k

he were actually committed to gaol, or only under a bare arrest. But the officer cannot be thus punished, till the original delinquent has actually received judgment, or at least been convicted' of the crime for which he was so committed or arrested: otherwise it might happen, that the officer might be punished for treason or felony, and the person arrested and escaping might turn out to be an innocent man. But, before the conviction of the principal party, the officer thus neglecting his duty may be fined and imprisoned for a misdemeanor. And private individuals, who have persons lawfully in their custody, are guilty of this offence if they suffer them illegally to depart, for they may at any time protect themselves from liability by delivering over their prisoner to a peace-officer.'"

4. Breach of prison by the offender himself, when committed for any cause, was felony at the common law: or even conspiring to break it. 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; but the punishment now imposed by statute is penal servitude for not more than seven nor less than five years, or imprisonment, with or without hard labour and solitary confinement, not exceeding two years.' 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 be no longer capital, never meant to exempt it entirely from every degree of punishment."

q

5. 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

k 1 Hal. P. C. 590; 2 Hawk. P. C. 134.

1 By the old law "attainted."

m 1 Hal. P. C. 588-9; 2 Hawk. P. C. 134-5.

n 1 Hale, 594-5; 2 Hawk. c. 20, s. 6.

° 1 Hal. P. C. 607.

P Bract. 1. 3, c. 9.

47 & 8 Geo. IV. c. 28, ss. 8, 9; 7 Will. IV. & 1 Vict. c. 90, s. 5; 20 & 21 Vict. c. 3.

r2 Hawk. P. C. 128.

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, because perhaps in fact it may turn out that there has been no offence committed, the principal must first be attainted or receive judgment before the rescuer can be punished 'as for the felony; for although the principal be not convicted, the party rescuing may still be punished as for a misdemeanor." But many daring attempts having been made to prevent the detention. of persons charged with felony, the statute 1 & 2 Geo. IV. c. 88, s. 1, was passed to enlarge the powers of the courts in this respect, by enabling them to direct that any person rescuing or aiding the rescue from lawful custody of a person charged with or suspected of or committed for felony, should, instead of being fined and imprisoned, be transported, or imprisoned and kept to hard labour. So that this offence is now punishable, as for a misdemeanor, with fine and imprisonment, or, if the party rescued be convicted, as for the offence of which he was guilty; and if that offence were a felony, the rescuers may be subjected to penal servitude for not exceeding seven years, or imprisonment, with or without hard. labour, for not more than three years.' Aiding a prisoner to escape from gaol is also highly penal. For by 'statute 28 & 29 Vict. c. 126, every person who aids a prisoner to escape, or to attempt to escape, or conveys into any prison any mask or disguise or other thing with intent to facilitate the escape of a prisoner, is guilty of felony, and punishable by imprisonment, with hard labour, for a term not exceeding two years." This statute applies to all prisons, except prisons for convicts, and military and naval prisons; aiding any prisoner to escape from which is punishable under' the statute 16 Geo. II. c. 31, whereby to convey to any prisoner in custody for treason or any felony, except petit larceny, 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 made felony, and 'by modern statutes subjects the offender to penal servitude for seven or not less than five years.' If the prisoner be in custody for petit larceny or other inferior offence, or charged with a debt of 1007., it is then a mis

2 Hawk. c. 21, s. 8. It is a misdemeanor at common law to aid a person to escape from a lawful detention. Reg.

v. Allan, Car. & Mar. 295.

t 20 & 21 Vict. c. 3.

" 27 & 28 Vict. c. 126, s. 37.

demeanor, punishable with fine and imprisonment. Any person rescuing or attempting to rescue out of prison any person committed for or found guilty of murder, or any murderer going to or during execution, is guilty of a felony, which by statute 25 Geo. II., c. 37, s. 9, was capital, but is now punishable with penal servitude for life or not less than five years, or imprisonment, with or without hard labour and solitary confinement, not exceeding three years.'

