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7. returning from transporta


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 (12) (13).

8. An eighth is that of taking a reward, under pretence of stolen goods; helping the owner to his stolen goods. This was a contri

vance 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

8. taking a reward to return

(12) It has been thought that, formal part) of the indictment and where a convict has been pardoned conviction of such offender, and of the upon condition of transporting himself order for his transportation, shall be for life or a certain number of years, if sufficient evidence of such conviction he did not comply with that condition, and order for transportation. In Rer he might be remitted to his original v. Sutcliffe, 1 Russell, 402, which was sentence, and in some cases that he was founded on 6 Geo. I. c. 23, § 7, which subject to no other punishment; see requires the officer to certify a transLeach's Crown Cuses, 197, 303. But script briefly, and in few words, conthe 24 Geo. III. c. 56, seems to in- taining the effect and tenor of the include every possible case, by enacting, dictment and conviction ; and also on that if any offender shall be ordered by 24 Geo. III. c. 56, § 5, which requires the court to be transported, or shall a certificate containing the effect and agree to transport himself on certain substance only, omitting the formal conditions, either for life or any num- part of the indictment and conviction; ber of years, and shall be afterwards at the indictment stated, that the prisoner large before the expiration of the term, was convicted of grand larceny within without lawful cause, in any part of benefit of clergy, and the certificate Great Britain or Ireland, he shall, be- was in the same form; and they were ing lawfully convicted thereof, suffer both held to be insufficient. So in Per death without benefit of clergy.-Ch. v. Iatson, R. & R. C. C. 468, which

(13) By 5 Geo. IV. c. 84, § 22, was founded on 56 Geo. III. c. 27, these provisions are re-enacted. By $ 8, which requires the certificate to $ 23, it shall be sufficient in any in- contain the effect and substance only, dictment for any offence previously omitting the formal part of the indictmentioned, to allege the order made ment and conviction, and order for for the transportation, without alleging transportation; the indictment and cerany indictment, trial, conviction, judg- tificate stated only that the prisoner ment or sentence, or any pardon, or had been convicted of felony, without intention of mercy, or signification stating the nature of the felony; and thereof. And by $ 24, the certificate they were both held to be insufficient, of the clerk of the court where the of and the prisoner was remitted to his fender was sentenced, containing the former sentence. effect and substance only (omitting the

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 him. Wild, still continuing in his old practice, was upon this statute at last convicted and executed (m) (14).

9. Receiving of stolen goods, knowing them to be stolen, is receiving also a high misdemesnor and affront to public justice. We have seen in a former chapter (n), that this offence, which is only a misdemesnor at common law, by the statutes 3 and 4 W. and M. c. 9, and 5 Ann. c. 31, makes the offender accessary to the theft and felony (15). But because the accessary

(m) See stat. 6 Geo. I. c. 23, § 9. (n) See


p. 38.

(14) In Rer v. Ledbitler, R. & R. ported beyond the seas for life, or for C. C. 76, a police officer was indicted any term not less than seven years, or under 4 Geo. I. c. 11, § 4, for taking to be imprisoned for any term not exmoney under the pretence of helping a ceeding four years, and, if a male, to person to goods stolen from him, and be once, twice, or thrice publicly or convicted of felony, though the officer privately whipped (if the court shall had no knowledge of the felon, and so think fit,) in addition to such imprithough he possessed no power to ap

sonment." prehend the felon, and though the pro- By sect. 59, advertising a reward perty was never restored, and the officer for the return of any stolen property had no power to restore it.

whatsoever, which shall have been stoBy st. 7 & 8 Geo. IV.c. 29, $ 58, it is len or lost, purporting that no quesenacted, " That every person who shall tions shall be asked, or printing such corruptly take any money or reward, advertisements, renders the offending directly or indirectly, under pretence, party liable to a penalty of fifty pounds, or upon account of helping any person, and full costs, to any person who will to any chattel, money, valuable secu- sue for the same, by action of debt. rity, or other property whatsoever, This Act repeals the 25 Geo. II. c. 36, which shall by any felony or misdemea- $ 1, as far as relates to the advertising nor have been stolen, taken, obtained, rewards for stolen goods. or converted as aforesaid, shall (unless The 4 Geo. I. c. 11, § 4, relating he cause the offender to be appre- to, and the 1 Geo. IV. c. 115, directhended and brought to trial for the ing the degree of punishment for this same,) be guilty of felony, and being offence, are also repealed by this staconvicted thereof, shall be liable, at the tute. discretion of the court, to be trans- (15) The 3 & 4 W. & M., so far as


