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the officer thus neglecting his duty may be fined and imprisoned for a misde meanor. (g) (6)
5. Breach of prison by the offender himself, when committed for any cause, was felony at the common law: (h) or even conspiring to break it. (1) But this severity is mitigated by the statute de frangentibus prisonam, 1 Edw. II, st. 2, which enacts that no person shall have judgment of life or member for breaking prison, unless committed for some capital offence. So that to break prison and escape, when lawfully committed for any treason or felony, remains still felony as at the common law; and to break prison (whether it be the county-gaol, the stocks, or other usual place of security), when lawfully confined upon any other inferior charge, is still punishable as a high misdemeanor by fine and imprisonment. For the statute which ordains that such offence shall [*131] be no longer capital, never meant to exempt it entirely from every degree of punishment. (j) (7)
6. Rescue is the forcibly and knowingly freeing another from an arrest or mprisonment; and it is generally the same offence in the stranger so rescuing, as it would have been in a gaoler to have voluntarily permitted an escape. A rescue, therefore, of one apprehended for felony, is felony; for treason, treason; and for a misdemeanor, a misdemeanor also. But here, likewise, as upon voluntary escapes, the principal must first be attainted or receive judgment before the rescuer can be punished: and for the same reason; because, perhaps, in fact it may turn out there has been no offence committed. (k) By statutes 11 Geo. II, c. 26, and 24 Geo. II, c. 40, if five or more persons assemble to rescue any retailers of spirituous liquors, or to assault the informers against them, it is felony, and subject to transportation for seven years. By the statute 16 Geo. II, c. 31, to convey to any prisoner in custody for treason or felony any arms, instruments of escape, or disguise, without the knowledge of the gaoler, though no escape be attempted, or any way to assist such prisoner to attempt an escape, though no escape be actually made, is felony, and subjects the offender to transportation for seven years: or, if the prisoner be in custody for petit larceny or (g) 1 Hal. P. C. 588, 589. 2 Hawk. P. C. 134, 135. (h) 1 Hal. P. C. 607. (i) Bract. 1. 3, c. 9. ()2 Hawk. P. C. 128. (k) Hal. P. C. 607. Fost. 344.
(6) [There must be an actual arrest, as well as a lawful arrest, to make an escape criminal in an officer. 2 Hawk. c. 19, ss. 1, 2. It must also be for a criminal matter. Id. s. 3. the imprisonment must be continuing at the time of the offence. Id. s. 4; 1 Russ. 531; 1 Hale, 594. In some cases it is an escape to suffer a prisoner to have greater liberty than can by law be allowed him; as, to admit him to bail against law, or to suffer him to go beyond the limits of the prison, though he return. 2 Hawk. c. 19, s. 5. A retaking will not excuse an escape.
Id. s. 13.
Private individuals, who have persons lawfully in their custody, are guilty of an escape if they suffer them illegally to depart: 1 Hale, 595; but they may protect themselves from liability by delivering over their prisoner to some legal and proper officer. 1 Hale, 594, 595. A private person, thus guilty of an escape, the puishment is fine, or imprisonment, or both. 2 Hawk. c. 20, s. 6.
(7) [An actual breaking is the gist of this offence, and must be stated in the indictment. It must also appear that the party was lawfully in prison, and for a crime involving judgment of life or member; it is not enough to allege that he "feloniously broke prison." 2 Inst. 591; 1 Russell, 331. If lawfully committed, a party breaking prison is within the statute, although he may be innocent: as, if committed by a magistrate upon strong suspicion. 2 Inst. 590; 1 Hale, P. C. 610; 1 Russell, 378. To constitute a felonious prison breach, the party must be committed for a crime which is capital at the time of the breaking. 1 Russell, 379; Cole's Case, Plowd. Comm. 401. A constructive breaking is not sufficient; therefore, if a person goes out of prison without obstruction, as by a door being left open, it is only a misdemeanor. 1 Hale P. C. 611. An actual intent to break is not necessary. The statute extends to a prison in law, as well as to a prison in fact. 2 Inst. 589. "Prison breach or rescue is a commonlaw felony, if the prisoner breaking prison, or rescued, is a convicted felon, and it is punishable at common law by imprisonment, and under 19 Geo. III, c. 74, s. 4, by three times whipping. Throwing down loose bricks at the top of a prison wall, placed there to impede escape and give alarm, is prison breach, though they were thrown down by accident." Rex v. Haswell, R. and R. C. C. 458.]
