Page images

[at all, or one who is ignorant of the suit. This offence, if committed in any of the 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 was directed by 8 Eliz. c. 2, s. 4, to be punished by six months' imprisonment, and damages to the party injured.

XII. 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(9): a practice that was greatly encouraged by the first introduction of uses (). This is an offence against justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression (i). And therefore by the Roman law, it was a species of the crimen falsi to enter into any confederacy, or to do any act to support another's lawsuit by money, witnesses or patronage (k). A man may, however, maintain the suit of his near kinsman (1), servant (m), or poor neighbour (n), out of charity and compassion, with impunity; or he may maintain a suit in which he has any interest, actual or contingent(o).

(9) Hawk. P. C. b. 1, c. 83, s. 23.

(1) Dr. and Stud. 203. As to uses, vide sup. vol. 1. p. 356.

(i) Co. Litt. 368 (b); 2 Inst. 208, 212, 213; Hawk. ubi sup. Maintenance may consist (according to Bacon) not only in the officious intermeddling in suits as described by Blackstone (vol. iv. p. 135), which is termed curialis; but also in assisting another to his pretensions to lands, or holding them for him by force or subtilty, or stirring up quarrels in the county, in

relation to matters wherein one is no way concerned. And this species is known by the pame of ruralis. (See Bac. Abridg. in tit. Maintenance.)

(k) Ff. 48, 10, 28.

(1) Bac. Abridg. in tit. Maintenance; Hawk. P. C. b. 1, c. 83, s. 26.

(m) Hawk. ubi sup. ss. 31, 32, 33.

(11) Bro. Abr. tit. Maintenance, (14).

(0) Hawk. ubi sup. ss. 14, 15; Master v. Miller, 4 T. R. 310; Williamson r. Henley, 6 Bing. 299. As

[Otherwise the punishment by common law, and also by statute 1 Rich. II. c. 4, is fine and imprisonment (p); and by statute 32 Hen. VIII, c. 9, a forfeiture of ten pounds.

XIII. Champerty (campi partitiv) is a species of maintenance, and punished in the same manner (1)-being a bargain with a plaintiff or defendant campum partire, to divide the land or other matter sued for if he shall prevail at law; whereupon the champertor is to carry on the party's suit at his own expense (r). 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 custom. 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 upon by the Roman law, " qui improbè coëunt in alienam litem, ut quicquid ex condemnatione in rem ipsius redactum fuerit inter eos communicaretur, lege Juliâ de vi privatâ tenentur(s). And they were punished by the forfeiture of a third part of their goods, and by perpetual infamy(t). Hitherto must also be referred the provisions 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

to what amounts to the offence of maintenance by an attorney, sce Earle v. Hopwood, 9 C. B., N. S. 666.

(P) Hawk. ubi sap. s. 38; 2 Inst. 208.

(9) Hawk, ubi sap. b. 1, c. 84, s. 1.

(r) Statute of Conspiracy, Edw. 1, st. 2.

(8) Ff. 48, 7, 10.
(t) There are on the subject of

champerty the following statutes of antient date :-3 Edw, 1, c. 25; 21 Edw. 1, stat. 3, c. 11; 33 Edw. 1, st. 3; 4 Edw. 3, c. 11. See also the following cases as to what amounts to maintenance and champerty: Stevens v. Bagwell, 15 Ves. jun. 139; Williams v. Protheroe, 5 Bing. 509; Stanley v. Jones, 7 Bing. 369; Bell r. Smith, 5 B. & C. 188; Grell v. Levy, IG C. B., N. S. 73.

[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 (u).]

XIV. Conspiracy may be correctly described, in general, as a combination or agreement between two or more persons to carry into effect a purpose hurtful to some individual, or to particular classes of the community, or to the public at large (x); though this is subject to an exception in the case where the purpose is a felonious one, and actually accomplished ;—the offence of conspiracy, (which is a misdemeanor only,) being then merged in the felony. Thus there may be conspiracy to commit murder or other crime; to seduce a female (y); to injure the public health by selling unwholesome provisions (z); to raise the funds by the propagation of false intelligence (a), to defraud some person or persons of his or their property (V); and the like(c). But one of the chief species of this offence, (and that which brings it within the subject matter of the present chapter,) is that of falsely and maliciously conspiring to indict an innocent man (d). [This

(u) As to this statute, see Cholmondeley v. Clinton, 4 Bligh, N. S. 4.

(a) See Mulcahy r". The Queen, Law Rep., 3 Ap. Ca. 306. Conspiracy has been frequently said to consist either of an agreement for an unlawful purpose, or to effect a lawful purpose by unlawful means. (R. ». Seward, 1 A. & R. 713; R. v. Jones, 4 B. & Ad. 319.) But the correctness of the antithesis has been questioned on high authority (R. v. Peck, 9 A. & E. 686); and it is clear that the terms lanful and unlawful, as here used, themselves require a definition. In many cases, too, it is difficult to distinguish pre

cisely between the purpose and the means, in cases of conspiracy. As to the nature of this offence, see also Reg. v. Carlisle, 1 Dearsley's C. C. R. 337.

