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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 thest 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 iaken (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 (n) See page 38.
bumboats, &c. in the Thames. (o) See also statute 2 Geo. III. c. 28, o 12, for (p) Foster, 373. the punishment of receivers of goods stolen by
he possessed no power to apprehend the felon, no questions shall be asked, or printing such and though the property was never restored, advertisements, renders the offending party and the officer had no power to restore it. liable to a penalty of fisty pounds, and full
By statute 7 and 8 Geo. IV. c. 29, Q 58, it is costs, to any person who will sue for the same, enacted, “That every person who shall cor. by action of debt. This Act repeals the 25 ruptly take any money or reward, directly or Gco. II. c. 36, 91, as far as relates to the ad. indirectly, under pretence, or upon account of vertising rewards for stolen goods. helping any person, to any chattel, money, va. The 4 Geo. I. c. II, $ 4, relating to, and the luable security, or other property whatsoever, 1 Geo. IV. c. 115, directing the degree of puwhich shall by any felony or misdemeanor have nishment for this offence, are also repealed by been stolen, iaken, obtained, or converted as this statute. aforesaid, shall (unless he cause the offender (19) In New.York, it is punishable with to be apprehended and brought to trial for the imprisonment not exceeding 5 years, and a fine same,) be guilty of felony, and being convicted not exceeding 250 dollars. (2 R. S. 680, 9 71.) thereof, shall be liable, at the discretion of the See also id. 678, 061. court, to be transported beyond the seas for (20) See accordingly, 2 R. S. 680, 9 72. life, or for any term not less than seven years, (21) The acts mentioned above are mostly or to be imprisoned for any term not exceed. repealed by later acts, which are nearly similar ing four years, and, it a male, to be once, to them : see 1 & 2 Geo. IV. c. 75: 7 & 8 twice, or ihrice publicly or privately whipped Geo. IV.c. 29 : 3 Geo. IV.c. 24. (if the court shall so think fit,) in addition to (22) In New York, compounding any of. such imprisonment."
fence punishable by death or imprisonment for By $ 59, advertising a reward for the return life, is punishable by imprisonment not ex: of any stolen property whatsoever, which ceeding 5 years : if the offence compounded shall have been stolen or lost, purporting that were punishable by imprisonment in the state
held to make a man an accessary ; but it is now punished only with fine and imprisonment (1). 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 501. 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 ihe offender to be transported for seven years. 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
(9) 1 Hawk. P. C. 125.
(1) Ibid. 244.
prison for a shorter term than for life, the per- (24) Disturbing the peace, making false in. son compounding may be imprisoned not more ventions, propagating evil reports and calumthan 3 years : (2 R. S. 689, 9 17, 18 :) if the nies, and spreading false and groundless offence were punishable by imprisonment in a rumours, whereby discord and disquiet may county jail, or by any penalty or forfeiture, the ensue amongst neighbours, may properly be compounding is a misdemeanor, (id. 692,0 12:) ranked under the head Barretry. i Inst. 368. and punishable by imprisonment not more I Haw. P. C. 243. See 1 Hale, P. C. c. 27; than 1 year. (Id. 697, $ 40.) In the two first Bac. Abr. Barretry ; 1 Russell, 185, on this cases it is unnecssary to prove the conviction subject. See also the Case of Barretry, 8 of the principal offender. Id. 689, 9 19. Co. Rep. 36, b. No one can be convicted for
Assaults and other misdemeanors, for which a single act of barretry, for every indictinent the party injured has a civil remedy, may, how. for that offence must charge the defendant ever be compromised before indictment, or with being a common barretor. In a late case with the consent of the court, after indictment, in the King's Bench, where an attorney, with. unless they be charged to have been commit out any corrupt or unworthy motives, prepared ted riotously, or with intent to commit a felo. a special case in order to take the opinion of ny, or by or upon any officer or minister of jus. the court upon the will of a testator, and sugtice while in the execution of the duties of his gested several facts which had no foundation, office. Id. 730, $ 66, &c.
he was held to be guilty of a contempt, and (23) 7 & 8 Geo. IV. c. 27 & 29. relate to fined 301. In re Elsam, 5 D. and R. 389; 3 this offence.
