also an offence against public justice, and the party himself is punishable by fine or imprisonment. But the officer permitting such escape, either by negligence or connivance, is much more culpable than the prisoner; the natural desire of liberty pleading strongly in his behalf, though he ought in strictness of law to submit himself quietly to custody till cleared by the due course of justice. Officers therefore who, after arrest, negligently permit a felon to escape, are also punishable by fine: but voluntary escapes, by consent and connivance of the officer, are a much more serious offence; for it is generally agreed that such escapes amount to the same kind of offence, and are punishable in the same degree, as the offence of which the prisoner is guilty and for which he is in custody, whether treason, felony or trespass. And this, whether he were actually committed to gaol or only under a bare arrest. But the officer cannot be thus punished until the original delinquent hath actually received judgment, or been attainted, upon verdict, confession, or outlawry, 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 misdemeanour. Breach of Prison.

5. 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., which enacts that no person shall have judgment of life or member for breaking prison, unless comnitted 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 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.

Rescue.

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 the 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.

Returning from Transportation.

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.

Taking a Reward Under Pretence, etc.

8. An eighth is that of taking a reward under pretence of helping the owner to his stolen goods. To prevent which audacious practice, to the ruin and in defiance of public justice, it was enacted, by statute 4 Geo. I. c. II, 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.

Receiving of Stolen Goods.

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 that this offence, which is only a misdemeanour at common law, by the statute 3 and 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, 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. So that now the prosecutor has two methods in his choice: either to punish the receivers for the disdemeanour immediately, before the thief is taken, 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 imprison

ment. 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.

Theft Bote.

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 a felony, and formerly was held to make a man an accessory; but it is now punished only with fine and imprison

ment.

Common Barretry.

II. Common barretry is the offence of frequently exciting and and stirring up suits and quarrels between his majesty's subjects, either at law or otherwise. 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 practicing for the future. 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 practice 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 suing 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.

Maintenance.

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 maintaining or assisting either party, with money or otherwise to prosecute or defend it; a practice that was greatly encouraged by the first introduction of uses. This is an offence against public justice, as it keeps alive strife and conten

tion, 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 law-suit, by money, witnesses or patronage. A man may, however, maintain the suit of his near kinsman, servant, or poor neighbor, out of charity and compassion, with impunity. Otherwise, the punishment by common law is fine and imprisonment, and by the statute 32 Hen. VIII. c. 9, a forfeiture of ten pounds.

Champerty.

13. Champerty is a species of maintenance and punished in the same manner; 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. Thus, chompart, in the French law, signifies a similar division of profits, being a part of the crop annually due to the landlord by bargain or custom. In our sense of the word it signifies the purchasing of a suit or right of suing: 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. Hitherto 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.

Compounding for Informations.

14. but 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 offences, 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 Iol., shall stand two hours on the pillory, and shall be forever disabled to sue on any popular or penal statute.

Conspiracy.

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 perversion of public justice, for which the party injured may either have a civil action by writ of conspiracy (of which we spoke in the preceding book), or 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 ancient common law 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. But it now is the better opinion, that the villenous judgment is by long disuse become 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.

Perjury.

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 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 now too frequent upon every petty occasion; since it is more than possible that by such idle oaths a man may frequently in foro conscientiae incur the guilt, and at the same time evade the temporal penalties of perjury. The perjury must also be corrupt (that is, committed malo animo), wilful, positive, and absolute; not upon surprise, or the like; it also must be in