delivered the opinion of the Court.

Lord Coke defines a barretor to be, “ a common mover and exciter, or maiutainer, of suits, quarrels, or parts, either in Courts, or elsewhere in the country. In Courts, as in Courts of record, or not of record, as in the county, hundred, or other inferior Courts. In the country, in three manners : first, in the disturbance of the peace : second, in taking and keeping possession of lands in controversy, not only by force, but also by subtilty and deceit, and most commonly by suppression of truth and right: thirdly, by false inventions, and sowing of ca-lumniations, rumors, and reports, whereby discord and disquiet may grow between neighbours.” Co. Lit. 368 a. b. And this definition is followed by all other elementary writers. Rolle’s Abr. 353, Barretors. 1 D’Auver’s Abr. 725, Barretors. 4 Vincr’s Abr. 208,-9, Barretors. A. Bac. Abr. Barratry. (A.)

The notice to the defendant, containing a specification of the matters intended to be given in evidence on the trial, was confined to acts of the defendant, tending to promote, and excite the commencement of divers prosecutions, in the Court of Sessions, for assaults and batteries, arid other petty offences: and I shall ^therefore, confine my remarks to that part of the general definition, which describes a barretor as a common mover and exciter of suits in Courts. And I shall consider: 1st. Whether moving and exciting criminal proeeutions constitutes barratry. 2d. Whether barratry can be committed by moving and exciting the commencement of a just suit, supposing the motive to be selfish, or oppressive.

The argument in support of the negative of the first proposition, is, that the affirmative would facilitate the escape of offenders, by deterring persons from taking that interest in public prosecutions, which is indispensably necessary for bringing the violators of the law to justice ; and which is not onlv the privilege, but the bounden duty of every good citizen, and more especially of public magistrates. The genera! definition is sufficiently broad to cover every description of legal proceedings. *398It is certain, that criminal prosecutions are not expressly excluí!» ej . al)(j ¡p we examjue the policy, which punishes the offence, ^ be found, that there is no reason, why they should be excluded. 1 he offence, as I understand it, does not consist, as I shall hereafter have occasion more particularly to notice, in promoting either private suits or public prosecutions, when the sole object is the attainment of public justice, or private right; but on the prostitution of these remedies to mean, and selfish purposes. He who brings a public offender to justice, does well; but lie who uses a public prosecution as a means of gratifying a passion for mischief, or for the sake of filthy lucre, or oppression, is an offender of no ordinary .magnitude. A protection is, therefore, found against the evil which the argument supposes, in the motive which prompted an interference in the prosecution, and in the further circumstance, that it does not consist of one, but of many independent acts. If it be insisted, that this would expose a party to the caprice of a jury, it is answered, that the intention enters into, and is of the very essence of all criminal offences; and when the other acts are ascertained, it is of that alone the jury are to judge : and one charged with barretry can not be more favoured.

The promotion and excitement of civil suits for bad motives is, confessedly, within the scope of the definition. Is a public prosecution less liable to be abused, or less oppressive in its effects, than a civil suit? If the design be to sow.the most incurable and implacable dissentions; to inflict ruin on an individual ; to extort money; or gratify a restless, mischievous inclination, and triumph in the tortures which are inflicted on others, villainy itself could not have forged an engine more, accessible, or more destructive in its effects. A civil suit operates ouly on the purse of the victim ; but this is the least evil to be expected from a criminal prosecution. Lord Coke lakes the same view of the subject, in his report of “ The Case of Barretry,” in which he enumerates among the various modes by which the offence may be committed, the “ malicious bringing of a special suppKccvit, or latitat of the peace, all by fraud and malice, to enforce the poor party ad redimendam vexationem, to give him money or make other composition. And this,” he adds, “ is the most dangerous oppressor, for he oppresses the innocent by colour and countenance of the law, which was institut*399ed to protect the innocent from all oppression and wrong.” 8 Rep. 74.

