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CAMBRIDGE STUDIES

ENGLISH LEGAL HISTORY

Edited by
HAROLD DEXTER HAZELTINE, Lnr.D.

Of the Inner Temple, Barrister-at-Law;

Downing Professor of the Laws of England in the

University of Cambridge

THE HISTORY OF

CONSPIRACY AND ABUSE

OF LEGAL PROCEDURE

CAMBRIDGE UNIVERSITY PRESS

C. F. CLAY, MANAGER
LONDON : FETTER LANE, E.C.4

LONDON : STEVENS AND SONS, LTD.,
119 and 120 Chancery Lane, W.C. 2

NEW YORK : THE MACMILLAN CO.
BOMBAY ^

CALCUTTA I MACMILLAN AND CO., LTD.
MADRAS J

TORONTO : THE MACMILLAN CO. OF
CANADA, LTD.

TOKYO : MARUZEN-KABUSHIKI-KAISHA

THE HISTORY OF

CONSPIRACY AND ABUSE

OF LEGAL PROCEDURE

PERCY HENRY WINFIKI.D; LL,D. •

OF ST JOHN'S COLLEGE, CAMBRIDGE, AND THE INNER TEMPLE,

BARRISTER-AT-LAW ; LECTURER IN LAW AT ST JOHN'S

AND TRINITY COLLEGES, CAMBRIDGE

CAMBRIDGE

AT THE UNIVERSITY PRESS
1921

CAMBRIDGE STUDIES
IN ENGLISH LEGAL HISTORY

I HIS series of studies has been designed as an agency for
furthering scientific investigation in regard to the development
of the laws of England and thus for advancing the knowledge
of one of the most important aspects of British and world
history. At the beginning of the work of carrying out this
design it is fitting that a few words should be said about the
nature of the studies, their general scope, their purpose, and the
functions which they should fulfil in the life of the present day.
Two kinds of studies will be included in the series: mono-
graphs and editions of texts. Dr Winfield's illuminating study,
The History of Conspiracy and Abuse of Legal Procedure, a work
which consolidates the results of years of painstaking, skilful
and learned research, is published in the present volume as the
first of the monographs. This study may be taken as an indica-
tion of the general character of the monographs which are to
follow. It is intended that most of the monographs shall be
studies, based on original researches in manuscript and printed
materials r of some special period or of some special topic; but
at the same time it is hoped that certain of the studies will
trace, on more general lines, broader aspects of legal evolution.
Some of the monographs will embody, in appendices, select
texts which explain or illustrate certain of the subject-
matters dealt with by the authors. The second group of studies
will consist of editions of legal-historical texts which have
not been published hitherto, or which have not as yet been
published in a form consonant with modern critical standards.
In each one of this second group of volumes there will be
explanatory notes and an introduction of some length dealing
with the nature of the texts and their significance in the develop-
ment of the law. While the studies thus embrace two kinds or
groups of publications — monographs and editions of texts — it is
not thought to be necessary or even desirable to mark off the

543

vi GENERAL PREFACE

two kinds one from the other and to characterize each one of
them by a distinctive title as a separate series. Both of the
groups are of the nature of studies; and they will both be
published as one series under the general heading of Cambridge
Studies in English Legal History. No undertaking can be given
in advance as to the time of publication of the successive volumes
in the series ; but it is hoped that two volumes may be published
in the course of every year.

While the separate volumes will deal with particular subject-
matters, the general scope of the series as a whole will be as
broad and extensive as the history of English law itself. The
point of view which has been adopted in planning the series is
that English law has a place in world history and not merely
in insular history. The whole course of the development of
historical science during the last hundred years has prepared
the way for the taking of this world view-point in respect to
the origin, growth, and diffusion of English law. The i8th
century produced historical works of high merit and permanent
value; and individual thinkers of the time, such as Leibnitz,
Vico, Turgot, Herder, and Burke, made bold and fruitful con-
tributions towards the philosophic interpretation of history as
the life of humanity, ever evolving and progressing throughout
the centuries by processes of growth, decay and revival, every
age linked to every other. But there were several causes which
impeded the growth of history as a science, chief among them
being the failure of the Aufkldrung to grasp the historical sig-
nificance of religion and the middle ages, the lack of the critical
faculty in dealing with the testimony and value of authorities,
the almost entire absence of teaching, and the restrictions which
were placed on access to historical materials and on liberty to
publish results. The igth century — the " age of the Second
Renaissance," as Mr Gooch so appositely describes it in his
History and Historians in the Nineteenth Century — brought
about a sweeping change in all the conditions essential to the
growth of historical science. Liberty of thought and expression,
the judicial attitude of mind, and insight into the different ages
of the past led to the growth of history as an independent
science which gives light and guidance to all the other social

GENERAL PREFACE vii

sciences. In divers ways Niebuhr led the way in the placing of
history upon this scientific basis; and many other historians
gained inspiration from his methods and writings. In all civilized
countries the new science took root and flourished. The result
has been that all ages of history, all peoples, all aspects of life
have been subjected to an exacting critical examination. The
survey of the historian now embraces the world; and he can
trace, in many of its fundamental outlines and in considerable
wealth of detail, the evolution of civilization throughout all
the ages.

This general progress in historical studies during the igth
and 2Oth centuries has included law within its scope. The legal
systems of the world — in antiquity, in the middle ages and in
modern times — have all been subjected to the examination of
scholars trained in scientific methods of research. These studies
are still in progress. Much still remains to be done; and the
doing of it will take generations. But already it is possible to
see certain of the main lines and characteristics of universal legal
history. It is slowly coming to the consciousness of scholars
that a continuous process of evolution throughout the centuries
connects the laws of antiquity with those of medieval and modern
times.

The scientific study of the laws of the Babylonians, Egyptians,
Hebrews, Greeks, Romans and other peoples of antiquity has
been facilitated by the recent discovery of codes and other legal
sources ; and already a vast literature deals with the laws of those
ancient communities. Hitherto these studies have been con-
cerned for the most part with the development and characteristics
of the separate systems and with a comparison of the several
systems one with another. The continuity in ancient legal history
has not as yet received the attention it deserves. But scholars
have already perceived that the historical relations of the several
ancient peoples led, by processes of conquest and the diffusion
of civilization, to the spread of laws and to the incorporation
of their elements in other systems. Ihering, the great Romanist,
held the view that, if we would search for the origins of Roman
law, we must go back to Babylon; and|we|have learned, since
Ihering wrote the Vorgesichte der Indoeuropder , that the Baby-

viii GENERAL PREFACE

Ionian Code of Hammurabi remained in force even through the
Persian, Greek and Parthian conquests and that it survived to
influence Syro-Roman law and the later Mahommedan law in
Mesopotamia. These and many other results of recent researches
shewr the way to the future study of the ancient law from the
point of view of evolution and continuity. Only by such methods
of study shall we understand the nature of the ancient founda-
tions of medieval and modern law in the several parts of the
world which owe their civilization to Eastern as well as to
Western peoples. The passing of the world from ancient to
medieval times meant indeed no break in legal tradition, for
the legal systems of the middle ages were based in large measure
on the evolution in antiquity. Chief among the ingredients of
western European law in the middle ages were Germanic and
Roman elements derived from the age of antiquity : but there
were also embodied in medieval laws Hellenic and other strains
which came out of the ancient world and which were in origin
neither Germanic nor Roman. The transformation of these
ancient elements and the introduction of newer features by the
processes of political, ecclesiastical, economic, and social growth
laid in the medieval age the foundations of the modern systems
of law in the western European countries and in the com-
munities throughout the world which have derived their
civilization from Europe.