V

6. Another offence against public justice is the returning from transportation, or being 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, or been sentenced to penal servitude.' By various statutes this was made felony without benefit of clergy; but the previous enactments on this subject are virtually repealed by the statute 5 Geo. IV. c. 84, consolidating the laws relating to the transportation of offenders. By that act if any offender sentenced to be transported, or having agreed to transport himself, shall be afterwards found at large, without lawful excuse, before the expiration of the term of transportation or banishment, he shall suffer death as in cases of felony, without benefit of clergy. But this punishment has been reduced by subsequent statutes to penal servitude for life, or not less than five years, with previous imprisonment, with or without hard labour, for any term not exceeding four years; or imprisonment, with or without hard labour, not exceeding two years.'

7. A seventh offence against public justice is taking a reward, under pretence of helping the owner to his stolen goods. This was a contrivance carried to a great length of villany 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 whosoever 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 him. Wild, still continuing in his old practice, was at last convicted and executed upon this very statute; 'which has, however, been superseded by more modern enactments, making the corruptly taking any reward, under pretence of helping any person to any money, security, or other property whatsoever,* which shall by any felony or misdemeanor have been stolen or obtained, a felony, punishable with penal servitude for any term not exceeding seven nor less than five years, or imprisonment, with or without hard labour and solitary confinement, and whipping in a male under sixteen years of age, not exceeding two years. It is also an offence to take money under pretence of helping a man to goods stolen from him, though the prisoner had no acquaintance with the felon, and though he had no power to apprehend the felon, and the prisoner had no power to restore the goods.'"

y

8. 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, that this offence, which is only a misdemeanor at common law, by the statutes 3 & 4 W. & M. c. 9, and 5 Anne, c. 31, made the offender accessory to the theft and felony. But because the accessory could not in general be tried, unless with the principal or after the principal was convicted, the receivers by that means frequently eluded justice. To remedy which, it was enacted by statute 1 Anne, c. 9, and 5 Anne, c. 31, that such receivers might still be prosecuted for a misdemeanor, and punished by fine and imprisonment, though the principal felon had not been before taken, so as to be prosecuted and convicted. "These acts have, however, been superseded by modern statutes, whereby every person receiving property knowing the same to have been feloniously stolen, is guilty of felony, and may be indicted and convicted either as an accessory after the fact, or for a substantive felony; and in the latter case, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice. This offence is now punishable

with penal servitude not exceeding fourteen nor less than five years, or imprisonment not exceeding two years, with or without hard labour and solitary confinement, and with whipping in a male under sixteen if the court think fit. Where the original stealing or converting of the property is a misdemeanor, the receiver is guilty of a misdemeanor, and is now liable to penal servitude for seven or not less than five years, or imprisonment, with or without hard labour and solitary confinement, not exceeding two years, and if a male under sixteen whipping in addition if the court think fit; and where the original offence is punishable on summary conviction, the receiver is liable to the same punishment which may be imposed on the principal.'"

Besides this statute, which is of general application, special enactments have been made with respect to the guilty receiving of particular species of property. Thus receiving letters or property sent by post and stolen, is a felony, which may be punished by penal servitude for life. It is a misdemeanor, for which a penalty may be imposed, for any person knowingly to purchase or receive embezzled materials or tools of workmen employed in the woollen, worsted, linen, cotton, flax, mohair, or silk-hosiery manufactures; and persons fraudulently purchasing boats, anchors, &c., or goods taken possession of from wrecks, may be punished as receivers of stolen goods.*

9. Of a nature somewhat similar to the two last 'species of offences,' is 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 is now punished only with fine and imprisonment.' 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 "occultè sine judice compositionem ejus admittere." By statute 25 Geo. II. c. 36, 'as re-enacted first by the 7 & 8 Geo. IV. c. 29, s. 59, and recently by 24 & 25 V. c. 96,' even to advertise a reward

a 24 & 25 Vict. c. 96.

b 24 & 25 Vict. c. 96, ss. 95, 97.

C

7 Will. IV. and 1 Vict. c. 36, ss. 30,

41, 42, and c. 90, s. 5; 20 & 21 Vict. c. 3.

d 6 & 7 Vict. c. 40.

e 9 & 10 Vict. c. 99, s. 29.

f 1 Hawk. P. C. 125.

Stiernh. de Jure Goth. 1. 3, c. 5.