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., 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 misdemeanour by fine and *131] imprisonment. For the statute which ordains that such offence shall be no longer capital never meant to exempt it entirely from every degree of punishment.(j)°° 6. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; 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 misdemeanour, a misdemeanour 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 that there has been no offence committed.(k) By statute ()1 Hal. P. C. 607. (5) 2 Hawk. P. C. 128. in an officer. 2 Hawk. c. 19, ss. 1, 2. It must also be for a criminal matter, (id. s. 3;) and 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 punishment is fine, or imprisonment, or both. 2 Hawk. c. 20, s. 6. By the 52 Geo. III. c. 156, persons aiding the escape of prisoners of war are guilty of felony and liable to transportation. It has been held that the offence of aiding a prisoner of war to escape is not complete if such prisoner is acting in concert with those under whose charge he is, merely to detect the defendant, and has no intention to escape. Russ. & R. C. C. 196.-CHITTY. 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 judg ment of life or member: it is not enough to allege that he " feloniously broke prison." 2 Inst. 591. 1 Russell, 381. 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 prisonbreach, the party must be committed for a crime which is capital at the time of the breaking. I 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 misdemeanour. 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 common-law 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, 8 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 vs. Haswell, R. & R. C. C. 458.-CHITTY. 9 By 1 & 2 Geo. IV. c. 98, (entitled an "Act to amend the Law of Rescue,") s. 1, rescuing persons charged with felony is punishable with seven years' transportation, or imprisonment for not less than one year and not more than three years. And, by s. 1, assaulting any lawful officer, to prevent the apprehension or detainer of persons charged with felony, is punishable with two years' imprisonment, in addition to other pains and penalties incurred. Vide also 5 Geo. IV. c. 84, 3 22. This section is repealed by 9 Geo. IV. c. 31, which, by section 25, provides a punishment for these offences. Vide post, 217. By 9 Geo. IV. c. 4, s. 13 (ent tled the Mutiny Act,) persons under sentence of death 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 other inferior offence, or charged with a debt of 100l., it is then a misdemeanour, punishable with fine and imprisonment.10 And, by several special statutes,() 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, is single felony, and subject to transportation for seven years. Nay, even if any person be charged with any of the offences against the black-act, 9 Geo. I. c. 22, and being required, by order of the privy council, to surrender himself, neglects so to do for forty days, both he and all that knowingly conceal, aid, abet, or succour him, are felons without benefit of clergy." *7. Another capital offence against public justice is the returning from transportation, or being seen at large in Great Britain before the expira- [*132 tion 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." ()6 Geo. I. c. 23. (Transportation.) 9 Geo. I. c. 22. (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.) 20 by court-martial, having obtained a conditional pardon, escaping out of custody, and all parties aiding such escape, are punishable as felons. See Rex vs. Stanley, R. & R. C. C. 432.-CHITTY. 10 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 vs. Shaw, R. & 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 appears virtually to be repealed by 4 Geo. IV. c. 64, s. 43, which makes delivering instruments of escape to any prisoner, whether he actually escape or not, a felony punishable by fourteen years' transportation.-CHITTY. 11 Some of these acts, as far as they relate to the exclusion of benefit of clergy, and to the form of punishment, are altered and amended by 1 & 2 Geo. IV. c. 88, and 5 Geo IV. c. 84. By 4 Geo. IV. c. 54, 2 1, to rescue a party in custody for an offence against the Black Act (9 Geo. I. c. 22) is punishable only with transportation, or imprisonment and hard labour.-CHITTY. By stat. 1 Vict. c. 91, 2 1 & 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.-STEWART. These provisions are virtually repealed by the 5 Geo. IV. c. 84, which revives and consolidates into one act the laws relative to the transportation of offenders. By the 22d section it is enacted that if any offender, sentenced or ordered to be transported or banished, or having agreed to transport or banish himself, shall be afterwards found at large, without lawful excuse, before the expiration of the term of transportation or banishment, he shall suffer death without benefit of clergy. By sect. 84, the act is not to extend to persons banished, under the 60 Geo. III. and 1 Geo. IV. c. 8, for blasphemous and seditious libels. If the prisoner can show such circumstances of poverty or sickness which amount to an absolute impossibility to transport himself or leave the kingdom, he will not be within the act. 1 Leach, 396. By the 22d sect. of 5 Geo. IV. c. 84, a reward of 201. is given for prosecuting an offender against the act to conviction.-CHITTY. But these statutes are repealed by stat. 4 & 5 W. IV. c. 67, by which this offence is 8. An eighth is that of taking a reward under pretence of helping the owner tc 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, ard 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)1 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, s. 9. (*) 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 appreherded 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 repea's 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.-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.14 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 [*134 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) 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 14 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 307. In re Elsam, 5 D and R. 389; 3 B. & C. 597.-CHITTY. VOL. IL-27 417 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 another'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 private 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 purchaser and vendor shall each forfeit the value of such land to the king and the prosecutor. These offences relate chiefly to the commencement of civil suits: but 14. The compounding of informations upon penal statutes is an offence of an equivalent nature in criminal causes, and is, besides, an additional 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 101., 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 ma icionsly, who is accordingly indicted and acquitted, is a further abuse and per (v) 1 Hawk. P. C. 255. 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. "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 offer.ce 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 commence ment of the suit, so as to subject the plaintiff, or his agent, to an attachment for attempt ing 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. |