[(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 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 an offence affecting the administration of 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 was enacted by 18 Eliz. c. 5, that if any person informing, under pretence of any penal law, make 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 the public good; he shall forfeit 107.] and he is also liable to suffer such imprisonment or additional fine, or both, as the court shall award, and shall be thenceforth disabled to sue on any popular or penal statute (b).

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,

(a) 1 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. v. Crisp, 1 B. & A.

VOL. IV.

282.

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

T

[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).

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 was enacted by 12 Geo. I. c. 29, that if any one who hath been convicted of forgery, perjury, subornation of perjury, or common barratry, shall practise as solicitor or agent in any action, the court, upon complaint, shall examine it in a summary way,] and, if such conduct be proved, the offender (by the effect of more modern enactments) may even be sentenced to penal servitude for not more than seven nor less than five years (ƒ).

[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

(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 21 Geo. 2, c. 3; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47. In the Solicitors' Act, 6 & 7 Vict. c. 73, the statute 12 Geo. 1, c. 29, was recognized as existing, and left unrepealed.

[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 an action that no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it (g): a practice that was greatly encouraged by the first introduction of uses (h). This is an offence against the due administration of 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 ().] A man may, however, with impunity and indeed with propriety, out of charity and compassion, maintain the suit of his near kinsman (1), servant (m), or poor neighbour (n); and he may also maintain any action or other legal proceeding in which he has any interest,

(9) Hawk. P. C. b. 1, c. 83, s. 23. (h) 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 such officious intermeddling as is 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 last species is known by the name of ruralis. (See Bac. Abridg. in tit. Maintenance.)

(k) Ff. 48, 10, 28.

(1) Bac. Abridg. in tit. Maintenance; Hawk. ubi sup. s. 26.

(m) Hawk. ubi sup. ss. 31, 32, 33. (n) Bro. Abr. tit. Maintenance,

(14).

actual or contingent (o). But in cases where the offence is committed, its [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 partitio) is a species of maintenance, and punished in the same manner (q)-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 or defend the action at his own expense ("). 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

(0) Hawk. P. C. b. 1, c. 83, ss. 14, 15; and see Master v. Miller, 4 T. R. 340; Williamson v. Henley, 6 Bing. 299. As to what amounts to the offence of maintenance by a solicitor, see Earle v. Hopwood, 9 C. B., N. S. 566.

(p) Hawk. ubi sup. s. 38; 2 Inst. 208.

(2) Hawk. P. C. b. 1, c. 84, s. 1. (r) Ordin. de Conspir. 33 Edw. 1. (8) Ff. 48, 7, 10.

(t) There are on the subject of champerty the following statutes

of antient date:-3 Edw. 1, c. 25; 33 Edw. 1; 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. 309; Stanley v. Jones, 7 Bing. 369; Bell v. Smith, 5 B. & C. 188; Earle v. Hopwood, 9 C. B., N. S. 566; Grell v. Levy, 16 C. B., N. S. 73; Sprye v. Porter, 7 E. & B. 58; Hutley v. Hutley, Law Rep., 8 Q. B. 112.

[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 (u).]

XIV. The offence of conspiracy may be correctly described 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 (b); 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

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

() See Mulcahy v. The Queen, Law Rep., 3 H. L. 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. 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, sce also Reg. v. Carlisle, 1 Dearsley's C. C. R. 337; R. v. Warburton, Law Rep., 1 C. C. R. 274.

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

(-) See R. v. 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.

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

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