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 Ann. c. 9, and 5 Ann. c. 31, that such receivers may still be prosecuted for a misdemesnor, and punished by fine and imprisonment, though the principal felon be not before taken so as to be prosecuted and convicted (16). 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 (6) (17). So that now the prosecutor has two methods in his choice: either to punish the receivers for the misdemesnor immediately, before the thief is taken (p); or to wait till the felon is convicted, and then punish them as accessaries 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 misdemesnor 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 (18).

(0) See also stat. 2 Geo. III. c. 28, of goods stolen by bumboats, &c. in the $ 12, for the punishment of receivers Thames.

(p) Foster, 373.

regards this subject, is repealed by 7 & by them, in places appointed by the 8 Geo. IV. c. 27, and 5 Ann. c. 31 is Act; and concealing such articles forrepealed by 7 Geo. IV. c. 31, except- feits all claim to salvage, and renders ing some provisions relating to certain the offenders liable as receivers of stosheriffs.

len goods. By $ 12, persons fraudu(16) I Ann. c. 9, except § 3, is re- lently purchasing or receiving such anpealed by 7 & 8 Geo. IV. c. 27. chors, &c. shall be considered receivers

(17) Repealed by 7 & 8 Geo. IV. of stolen goods. By $ 15, pilots and c. 27.

others conveying such anchors, &c. to (18) By 1 & 2 Geo. IV. c. 75, § 1, foreign parts, and there selling them, pilots and others are to deposit anchors, shall be guilty of felony, and punishcables, and other ships' materials found able with seven years' transportation,

10. Of a nature somewhat similar to the two last is the 10. theft-bote, or

compounding of offence of theft-bote, which is where the party robbed not felony, which

And by $ 22, offences against the Act for any term not exceeding three years, shall be tried in the county where the and, if a male, to be once, twice, or goods are found, or if sold abroad, in thrice publicly or privately whipped (if the county where the person selling the court shall so think fit,) in addition them resides. This Act was made to to such imprisonment: provided alrevive and continue two former tempo- ways, that no person, however tried for rary Acts of 49 & 53 Geo. III.

receiving, as aforesaid, shall be liable By 3 Geo. IV. c. 24, entitled “ An to be prosecuted a second time for the Act for extending the Laws against same offence. Receivers of Stolen Goods, to Receiv- By sect. 55, That if any person shall ers of Stolen Bonds, Bank Notes, and receive any chattel, money, valuable seother Securities for Money,” all per- curity, or other property whatsoever, sons receiving or buying any exchequer the stealing, taking, obtaining, or conorder or tally, or any exchequer bill, verting whereof is made an indictable bank note, South Sea bond, or any misdemeanor by this Act, such person other security for money, knowing the knowing the same to have been unlaw. same to have been stolen, are liable to fully stolen, taken, obtained, or conbe prosecuted as receivers of stolen verted, every such receiver shall be goods, and to be punished according to guilty of a misdemeanor, and may be the laws previously in force against indicted and convicted thereof, whether offenders receiving stolen goods. The the person guilty of the principal misprovisions of 2 Geo. II. c. 25, are demeanor shall or shall not have been made to extend to this Act.

previously convicted thereof, or shall Parties offending against this Act or shall not be amenable to justice; may be convicted either before or after and every such receiver shall, on conthe conviction of the principal of- viction, be liable, at the discretion of fender.

