9. Receiving of stolen goods, knowing them to be stolen, is also a high misdemeanor and affront to public justice (19). We have seen in a former chapter (n), that this offence, which is only a misdemeanor at common law, by the statute 3 & 4 W. & M. c. 9. and 5 Ann. c. 31. makes the offender accessary to the theft and felony. But because the accessary cannot in general be tried, unless with the principal or after the [*133] principal is convicted, the receivers by that means frequently elud ed 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 misdemeanor, and punished by fine and imprisonment, though the principal felon be not before taken so as to be prosecuted and convicted (20). And, in case of receiving stolen lead, 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 misdemeanor immediately, before the thief is taken (p); or to wait till the felon is convicted, and then punish them as accessaries 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. By the 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 misdemeanor, 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 burglary 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 (21). 10. Of a nature somewhat similar to the two last is the offence of theft bote, which is where the party robbed not only knows the felon, but also takes his goods again, or other amends upon agreement not to prosecute. This is frequently called compounding of felony (22); and formerly was he possessed no power to apprehend the felon, and though the property was never restored, and the officer had no power to restore it. By statute 7 and 8 Geo. IV. c. 29, 58, it is enacted, "That every person who shall corruptly take any money or reward, directly or indirectly, under pretence, or upon account of helping any person, to any chattel, money, valuable security, or other property whatsoever, which shall by any felony or misdemeanor have been stolen, taken, obtained, or converted as aforesaid, shall (unless he cause the offender to be apprehended and brought to trial for the same,) be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceed ing four years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit,) in addition to such imprisonment." By 59, advertising a reward for the return of any stolen property whatsoever, which shall have been stolen or lost, purporting that bumboats, &c. in the Thames. no questions shall be asked, or printing such advertisements, renders the offending party liable to a penalty of fifty pounds, and full costs, to any person who will sue for the same, by action of debt. This Act repeals the 25 Geo. II. c. 36, § 1, as far as relates to the advertising rewards for stolen goods. The 4 Geo. I. c. 11, § 4, relating to, and the 1 Geo. IV. c. 115, directing the degree of punishment for this offence, are also repealed by this statute. (19) In New-York, it is punishable with imprisonment not exceeding 5 years, and a fine not exceeding 250 dollars. (2 R. S. 680, § 71.) See also id. 678, § 61. (20) See accordingly, 2 R. S. 680, § 72. (21) The acts mentioned above are mostly repealed by later acts, which are nearly similar to them: see 1 & 2 Geo. IV. c. 75: 7 & 8 Geo. IV. c. 29: 3 Geo. IV. c. 24. (22) In New-York, compounding any of fence punishable by death or imprisonment for life, is punishable by imprisonment not exceeding years if the offence compounded were punishable by imprisonment in the state held to make a man an accessary; but it is now punished only with fine and imprisonment (9). This perversion of justice, in the old Gothic consti tutions, was liable to the most severe and infamous punishment. [*134] 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 50l. each (23). 11. Common barretry is the offence of frequently exciting and stirring up suits and quarrels between his majesty's subjects, either at law or otherways (s) (24). The punishment for this offence, in a common person, is by fine and imprisonment; but if the offender (as is too frequently the case) belongs 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 (t). 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 perjury, 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. Hereunto 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 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 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 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 (g) 1 Hawk. P. C. 125. (r) Stiernh. de jure Goth. 1. 3, c. 5. (8) 1 Hawk. P. C. 243. prison for a shorter term than for life, the person compounding may be imprisoned not more than 3 years: (2 R. S. 689, ◊ 17, 18) if the offence were punishable by imprisonment in a county jail, or by any penalty or forfeiture, the compounding is a misdemeanor, (id. 692, 12:) and punishable by imprisonment not more than 1 year. (Id. 697, $ 40.) In the two first cases it is unnecssary to prove the conviction of the principal offender. Id. 689, § 19. Assaults and other misdemeanors, for which the party injured has a civil remedy, may, however be compromised before indictment, or with the consent of the court, after indictment, unless they be charged to have been committed riotously, or with intent to commit a felony, or by or upon any officer or minister of justice while in the execution of the duties of his office. Id. 730, § 66, &c. (23) 7 & 8 Geo. IV. c. 27 & 29. relate to this offence. (1) Ibid. 244. (24) Disturbing the peace, making false inventions, propagating evil reports and calumnies, and spreading false and groundless rumours, whereby discord and disquiet may ensue amongst neighbours, may properly be ranked under the head Barretry. 