special statutes, (1) to rescue, or attempt to rescue, any person committed for the offences enumerated in those acts, is felony without benefit of cler. gy and to rescue, or attempt to rescue, the body of a felon executed for murder, is single felony, and subject to transportation for seven years. Nay, even if any person be charged with any of the offences against the black-act, 9 Geo. I. c. 22., and being required by order of the privy council to surrender himself, neglects so to do for forty days, both he and all that knowingly conceal, aid, abet, or succour him, are felons without benefit of clergy." 9 7. Another capital offence against public justice is the returning from transportation, or being seen at large in Great Britain, before the [133] expiration of the term for which the offender was ordered to be transported, or had agreed to transport himself. This is made felony without benefit of clergy in all cases, by statutes 4 Geo. I. c. 11., 6 Geo. I. c. 23., 16 Geo. II. c 15., and 8 Geo. III. c. 15., as is also the assisting them to escape from such as are conveying them to the port of transportation.10 8. An eighth is that of taking a reward, under pretence of helping the owner to his stolen goods. This was a contrivance carried to a great length of villainy in the beginning of the reign of George the First: the confederates of the felons thus disposing of stolen goods, at a cheap rate, to the owners themselves, and thereby stifling all farther inquiry. The famous Jonathan Wild had under him a well-disciplined corps of thieves who brought in all their spoils to him; and he kept a sort of public office for restoring them to the owners at half price. To prevent which audacious practice, to the ruin and in defiance of public justice, it was enacted by statute 4 Geo. I. c. 11. that whoever shall take a reward under the pretence of helping any one to stolen goods, shall suffer as the felon who stole them: unless he causes such principal felon to be apprehended and brought to trial, and also gives evidence against them. Wild, still continuing in his old practice, was upon this statute at last convicted and executed. (m) "1 16 Geo I. c. 23. (Transportation.) 9 Geo. I. c. 22. (Black-act.) 8 Geo. Il c. 20. (Destroying turnpikes, &c.) 19 Geo. II. c. 34. (Smuggling. See the 52 Geo. Ill. c. 143. s. 11.) 25 Geo. II. c. 37. Murder.) 27 Geo. II. c. 15. (Black-act.) m See stat. 6 Geo. I. c. 23. § 9. knew of what specific offence the person he assisted had been convicted. Russ. & R. C. C. 526. sed quære if the act is not repealed by the 4 Geo. IV. c. 64 s. 1. By the 4 Geo. IV. c. 64. s. 43. conveying into a prison any disguise, or instrument to facilitate the escape of any prisoner, and delivering the same to such prisoner, against the keeper's consent, and aiding the escape of a prisoner from prison, whether an escape be effected or not, is felony; and the offender may be transported for not exceeding fourteen years. The 44th sect. points out the mode of trial, and conviction of offenders making escapes, &c. Chitty. (9) But now the rescuing a party in custody for an offence against the black-act, is only pu nishable with transportation, or imprisonment and hard labour. 4 Geo. IV. c. 54. s. 1. (10) These provisions are virtually repealed by the 6 Geo. IV. c 84. which revives and consolidates into one act the laws relative to the transportation of offenders. By the 22d section, it is enacted, that if any offender, sentenced or ordered to be transported or banished, or having agreed to transport or banish himself, shall be afterwards found at large, without lawful excuse, before the expiration of the term of transportation or banishment, he shall suffer death without clergy. By sect. 84. the net is not to extend to persons banished under the 60 Geo. III. and 1 Geo. IV. c. 8. for blasphemous and seditious libels. If the prisoner can shew such circumstances of poverty or sickness, which amount to an absolute impossibility to transport himself, or leave the kingdom, he will not be within the act. 1 Leach, 396. By the 22d sect. of 5 Geo. IV. c. 84. a reward of 201. is given for prosecuting an offender against the act to conviction. Chitty. (11) Now the punishment of death is taken away by the 1 Geo. IV. c. 115. s. 1.; and by sect. 2. instead thereof, the offender may be transported for life, or for not less than seven years, or be imprisoned, with or without hard labour, for not more than seven years. By the 6 Geo. I. c. 28. 