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 confe
, deracy, 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 (2): 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 intersering 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 (6);” 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 possession of the land, or of the reversion or remainder; on pain that both
pur-' chaser 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
(2) Fl. 48. 10. 20.
(a) Stat. of conspirat. 33 Ed. I.
(25) In New-York it is a misdemeanor 1 Russell 176, on this subject. The distinc. knowingly to take a conveyance of lands or tion between maintenance and champerty tenements, or of any interest therein, from a seems to be this: where there is no agreement person not in possession, while the title is to divide the thing in suit, the party intermedcontroverted by suit in any court; also to buy dling is guilty of maintenance only; but, or sell, or make or take any agreement to con- where he stipulates to receive part of the vey any pretended title to lands or tenements, thing in suit, he is guilty of champerty. It unless the party selling or agreeing to sell, seems that resorting to machinery and contrihas, or he and those by whom he claims have vances in order to make a party interested in been in possession of the same, or of the re- a suit 7 witness on the trial, amounts to mainversion or remainder, or have received the pro- tenance. Bell v. Smith, 7 D. and R. 846 ; 5 fits thereof for one year before. This, how. B. and C. 188. ever, is not to apply to mortgages. (2 R. S. (27) If an attorney prosecute an action, to 691, 95, &c.) As to attornjes levying claims be paid his costs in gross, it should seem it for the purpose of suing on them, see 2 R. S. would amount to champerty. Com. Dig. At. 288.
tomey, B. 14. Hob. 117. Tidd Prac, 8 ed. (26) See 1 Haw. P. C. c. 3, Co. Litt. 368, 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 when it follows from a plan proconcerted by is removed from all offences, except perjury many. 6 T. R. 636. See the statute as to and subornation of perjury.
combinations among workmen, infra. There (29) See p. 133. note 22.
are other cases in which, though the act may (30) This statute does not apply to offences be morally criminal, it is not illegal, except on cognizable only before magistrates, 1 B. & A. the ground of conspiracy ; thus the verbal 282; it applies only to common informers, and slander of a private individual is not indict. not to cases where the penalty is given to the able, but it is so where several unite in a party grieved. 1 Salk. 30. 2 Hawk. 279. scheme to blast his character. I Lev. 62. 1 The taking the penalty is an offence within Vent. 304. And in every case that can be adthe act, though there is no action or proceed- duced of conspiracy, the offence depends on ing for it. Russ. & R. C. C. 84. 3 Burn J. the unlawful agreement, and not on the act 24 ed. 85. A notice of action required by a which follows it, the latter is but evidence of penal statute is no commencement of the suit, the former. 2 Burr. 993. 3 Burr. 1321. so as to subject the plaintiff, or his agent, to To constitute a conspiracy, as observed in an attachment for attempting to compound an the text, there must be at least two persons offence previous to the suing out of the writ, implicated in it; and a husband and wise can2 Bla. Rep. 781 ; as to the mode of obtaining not be guilty of it. 1 Hawk. c. 72. s. 8. If leave to compound, see Tidd's Prac. 8 ed. all the persons in the indictment be acquitted 604.
except one, and the indictment do not lay the (31) The instance pointed ont by the learn. offence as committed jointly with other pered commentator is not the only one in which sons unknown, no judgment can be passed on parties may be indicted for a conspiracy; and such one. Poph. 202. 3 Burr. 1262. 12 it may be stated as a general rule, that all con- Mod. 262. But one conspirator may be tried federacies wrongfully to prejudice another, singly; as if the others had escaped, or died, are misdemeanors at common law, and indict. before the trial, or the finding of the bill, he able accordingly, whether the intention is to may be convicted alone. 1 Stra. 193. 2 Stra. injure his property, his person, or his charac. 1227. It is no offence to conspire to proseter. See i Hawk. c. 72. s. 2. But no indict. cute a guilty person. 1 Salk. 174. ment lies for conspiring to commit a civil tres- It is not necessary to constitute the offence, pass on a preserve to take game, though effect- that any act should be done in pursuance of ed in the night, and with destructive weapons. the conspiracy, 2 Lord Raym. 1167. 8 Mod. 13 East, 228.