For the last century trained legal historians — Eichhorn , Savigny ,
Ihering, Mitteis, Brunner, Gierke, Karlowa, Esmein, Viollet,
Brissaud, Pertile, Hinojosa, and many others — have been en-
gaged in telling parts of this long story of the law's evolution
throughout the ages. The historians of English law have made
their own contribution to the story. The study of English legal
history during the last half-century, characterized by the work
of the great masters like Maitland and Ames, is indeed one of
the important aspects of the vaster movement in historical,
more particularly in legal-historical studies, which has marked
the last hundred years. The literature of English legal history
produced by this small but eminent group of scholars shews
not only familiarity with the researches of legal historians in
other countries, but also a grasp of the place of English law in

GENERAL PREFACE ix

world history. The lessons which they have taught should not
be forgotten by the present generation. The present is an age
when the vision of men, scholars no less than statesmen and
traders, is directed not solely to individual countries; it is
directed in ever-increasing degree to the world at large. This
same vision should inspire and guide the work of those who are
charged with the task of investigating the history of the English
law. That vision is no less than this: that English law is a
world-system, a system related in many ways throughout its
evolution to other bodies of law and extended in the course of
centuries far beyond the confines of England to many other
regions. Many of its roots go back to the Germanic customs of
the Continent and the North in the age of antiquity ; while others
reach to the Norman law and through Norman law to the Lex
Salica. Fundamentally Germanic in its origins and in its earlier
development, the English law owes something also to Roman
and Canon legal influences in the middle ages ; while, through
the growth and spread of those systems or by other processes
of evolution, it may also owe more than we now suspect to Greek
and other bodies of ancient and medieval law. The well-known
origin of certain elements of English and of European maritime
law in the ancient sea customs of the Greeks points the way to
other researches of a similar kind. Nor even in modern times
has English law been free from the subtle influences of foreign
law and of foreign juridical thought: factors such as these have
counted in legal growth far more than is oft-times imagined.

But these historical links between English law and the legal
world outside England have not all been due to the process of
importation. Exportation has also played a role of profound
significance. The spread of English law beyond the confines of
the homeland began in the age before the Norman Conquest;
and before the middle ages were past it had established itself
in Wales and in parts of Ireland and Scotland, and it may have
left its influence upon the legal institutions of the King's lost
provinces in France. In modern times it has spread to America,
the dominions, the colonies, and India. In the course of this
long process of diffusion throughout the world the English law
has met in its new environments not only native customs, but

x GENERAL PREFACE

the laws and customs of civilized peoples. In the middle ages
as well as in modern times it has met Celtic laws ; in the period
of modern imperial expansion it has met bodies of continental-
colonial law, such as the French, Spanish and Dutch, com-
pounded in part of Germanic and Roman elements; while in
India and elsewhere it has met the Hindu and Mahommedan
laws of the East. The growth of English law in the environment
of these other systems forms one of the most important aspects
of English legal history in its setting of world history. Nor
should we forget that even in countries which have never been
under British sovereignty English legal institutions and English
modes of juridical thought have left an abiding impress.

It is this conception of the place of English law in world
history which has dictated the scope of the present series of
studies. It is hoped that by means of monographs and editions
of texts various aspects of this development extending through
the ages and reaching to many parts of the world may be brought
into clearer light. Questions of legal origins and of the historical
links between the English and the other legal systems of the
world will receive due attention. Likewise within the scope of
the series are the relations between legal and institutional growth
and the relations between legal growth and the political, religious,
economic and social aspects of development. While emphasis
will be laid on the growth of medieval and modern common
law and equity, attention will also be directed to ecclesiastical,
maritime and local law. It is also planned to include in the
series studies in the evolution of English law within some of
its environments outside England, for example, in Ireland, in
the United States, in Canada, in Australia, and in India. In
brief, any aspect of the world history of English law will be an
appropriate subject for study; and it may find its place in the
series.

If now the question be asked as to the fundamental aim of the
writers of monographs and the editors of texts who contribute
to the series, the answer must be that their purpose can only
be the purpose which inspires all historical research. That pur-
pose is expressed in the words of one of the epistles of Hier-
onymus: "to know and to teach those things which are true."

GENERAL PREFACE xi

Selden adopted these words as his own: and to Selden, as to
the other English legal historians of his time, the knowing and
the teaching of the truth of the past did not mean the " studious
affectation of bare and sterile antiquity, which is nothing else
but to be exceeding busy about nothing," it meant, on the
contrary, "regard of the fruitful and precious part of [the past],
which gives necessary light to the present in matters of state,
law, history." The canon of Hieronymus has also had currency
for Selden's successors in our own time; and they distinguish,
as he did, between the sterile and the fruitful parts of the past.
It was zeal in the discovery of the fruitful parts of historic truth
which animated the vast labours of Maitland and gave character
to his histories of the law as forces in the thought and life of
the present day. It is this same eager quest for truth which has
endowed the work of other masters in English legal history with
creative and fruitful qualities.

The search for truth, which is to animate these researches
in the history of the laws of England, needs no a7ro\oyia. The
quest for truth in any field of enquiry needs no defence. Nor,
in the present state of historical studies, is it necessary to enter
into an elaborate explanation of the importance of a knowledge
of the successive stages of evolution lying at the basis of the
laws administered by the English courts and by the courts of
the many jurisdictions which have derived the fundamentals of
their jurisprudence from England. Let only this be said. The
history of English law as a world-system is an integral part of
the cultural history of mankind ; and as such it has an importance
difficult to overestimate. It not only forms a contribution of far-
reaching scope to the study of comparative legal development, it
also serves to throw light on many aspects of the political,
ecclesiastical, economic, and social evolution of Western civiliza-
tion. Apart from this broader significance, English legal history
is intimately interwoven in the whole historical development of
the English empire of the middle ages and of the British empire
of modern times; and that imperial history of English law is
today one of the main links which bind together the several
parts of the British Commonwealth, while it serves, at the same
time, as a common bond of unity between that Commonwealth

xii GENERAL PREFACE

and the United States of America. Furthermore, in England
and in each one of the several jurisdictions which trace the main
sources of their jurisprudence to England, the history of the
English laws serves as a guide to the legal profession, the courts,
and all other agencies of legal administration. It likewise provides
necessary enlightenment to all who are concerned, in one way
or another, with the shaping of the form and content of the law
to meet the ever-changing needs of society. These, then, are
certain of the true functions which the world history of the laws
of England fulfils. These functions are as important today as
they were yesterday. They will be as important tomorrow as they
are today.

By its function in the processes of law-administration and
law-making English legal history serves immediate and practical
ends. Judges, legislators and administrators cannot, by a stroke
of the pen or by a fiat of jurisprudential thought, cut the laws
of their communities loose from the past. This has not hap-
pened in countries which, like France and Germany, have
codified large portions of their law : it cannot happen in countries,
like England and America, which base their jurisprudence in
large measure on judicial precedents. Nor does present-day
juridical thought in England and America seek to break with
the past and to allow the historical study of law to fall into
decay. The juristic thought of today properly emphasizes the
growing importance of concentrating the efforts of all the factors
in legal administration and legal amendment upon the problem
of the ends which the law should be made to serve in our own
day and generation. In essence those ends are no less than the
embodiment of political, economic and social justice in legal
justice ; and they are ends vital to progress. One of the bene-
ficent fruits of this and of other lines of present-day juridical
thought is that legal tradition is now seen in its true perspective
as the actual outcome of the past, but not as the fetter which
enslaves the present and the future. Out of the thought of the
present day one of the true and useful functions of legal history
as the embodiment of legal tradition is thus emerging into
clearer light. That functional use of legal history is the study
of legal traditions, in their course of development and in the

GENERAL PREFACE xiii

light of the conditions which produced them and gave them
continuity, in order that they may be used with intelligence
by the courts or that they may be modified, or even abolished,
by the law-making powers. This is not a new thought; it is
an idea long held by legal historians of broad vision everywhere.
It is, for example, the thought which underlies a large part of
Mr Justice Holmes' masterly address on " The Path of the
Law," delivered in 1897. " The rational study of law," he
declares, "is still to a large extent the study of history. History
must be a part of the study, because without it we cannot know
the precise scope of rules which it is our business to know. It
is a part of the rational study, because it is the first step towards
an enlightened scepticism, that is, towards a deliberate recon-
sideration of the worth of those rules."

