another; but without such previous concert with, or subsequent assistance of, the person committing the felony, as will make the party concealing an accessory before or after the fact. And [the punishment of this 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 both, fine and ransom at the king's pleasure;] an expression which, as Blackstone remarks (z), 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 camerâ” (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 a misdemeanor against public 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 10. ;] 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 (b).]

As to compounding misdemeanors: such a proceeding

(z) 4 Bl. Com. p. 121.

(a) 1 Hale, P. C. 375.

(b) The punishment given by 18 Eliz. for this offence, 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. v. Crisp, 1 B. & A. 282.

without leave of one of the courts at Westminster, seems to be also illegal (c). But [it is not uncommon when a person is 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 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 action (d).]

And

XI. [Common barratry is the offence of frequently (e) inciting and stirring up suits and quarrels between his majesty's subjects, either at law or otherwise (f). 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. indeed, it is now 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 proved,] may direct the offenders to be kept in penal servitude for not more than seven or less than three years (g).

(c) See Collins v. Blantern, 2 Wils. 341; Edgecombe v. Rodd, 5 East, 297; Keir v. Leeman, 9 Q. B. 371; 4 Bl. Com. 136, note by Christian.

(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).] To establish 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) Hawk. P. C. b. 1, c. 81, s. 1. (g) 12 Geo. 1, c. 29; 21 Geo. 2, c. 3; 16 & 17 Vict. c. 99; 20 & 21

[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 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 8 Eliz. c. 2, s. 4, to be punished by six months' imprisonment, and treble 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 (i): a practice that was greatly encouraged by the first introduction of uses (k). This is an offence against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression (7). 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 law suit, by money, witnesses or patronage (m). A man may, however, maintain the suit of his near kinsman (n), servant (o), or poor neighbour (p), out of charity and compassion, with impunity ;]

Vict. c. 3. In the Attornies' Act, 6 & 7 Vict. c. 73, the statute 12 Geo. 1, c. 29, is recognized as existing, and is left unrepealed.

(i) Hawk. P. C. b. 1, c. 83, s. 23. (k) Dr. and Stud. 203. As to uses, vide sup. vol. 1. p. 360.

(1) Co. Litt. 368 (b); 2 Inst. 208, 212, 213; Hawk. P. C. b. 1, c. 83, s. 23. 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 pre

tensions 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 name of ruralis. (See Bac. Abridg. in tit. Maintenance.)

(m) Ff. 48, 10, 28.

(n) Bac. ubi sup. ; Hawk. ubi sup.

s. 26.

(0) Hawk. ubi sup. ss. 31, 32, 33. (p) Bro. Abr. tit. Maintenance, (14).

or he may maintain a suit in which he has any interest, actual or contingent (q). [Otherwise the punishment by common law,] and also by statute 1 Ric. II. c. 4, [is fine and imprisonment (r); and by statute 32 Hen. VIII. c. 9, a forfeiture of ten pounds.]

XIII. [Champerty (campi partitio) is a species of maintenance, and punished in the same manner (s),—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 (t). 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. 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 (u); because no man should purchase any pretence to sue in another's right. 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 privutâ tenentur "(x). And they were punished by the forfeiture of a third part of their goods, and by perpetual infamy (y). Hitherto must also be referred the provisions

(q) Hawk. ubi sup. ss. 14, 15; Master v. Miller, 4 T. R. 340; Williamson v. Henley, 6 Bing. 299. (r) Hawk. ubi sup. s. 38; 2 Inst. 208.

(s) Hawk. ubi sup. b. 1, c. 84, s. 1. (t) Statute of Conspiracy, 33 Edw. 1, st. 2.

(u) As to this, vide sup. vol. II.

p. 45.

(x) Ff. 48, 7, 10.

(y) There are on the subject of champerty the following statutes of antient date:-3 Edw. 1, c. 25; 13 Edw. 1, c. 49; 21 Edw. 1, stat. 3, c. 11; 33 Edw. 1, st. 3; 4 Edw. 3,

[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 (a).]

XIV. Conspiracy may be correctly described, in general, as a combination or agreement between several persons to carry into effect a purpose hurtful to some individual; or to particular classes of the community; or to the public at large (b): though this is subject to 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 (c); to injure the public health by selling unwholesome provisions (d); to raise the funds by the propagation of false intelligence (e); to defraud some person or persons of his or their property (f); and

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, 309; Stanley v. Jones, 7 Bing. 369; Bell v. Smith, 5 B. & C. 188; In re Masters, 1 Har. & Woll. 348.

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

(b) 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. v. Seward, 1 A. & R. 713; R. v. Jones, 4 B. & Ad. 349.) 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 lawful and unlawful, as here used, themselves require a definition. In many cases, too, it is difficult to distinguish precisely 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.

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

(d) See R. v. Mackarty and Fordenbourgh, 2 Ld. Raym. 1179; 2 East, P. C. c. 18, s. 5; 6 East, 133.

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

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