321. 1 Salk. 174. 1 Bla. Rep. 392; or that The offence of conspiracy is not confined to any party was actually injured. i Leach, 39. the prejudicing a particular individual, it may Conspiracies and combinations among workbe to injure public trade, to affect public men for a long time engrossed the attention of, health, to violaie public policy, to insult public and perplexed, the legislature. Until the justice, or to do any act in itself illegal. passing of the 6 Geo. IV. c. 129. the common
There are many cases in which the act itself law relative to such an offence was considered would not be cognizable by law if done by a defective. This act, however, repeals all the single person, which becomes the subject of former acts on the subject of such combinaindictment when effected by several with a tions, and leaves the offence as it before stood joint design. 6 T. R. 636. Thus each per- at common law. However, by the 3d section, son attending a theatre has a right to express if a person by force, violence, threats, or obhis disapprobation of the piece acted, or a per- struction, compel any person hired or employ. former on the stage, but if several previously ed in any trade or business to depart from his agree to condemn a play, or hiss an actor, hiring or employment, or obstruct him from re they will be guilty of conspiring. 2 Camp. turning to his work before finished, or prevent, 358. In the case of workmen refusing to pro- or endeavour to prevent any person from hir. ceed unless they receive an advance of wages, ing himself, or from accepting employment; it is clear that any one of them might singly or by force or threats, &c. molest another in act on this determination, but it is criminal 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) 10 receive what is called the villenous judg: ment; 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.
(9) 3 Inst. 164.
(e) 1 Hawk, P. 0. 193.
come a member of any club or association, or punishable criminally are the following, and to contribute to any common fund, or to pay they are made misdemeanors, viz. : conspiraany fine or penalty, or on account of his not cies by two or more, 1. To commit any offence. belonging to any particular club or association; 2. Falsely and maliciously to indict another or not having contributed, or having refused for an offence, or to procure him to be charged to contribute, to any common fund, or to pay or arrested therefor. 3. Falsely to move or any fine or penalty; or on account of his not maintain a suit. 4. To cheat or defraud an. having complied, or of refusing to comply, other of property by criminal means. 5. To with any regulations, &c. made to obtain an cheat and defraud another of property by advance, or to reduce the rate of wages, or to means which, if executed, would amount to a lessen or alter the hours of working, or to de- cheat, or to obtain property or money by false crease or alter the quantity of work; or to pretences. 6. To commit any act injurious regulate the mode of carrying on any manu- to the public health or morals, or to trade or facture, trade, or business in the management commerce, or for the perversion or obstruction thereof; or by violence or threats, or obstruc- of justice, or of the due administration of the tion, force any person carrying on any busi- laws. ness, to make any alteration in his mode of No agreement, except to commit a felony carrying on such business, or to limit his num- upon the person of another, or to commit arber of workmen ;-such offender and his ac- son or burglary, is a conspiracy, unless some cessaries may be imprisoned with or without act beside the agreement be done to effect the hard labour, for not exceeding three calendar object. (2 R. S. 691, § 8, &c.) months. By sec. 4. persons may meet to- If an overt act is necessary to constitute the gether for the sole purpose of consulting upon offence, one or more must be alleged in the inand determining the rate of wages, or hours dictment, and the same be proved; but others of work, and may enter into an agreement for not alleged may be given in evidence. (Id. framing the rate of wages or hours of work. 735, Ø 17.) And by section 5. the masters of workmen (34) In New-York perjury is a wilful and may do the same. By sec. 6. offenders against corrupt declaration to any material matter the act may be called on to give evidence for upon oath, affirmation, or declaration legally the king, or prosecute an informer on any in- administered. 1. In any matter, cause, or formation exhibited under the act. Sec. 7. proceeding, depending in any court of law or gives a summary proceeding before a magis- equity, or before any officer thereof. 2. In trate for an offence under the act.
any case where an oath or affirmation is re(32) See note 27. p. 136 : and p. 144. quired by law, or is necessary for the prosecu. (33) In New-York, the only conspiracies tion or defence of any private right, or for Vol. II.