1 Inst. 368. 1 Haw. P. C. 243. See 1 Hale, P. C. c. 27; Bac. Abr. Barretry; 1 Russell, 185, on this subject. See also the Case of Barretry, 8 Co. Rep. 36, b. No one can be convicted for a single act of barretry, for every indictment for that offence must charge the defendant with being a common barretor. In a late case in the King's Bench, where an attorney, without any corrupt or unworthy motives, prepared a special case in order to take the opinion of the court upon the will of a testator, and sug gested several facts which had no foundation, he was held to be guilty of a contempt, and fined 301. In re Elsam, 5 D. and R. 389; 3 B. and C. 597. *keeps alive strife and contention, and perverts the remedial pro- [*135] cess 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 punished in the same manner (z): 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) (25). 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 (26): 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 (27). These pests of civil society, that are perpetually endeavouring to disturb the repose of their neighbours, and officiously interfering in other men's 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 ex condemnatione in rem ipsius redactum fuerit inter eos communicaretur, lege Julia de vi privata tenentur (b);" and they were punished 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 [*136] one whole year before such grant, or hath been in actual posses sion 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 (z) Ff. 48. 10. 20. (25) In New-York it is a misdemeanor knowingly to take a conveyance of lands or tenements, or of any interest therein, from a person not in possession, while the title is controverted by suit in any court; also to buy or sell, or make or take any agreement to convey any pretended title to lands or tenements, unless the party selling or agreeing to sell, has, or he and those by whom he claims have been in possession of the same, or of the reversion or remainder, or have received the profits thereof for one year before. This, however, is not to apply to mortgages. (2 R. S. 691, 5, &c.) As to attornies levying claims for the purpose of suing on them, see 2 R. S. 288. (26) See 1 Haw. P. C. c. 3, Co. Litt. 368, (a) Stat. of conspirat. 33 Ed. I. 1 Russell 176, on this subject. The distinction between maintenance and champerty seems to be this: where there is no agreement to divide the thing in suit, the party intermeddling is guilty of maintenance only; but, where he stipulates to receive part of the thing in suit, he is guilty of champerty. It seems that resorting to machinery and contrivances in order to make a party interested in a suit a witness on the trial, amounts to maintenance. Bell v. Smith, 7 D. and R. 846; 5 B. and C. 188. (27) If an 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. 326. 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 101., shall stand two hours on the pillory (28), and shall be for ever disabled to sue on any popular or penal statute (29), (30.) 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 (31); for which the party injured may (28) By 56 Geo. III. c. 138, this punishment is removed from all offences, except perjury and subornation of perjury. (29) See p. 133. note 22. (30) 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. (31) 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 charac ter. See 1 Hawk. c. 72. s. 2. But no indict ment lies for conspiring to commit a civil trespass on a preserve to take game, though effected in the night, and with destructive weapons. 13 East, 228. The offence of conspiracy is not confined to the prejudicing a particular individual, it may be to injure public trade, to affect public health, to violate public policy, to insult public justice, or to do any act in itself illegal. There are many cases in which the act itself would not be cognizable by law if done by a single person, which becomes the subject of indictment when effected by several with a joint design. 6 T. R. 636. Thus each person attending a theatre has a right to express his disapprobation of the piece acted, or a performer on the stage, but if several previously agree to condemn a play, or hiss an actor, they will be guilty of conspiring. 2 Camp. 358. In the case of workmen refusing to proceed unless they receive an advance of wages, it is clear that any one of them might singly act on this determination, but it is criminal when it follows from a plan proconcerted by many. 6 T. R. 636. See the statute as to combinations among workmen, infra. There are other cases in which, though the act may be morally criminal, it is not illegal, except on the ground of conspiracy; thus the verbal slander of a private individual is not indictable, but it is so where several unite in a scheme to blast his character. 