9. Receiving of stolen goods, knowing them to be stolen, is also a high misdemeanor and affront to public justice. We have seen in a former chapter, (n) that this offence, which is only a misdemesnor at common law, by the statutes 3 & 4 W. & M. c. 9. and 5 Ann. c. 31. makes the offender ac. cessory to the theft and felony. But because the accessory cannot in general be tried, unless with the principal or after the principal is convicted, the receivers by that means frequently eluded justice. To remedy which it is enacted by statute 1 Ann. c. 9. and 5 Ann. c. 31. that such receivers may still be prosecuted for a misdemesnor, and punished by fine and imprisonment, though the principal felony be not before taken so as to be prosecuted and convicted. And, in case of receiving stolen lead, [133] iron, and certain other metals, such offence is by statute 29 Geo. II. c. 30. punishable by transportation for fourteen years. (o) So that now the prosecutor has two methods in his choice: either to punish the receivers for the misdemesnor immediately, before the thief is taken; (p) or to wait till the felon is convicted, and then punish them as accessories to the felony. But it is provided by the same statutes, that he shall only make use of one, and not both of these methods of punishment.' 12 By the • See also statute 2 Geo. III. c. 28. § 12. for the punishment of receivers of goods stolen by bum-boats, &c. in the Thames. p Foster, 373. n See pag. 38. s. 9. a reward of 401. is given to a party apprehending and prosecuting to conviction one of this description of offenders. Cro. C. C. 8 ed. 10. It is an offence within the 4 Geo. I. to take money under pretence of helping a man to goods stolen from him, though the prisoner had no acquaintance with the felon, and did not pretend that he had, and though he had no power to apprehend the felon, and though the goods were never restored, and the prisoner had no power to restore them. 1 Ry. & M. C. C. 76. It has been doubted whether the offender can be punished in case the original felon bas, by death or other means, escaped conviction. 1 Leach, 15. But such a construction seems inconsistent with the intent of the act. 2 East P. C. 770, 1. The party may be convicted on the evidence of the principal felon. 1 Leach, 18. 2 East P. C. 770. 1 Leach, 418. Chitty. (12) By 4 Geo. I. c. 11 persons convicted of receiving or buying stolen goods, knowing them to be stolen, may be transported for fourteen years. But offenders of this class, notwithstanding the act, may pray the benefit of clergy, and thus receive sentence only for the penalties consequent on its allowance. 2 East P. C. 744. And this act can only mean persons legally convicted as accessories under 3 W. & M. c. 9. and 5 Ann. c. 31. so that to warrant any judgment under it, the principal must be first convicted; and the offence must be such as, at common law, admits of accessories after the fact and, therefore, if the principal be convicted of petit larce ny only, the verdict finding the accessory guilty under this act is of no effect, and no judgment can be given against him. Fost 73. Neither does the punishment mentioned in it extend to cases where the principal felon is not convicted, and the receiver is found guilty of a misdemeanor under 1 Ann. sess. 2. c. 9. when fine, imprisonment, and corporal punishment, are prescribed. In the construction of these statutes it has been resolved, that where the principal has been convicted, the misdemeanor is merged in the felony, and the prosecutor cannot indict for the former at his option, 2 East P. C. 746. and even when the principal is not found guilty, but in custody and amenable to justice, this course was formerly illegal. Fost. 373. 374. acc. 2 Ld. Rayın. 1370. But the accessory might be tried for the misdemeanor, though the principal might not have been brought to justice. 1 Leach, 103. And now by 22 Geo. III. c. 58. where any goods or chattels (except lead, iron, copper, brass, bell-metal, and solder), have been feloniously stolen, whether the offence of the principal shall amount to grand larceny, or some greater offence, or to petit larceny only (except where the person or persons actually committing the felony shall have been already convicted of grand larceny, or of some greater offence), the buying or receiv ing any such stolen goods or chattels, is a misdemeanor, and punishable by fine, imprisonment, or whipping, although the principal felon be not before convicted, and whether he is amenable to justice or not. And in cases where the felony actually committed, amounts to grand larceny, or some greater offence, and where the person actually committing such felony, be not before convicted, such offender is exempt from being punished as accessory, if the principal felon be afterwards