It is hoped, then, that the Cambridge Studies in English Legal
History, by making some contribution to the knowledge of the
history of English law as a world-wide and not merely as an
insular system, may be an agency in the fulfilment of the several
functions of legal history. Fortunate it is that there are already
in progress other series of publications of texts and of essays
which have as their purpose the encouragement of the study
and the advancement of the knowledge of English legal history.
The series inaugurated by the publication of the present volume
will not conflict with the valuable work of the Selden Society
nor with that of other societies and scholars. On the contrary,
the aim is to supplement the work that is being done by other
agencies.

Any success which this series of Cambridge Studies in English
Legal History may have in making its own special contribution
to learning must be due to the scholarly labours of the writers
of monographs and the editors of texts. From scholars who
value the studies to which this series is devoted and who en-
visage the useful functions which such studies should serve may
there come, therefore, both guidance and co-operation. Only by
these means can the high standard set by Dr Winfield in this
first volume of the series be maintained.

H.D.H.

18. iv. 1921

w. H. L. p. h

AUTHOR'S PREFACE

1 HIS book was begun ten years ago as a piece of research on
the history of the law of conspiracy. The scope of it widened
to the history of abuse of legal procedure in general. Absence
during the war almost completely interrupted its progress, and
when work was resumed on it, it seemed better to state the
modern law of abuse of legal procedure as well as its history.
After completion of the manuscript, circumstances beyond my
control made it necessary to detach the historical from the
modern part and to publish each of these separately instead of
as one book. This process of detachment was not altogether easy,
and was found unworkable in the last two chapters ; apart from
them, the matter in this book is purely historical. The modern
part will shortly appear under the title, The Present Law of
Abuse of Legal Procedure, but will not be included as one of
the volumes in Cambridge Studies in English Legal History,
because that series is confined in its scope to the history of
the law as distinct from the statement of its present principles.
The historical evolution in the present work, however, leads
naturally to the modern law set out in The Present Law of
Abuse of Legal Procedure.

The history of perjury is fairly well known, and there is already
in existence a good monograph by Mr Oswald on contempt of
court. These topics are therefore omitted.

The library class-marks for some of the MSS. consulted may
possibly have been altered during the last ten years. For con-
venience sake, use has been made occasionally of the 1878
English edition of Bracton, but with the caution which is
notoriously essential.

Perhaps it is not irrelevant to add that if the printed Registrum
Brevium could be annotated with all the variant writs, which
we know from MS. Registra to have been tried at one time or
another, a wonderful addition would be made to the history of
English legal procedure, and incidentally to the history of

xvi AUTHOR'S PREFACE

English substantive law; for behind those intricate games of
procedural chess in the Year Books which seem so tedious to
the modern eye, the judges of England were creating the
Common Law, — the rcrfj/jba et? aei which has outlived the sneers
of Swift and the hatred of Bentham.

It is a pleasure to express my very sincere thanks to my
friend, Professor Hazeltine, for his valuable suggestions and
kindly encouragement at every turn, and, in particular, for
bringing to my notice Mr Bryan's book on the law of con-
spiracy, published in the United States in 1909. I am also
indebted to the past and present editors of the Law Quarterly
Review — Sir Frederick Pollock, and Mr A. E. Randall — for
their kind inclusion in the Review of portions of the work at
a time when the likelihood of its completion seemed remote;
and to the staff of the Cambridge University Press, for the care
which they have bestowed on the work.

P. H. W.
18. iv. 1921

CONTENTS

PAGES

GENERAL PREFACE BY H. D. HAZELTINE . v-xiii

AUTHOR'S PREFACE .... . xv-xvi

INDEX OF STATUTES .... xxi-xxii

INDEX OF YEAR BOOKS .... xxiii-xxiv

INDEX OF CASES xxv-xxvii

CHAP.

I EARLY HISTORY OF ABUSE OF PROCEDURE,
AND ESPECIALLY OF CONSPIRACY . . 1-28

EARLY MEANING OF CONSPIRACY . . . .1-4

ABUSE OF LEGAL PROCEDURE GENERALLY; (i) IN
ANGLO-SAXON TIMES, (2) AFTER THE CON-
QUEST 4

Appeals .......

Indictments

Writ de odio et atia .....
Statute of Conspirators ....

II THE WRIT OF CONSPIRACY .

ORIGIN OF THE WRIT . .
CLASSIFICATION IN REGISTER ....
SCOPE OF WRIT

(1) Application to false appeals .... 39-51

(2) Application generally ..... 51-59

(a) Criminal accusations .... 52-54

(b) Civil proceedings 55~59

XV111

CONTENTS

CHAP. PAGES

II (cont.)

ESSENTIALS OF LIABILITY TO WRIT . . . 59-87

(1) Combination 59-65

(2) Falsity and malice ..... 66-8 1

(a) Indictors ......

^b) Jurors

(d) Judges

(e) Officials

(3) Procurement 81-83

(4) Acquittal of plaintiff 83-87

APPLICATION OF WRIT TO WOMEN ... 88

DEATH OF ACCUSED 88-89

COMPROMISE 89

MISCELLANEOUS POINTS OF PROCEDURE . . 89-91

III EARLY HISTORY OF CONSPIRACY TO

ABUSE PROCEDURE AS A CRIME . . 92-108

CIVIL AND CRIMINAL PROCEDURE DISTINGUISHED 92-93

EARLY HISTORY OF THE CRIME .... 93-96

CONFEDERACY 96-99

VILLAINOUS JUDGMENT 99-102

DEVELOPMENT OF THE CRIME .... 102-108

DEVELOPMENT OF CRIMINAL CON-
SPIRACY GENERALLY TO END OF i8ra

CENTURY 109-117

PRELIMINARY 109

PARLIAMENT ROLLS 109-111

TRADE COMBINATIONS 111-112

LATTER HALF OF 1 7TH CENTURY . . . 112-115

BEGINNING OF i STH CENTURY .... 115-117

CONTENTS

xix

CHAP.

V ACTION ON THE CASE IN THE NATURE
OF CONSPIRACY ......

DECAY OF WRIT OF CONSPIRACY ....

ACTION ON THE CASE •

VI MAINTENANCE AND CHAMPERTY. HIS-
TORICAL OUTLINE

COKE'S DEFINITION

MANUTENENTIA RURALIS

MANUTENENTIA CURIALIS

GENERAL AND SPECIAL MAINTENANCE

WERE MAINTENANCE AND CHAMPERTY FORBIDDEN
AT COMMON LAW ?

REMEDIES DOWN TO RICH. II

FAILURE OF REMEDIES

SUPPRESSION OF THE OFFENCES ....

-VII EMBRACERY AND MISCONDUCT OF
JURORS .