The second proposition, although not perhaps indispensably necessary to the case, made by the facts, becomes important on account of the instruction of the presiding Judge to the jury, that the stirring up of suits against the wishes of the party injured, or interested, for the sake of lucre, would constitute bar-retry, even in cases which were not otherwise illegal. The books all agree in the definition before given. A common mover and exciter of suits, &c. is a bárretor, without distinguishing between such suits as are just, and such as are unjust, and whether well, or ill-founded. The indictment itself contains the same generality of expression. It charges that the accused “ divers quarrels, strifes, suits, and controversies, among the honest and liege subjects of our Lord the King, did then, and there, move, procure, stir up, and excite, to the evil example of all others in like .cases offending,” &c. Cr. Cir. Comp. 206. From all which1, I think it clearly deducible, that the offence may be committed, by promoting or exciting suits, or prosecutions, although a wrong may have been done, or a petty offence committed. Independently of the generality of the definition, it is a standing rule, that the indictment must so state the facts, that the Court may see that an offence has been committed, without any reasonable intendment to the contrary. No words or periphrasis will supply the terms of art, used in the definition of an offence, as that of felónica in felony ; and if barretry were confined to the promoting and exciting of unjust suits, the indictment must so have stated it, for otherwise it would not appear that the suits excited, or moved, were not just.

The propriety and morality of promoting just suits to recover a private right, and the necessity of encouraging prosecutions for public offences of evil example, have been urged in support of the negative of this proposition. The case of the King v. -, 3 Mod. 97, has been relied on, it being there said, that if a man lay out money, in behalf of another in suits at law to recover a just right, he is not a barretor, and that he may do this in respect of the poverty of the party. Some subsequent writers also, losing sight of the reason of the rule, have laid it down, generally, that it was not barretry to spend money in pro*400moting the suit of another to recover a just right. Com. Dig. Barretry (B) But it will be remarked, that in the very same sentence, in the case referred to, it is expressly laid down, that if one lend money to promote and stir up suits, he is a barretor; distinguishing, I think, very clearly between the meritorious act of aiding the poor in the prosecution of a right, and an officious and improper intermedling for the sake of mischief, and the injury it may work, or other bad motives.

This distinction, Í think, is clearly taken by Viner. He is not a barretor, it is said, who prosecutes an infinite number of his own suits, although they are unjust; for if such person shall be a barretor, then he that sues for cause may be comprehend- , ed. 4 Vin. Abr. 208. Barretors. A. Clearly indicating that he who prosecutes a number of suits, not his own, is a barretor, although they are just; and I incline myself to think with Ser-jeant Hawkins, that there is no well founded reason, why he who prosecutes an infinite number of unjust suits of his own, should not incur the penalties of barretry, where the object is vexation and oppression. 1 Hawk. P. C. ch. 81, sec. 3. Lord Coke has applied to a barretor the cognomen of busy-body. 8 Rep. 72. According to others, he is a deceiver, a vile knave, an unthrift, a maintain er of quarrels, &c. ; and the vilest of all is he, who deals in criminal process, “ to enforce the poor pany ad redimendam vexationem, to give him money, or to make other composition.” 8o that he who promotes or excites unjusts • suits, although an offender of high rank, is not. exclusively so. The busy-body, the deceiver, the vile knave, or un-thrift, who excites others to litigation, with an intention to vox, and oppress, and by this means to extort money, is no less an offender against public justice.

Maintenance, it seems, is a species of barretry ; and cham-perty, and conspiracy belong to the same class of offences, and yet it never entered into the mind of any man, that he who uu-lawfully maintained a suit, bargained to divide the field,* or conspired with others, was less a maintainer, ehamperior, or conspirator, because the cause was just, if the motive were selfish, *401or oppressive. Is the Judge, juror, or witness, who receives a bribe, or the seducer who tempted them, the less criminal, because, in the end, a private wrong may have been redressed, or a public offence punished 1 And yet, all the reasons, which tend to excuse an act of barretry, apply equally- to all these cases. The temple erected and consecrated to Justice, is not, however, to be polluted with impunity, by those who would prostitute the rules regulating its police to base and unworthy purposes; although they may be associated with, arid approach under the colour of right, as in the cases before alluded to. The monster compounded of fraud, and deceit, and knavery, is forbidden the sanctuary, in whatever guise he may present himself.