See a very full discussion of this offence in 2 Bish. Cr. L. § 893, et seq.
For recent acts to punish those aiding escapes, see 5 Geo. IV, c. 84, s. 22; 28 and 29 Vic. c 126, s. 37.
other inferior offence, or charged with a debt of 1007., it is then a misdemeanor punishable with fine and imprisonment. (8) And by several special statutes,(1) to rescue, or attempt to rescue, any person committed for the offences enumerated in those acts, is felony without benefit of clergy; and to rescue, or attempt to rescue, the body of a felon executed for murder, a 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 [*132] 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 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) (11)
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)
(1) 6 Geo. I, c. 23. (Transportation.) 9 Geo. I. c. 2. (Black-act.) 8 Geo. II, c. 20. (Destroying turnpikes, &c.) 19 Geo. II. c. 34. (Smuggling. See the 52 Geo. III, c. 143, s. 11.) 25 Geo. II, c. 37. (Murder.) 27 Geo. II. c. 13. (Black-act.)
(m) See stat. 6 Geo. I, c. 23, 9.
(n) Sec page 38.
(8) [On an indictment under this act, the offence of delivering instruments of escape to a prisoner has been held to be complete, though the prisoner had been pardoned of the offence of which he was convicted, on condition of transportation; and a party may be convicted though there is no evidence that he knew of what offence the prisoner had been convicted. Rex. v. Shaw, R. and R. C. C. 526. This act applies only to cases of attempt (Tilley's Case, 2 Leach, 662), and a case where the commitment is on suspicion only, is not within it. Greenif's Case, 1 Leach, 363. This act was virtually repealed by 4 Geo. IV, c. 64, s. 43.
(9) [By statute 1 Vic. c. 91, ss. 1 and 2, any person rescuing or attempting to rescue any other person who shall be committed or found guilty of murder, shall be liable to be transported for life, or for any time not exceeding fifteen years, or to be imprisoned for three; and now penal servitude may be substituted.]
See also statute 5 Geo. IV, c. 81, s. 22.
The statutes mentioned in the text are since repealed or essentially changed, so that the punishments there mentioned are not now imposed.
(10) These offences are no longer capital. See statutes 5 Geo. IV, c. 84, s. 22; 20 and 21 Vie c. 3, s. 2; 27 and 28 Vic. c. 47.
(11) By statutes 24 and 25 Vic. c. 96, s. 151, persons corruptly taking money or reward on pretence of helping any person to property which has been stolen, embezzled, &c., unless they shall use all due diligence to bring the offenders to trial, are made guilty of felony. See Reg. v. King, 1 Cox, C. C. 36; Reg. v. Pascoe, 1 Den. C. C. 456. And by section 50, any person advertising a reward for the return of property stolen or lost, and using words purporting that no questions will be asked, or that a reward will be given for the property stolen or lost, without seizing or making any inquiry after the person producing it, or promising to return to any pawnbroker or other person money advanced or paid by him on such property, or any other sum or reward for the return of such property, and any person publishing such advertisement, is made ubject to a fine of 501.
