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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 further 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)" 9. Receiving of stolen goods, knowing them to be stolen, is also a high misdemeanour and affront to public justice. We have seen in a former chapter(n) that this offence, which is only a misdemeanour at common law, by the statute 3 & 4 W. and M. c. 9, and 5 Anne, 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 receivers by that means frequently eluded justice. To remedy which, it is enacted, by statute 1 Anne, c. 9, and 5 Anne, c. 31, that such receivers may still be prosecuted for a misdemeanour, *133] 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 misdemeanour 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 misdemeanour, 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
See stat. 6 Geo. I. c. 23, 8. 9. (") See page 38.
(*) See also stat. 2 Geo. III. c. 28, s. 12, for the punishment of receivers of goods stolen by bumboats, &c. in the Thames. (P) Foster, 373.
punishable with transportation for life, and previous imprisonment for any term not exceeding four years; and now penal servitude may be substituted.-STEWART.
13 In Rex vs. Ledbitter, R. & R. C. C. 76, a police-officer was indicted, under 4 Geo. I. c. 11, 4, for taking money under the pretence of helping a person to goods stolen from him, and convicted of felony, though the officer had no knowledge of the felon, and though 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 & 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 what soever, 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 exceeding 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 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, 8 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.-CHITTY.
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."
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 [*134 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.(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.
11. Common barretry is the offence of frequently exciting and stirring up suits and quarrels between his majesty's subjects, either at law or otherwise.(s)15 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 may also be referred another offence of equal malignity and audaciousness, that of sueing 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 main[*135 taining 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. (a) A man may, however, maintain the suit of
"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.-CHITTY.
By stat. 14 & 15 Vict. c. 100, 14, on an indictment for jointly receiving any property, persons guilty of separately receiving may be convicted. Separate accessories and receivers may be included in the same indictment in the absence of the principal felon.— STEWART.
15 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 Hawk. 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 suggested several facts which had no foundation, he was held to be guilty of a contempt and fined 30%. In re Elsam, 5 D. and R. 389; 3 B. & C. 597.-CHITTY.
his near kinsman, servant, or poor neighbour, out of charity and compassion, with impunity. Otherwise, the punishment by common law is fine and im prisonment, (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 champertor 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 cus tom. In our sense of the word it signifies the purchasing of a suit or right of sueing; 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 anotber's right." 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 for
feiture of a third part of their goods, and perpetual *infamy. Hitherto *136] 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 purchasor 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 misdemeanour against public justice, by contributing to make the laws odious to the people. At once, therefore, to discourage malicious informers, and to provide that of fences, 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.18
15. A conspiracy also to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted, is a further abuse and per
() 1 Hawk. P. C. 255.
(a) Stat. of Conspirat. 33 Edw. I.
16 See 1 Hawk. 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 vs. Smith, 7 D. & R. 846; 5 B. & C. 188.-CHITTY.
17 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. 8th ed. 326.-CHITTY.
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. 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 Prac. 8th ed. 604.—CHITTY.
version of public justice," for which the party injured may either have a civi action by writ of conspiracy, (of which we spoke in the preceding book,)(c) or
(e) See book iii. page 126.
19 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 misdemeanours 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 effect 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 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 individual 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 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.
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. lf 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. 12 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 con. spire to prosecute a guilty person. 1 Salk. 174.
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 obstruction, compel any person, hired or employed in any trade or business, to depart from his hiring or employment, or obstruct him from returning 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 become a member of any club or association, or to contribute to any common fund, or to pay any fine or penalty, or on account of his not belonging to any particular club or association; or not having contributed, or having refused to contribute, to any common fund, or to pay any fine or penalty; or on account of his not having complied, or of refusing to comply, with any regulations, &c. made to obtain an advance, or to reduce the rate of wages, or to lessen or alter the hours of working, or to decrease or alter the quantity of work; or to regulate the mode of carrying on any manufacture, trade, or business, in the management thereof; or by violence, or threats, or obstruction, force any person carrying on any business to make any alteration in his mode of carrying on such business, or to limit his number of workmen; such offender and his accessories may be imprisoned, with or without hard labour, for not exceeding three calendar months. By sect. 4, persons may meet together for the sole purpose of consulting upon and determining the rate of wages, or hours of work, and may enter into an agree ment for framing the rate of wages or hours of work. And, by sect. 5, the masters of workmen may do the same. By sect. 6, offenders against the act may be called on to give evidence for the king, or prosecute an informer on any information exhibited under the act. Sect. 7 gives a summary proceeding before a magistrate for an offence under the act.-CHITTY.
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 antient 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 *disuse be
*137] come 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.20
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(ƒ) 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. The law takes no notice of any perjury but such as is committed in some court of justice having power to administer an oath; or before some magistrate or proper officer invested with a similar authority, in some proceedings relative to a civil suit or a criminal prosecution: for it esteems all other oaths unnecessary, at least, and therefore will not punish the breach of them. For which reason it is much to be questioned, how far any magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as is
(d) Bro. Abr. tit. Conspiracy, 28.
() 1 Hawk. P. C. 193.
()3 Inst. 164.
By stat. 6 & 7 Vict. c. 96, s. 3, also the publishing, or threatening to publish, a libel, or proposing to abstain from publishing any thing with intent to extort money or any appointment or office of profit, is punishable by imprisonment for any term not exceeding three years.-STEWART.
21 And no breach of an oath made in a mere private concern, as in entering into a contract, however malicious, is an indictable offence, but can only be redressed in an action for the individual injury; nor can any criminal proceeding be maintained for the violation of an oath taken, however solemnly, to perform any duties in future, though the offence will be highly aggravated by the breach of an obligation so sacred. 3 Inst. 166. 11 Co. Rep. 98. And even where an oath is required by an act of parliament in an extrajudicial proceeding, the breach of that obligation does not seem to amount to perjury, unless the statute contain an express provision to that effect. And it seems an indictment for perjury is not sustainable on an oath taken before the house of commons, as they have not any power to administer an oath, unless indeed in those particular cases in which an express power is granted to them by statute. But it is indictable to swear falsely in any court of equity, (1 Leach, 50. 1 Sid. 418,) any ecclesiastical court, (Cro. Eliz. 609,) and any other lawful court, whether it be of record or otherwise. Hawk. b. 1, c. 69, s. 3. So a false oath subjects the offender to all the penalties of perjury, though it be taken in a stage of the proceedings when it does not influence the final judgment, but only affects some intermediate step to be taken; thus, if a man offering to bail another swears his property to be greater than it is, in order to be received as a surety, (Cro. Car. 146,) or if he swears falsely before a magistrate to induce him to compel another to find sureties for the peace. Hawk. b. 1, c. 69, s. 3.
The party must be lawfully sworn; and, as above observed, the person by whom the oath is administered must have competent authority to receive it. And therefore no false swearing before individuals acting merely in a private capacity, or before officers who have no legal jurisdiction to administer the particular oath in question, will amount to the offence of perjury. 3 Inst. 166. Cro. C. Č. 7th ed. 626. And though the officer stands colourably in the situation which confers a power of receiving an oath on such an occasion, if in fact he is not duly appointed, the proceedings will be of no avail, (Id. ibid. 3 Camp. 432. Wood's Inst. 435;) for though it is sufficient prima facie to show the ostensible capacity in which he acted when the oath was taken, the presumption may be rebutted by other evidence, and the defendant, if he succeed, will be entitled to an acquit tal. 3 Camp. 432; see id. 96.-CHITTY.