VIII COMMON BARRATRY AND FRIVOLOUS
ARRESTS

GENERAL INDEX

PAGES

118-130
118-119
119-130

131-160

J31

'32-135
^35-^
136-138

138-150
I5°-I54
1 54^57
157-160

200-212
213-219

INDEX OF STATUTES

Magna Carta, 1215, c. 36; 20

20 Hen. Ill, c. 10; 143-144, 202
52 Hen. Ill, c. 14; 194

3 Ed. I, c. 18; 202

c.25 ; 24, 132«., 138w.,140,
141,142,148,150,153
— c. 26; 143

c. 28; 138, 142, 143, 145,
146

c. 33; 143, 202

0.38; 194

4 Ed. I (Rageman) ; 202
6 Ed. I, c. 9;21,45n.

1 1 Ed. I (Stat. of Champerty) ; 23, 24

13 Ed. I, c. 12; 6, 31, 39, 40, 41, 42,

50n., 66, 120
c. 29; 20, 22
0.36; 31, 144, 150
0.49; 25, 31, 132w.,142w.,

144-145, 146, 150

21 Ed. I (Stat. of Conspirators). See

General Index, " Con-
spiracy"

(De Conspiratoribus Ordi-

natio). See General

Index, "Conspiracy"

28 Ed. I, c. io;8w.,26,27, 38,44w.,

59, 95, 96, 148, 149,

150, 153

c. ii ; 25, 31 n., 132, 136,
142, 147-149

33 Ed. I (Ordinacio de Conspiratori-

bus). See General In-
dex, "Conspiracy"
i Ed. Ill, st. i, c. 7; 8

st. 2, c. 14; 132, 150n.,

156n.
st. 2, c. 16; 150, 203

4 Ed. Ill, c. ii ; 96, 132, 147, 150-

151, 153, 156

5 Ed. Ill, c. 10; 176

10 Ed. Ill, st. 2, c. 3; 134

14 Ed. Ill, st. i, c. io;8
20 Ed. Ill, cc. 1,4, 5; 151

c. 6; 151, 162, 167
25 Ed. Ill, st. 5, c. 2; 59n.

34 Ed. Ill, c. i ; 203, 204, 205, 211

c. 8; 162, 163, 164, 167,
171w.

37 Ed. Ill, c. 3; 111

— c.5;115

— c. i8;107n.

38 Ed. Ill, st. i, c. 9; 107n.

— st. i, c. 12; 162, 163, 164,

167

— c. 2; 115
42 Ed. Ill, c. 3; 107w.

1 Rich. II, c. 4; 133, 151, 153, 156

c. 7; 156n.
c.9;152

2 Rich. II, st. 2, c. 2; 203
7 Rich. II, c. 15; 156

13 Rich. II, st. i, c. 12; 111
st. i, c. 13; 111
st. 3; 156

1 Hen. IV, c. 7; 156n.

2 Hen. IV, c. 21 ; 156w.

4 Hen. IV, c. 7; 153

— c. 8; 132, 133, 151 n.

— c. 35; HI

7 Hen. IV, c. 14; 156rc.
9 Hen. V, st. i, cc. i, 2; 106
c. i ; 70

3 Hen. VI, c. i ; 112

6 Hen. VI, c. i ; 106

7 Hen. VI, c. i; 106

8 Hen. VI, c. 4; 156

— c. 9; 132, 133, 151n.

— c. 10 ; 63, 91 n., 107, 120
ii Hen. VI, c. 3; 152

— c. 9; 106

1 8 Hen. VI, c. 12; 70. 106
i Ed. IV, c. 2; 107

8 Ed. IV, c. 2 ; 157-158

i Rich. Ill, c. 4; 107

3 Hen. VII, c. i;45w., 166

c. 14; 97n.
ii Hen. VII, c. 3; 166 w.

19 Hen. VII, c. 14; 158
26 Hen. VIII, c. 4; 196

32 Hen. VIII, c. 9; 153w., 158, 159,

166, 167, 174

33 Hen. VIII, c. 10; 158
37 Hen. VIII, c. 7; 158

2&3 Ed. VI, c. 15; 112
3 & 4 Ph. and M.; 196

5 Eliz. c. 8; 111

8 Eliz. c. 2; 211, 212

XX11

INDEX OF STATUTES

27 Eliz. c. 4; 159 n.
31 Eliz. c. 5; 151 w.

i Jac. I, c. 22; 111

3 Car. I, c. 5; 156w., 157w., 158ra.

7 Geo. I, c. 13; 116
12 Geo. I, c. 29; 210
10 Geo. Ill, c. 16; 134

6 Geo. IV, c. 50; 162n., 164, 167,

174, 175, 176w., 195
3 & 4 Will. IV, c. 91 ; 164w., 176
5 & 6Vict. 0.38; 211

8 Viet. c. 18; 377

20 & 21 Viet. c. clvii; 177
25 & 26 Viet. c. 107; 177

31 & 32 Viet. c. 125; 134
33 & 34 Viet. c. 77; 177
42 & 43 Viet. c. 59; 151 w.
c. 75; 134
45 & 46 Viet. c. 50; 177

50 & 51 Viet. c. 55; 143

c.~7i; 177

51 & 52 Viet, c.43; 177
56 & 57 Viet. c. 61; 212

59 & 60 Viet. c. 51; 208

60 Viet. c. 18; 180, 187
60 & 6 1 Viet. c. 65; 159

5 & 6 Geo. V, c. 90; 170??., 206,
209

INDEX OF YEAR BOOKS

20 and 21 Ed. I, 310-312; 12

22 Lib. Ass. pi.

77; 10

30 and 31 — 522; 195w.
32 and 33 — 463; 38

ii ; 72w.
72; 55

2 Ed. II, 196; 81

i2;69n.,79w., 102

T. 3 195-198; 32

34; 96w., 97

M. 13 — 40i;58n., 70

44; 96, 97w., Ill

M. 14 411; 149

59; 101

P. i? 455 J I50

73; 119

M. 17 — 504; 149

12; 60w.

M. 17 509; 43, 49«., 88

27; 189

17 534; ^

45J97W.

P. 17 — 544; 43, 47»., 89

3 ; 176

T. 17 ~ 547J 67

15; 153n.

T. i Ed. Ill, 16; 107

3<>

41; 119

P. 3 — 19; 53

19; 171 w.

T. 6 — 33; 13, 148

10 ; 189

ii and 12 Ed. Ill, 338; 72n

i8;9

T. 12 Ed. Ill, 538; 148

ii ; 189, 196

T. 12 — 540; 149

24; 11

T. 12 — 634; 148
12 and 13 Ed. Ill, 4; 72 w.

46
19 Rich. II

ii ; 101
; 65«., 91, 96

1 8 and 19 — 566-8; 44,

M. 22

48 n.

M. 7 Hen. IV

, 31; 54, 68

19 Ed. Ill, 346; 44, 48 ra., 49 w.,

M. 8

6; 61

64, 88

M. 9 —

8;61,70n., 80

P. 21 — 17; 68, 69, 81

M. ii —

2; 61

H. 22 *- i ; 139

M. ii —

41; 85 n.

M. 24 — 34; 62, 101

H. 13

16; 136, 168, 169

M. 24 — 75 ; 109

M. 8 Hen. V,

8; 139

M. 24 76; 89

9 —

2; 11

T. 27 — 80; 62

T. 3 Hen. VI

,52, 53; 90, 133, 136

H. 38 — 3;60w., 55w.,64, 81

M. 4

7; 176

P. 39 — i3;56n., 72

P. 4 —

23; 68

P. 40 — 19; 57

M. 7 —

12; 178w.

T. 40 33; 164, 169,204

M. 7 —

13; 72

P. 41 — 9; 164, 169

P. 8 —

36; 137n.