that this offence, which is only a misdemeanor at common law, by the statute 3 and 4 W. and M. c. 9, and 5 Ann. c. 31, makes the offender accessory 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 [*133] 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 misdemeanor, and punished by fine and imprisonment, though the principal felon be not before taken so as to be prosecuted and convicted. 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. (0) 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 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. 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. (12)
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; and formerly was held to make a man an accessory; but it is now punished only with fine and imprisonment. (7) 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 fertum celare vellet, et occulte sine judice compositionem ejus admittere." (r) By statute 25 Geo. II, c. 36, even to adver- [*134] tise 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. (13)
11. Conimón barretry is the offence of frequently exciting and stirring up suits and quarrels between his majesty's subjects, either at law or otherwise. (s) (14) The punishment for this offence, in a common person, is by fine and imprison
(0) See also statute 2 Geo. III, c. 28, § 12, for the punishment of receivers of goods stolen by bumboats, &c., in the Thames. (p) Foster, 373. (q) 1 Hawk. P. C. 125. (r) Stiernh. de jure Goth. l. 3, c. 5.
(8) 1 Hawk. P. C. 243.
(12) These offences are covered by statutes 24 and 25 Vic. c. 95. The punishment is penal servitude or imprisonment, and in case of males under sixteen years of age, with or without whipping.
(13) See also statute 24 and 25 Vic. c. 96, s. 102.
(14) [Disturbing the peace, making false inventions, propagating evil reports and calumnies, and spreading false and groundless rumors, whereby discord and disquiet may ensue amongst neighbors, may properly be ranked under the head barretry. 1 Inst. 363; 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 case in the king's bench, where an attorney, without any corrupt or unworthy motives, prepared a specia case, in order to take the opinion of the court upon the will of a testator, and suggested 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.]
The statute 12 Geo. I, c. 29, was made perpetual 30 and 31 Vic. c. 59.
As to indictments for common barretry, see Commonwealth v. McCulloch, 15 Mass. 227; State v. Chitty, 1 Bailey, 379; Commonwealth v. Davis, 11 Pick. 432.
ment; but if the offender (as is too frequently the case) belongs to the profes Eion 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 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 month's 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 *keeps alive strife and [ *135] 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 rimen falsi to enter into any confederacy, or do any act to support another's lawsuit, by money, witnesses, or patronage. (a) 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) 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: (15) a practice so much abhorred by our law, that it is one main reason why a chin action, or thing of which one hath the right but not the possession, is not assignable at common law; because no man shall purchase any pretence to sue in another's right. These pests of civil society, that are perpetually endeavoring 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 count 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
(t) Ibid. 244.
(10) Dr. and St. 203.
(z) Ibid. 257.
(b) Ff. 48, 7, 6.
(15) See 1 Haw. P. C. c. 3, Co. Litt. 368; 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.]
Upon the subject of champerty and maintenance, the reader is referred to 2 Bish. Cr. I.. $$ 104-116. The tendency of late has been to confine these offences within bounds somewhat narrower than those indicated by the older authorities.
*hath received the profits thereof for one whole year before such grant, [*136] or hath been in actual possession of the land, or of the reversion or remainder; on pain that both purchaser and vender 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. 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 107., shall stand two hours on the pillory, and shall be forever disabled to sue on any popular or penal statute. (16)
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; (17) for which the party injured may 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
(16) [This statute does not apply to offences_cognizable only before magistrates, 1 B. and 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. and R. C. C. 84; 3 Burn, J. 24th 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 Prae. 8th ed. 604.]
This subject was considered and the previous cases examined by Ch. J. Tindal, in Keir v. Leeman, 9 Q. B. 392, where the conclusion was that "in all offences which involve damages to an injured party, for which he may maintain an action, it is competent for him, notwithstanding they are also of a public nature, to compromise and settle his private damage in any way he may think fit;" but that an agreement to pay money in consideration of a prosecution for riot and assault being abandoned, was illegal and void. On the same subject, see Jones v. Rice,
18 Pick. 440.
(17) 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. But no indictment 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 become the subject of indictment when effected by several with a joint design. 6 T. R. 636. Thus, each person attending a theater 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 preconcerted 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 indi vidual is not indictable, but it is so where several unite in a scheme to blast his character. 1 Lev. 62; 1 Vent. 304. And in every case that can be adduced of conspiracy, the offence de