the court, to be transported beyond the By stat. 7 & 8 Geo. IV. c. 29, $ 54, seas for the term of seven years, or to it is enacted, That if any person shall be imprisoned for any term not exreceive any chattel, money, valuable ceeding two years, and, if a male, to be security, or other property whatsoever, once, twice, or thrice, publicly or prithe stealing or taking whereof shall vately whipped (if the court shall so amount to a felony, either at common think fit,) in addition to such imprisonlaw, or by virtue of this Act, such person knowing the same to have been fe- By sect. 56, all receivers, whether loniously stolen or taken, every such charged as accessaries after the fact to receiver shall be guilty of felony, and the felony, or with a substantive felony, may be indicted and convicted either or with a misdemeanor only, may be as an accessary after the fact, or for a tried at the same place as the principal, substantive felony; and, in the latter or where the property is found in their case, whether the principal felon shall possession, or where they actually reor shall not have been previously con- ceived such property. victed, or shall or shall not be amenable And, by sect. 60, where the stealing to justice ; and every such receiver, or taking of any property whatsoever is howsoever convicted, shall be liable, at by this Act punishable on summary the diseretion of the court, to be trans- conviction, either for every offence or ported beyond the seas for any term for the first and second only, or for the not exceeding fourteen years, nor less first offence only, any person who shall than seven years, or to be imprisoned receive any such property, knowing the


formerly made only knows the felon, but also takes his goods again, or other the party an ac. cessary; amends, upon agreement not to prosecute (19). This is fre

quently called compounding of felony, and formerly was held to make a man an accessary; but is now punished only with fine and imprisonment (9). This perversion of justice, in the

old Gothic constitutions, was liable to the most severe and [*131] infamous punishment. And the Salic law, latroni eum * si

milem habuit, qui furtum celare vellet, et occulte sine judice compositionem ejus admittere (r) (20)." 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 (21).

11. Common barretry is the offence of frequently excidisqualities from ting and stirring up suits and quarrels between his majesty's

subjects, either at law or otherwise (8) (22). The punish

11. common barretry, which



(9) 1 Hawk. P. C. 125.
(r) Stiernh. de jure Goth. 1. 3, c. 5.

(s) 1 Hawk. P. C. 243.

c. 114.

same to be unlawfully come by, shall, notes, the property and chattels of A., on conviction thereof before a justice the word chattels was rejected as surof the peace, be liable, for every first, plusage ; Morris's ca se, Leach, 525. second, or subsequent offence of re- The 29 Geo. II. c. 30, and 10 Geo. ceiving, to the same forfeiture and pu- III. c. 48, respecting receivers, are, by nishment to which a person guilty of a 7 & 8 Geo. IV. c. 27, repealed, and first, second, or subsequent offence of also the 13 Geo. III. c. 31, § 4 & $ 5; stealing or taking such property is, by 21 Geo. III. c. 69; 22 Geo. III. c. this Act made liable.

58; 3 Geo. IV. c. 24; and 3 Geo. IV. An indictment against a receiver, as accessary, must duly aver the guilt of (19) Some particular favour should the principal ; but an indictment for a be shewn to the felon, to make the substantive felony need not allege the party amenable, as the mere receiving original felony, with either time or one's goods again can scarcely be suffiplace; 1 Stark. C. P.; Rex v. Scott, cient to constitute the act a misdemea2 East, P. C. 781. An indictment nor ; 1 Hawk. c. 59, $ 7. for receiving stolen goods may be sup- (20) Considered as a thief him who ported, if the nature of the property re- attempted to conceal the theft, and to main the same, although the name is receive secret satisfaction for it, withchanged; thus, a principal may be in- out bringing the offender to justice. dicted for stealing a sheep, and an ac- (21) The 25 Geo. II. c. 36, § 1, is cessary for receiving some of the mut- repealed by 7 & 8 Geo. IV. e. 27; and ton; Rer v. Cowell & Green, 2 East, see, on this subject, 7 & 8 Geo. IV. c. P. C. 781 ; and where an indictment 29, $ 59, ante note (14). charged the principal with stealing (22) Disturbing the peace, making bank notes, the property of A., and the false inventions, propagating evil reaccessary with receiving the same ports and calumnies, and spreading

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