M. 41 — 40; 62w.

T. 9

20; 136

H. 42 — i; 55w., 82

T. 9 —

26; 90

P. 42 — 14; 55, 82, 90n.

M. ii

10; 136w., 138n.,

42 — is;86n.

168

H. 43 — 10; 82w.

M. ii

ii ; 139

M. 43 — 17; 66n.

6; 78, 137, 138 n.

T. 43 335 91
T. 46 — 2o;56n., 82

M. 14 —
M. 19 —

25 ; 63
19; 67n.

T. 47 i5;57n., 86, 90

M. 19 —

34; 90, 91

M. 47 — i6;68w.

M. 20 —

5; 61, 69

M. 47 — I7;78n., 91
3 Lib. Ass. pi. 13 ; 53w.

P. 20
T. 20 —

30; 144, 147
33;69r>.

8 35; 196

M. 21 —

15; 138n., 168

12 I2;72n.

M. 21 —

20; 172

20 ii ; 176

M. 21 —

28; 44, 50n.

22 39; 9

P. 21 —

54; 168, 170

XXIV

INDEX OF YEAR BOOKS

Hen. VI, 5; 168, 169

Ed. IV, 20

;90w

— 7; 142, 148w., 153

5 >

168

3S;74n.

— i;

64w.

— 49 ; 90

— 2;

138w.

— 12; 168

— 4;

138n., 168n.

— 8;168n.

;89

— 15; 54

— 5;

137

— I ; 46, 48 ft., 49 n.,

— 67

; 78w.

50n., 86

Rich. Ill, g; 88

2; 9, 10, 87

Hen. VII,

3; 157

— 7; 44

18; 135w.

9; 46, 48w., 49w.,

—

10; 169

86, 87n.

25; 29-30, 54n.,

14; 65 n., 72

59, 63, 119, 120

46; 90

—

8; 148 w., 167

12; 154 w.

17; 90w.

27; 65n., 137, 154,

—

i; 181

178

2;9

— 29; 137

—

30; 178-179, 180

— 3;74w.

—

2; 179n., 180

— 3i; 172

—

8; 135n.

Ed. IV, i ; 152

3; 181

— 10; 47w.

ii ; 71n.,73w., 74,

— i7;135n.

77 '

37; 176

15; 136n.

38; 135/*.

Hen. VIII

, 18; 65ra.

— 1 26; 30, 120

3; 11

5; 172

—

7; 86

— 12; 85

8;9

— 23 ; 91

—

2; 76, 77n., 80

— i8;78

INDEX OF CASES

Acton's Case, 190

Alabaster v. Harness, 158

Allen v. Flood, 129

Allen v.Gomersall, 121

Allum v. Boultbee, 191

Alwin's Case, 210

Amerideth's Case, 108

Anon., 115

Anon. (3 Ed. VI), 77, 79

Anon. (13 Hen. VII), 211

Anon. (16 Jac. I), 209

Anon. (17 Jac. I), 211

Anon. (23 Car. I), 126

Anon. (Noy), 185

Armstrong v. R., 187

Arundell v. Tregono, 122

Ashby v. White, 54

Ashley's Case, 59, 102

Atte Wood v. Clifford, 166

Atwood v. Monger, 126, 127, 130

Bailey v. Macaulay, 193
Barnes v. Constantine, 124, 211
Barratry, Case of, 200, 201, 206,

207

Bayneham v. Lucas, 172
Becket v. Rashley, 170
Bennet v. Hundred of Hartford,

189

Blunt's Case, 110
Bowser's Case, 205
Bradlaugh v. Newdegate, 158
Bradley v. Jones, 121
Brigham v. Brocas, 127
British Cash &c. Ld v. Lamson, Ld,

158

Buckhurst's (Lord) Case, 135
Buckley v. Wood, 121
Bulwer v. Smith, 121
Burton's Case, 205
Bushell's Case, 180, 189, 195, 196,

198
Byne v. Moore, 130

Campbell v . Hackney Furnishing Co . ,

191

Chamberlain v. Prescott, 126, 130
Chambers v. Robinson, 130
Chapman's Case, 205
Cholmondeley v. Clinton, 159
Clark v. Periam, 207
Cook v. Field, 159
Cooksey v. Haynes, 182
Copsy's Case, 92

Cornwall's Case, 207

Cromwell (Lord) and Townsend's

Case, 172
Cutler v. Dixon, 121, 122

de Den's Case, 2, 51

de Helmeswell's Case, 2

de Maldone's Case, 2

de Tudenham's Case, 2

de Veer's Case, 94

de Welleby's Case, 51, 66, 80

Defries v. Milne, 158

Dent v. Hundred of Hartford, 191

Duke v. Ventris, 189

Dunn, In re, 175

Esturmy v. Courtenay, 166

Findon v. Parker, 139, 158

Fitz- James v. Moys, 189

Flower's Case, 159

Floyd v. Barker, 70, 71, 78, 79, 80,

84, 197

Foster v. Hawden, 190
Foy v. Harder, 190
Fry v. Hordy, 190
Fuller v. Cook, 120

Gardner v. Jollye, 126
Goby v. Wetherill, 188
Goddard v. Smith, 207
Goldington v Bassingburn, 31, 32,

33, 52, 55, 80, 81
Goodson v. Duffill, 185
Graves v. Short, 188
Greye's (Lord) Case, 113, 114

Hale v. Cove, 190
Hall v. Poyser, 190
Hartwright v. Badham, 192
Henley v. Burstall, 54, 123, 127,

129

Hercot v. Underbill, 123
Hughes v. Budd, 179
Hunt v. Locke, 186
Hurlstone v. Glaseour, 84
Hussey v. Cook, 169, 170, 172

Iveson v. Moore, 207

J'Anson v. Stuart, 207
Jepps v. Tunbridge, 169, 171
Jerom v. Knight, 120, 121, 122
Jones v. Gwynn, 124, 129, 130

XXVI

INDEX OF CASES

Kebell v. Vernon, 74
Kennedy v. Lyell, 159
Knight v. German, 120
Knight v. Jermin, 62, 120, 124

Lamnois' Case, 199
Langley v. Clerk, 127
Lee v. Lidyard, 159
Leigh v. Helyar, 139, 159
Loe v. Bordmore, 127
Lovet v. Faukner, 120, 124
Lovet v. Fawkner, 58, 62
Low v. Beardmore, 126

Macclesfield (Earl of) v. Starkey,

Man's Case, 209
Manley v. Shaw, 189
Manning v. Fitzherbert, 125
Marham v. Pescod, 84
Marsh v. Vaughan, 61
Master v. Miller, 158
Messenger v. Read, 126
Midwinter v. Scrogg, 112
Miller v. Reignolds, 102
Moore v. Shutter, 128
Morris v. Vivian, 182
Mounson v. West, 182

Neville v. London Express News-
paper, Ld, 139, 142, 158, 160
Norman v. Symons, 125
Norris v. Palmer, 127