The redress of private wrongs, and the suppression and punishment of crimes, and'misdemeanors, as the means of promoting the happiness of mankind, are the leading objects of the government and laws of every well regulated society. The pursuit of right, whether public or private, can never be an offence, where justice alone is the end in view ; but every perversion of the machinery of the law to other purposes, by coupling it with improper objects, is reprehensible. Hence if one lay out money in theprosecution of a suit to recover a close, of which his poor neighbor has been deprived, and without which he must lose it, he is no champertor, because right, humanity and justice, would approve it: but if he do it upon a stipulation, that he shall receive one half of the field, if it be recovered, he is, according to the legal definition of this offence, a cham-pertor. So if one move, or excite others to bring divers civil suits, or criminal prosecutions, in the belief that the ends of justice will be promoted by it, he is not, according to my view of the subject, a barretor ; but if he superadd base and unworthy motives, as when he himself is in a situation to use them as the means of gratifying his resentment, or extorting money from the parties, he is a barretor.

The facts reported in this case speak for themselves, and shew their own application to the rules before laid down. In point of number, the acts of barretry leave no doubt, that it was "the trade of the office, which the defendant kept as a magistrate and that it was of every day’s occurrence, to excite and promote prosecutions for petty offences, as the means of extort*402ing money from the ignorant: and the mind turns with disgust from the depravity which suggested it.

It has been urged as a ground in support of this motion, that as the defendant used the office of magistrate to effectuate this offence, he could only be indicted as for a misdemeanor in office; and that, however, the rule might be in respect to others, exciting a limited number of prosecutions, would not be barretry in him. Our laws recognize no distinction between citizens of the State. The same number of barretrous acts, and the same circumstances, which, united, constitute barretry in a private person, will make a magistrate a barretor, with this aggravation, that he will be presumed better to have known his master’s will, and ought, therefore, “ to be beaten with many stripes.”

It is further objected, that the receiving of illegal fees was punishable in a prosecution for mal-practice in office as a magistrate, and was not, therefore, admissible on the trial of this case. The general rule very clearly is, that proof of one distinct offence, cannot bo given in evidence on a prosecution for another ; but that rule does not obtain, when it enters info the substance of the offence charged, or constitutes a part of the res gestee. In the present case, the exacting of more than legal fees, as the condition of the parties compounding the prosecutions, was calculated to develope the motives which prompted the defendant to move and excite them ; and nil bis acts connected with them were admissible as a part of the res gestes. The motion for a new trial must, therefore, be refused.

dissented. I dissent in this case, because : 1st. I can find no precedent of a justice of the peace being convicted of barretry for promoting prosecutions ; and no express authority in support of such a conviction, especially when he promotes prosecutions which are legal and well founded.. I hold him within his official privilege. 2nd.. Because the adju-dicatiousdo not support the general definitions of barretry, found in the books, so as to make it cleav, that a man may be considered a barretor equally' for exciting legal, or illegal suits, and especially prosecutions.

Motion refused.

Richardson, J. delivered the opinion of the Court.

*404A motion is made to postpone passing sentence in this case, or at least the actual infliction of confinement, in order that the defendant may have an opportunity of applying to the Governor for a pardon, to be pleaded in bar of the sentence, or the punishment, as the case might be: and the case of the State v. Frink, 1 Bay, 168, is relied upon, in which the Judge postponed the punishment of branding in the hand, until a pardon could be applied for.