convicted." Under this act the punishment should be fine and imprisonment, or whipping and fine or imprisonment, and whipping cannot be inflicted. Russ. & Ry. C. C. 253. By the 3 Geo. IV. c. 114. the receivers of stolen goods may be punished with imprisonment and hard labour, for not exceeding the term for which the court might then imprison for such of fence, either in addition to, or in lieu of other punishment. In the construction of the former statutes of William and Anne, it has been holden that they include sheep, and by the same reasoning fowls and other animals, 2 East P. C. 748; money is 13 same statute also, 29 Geo. II. c. 30. persons having lead, iron, and other metals in their custody, and not giving a satisfactory account how they came by the same, are guilty of a misdemesnor, and punishable by fine or imprisonment. And by statute 10 Geo. III. c. 48. all knowing receivers of stolen plate or jewels, taken by robbery on the highway, or when a bur glary accompanies the stealing, may be tried as well before as after the conviction of the principal, and whether he be in or out of custody; and, if convicted, shall be adjudged guilty of felony, and transported for fourteen years.14 10. Of a nature somewhat similar to the two last is the offence of theft bole, which is where the party robbed not only knows the felon, but also takes his goods again, or other amends upon agreement not to pro[134] secute. This is frequently called compoundings of felony; and for merly was held to make a man an accessory; but is now punished only with fine and imprisonment. (g) This perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment. And the Salic law, "latroni eum similem habuit, qui furtum "celare vellet, et occulte sine judice compositionem ejus admittere." (r) By statute 25 Geo. II. c. 36. even to advertise a reward for the return of things stolen, with no questions asked, or words to the same purport, subjects the advertiser and the printer to a forfeiture of 501. each. not included in the terms "goods and chattels," and, therefore, the receivers of coin are not within their meaning. Leach, 241 It has also been holden, that to receive bank notes is not an offence against which they can operate; though some of the judges strongly dissented from this opinion, thinking that as the 2 Geo. II. c. 25. made it a felony to steal bank notes, like other effects of the same value, the receivers of them were placed in the same condition with the receivers of goods and chattels 1 Leach, 468 and 472. in notis, This decision seems also to be shaken by several cases in which bank notes have been holden to be within 12 Ann. c. 7. which makes the stealing of any money, goods, or chattels, wares, or merchandises, in a dwelling-house, a capital offence, 2 Leach, 693 564. 572. 640.; however, in a later case, where A. G was convicted of stealing promissory notes, and her husband of receiving them, the above decision was recognized, and the judges thought the receiving not indictable, and that the conviction was wrong Russ. & Ry. C. C. 384. But now by 3 Geo. IV. c. 24. s. 1. the receiving or buying any exchequer order or tally, or any exchequer bill, bank note, South-sea bond, East India bond, dividend warrant of the bank of England, South-sea company, East India company, or any other company, society, or corporation, bill of exchange, navy bill, or debenture, goldsmith's note for the payment of money, or other bond, warrant, or order, bill, or promissory note for payment of money, is punishable as a felony or misdemeanor, as the case may be, in like manner as persons receiving or buying stolen goods and chattels are, by the laws now in force, liable to be prosecuted and punished; and the second section of that act enacts that all the provisions then in force relative to the searching for, &c. stolen goods, and apprehending, &c. persons receiving, &c. stolen goods, shall be extended to that act; the third section enacts, that in all cases where the offence of any person receiving or buying stolen goods, &c. shall be deemed and construed to be a felony, such offender may be convicted of such felony, as well before as after the trial of the principal felon, &c. This section, however, leaves as misdemeanors what were misdemeanors before the passing of it, and does not change them into felonies. 1 Ry. & Moo. C. C. 11. Chitty. (13) Under this act, it has been decided, that manufactured articles of brass, &c. becoming broken after they have been manufactured, are within the act; and it seems also that manufac tured articles of brass, &c. whether broken or unbroken, are within it. 1 Burn. J. 24th ed. 23. 