O'Connell v. R., 94
Onions v, Naish, 191
Oram v. Hutt, 158

Pain v. Rochester, 81

Palfrey's Case, 209

Palke v. Dunnyng, 126

Parr v. Seames, 192

Partridge v. Strange, 159, 167

Partrige v. Straunge, 167

Pater, Ex parte, 175

Paulin v. Shaw, 122

Payn v. Porter, 125

Pecche's Case, 56

Pechell v. Watson, 139

Periam's Case, 210

Pescod v. Marsam, 125

Pomeroy v. Bukfast (Abbot of),

138

Poulterers' Case, 83, 97, 98, 102
Pratt's Case, 185
Prior v. Powers, 190

Quartz Hill &c. Co. v. Eyre, 129
Quinn v. Leathern, 59

R. v. — 208

— Baker, 161, 170, 174

— Barnett, 192

— Baynes, 207

— Bellgrave, 205, 206

— Best, 98, 101, 115

— Bracy, 206

— Brown, 197

— Clark, 193

— Clayton, 205, 209, 211

— Cook, 192

- Cooper, 205

- Cope, 107, 117

— Crippen, 180

— Daniell, 115

- Davis, 161

- Delaval, 117

— Fitz- Water, 190

— Grimes, 98

— Grove, 207

— Hancox, 193

— Hardwicke, 205

— Hardy, 110

— Hermitage (Inhabitants of),

173

— Higgins, 161

— Journeymen Taylors of Cam-

bridge, 116

— Ketteridge, 180, 188

— Kinnear, 180

- Ledginham, 205, 207

— Lynn, 117

— Maccarty, 114

— Martin, 175

— Mawbey, 116

— Mellor, 193

— Newton, 184

— Nurse, 211

- O'Connell, 180

— Opie, 114, 175

— Orbell, 114

— Rispal, 115

— Rosser, 189

— Selby, 198

— Shepherd, 187

— Starling, 96, 113, 114, 115, 116

— Syme, 191, 193

— Teal, 108

— Thorp, 114

— Twiss, 180
Twistleton, 114

— Urlyn, 210

- Wagstaffe, 197

— Wakefield, 193

— Ward (13 Will. Ill), 207

- Ward (1867), 180

— Wells, 209

- Willmont, 187, 192

— Windham, 197

INDEX OF CASES

XXVll

R. v. Wylie, 207
Young, 117
— Young, 161
Ram Coomar Coondoo v. Chunder

Canto Mookerjee, 139
Ramadge v. Ryan, 191, 192
Reynolds v. Kennedy, 130
Richmond (Duke of) v. Wise, 173,

183
Rochester v. Solm, 107

Sabey v. Stephens, 193

Saulkell's Case, 139

Savile v. Roberts, 27, 54, 65, 101,

127, 128-130
Scott v. Miller, 209
Scott v. N.S.P.C.C., 158
Sely v. Flayle, 182
Shelden v. Handbury, 159
Sherrington v. Ward, 122
Shotbolt's Case, 30, 124
Skinner v. Gunter, 124
Skinner v. Gunton, 59
Skipwyth's Case, 134
Smith v. Cranshaw, 30, 59, 62, 63,

84, 95, 120, 124, 130
Smithson v. Symson, 127
Stanley v. Jones, 158
State v. Buchanan, 95
Steward v. Gromett, 122
Straker v. Graham, 192
Strode v. Prior of Lodres, 148
Subley v. Mott, 62
Sulthorn (John, Parson of), 51, 60,

Swan, Henry le, 100, 103
Sydenham v. Keilaway, 85, 101

Tailor v. Towlin, 67, 108
Tailour's Case, 168
Taylor's Case (17 Jac. I), 125
Taylor's Case (20 Jac. I), 84
Thody's Case, 114
Throckmorton's Case, 195, 197
Throgmorton's Case, 122
Thurston v. Ummons, 212
Trewennarde v. Skewys, 182, 183

Upham's Case, 210

Vanderbergh v. Blake, 122

Varrell v. Wilson, 66

Vasie v. Delaval, 192

Vicary v. Farthing, 185

Vickery v. L.B. and S.C.R. Co., 173

Wallis v. Portland (Duke of), 133,

139

Waterhouse v. Saltmarsh, 212
Watts v. Brains, 190
Webb v. Taylor, 185
Wharton's Case, 197
Wiffen v. Bailey Council, 129-130
Williams, Doe d. v. Evans, 159,

160

Williams v. Protheroe, 158
Wine v. Ware, 126
Worlay v. Harrison, 212
Wright v. Black, 125
Wynn v. Bishop of Bangor, 191

CHAPTER I

THE EARLY HISTORY OF ABUSE OF PROCEDURE,
AND ESPECIALLY OF CONSPIRACY

THE EARLY MEANING OF CONSPIRACY

§ i . The early meaning of conspiracy must be examined at
the outset, as constant reference to it will be necessary.

An authoritative definition of conspirators is given in Statutes
of the Realm (ed. 1810, i. 145):

Conspirators be they that do confeder or bind themselves by
Oath, Covenant, or other Alliance, that every of them shall aid and
[bear1] the other falsly and maliciously to indite [or cause to indite2]
or falsly to move or maintain Pleas ; and also such as cause Children
within Age to appeal Men of Felony, whereby they are imprisoned
and sore grieved; and such as retain Men in the Country with
Liveries or Fees for to maintain their malicious Enterprises3; and
this extendeth as well to the Takers as to the Givers ; and Stewards
and Bailiffs of great Lords, which by their seignory, office or power,
undertake [to bear or maintain Quarrels Pleas or Debates, that
concern other Parties4] than such as touch the Estate of their Lords
or themselves. This Ordinance and final Definition of Conspirators
was made and5 accorded by the King and his Council [in his
Parliament the thirty-third year of his Reign6]. And it was further
ordained, that justices assigned to the hearing and determining of
Felonies and Trespasses7 should have the Transcript hereof*.

The title of this piece of legislation according to the " Margin
of the Inrollment," is "Ordinacio de Conspiratoribus." It is
dated "De Parl. 33 Edward I in Octab. B Marie." In the

Sustain the enterprize of

or cause to be indicted, or falsely to acquit people

and to drown the truth.

to maintain or support Pleas or Quarrels for Parties, other

finally 6 in this Parliament etc.

in the several Counties of England

The shape of the brackets and the notes corresponding to the brackets
are reproduced exactly. St. of the Realm, I. Introd. xliii explains that
italicized notes indicate suggested corrections in translation justified by the
original language of a statute, but not authorized by printed or MS. trans-
lation.

W.H.L.P. i

2 THE EARLY MEANING OF CONSPIRACY

printed copies of the Statutes it is styled "Diffinitio de Con-
spiratoribus. A Definition of Conspirators"; and these copies
annex to this definition another one of champertors : "Campi
Participes sunt qui per se vel per alios placita movent vel
movere faciant; et ea suis sumptibus prosequuntur, ad campi
pattern, vel pro parte lucri habenda."

The definition of conspirators also appears in Rot. Parl. I. 183
as " Ordinatio de Conspiratoribus." No comment is made upon
it, the date is the same1, and the text is substantially the same
except for the omission of the sentence relating to those who
instigate infants to make false appeals.

This loosely strung description presents conspiracy in an
unusual form to the eye of a modern lawyer. Ancient con-
spirators are those who combine, and so far they resemble
their present descendants. But combine to do what? In effect
to abuse legal procedure. This is not quite an exact paraphrase
of the Ordinance, for it does not allow for the vague phrase
"such as retain Men in the Country with Liveries or Fees for
to maintain their malicious Enterprises." But mediaeval judges,
as will be seen later, practically confined their interpretation of
the Ordinance to abuse of legal procedure2, and without some
knowledge of the early law relating to this it is impossible to
understand the history of conspiracy.