1 Lev. 62. Vent. 304. And in every case that can be adduced of conspiracy, the offence depends on the unlawful agreement, and not on the act which follows it, the latter is but evidence of the former. 2 Burr. 993. 3 Burr. 1321. 1 To constitute a conspiracy, as observed in the text, there must be at least two persons implicated in it; and a husband and wife cannot be guilty of it. 1 Hawk. c. 72. s. 8. If all the persons in the indictment be acquitted except one, and the indictment do not lay the offence as committed jointly with other persons unknown, no judgment can be passed on such one. Poph. 202. 3 Burr. 1262. Mod. 262. But one conspirator may be tried singly; as if the others had escaped, or died, before the trial, or the finding of the bill, he may be convicted alone. 1 Stra. 193. 2 Stra. 1227. It is no offence to conspire to prosecute a guilty person. 1 Salk. 174. 12 It is not necessary to constitute the offence, that any act should be done in pursuance of the conspiracy, 2 Lord Raym. 1167. 8 Mod. 321. 1 Salk. 174. 1 Bla. Rep. 392; or that any party was actually injured. 1 Leach, 39. Conspiracies and combinations among workmen for a long time engrossed the attention of, and perplexed, the legislature. Until the passing of the 6 Geo. IV. c. 129. the common law relative to such an offence was considered defective. This act, however, repeals all the former acts on the subject of such combinations, and leaves the offence as it before stood at common law. However, by the 3d section, if a person by force, violence, threats, or ob struction, compel any person hired or employed in any trade or business to depart from his hiring or employment, or obstruct him from re turning to his work before finished, or prevent, or endeavour to prevent any person from hiring himself, or from accepting employment; or by force or threats, &c. molest another in his person or property, to induce him to be either have a civil action by writ of conspiracy (of which we spoke in the preceding book) (c), or the conspirators, for there must be at least two to form a conspiracy, may be indicted at the suit of the king, and were by the ancient common law (d) to receive what is called the villenous judgment; viz. to lose their liberam legem, whereby they are discredited and disabled as jurors or witnesses; to forfeit their goods and chattels, and lands for life; to have those lands wasted, their houses razed, their trees rooted up, and their own bodies committed to prison (e). But it now is the better opinion, that the villenous judgment is by long *dis- [*137] use become obsolete; it not having been pronounced for some ages: but instead thereof the delinquents are usually sentenced to imprisonment, fine, and pillory. To this head may be referred the offence of sending letters, threatening to accuse any person of a crime punishable with death, transportation, pillory, or other infamous punishment, with a view to extort from him any money or other valuable chattels. This is punishable by statute 30 Geo. II. c. 24, at the discretion of the court with fine, imprisonment, pillory, whipping, or transportation for seven years (32), (33). 16. The next offence against public justice is when the suit is past its commencement, and come to trial. And that is, the crime of wilful and corrupt perjury which is defined by sir Edward Coke (f), to be a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue or point in question (34). The law takes no notice of any (c) See Book III. page 126. come a member of any club or association, or (32) See note 27. p. 136: and p. 144. (e) 1 Hawk, P. O. 193. punishable criminally are the following, and they are made misdemeanors, viz.: conspiracies by two or more, 1. To commit any offence. 2. Falsely and maliciously to indict another for an offence, or to procure him to be charged or arrested therefor. 3. Falsely to move or maintain a suit. 4. To cheat or defraud another of property by criminal means. 5. To cheat and defraud another of property by means which, if executed, would amount to a cheat, or to obtain property or money by false pretences. 6. To commit any act injurious to the public health or morals, or to trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws. No agreement, except to commit a felony upon the person of another, or to commit arson or burglary, is a conspiracy, unless some act beside the agreement be done to effect the object. (2 R. S. 691, § 8, &c.) If an overt act is necessary to constitute the offence, one or more must be alleged in the indictment, and the same be proved; but others not alleged may be given in evidence. (Id. 735, § 17.) (34) In New-York perjury is a wilful and corrupt declaration to any material matter upon oath, affirmation, or declaration legally administered. 1. In any matter, cause, or proceeding, depending in any court of law or equity, or before any officer thereof. 2. In any case where an oath or affirmation is required by law, or is necessary for the prosecution or defence of any private right, or for 62 |