Wherever the law, ex vi termini, inflicts, upon conviction, a specific, and infamous punishment, it has been very usual for the Judge, at his discretion, to order the punishment to be inflicted on some day so distant, as to enable the convict to apply for a pardon in the meantime. Humanity, reason, and I may add, duty, all call for this practice; and the Judge may very properly, in such cases, postpone the punishment, exercising his own judgment as to time, and circumstances, &c. But wherever the punishment depends, as in the case now before us, upon the discretion of the Court, this reason for postponement no longer exists. And in all cases, a respectful spirit of comity and justice to the Executive, require that he should be informed, by the passing of the sentence, what the punishment is to be, whether light or severe, in order that he may judge, rationally, and understandingly, upon the subject; and thereupon pardon, remit the sentence, or reject the application altogether. The sentence ought, therefore, to be pronounced in such cases at the accustomed time, if it were only to inform the Governor of what the punishment is to consist. In the case before us, there is little reason indeed to support this part of his motion ; because the defendant has had already several months, since the conviction, to apply to the Governor for a pardon, and to arrest the sentence; and the practice of doing so, pending a motion for a new trial, is too well settled to admit a doubt of the defendant’s knowing- his constitutional right to have made the application for such pardon, and to have obtained it, if he could.

The second branch of the motion is, to fix a distant day for the anticipated confinement of the defendant, that he may apply for a pardon ad interim. It would be sufficient to answer this proposition with the reason last given, to wit, that the de*405fendant has had time enough, if a pardon were to be procured for a full remission of' the imprisonment; and if no more than a partial remission be looked for, there is, then, little reason in delaying the commencement of his term of confineuient. But there is great reason in rejecting such a change in the practice; and as the point has been warmly urged, it is deemed a fit occasion to express our opinion. Such a practice would give rise to the appearance, at least, of partiality, or of the influence of defendants who have been convicted. It would he the means of postponing, accommodating, and finally of eluding, or commuting the punishment. It' would look suspicious in the. eyes of sagacious byestanders; and that alone is a sufficient objection for rejecting a practice so novel. For after all that can be said upon the official independence of a Judge, and his commission of dum bene se gesserii, next to his conscious fidelity in the discharge of his duties, the great support is the approbation of the intelligent and virtuous, who see and overlook his daily judicial acts. This is public confidence, not popularity ; and is indispensable to the continuous support of the official independence upon which the purity of our judicatures rest.

But apart from such general and moral considerations of the subject, there is an answer to the motion strictly legal and judicial. The moment a defendant is convicted, he is in- the custody of the Court, and is to be confined, in order to be forthcoming on sentence day, whatever may be the sentence. Any other legal rule would allow a commutation of the punishment, either by the payment of his recognizance, or at most, by his own voluntary absence from the State, which would be often a grateful accommodation to convicts. Whatever practice then, humane considerations may have introduced, to delay moving the Judge to order the party convicted into the custody of the sheriff; and whatever may very possibly, in some cases, be the actual enlargement of the defendant, and which this very motion intimates; the Court must consider him as in the custody of the sheriff, and his confinement is no greater after the sentence.

Motion refused.

The motion to postpone the sentence having been refused, the defendant’s counsel asked leave to submit a motion in arrest of judgment. Leave was granted accordingly; and at a sub*406sequent day in the term, a motion in arrest was made on the following grounds: 1. That the prosecution vras barred by lapse of time. 2. That the defendant should have been in-dieted by the title of his office. 3. That the judgment should be limited to the removal of the defendant from office.

Johnson, J. delivered the opinion of the Court,

The'indictment against the defendant charges him with common barretry, in the terms of the most approved precedents found in the books of practice : nor do the grounds of this motion call in question its technical accuracy, either in matter of substance, or of form. Now I take it, as universally true, that judgment will never be arrested except for matter apparent on the faee of the record ; and perhaps it would be sufficient to remark on the grounds of the motion, generally, that they are all founded on matters foreign to the record. But the novelty of the prosecution, and the interest which it lias excited intitle it, perhaps, to more consideration.

