be shown that the defendant acted honestly and non-negligently under a claim of right, he is not criminally responsible.3 Drunken ness in public officer indictable. § 1583. It is an indictable offence for a public officer voluntarily to be drunk when in discharge of his duties. No harm may come to the public from his misconduct, but he has put himself in a position from which much harm might result, and for so doing he is amenable to penal justice. $1584. From what has been said we reach the reasoning by which peace officers are required to attempt to suppress neglect by riots. The law requires them to be duly active and courageous in maintaining the public peace, and if they to suppress fail in this they are guilty of an offence to which mistaken views of their own powers, or mistaken views of the And they are entitled to call on all citizens to And so of officer in attempting riot. facts are no defence. 1 See supra, § 88. • Supra, § 85. 3 See cases cited supra, § 1576; State v. McDougald, 4 Harring. 555; Com. v. Jacobs, 2 Leigh, 709; State v. McDonald, 3 Dev. 468; State v. Johnson, 2 Bay, 385; 1 Brev. 155. Penn. v. Keffer, Addison, 290; Com. v. Alexander, 4 Hen. & Mun. 522. 6 R. v. Pinney, 5 C. & P. 254; 3 B. & Ad. 947; R. v. Neale, 9 C. & P. 431; Resp. v. Montgomery, 1 Yeates, 419; State v. Littlejohn, 1 Bay, 316. See supra, §§ 652 a, 1555; Whart. Cr. Pl. & Pr. §§ 5 et seq. According to Sir J. F. Stephen, an officer is indictable who neglects to perform any duty which he is bound either by common law or by statute to perform, provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter. Steph. Dig. Cr. L. art. 122. Of this he gives the following illustrations: "(1) A., the mayor of B., neglects to perform various acts which it was in his power to do, and which a man of ordinary prudence, firmness, and activity might have been expected to do, in order to suppress riots in B. A. is guilty of a misdemeanor. R. v. Pinney, 5 C. & P. 254. Supra, § 1555. "(2) A., the lord mayor of London, refrains from making the proclamation in the Riot Act, and from ordering soldiers to disperse a mob, because he is afraid to do so-in circumstances in |