(y) See R. v. Grey, 3 St. Tr. 519; R. v. Delaval, 3 Burr. 1434.

(z) See R. r. Mackarty and Fordenbourgh, 2 Ld. Raym. 1779; 2 East, P. C. c. 18, s. 5; 6 East, 133.

(a) See R. v. De Beranger, 3 M. & S. 67.

(6) See Queen v. Gompertz and others, 9 Q. B. 824.

(c) Hawk. P. C. b. 1, c. 72, s. 2.

(d) Hawk, ubi sup. et s. 9; 3 Inst. 143; see R. v. Spragg, 2 Burr. 998; R. v. Macdaniel, 1 Leach, C. C. 45:


[is an abuse and perversion of justice; for which the party injured may either have a civil action, or else the conspirators may be indicted at the suit of the Crown(e); and (being convicted) they were by the antient common law to receive what was called the villenous judgment(s): viz., to lose their liberam legem, whereby they were discredited and disabled as jurors and 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

, bodies committed to prison (I). But it is now the better opinion that the villenous judgment is by long disuse become obsolete, it not having been pronounced for some ages (h); but instead thereof, the conspirators are usually sentenced to fine and imprisonment (i);] to which, by 14 & 15 Vict. c. 100, s. 29, may now be added, (in most cases of conspiracy,) hard labour, during the whole or any part of the term of imprisonment. We may add that, with regard to a conspiracy, the object of which is to commit the particular crime of murder, there is a provision contained in 24 & 25 Vict. c. 100, by which it is enacted, that all persons who shall conspire, confederate and agree to murder any person, (whether a subject of her majesty or not, and whether within her dominions or not,) and whosoever shall solicit, encourage, persuade or endeavour to persuade, or shall propose to any person, to

As to the felonious offence of actually accusing or actually threatening to accuse of crime, with intent to extort property, vide sup. pp. 128, 129.

(e) In some cases, before an indictment for a conspiracy can be presented to or found by a grand jury, security must be given for the due prosecution of the charge. (22 & 23 Vict. c. 17; 30 & 31 Vict. c. 35, s. 1.)

(f) Bro. Abr. tit. Conspiracy, 28. (9) Hawk. P. C. b. 1, c. 72, s. 9.

() It is to be observed, in reference to this subject, that until a recent period persons who were infamous, that is, of such a character that they might be challenged as jurors propter delictum, were, independently of any villenous judgment, inadmissible as witnesses. But they are now made competent by 6 & 7 Vict. c. 85.

(i) Blackstone adds “pillory," but this punishment is now abolished. Vide post, p. 244, n. (9).

murder any other person,-shall be severally guilty of a misdemeanor, and be punishable either by imprisonment (with or without hard labour) to the extent of two years ; or, at the discretion of the court, by penal servitude, to the extent of ten years or not less than five years (k).

With respect to the offence of conspiracy, it may be remarked, that it is deemed to consist rather in the guilty combination or agreement, than in the act by which it is carried into effect: and therefore, in an indictment for conspiring to do a thing in itself unlawful, it is not necessary to allege that the thing was in fact done (1); though, supposing it to have been done, it is usual to state the unlawful agreement or conspiracy first, and then to charge the thing done, (or overt act, as it is called,) to have been committed in pursuance of the conspiracy (m). It is also observable, that the effect of the state of the law relative to conspiracy, is often to render a purpose criminal when concerted by several, which would not be of that character, if entertained merely by an individual; a distinction which rests on very solid ground; for though every wrong may not be of dangerous tendency to the public, yet every coalition to promote wrong is manifestly of that character. Accordingly it is held, that a false and malicious indictment, if preferred by an individual, is no crime, though it is a cause of civil action (n); but if planned by several persons, it is, as we have seen, the legal offence of conspiracy. So a combination among workmen, to raise the price of wages, was once deemed to be, in every case, a conspiracy ; though the same object, if contemplated by

[ocr errors]

(k) 24 & 25 Vict. c. 100, s. 4. (Sec 27 & 28 Vict. c. 47.) The offender, if the court see fit, may also, either in addition to or in lieu of any other punishment, be bound over with sureties to keep the peace and be of good behaviour. (Scct. 71.)

(1) See 9 Rep. 56 b; R. r. Kim

berty, 1 Lev. 62; R. v. Best, Lord Raym. 1167; S. C. Salk, 174; R. e'. Seward, 1 A. & E. 713.

(m) As to the form of the indictment, see R. v. Steel, 1 C. & M. 337.

(n) Leith v. Pope, 2 Bl. Rep. 1328; sec 2 Russ. on Crimes, p. 674.

« EelmineJätka »