In accordance with the practice in such cases, a notice containing a specification of the particular acts of barretry intended to be given in evidence, in support of the prosecution, was filed with the indictment; and this the counsel have assumed is part of the indictment itself, and some of the grounds of this motion are predicated on facts therein stated. It is not, however, referred to in the indictment, and ought not, therefore, to be considered'Part of it. From the nature of the offence, it is *408110t suscePtl^e °f specification, and any attempt at a formal description in the indictment of the specific acts of barretry, would be destructive of the character of the offence; for it would ^en cease to be common barretry. The notice, in fact, is nothing more than a bill of particulars of the evidence, intended to be offered on the trial, and rendered necessary by the generality of the charge, as a means of guarding the defendant against surprise.

From the notice it appears, that the defendant was a justice of the quorum for Charleston district: that the acts of barretry charged against him, consisted in his moving and exciting the 'commencement of divers prosecutions in the Court of Sessions, on informations made before, and warrants issued by him, for the purpose, and as the means of extorting money from the parties : and that some of the acts were committed more than a year, or two terms, before the commencement of this prosecution. Now the argument is, that this amounted to mal-feazauce in office, in which the barretry merged, and therefore the defendant could only be indicted in his official character : and it is contended that as by the common law, the Court might in its discretion, refuse leave to file an information after two terms, evidence of acts before that time ought to have been rejected. It is also insisted, that an indictment for barretry is barred in one year by the St. 32. Hen. 8. c. 9.

The opinion pronounced by the Court on the motion for a new trial concludes the question as to the liability of the defendant to be indicted, for barretry, although the acts charged were done colore officii. If in themselves barretrous, they wore certainly not the less so because the defendant was a magistrate, and used his office the better to carry his purposes into execution. Barretry is a substantive and distinct offence, and in no wise necessarily connected with the office of magistrate, and is not, therefore, merged in an offence committed in that office. If a magistrate under colour of his office, were to award sentence of death, or other corporal punishment on an offender, and cause it to be carried into execution, that would certainly be mal-practice in office, but it will not be contended, that it would not also be murder, or trespass, as the case might be. This case is not, therefore, one in which the Court can exer*409cise any discretion, in limiting either the time within which the prosecution must be commenced, or to which the evidence adduced at the trial must be confinedi

The statute referred to, it may be conceded, limits the commencement of indictments, as well as informations, for bracery, champerty, maintenance, and some other offences of the same class, to one year after the offence is committed. But barretry is not mentioned in it, and that would be a sufficient reason for not applying it here. It is, moreover, very apparent, that it was never intended to be applied to this offence. Bracery and the other offences mentioned, consist of a single act, and the point of time is indivisible. Not so of barretry that is made up of many acts, committed at different times, and in tracing the circumstances, it would be impossible to fix upon the precise time when it began, or when it was consummated ; and it would be difficult therefore, to bring a statutory law to operate upon it. Suppose it limited to the year : one might then with impunity commit one or two acts of barretry every year throughout a long life. It is the aggregate of all the barratrous acts which constitute barretry; and the longer the list, and the more extended in point of time, the more aggravated is the offence. It is the conduct of a man through life, from which his character is drawn; and it is the habit of intermeddling, which stamps on him the character of barretor.

These remarks were not, for the reasons before given, thought necessary to this as a motion in arrest of judgment; but if there had been any thing in them to warrant it, the Court might even now have given the defendant the benefit of them in the form of a new trial, and for that reason they have been noticed. The course which this case has taken has suggested to the Court, however, the necessity of remarking, that they have been led involuntarily into a violation of the practice of the Court, in hearing a ease in detached parts ; for this is the third occasion on which this case has been brought before us, in as many different shapes, when the whole might as well have been presented and discussed in the first instance. It must not, therefore, be taken as a precedent in future cases.

Motion refused.

On the conviction of the defendant in the Court of Sessions, a rule had been taken out against him, returnable to the Court *410of Appeals, requiring him to shew cause, why his name should not be stricken from the roll of attorneys and solicitors. After the motion in arrest of judgment had been dismissed, this rule was called up, and, on motion of the Attorney General, made absolute ; and the defendant declared incapable of practising as- an attorney or solicitor in the Courts of Law and Equity of this State. ,

The judgment on the indictment was, that the defendant be imprisoned for two months, and pay a fine of two hundred dollars to the State.