2 Russ. 1355.; and the act extends to wrought goods, and to all goods mentioned in it, whether manufactured or not. 2 Russ. 1356. n. (m). Where an offender is convicted under this act of receiving, stolen, &c. iron, under the value of 1s., judgment of transportation must still be given, 2 East P. C. c. 16. s 144. p. 753. 1 Burn J. 24th ed. 24. (14) A seal of cornelian set in gold, is a jewel within this act, but it is questionable whether a watch is. I East P. C. 754. By the 21 Geo. III. c. 69. the buying or receiving any pewter in any form or shape whatever, knowing the same to be stolen or unlawfully come by, or effecting the same purpose,"by suffering any door, window, or shutter, to be left open or unfastened from sun setting to sun-rising for that purpose," though the principal felon be not convicted, is punishable as other felonies are, with transportation for seven years, or with imprisonment and hard lạhour from one to two years, and with whipping, not exceeding three times. 11. Common barretry is the offence of frequently exciting and stirring up suits and quarrels between his majesty's subjects, either at law or other ways. (s) The punishment for this offence, in a common person, is by fine and imprisonment; but if the offender (as is too frequently the case) be. longs to the profession of the law, a barretor, who is thus able as well as willing to do mischief, ought also to be disabled from practising for the future. (1) And indeed it is enacted by statute 12 Geo. I. c. 29. that if any one, who hath been convicted of forgery, perjury, subornation of per. jury, or common barretry, shall practise as an attorney, solicitor, or agent, in any suit; the court, upon complaint, shall examine it in a summary way; and, if proved, shall direct the offender to be transported for seven years.15 Hereunto may also be referred 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 of fence, 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 de. gree, where the crime is equally pernicious, but the authority of the judges not equally extensive, it is directed by statute 8 Eliz. c. 2., to be punished by six months' imprisonment, and treble damages to the party injured. 12. Maintenance is an offence that bears a near relation to the former, being an officious intermeddling in a suit that no way belongs to [135] one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it; (u) a practice that was greatly encouraged by the first introduction of uses. (w) This is an offence against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression. And therefore, by the Roman law, it was a species of the crimen falsi to enter into any confederacy, or do any act to support another's lawsuit, by money, witnesses, or patronage. (x) A man may however maintain the suit of his near kinsman, servant, or poor neighbour, out of charity and compassion, with impunity. Otherwise the punishment by common law is fine and imprisonment; (y) and by the statute 32 Hen. VIII. c. 9., a forfeiture of ten pounds. 13. Champerty, campi-partitio, is a species of maintenance, and pu. nished in the same manner: (*) being a bargain with a plaintiff or defendant campum partire, to divide the land or other matter sued for between them, if they prevail at law; whereupon the champerter is to carry on the party's suit at his own expense. (a) Thus champart, in the French law, signifies a similar division of profits, being a part of the crop annually due to the landlord by bargain or custom. In our sense of the word it signifies the purchasing of a suit, or right of suing a practice so much abhorred by our law, that it is one main reason why a chose in action, or thing of which one hath the right but not the possession, is not assignable at common law; because no man should purchase any pretence to sue in another's right.10 These pests of civil society, that are perpetually endeavouring to disturb the repose of their neighbours, and officiously interfering in other men's 81 Hawk. P. C. 243. w Dr. & St. 203. t1 Hawk. P. C. 244. Hawk. b. 1. c. 81. s. 5. % (16) A man cannot be guilty of barretry in respect of a single act. Saund. 393. n. 1. and see 3 Mod. 97 A feme-covert may be indicted for this offence. 2 Hawk. c. 81. s. 6. see vid. 2 Rol. Rep. 39 (16) If any attorney prosecute an action, to be paid his costs in gross, it should seem it would amount to champerty. Com. Dig. Attorney, B. 14 Hob. 117. Tidd Prac. 8 ed. $26. 