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for not less than one nor more than three years (m). By 5 Geo. IV. c. 84, whoever shall rescue, or attempt to rescue, any offender under sentence or order of penal servitude (n) from the custody of any person charged with his removal, shall be guilty of felony: and he may be sentenced to penal servitude for life, and previous imprisonment, with or without hard labour, not exceeding four years; or to imprisonment, with or without hard labour, not exceeding two years (o). And, finally, by 28 & 29 Vict. c. 126, s. 37, every person who aids any prisoner in escaping or attempting to escape from any prison, or with intent to facilitate his escape conveys anything into the prison, shall be guilty of felony, and be imprisoned with hard labour to the extent of two years (p).
VII. [Another offence of the class under consideration 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 villany in 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 stilling 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 4 Geo. I. c. 11, that whosoever should take a reward under the pretence of helping any one to stolen
(m) 1 & 2 Geo. 4, c. 88, s. 1; 14 & 15 Vict. c. 100, s. 29; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47.
(n) The expression used in 5 Geo. 4, c. 84, is “transportation or banishment;” but see 20 & 21 Vict. c. 3, s. 6.
(0) 5 Geo. 4, c. 84, s. 22; 4 & 5 Will. 4, c. 67; 9 & 10 Vict. c. 24; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3.
(p) Sec The Queen e. Payne, Law Rep., 1 C. C. 27.
[goods, should suffer as the felon who stole them ; unless he caused such principal felon to be apprehended and brought to trial, and also gave evidence against him. Wild, still continuing in his old practice, was, upon this statute, at last convicted and executed.] These provisions, indeed, were afterwards repealed by 7 & 8 Geo. IV. c. 27, s. 1; but they have been re-enacted, with several improvements calculated for the more effectual prevention of the offence. For by 24 & 25 Vict. c. 96, s. 101 (7), it is provided, that whosoever 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 whatsoever, which shall by any felony or misdemeanor have been stolen, taken, obtained, extorted, embezzled or converted, or disposed of, as in that Act mentioned,-shall (unless he shall have used all due diligence to cause the offender to be brought to trial for the same) be deemed guilty of felony. And the punishment is penal servitude for seven or for not less than five years (r); or imprisonment, with or without hard labour and solitary confinement, for any term not exceeding two years; and, if a male under the age of eighteen years, to be whipped, if the court shall so think fit, in addition to such imprisonment(s).
VIII. Compounding of felony, is the taking of a reward for forbearing to prosecute a felony; and one species of this offence, (known in the books by the more antient appellation of theft-bote,) is where a party robbed takes his goods again, or other amends, upon agreement not to prosecute. [This was formerly held to make a man an accessory to the theft, but is now punished only with fine
(9) Re-enacting 7 & 8 Geo. 4, c. 29, s. 58, repealed by 24 & 25 Vict. c. 95, as to the United Kingdom.
(r) See 27 & 28 Vict. c. 47.
(8) The court may also, if it sce fit, bind over the offender to keep the peace. (24 & 25 Vict. c. 96, s. 117.)
[and imprisonment (t). This perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment. Indeed the Salic law—"latroni eum similem habuit, qui furtum celare vellet, et occulte sine judice compositionem ejus admittere” (u).] And by statute 24 & 25 Vict. c. 96, s. 102 (amended by 33 & 34 Vict. c. 65), even .publicly to advertise a reward for the return of property stolen or lost, and in such advertisement to use words purporting that no questions will be asked (x); or purporting that a reward will be paid without seizing or making inquiry after the producing the same; or promising to return to a pawnbroker or other person any money he may have advanced upon or paid for such property, or offering any other sum of money or reward for the return of the same ;--subjects the advertiser, the printer, and the publisher, to a forfeiture of fifty pounds each(y).