§2. A word may be added here as to the meaning of con-
spiracy before the Ordinance of Conspirators. Its technical
signification, if any, seems to have been much the same as after
33 Ed. I. Thus, in(29 Ed. I, de Helmeswell and de Maldone
were attached "de f5lacito conspirationis " because "per con-
spiracionem et confederacionem " maliciously made between
them they had procured citation of the complainant before the
Bishop of Lincoln's Court "de transgressionibus "3. In the
same year, John de Den impleaded for conspiracy five jurors
who, after they had given a verdict for him in an assize between
him and W. de Tudenham, had unsuccessfully claimed 10 marks
from him as a reward. They then procured from de Tudenham

1 Transl. ed. of the Statutes by George Ferrers about 1541 gives the
date 27 Ed. I (f. cxxv).

2 For a suggested explanation, see J. W. Bryan, Development of the
English Law of Conspiracy, p. 12, n. 10. 8 Abb. Plac. 295.

THE EARLY MEANING OF CONSPIRACY 3

a certificate which would enable him to change their verdict for
one in de Tudenham's favour. John got nothing by his writ,
because he could have recovered by attaint or in some other
way1. In 25 Ed. I, a plea of conspiracy was brought apparently
against a servant and his master ; the servant's defence was that
he had merely assisted his master in an assize and that this was
lawful2. The sense of abuse of legal procedure is not, however,
always so easy to trace. In 22 Ed. I, a parson, who at the request
of some of his parishioners had given them legal advice, con-
tended that the writ of conspiracy was a judicial writ or granted
in a special case3, and was not appropriate for trying a charge
of abduction which parents had brought against him (presumably
because his advice related to the marriage of their daughter)4.
The fact that the parents brought a writ of conspiracy at all
shews the vagueness of the term before its definition in 33 Ed. I,
but even here the idea that the parson's conduct was an improper
meddling in a legal dispute, if not in actual litigation, may have
been the ground on which the writ was procured.

§ 3. Conspiracy does not seem to have been used in this
period to indicate illegal combinations of other kinds ; but that
such combinations were known appears from a case in Bracton's
Note Book which has an echo in the bitter trade disputes of our
own time. In Stafford, several men had sworn, and made others
swear, that they would make no suit to the mills of William
Wymer, and had proclaimed in Stafford market-place that if
any one did make such suit they would seize his cattle to the
use of the King, and thrust him into prison. William sought
redress for this, and though the accused escaped on a technical
point, he got a writ to the sheriff of Stafford protecting such as
wished to make suit to the mills5. Again, in 1225, the Abbot

1 Abb. Plac. 295. 2 Ibid. 237.

"breve de conspiracione est breve de judic[ibus] vel quasi in speciali
casu concessum." In the printed Register of writs, the writ of conspiracy
appears under the original, not the judicial, writs (f. 134). But the meaning
of these terms was not settled at this date (post, pp. 38-39), nor were the
contents of the Register itself. The case merely ends with the statement
that the complainants got leave to abandon the writ.

4 Abb. Plac. 291.

5 Case 479 (A.D. 1230). It is indexed "Conspiracy" probably for lack of
any other term. Cf. a similar use for purposes of translation in Placita
Anglo-Normannica, 12.

4 ABUSE OF LEGAL PROCEDURE GENERALLY

of Lilleshall complained that the bailiffs of Shrewsbury did him
many injuries against his liberty, and had issued a proclamation
forbidding sale of merchandise to the Abbot or his men under
a penalty of los.1

ABUSE OF LEGAL PROCEDURE GENERALLY
(i) IN ANGLO-SAXON TIMES

§ 4. The Laws of Edgar provide that he who shall accuse
another wrongfully, so that he either in money or property be
the worse, shall, on disproof of the charge by the accused, be
liable in his tongue, unless he make compensation with his
"wer"2. The Secular Laws of Cnut contain a nearly similar
provision3. Leges Henrici Primi4, besides repeating Edgar's
and Cnut's penalties, inflict loss of tongue upon one who falsely
accuses his lord before a justice ; while lying denial of a judg-
ment debt due to the lord involves a punishment varying with
the delinquent's birth5. But the Anglo-Saxon ruler was faced
by a dilemma which was to trouble the judges of England for
ten centuries. In his eagerness to crush calumny he might
stifle honest attempts to vindicate the law. Hence, while the
doomsman who gives a false doom pays the King 120$., one
who swears that he knew not aught more just goes quit6.
Perhaps the early sanctity of an oath made this a more efficient
compromise of the difficulty than it appears to be.

(2) AFTER THE CONQUEST

§ 5. In so far as abuse of procedure took the form of a false
accusation of what would now be called crime, a distinction
must be drawn between appeals and indictments.

1 Select Pleas of the Crown, S. S. I. pi. 178. Here again, the case is indexed
" conspiracy," though the word does not appear in it.

2 III Edgar 4. Liebermann, Gesetze der Angelsachsen, vol. i. Thorpe,
Anc. Laws and Inst. of England, I. 286-7 (where ref. is Edgar II, 4). So too
Quad. Lieb. ibid.

3 II Cnut 1 6. Lieb. ibid. 320-1. Thorpe, 384-5. So Quad. Lieb. ibid.

4 A.D. 1114-1118 ace. to Brunner, A-A Essays, n. 17.
6 LIX, 13, 14. Lieb. Ibid. 579. Thorpe, 557-8.

' Cnut (Secular) 15. Thorpe, i. 384-5. A judge was liable to a similar
penalty, and was similarly protected. Ibid. 266-7. Cf. Laws of William the
Conqueror, I. 13. Ibid. 472-3.

ABUSE OF LEGAL PROCEDURE GENERALLY 5

Appeals

§ 6. A wife of 6cw. was payable to the King by an appellor
who was beaten in the battle which tested his appeal of felony1.
Amercements for false appeals were common enough. The
records of the Exchequer and Curia Regis afford examples. In
14 Hen. II, Reimundus de Baldac owes 20 marks to the King
"pro appellatione Walteri probatoris de falsonaria"2, and three
years later, Joslenus de Hocton is amerced zos. for unwarrantably
charging Osbert Luvel with the death of another3. So too,
"Emma Concubina presbiteri de Nethford debet dimidiam
marcam pro falso appello"4. In 10 Rich. I, a half mark "pro
falso appello " is noted5. A case in the time of John indicates
that in addition a ci^il remedy may have existed for malicious
appeals. An appeal of robbery was found to be due to spite
and hate, and the appellee appears subsequently to have brought
an action against the appellor. But the nature of the action is
not specified, nor is its result6. Bracton tells us that a vanquished
appellor is to be committed to gaol for punishment as a "calum-
niator," but he is to lose neither life nor limb, although ac-
cording to the law he is liable to retaliation7 ; but if he retracts
on the field, not only must he go to prison8, but both he and
his sureties for the prosecution are to be amerced, for here he
has not done what he obliged himself to do, while in the former
case the defeat may be no fault of his, and though he is to be
sent to gaol, yet mercy is sometimes shewn to him because he
fights in defence of the peace9. So says Bracton, and a genera-
tion later, amercement followed a failure to prosecute the appeal
only if such failure were due to negligence, and not if it were
through death10. The law cannot be said to have erred in

1 P. and M. n. 539. 2 Madox, Hist. Exch. i. 429.

3 Ibid. 558. 4 Ibid. 556.

5 Rot. Cur. Reg. (ed. Palgrave), i. 173, 179.

6 Select Civil Pleas (temp. John), pi. 181.

7 Bracton (ed. Twiss), n. 404-5. For examples of imprisonment and
amercement see Bracton's Note Book, pi. 1084, 1664 (A.D. 1225).

8 Cf. Pleas of Crown for Gloucester (A.D. 1221), No. 309, where appellor
was imprisoned and made fine for withdrawal from appeal.

9 Bract, ii. 444-5, 460-1. Cf. Bracton's Note Book, 1460, for a case
(A.D. 1220) where this excuse prevailed. Britton (ed. Nichols), i. xxiii. 9,
practically repeats Bracton. Cf. Fleta, lib. i. cap. 34, sect. 32.