66 quarrels, even at the hazard of their own fortunes, were severely animadverted on by the Roman law, "qui improbe coeunt in alienam litem, ut quicquid ez condemnatione in rem ipsius redactum fuerit inter eos communicaretur, lege Julia de vi privata tenentur :" (b) and they were pu[136] nished by the forfeiture of a third part of their goods, and perpetual infamy. Hitherto also must be referred the provision of the statute 32 Hen. VIII. c. 9., that no one shall sell or purchase any pretended right or title to land, unless the vendor hath received the profits thereof for one whole year before such grant, or hath been in actual possession of the land, or of the reversion or remainder; on pain that both purchaser and vendor shall each forfeit the value of such land to the king and the prosecutor. These offences relate chiefly to the commencement of civil suits: but 14. The compounding of informations upon penal statutes is an offence of an equivalent nature in criminal causes; and is, besides, an additional misdemeanor against public justice, by contributing to make the laws odious to the people. At once therefore to discourage malicious informers, and to provide that offences, when once discovered, shall be duly prosecuted, it is enacted by statute 18 Eliz. c. 5., that if any person, informing under pretence of any penal law, makes any composition without leave of the court, or takes any money or promise from the defendant to excuse him (which demonstrates his intent in commencing the prosecution to be merely to serve his own ends, and not for the public good), he shall forfeit 10l. and shall stand two hours on the pillory, and shall be for ever disabled to sue on any popular or penal statute.1a 17 15. A conspiracy also to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted, is a farther abuse and perversion of public justice: " for which the party injured may either b Ff 48. 7. 6. (17) This punishment of pillory is abolished by 56 Geo. III. c. 138. (18) This statute does not apply to offences cognizable only before magistrates, 1 B. & A. 282.; it applies only to common informers, and not to cases where the penalty is given to the party grieved. 1 Salk. 30. 2 Hawk. 279. The taking the penalty is an offence within the act, though there is no action or proceeding for it. Russ. & R. C. C. 84. 3 Burn. J. 24 ed. 85. A notice of action required by a penal statute is no commencement of the suit, so as to subject the plaintiff, or his agent, to an attachment for attempting to compound an offence previous to the suing out of the writ, 2 Bla. Rep. 781.; as to the mode of obtaining leave to compound, see Tidd's Prac. 8 ed. 604. (19) It is no excuse for a conspiracy to carry on a malicious prosecution, that the indictment preferred was insufficient, or that the court before which it was taken had no jurisdiction to try it, although in consequence of these circumstances the party was really never brought into danger. 1 Hawk. c. 72. s. 3. Nor will it avail defendant that be had intended only to give evidence on a trial not then commenced, for the law makes the mere intent in such case criminal; if, however, the principal charge is in progress, it may be proper to apply to the court to defer the judicial investigation of the conspiracy till that is decided. 1 Hawk. c. 72. 3. 4. The production of a false certificate that a highway is in repair, calculated to influence the judgment of the court, is indictable, even though the magistrate bringing it forward has no precise authority to make it, nor the instrument itself any exact legal character. 6 T R. 619. The instance pointed out by the learned commentator is not the only one in which parties may be indicted for a conspiracy; and it may be stated as a general rule, that all confederacies wrongfully to prejudice another, are misdemeanors at common law, and indictable accordingly, whether the intention is to injure his property, his person, or his character. See 1 Hawk. c. 72. s. 2. Conspiring to marry a girl to get her fortune, is an indictable offence. 3 Ves. & B. 173. So is a conspiracy to marry under feigned names for the purpose of setting up a fictitious claim to an estate, though no one is in reality injured, Leach, 39. So is a conspiracy to injure the reputation of an individual, by indicting or preferring a complaint before a magistrate, though no indictment or complaint be preferred, 1 Bla. Rep. 392.; and this though the offence intended to be charged was not cognizable in the temporal courts. 1 Salk 174. And it seems an indictment lies for conspiring to cheat and defraud a man by selling him an unsound horse. 2 B. & A. 204. 1Stark, C. N. P. 402. But no indictment lies for conspiring to commit a civil trespass on a preserve to fake game, though effected in the night, and with destructive weapons. 13 East, 228. |