IX. Besides the last described offence, the mere concealment of a felony is by our law criminal ; and is described, in the books, as misprision of felony. This is the concealment of some felony,--not being treason, the misprision of which has been before considered (2),– committed by another ; but without such previous concert with, or subsequent assistance of him, as will make the party concealing an accessory before or after the fact. [And the punishment of misprision in a public officer, (by the statute Westminster the first, 3 Edw. I. c. 9,) is imprisonment for a year and a day ; in a common person, imprisonment for a less, but discretionary time; and, in
(t) Hawk. P. C. b. 1, c. 59, s. 6. (u) Stiern. de Jure Goth. I. 3,
(a) Vide sup. p. 136.
(y) This provision re-enacts 7 & 8 Geo. 4, c. 29, s. 59. By the 33 & 34 Vict. c. 65, no action is to be brought under it against the printer
or publisher of the advertisement more than six months after the forfeiture was incurred, nor unless the written assent of the attorney or solicitor-general has been first obtained.
(2) Vide sup. p. 165.
[both, fine and ransom at the king's pleasure ; an expression which signifies here (as in other cases where it occurs), not any extrajudicial will of the sovereign: but such as is declared by his representatives, the judges in his courts of justice—"voluntas regis in curiâ, non in camera” (a).
X. Compounding of informations upon penal statutes, or of misdemeanors, is also illegal.
As to the first of these, the compounding of informations upon penal statutes, it is an offence against justice by contributing to make the laws odious to the public. At once, therefore, to discourage malicious informers, and to provide that offences, when discovered, shall be duly prosecuted,—it is enacted by 18 Eliz. c. 5, that if
any person informing, under pretence of any penal law, makes any composition without leave of one of the courts at Westminster; 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 the public good,—he shall forfeit 101.; and he is also liable to suffer such imprisonment or additional fine, or both, as the court shall award, and shall be for ever disabled to sue on any popular or penal statute (6).
As to compounding misdemeanors : such a proceeding without leave of the court seems to be also illegal (c). But it is not uncommon when a person has been convicted of a misdemeanor more immediately affecting an individual,—as a battery, imprisonment or the like,-for the court to permit the defendant to speak with the
(a) i Hale, P. C. 375.
(b) The punishment given by 18 Eliz, is altered as in the text by the effect of 56 Geo. 3, c. 138. As to this offence, see R. v. Best, 9 Car. & P. 368; R. r. Crisp, 1 B. & A. 282.
(c) See Collins v. Blantern, 2 Wils. 341; Edgecombe v. Rodd, 5 East, 297; Keir v. Leeman, 9 Q. B. 371; 4 BI. Com, 136, note hy Christian.
[prosecutor, before any judgment is pronounced: and if the prosecutor declares himself satisfied, to inflict but a trivial punishment. This is done to reimburse the prosecutor his expenses, and make him some private amends, without the trouble and circuity of a civil ac
XI. Common barratry is the offence of frequently inciting and stirring up suits and quarrels between his majesty's subjects, either at law or otherwise (e). 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 barrator, who is thus able as well as willing to do mischief, ought also to be disabled from practising for the future. And, indeed, it has been enacted, that if any one who hath been convicted of forgery, perjury, subornation of perjury, or common barratry, shall practise as an attorney, solicitor or agent in any suit, the court, upon complaint, shall examine it in a summary way,] and, if such conduct be proved, the offender may be sentenced to penal servitude for not more than seven nor less than five years (f).
[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
(d) Blackstone (vol. iv. p. 364) expresses a disapprobation of this practice, as contrary to the true policy of criminal jurisprudence. Even a voluntary forgiveness by the party injured "ought not,” he says, “ in true policy to intercept “ the stroke of justice.”
(e) Barratry is said to be a forensic term borrowed from the Normans: the Anglo-Norman baret signifying a quarrel or contention. See the
notes to Bac. Abr. tit. Barratry (A). A single act of inciting, &c., is not sufficient. See R. v. Hardwicke, 1 Sid. 282; R. v. Hannon, 6 Mod. 311; Hawk. P. C. b. 1, c. 81, s. 5.
(f) See 12 Geo. 1, c. 29; 21 Geo. 2, c. 3; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47. In the Attornies Act, 6 & 7 Vict. c. 73, the statute 12 Geo. 1, c. 29, is recognized as existing, and is left unrepealed.