10 Fleta, i. 27. 15.

6 ABUSE OF LEGAL PROCEDURE GENERALLY

harshness towards appellors1, but it needed strengthening in
appeals of a vicarious character. Men of straw were instigated to
bring false appeals. If they lost the ensuing battle, they could
compensate neither the King nor the appellee, and the fear of
imprisonment would be discounted by the chance of winning.
13 Ed. I (St. West. II) c. 12, A.D. 1285 (often referred to as
"Quia multi per malitiam"), was designed to prevent this. Its
terms which were the subject of some judicial and juristic
comment are thus translated2:

Forasmuch as many, through Malice intending to grieve other, do
procure false appeals to be made of Homicides and other Felonies
by Appellors, having nothing to satisfy the King for their false
Appeal, nor to the Parties affected for their Damages, It is ordained,
That when any, being appealed of Felony surmised upon him, doth
acquit himself in the King's Court in due Manner, either at the
Suit of the Appellor, or of our Lord the King, the justices, before
whom the Appeal shall be heard and determined, shall punish the
Appellor by a year's imprisonment, and the Appellors shall never-
theless restore to the Parties appealed their Damages, according to
the Discretion of the Justices, having respect to the Imprisonment
or Arrestment that the Party appealed hath sustained by reason of
such Appeals, and to the Infamy that they have incurred by the
Imprisonment or otherwise, and shall nevertheless make a grievous
Fine unto the King. And if peradventure such Appellor be not able
to recompense the Damages, it shall be inquired by whose Abetment
or Malice the Appeal was commenced, if the Party appealed desire it ;
and if it be found by the same Inquest, that any Man is Abettor
through Malice, at the suit of the Party appealed he shall be dis-
trained by a judicial writ to come before the Justices : and if he be
lawfully convict of such malicious Abetment, he shall be punished
by Imprisonment and Restitution of Damages, as before is said of
the Appellor. And from henceforth in Appeal of the Death of a
Man there shall no Essoin lie for the Appellor, in whatsoever Court
the Appeal shall hap to be determined.

§ 7. We find shortly after this enactment an inquiry directed
concerning sheriffs, their clerks and officers who have falsely
and maliciously made provers appeal innocent people, or
hindered them from appealing the guilty, and such as are
guilty of this offence are to be imprisoned during the King's

1 Cf. P. and M. n. 539 sqq. 3 St. of the Realm, i. 81.

ABUSE OF LEGAL PROCEDURE GENERALLY 7

pleasure1. It is possible that this special class of cases may
have prompted the framers of the statute; and the pardon
granted to provers (accomplices who confessed their own felony
and appealed their confederates) if they substantiated their
appeals2 throws further light on the motives which led a man
to play the legal catspaw.

§ 8. We have elaborate comments on the statute by Stanford3,
Coke4, and Hawkins5, but considering the early period at which
appeals became practically obsolete, they must (at least in
Hawkins' time) have been pieces of legal antiquarianism. Re-
ported cases on the statute after the close of the Year Book
period are not easy to find. It does not appear to have been
entirely adequate. The unreliable Mirrour considered it repre-
hensible from the false appellor's point of view, first, because
the pecuniary penalty under it is cumulative instead of being
alternative to corporal punishment, secondly because it gives
jurisdiction over abettors without an original writ6. On the
other hand, the author of Fleta was apprehensive that it would
diminish pleas of the Crown, and terrify those who wished to
institute a proper appeal, and he hints that between the timid
appellor and the corrupt jury the rogue might escape prosecu-
tion altogether7. But there is evidence that the statute in its
working favoured the false appellor rather than the guilty
appellee. If the false appellor were already in prison he was
beyond its reach, and sheriffs and gaolers egged on prisoners
who were in their custody to become approvers, and to appeal
wealthy and reputable persons of some felony which would lead
to their imprisonment and ransom. As such payment did not
benefit the King, he interfered by an Ordinance of 1311 which
forbade the imprisonment of persons so accused if they could
find bail for their appearance at the next Gaol Delivery to

1 Britton, I. xxii. 5. Fleta, I. 20 (De Capitulis Coronae et Itineris), 109,
probably refers to the Statute: " Item qui habuerint robbatores imprisonatos ,
& eos fecerunt appellare fi deles & innocentes causa lucri, & quandoque
impedierint ne culpabiles appellarent, & per quorum procurationem talia
facta fuerint."

2 Ibid. I. xxv. 9.

3 Sir W. Stanford, Les Plees del Coron. lib. ill. cap. n.

4 2 Inst. 382. 5 2 P.C. ch. 23, sect. 137 sqq.
6 Ed. W. J. Whittaker, S. S. vol. vn. 193. 7 I. 34. 48.

8 ABUSE OF LEGAL PROCEDURE GENERALLY

answer the charge1, i Ed. Ill st. i. c. 72 refers to the evil
again, and requires the judges to inquire and determine such
plaints whether at the suit of the party or of the King. But it
was not till 14 Ed. Ill st. i. c. io3 made the sheriff's deputy
keepers of a prison punishable with death if they compelled
their prisoners to appeal another that the root of the abuse
was struck.

§ 9. At a later date, the procedure under 13 Ed. I c. 12 was,
at any rate in one particular set of circumstances, thought to
be more efficient than the other remedies against conspirators.
In 1402, the Commons complain to the King of conspirators
who made a practice of maliciously indicting in Middlesex
residents in other counties who are outlawed for treason and
felony on these indictments before they have any knowledge of
them; and they ask that on acquittal of the accused the con-
spirators may be convicted by the same inquest which acquits
the accused. The reply is that the statutes and Common Law
in this case are to be kept and protected, and that on attaint
by process of law the conspirators must render to the aggrieved
party damages and restitution having regard to his imprison-
ment and ill fame, and that they make fine and ransom to the
King4. But at times neither statute nor Common Law satisfied
the appellee5.

§ io. The purview of 13 Ed. I c. 12 goes much further than
the preamble. It has been said that it "is a typical piece of
mediaeval legislation. It desires to punish malicious appeals;
it actually punishes every appeal that ends in an acquittal"6.
Read narrowly, it certainly does look as if the appellor himself
were subject to the grievous penalties laid down, irrespective
of the goodness or badness of his motives, provided only the
appellee were acquitted; while the abettors must have shewn

1 St. of Realm, i. 165-6, S. S. vol. xvi. Introd. ciii.

2 Ibid. 253-4. 3 Ibid. 284.

4 Rot. Part. in. 505 a. Perhaps Art. sup. Cart. 28 Ed. I c. io which pro-
vided punishment for conspirators was found to be too slow, as it involved
the possible bringing of a plaint of conspiracy at some later date than that
at which the accused was acquitted. The procedure under 13 Ed. I c. 12
is summary.

5 Rot. Parl. in. 445 a (1399). The Council undertakes to do justice on
a false appeal of treason. 6 P. and M. n. 539.

ABUSE OF LEGAL PROCEDURE GENERALLY 9

"malice" to make themselves liable. But whether there was a
wholesale confusion of the just with the unjust in the operation
of the statute is not clear. One point is free from doubt ; damages
were not recoverable by the accused if, prior to the appeal, he
had been indicted of the same felony, for such indictment,
though it terminated in his acquittal, implied a good cause for
the subsequent appeal1. The Year Books illustrate this, with
respect to the abettors2, though the inquiry against them was
not to be stopped if the indictment were formally defective
(e.g., in not shewing the day, date, or place of indictment, or
the judge before whom it was taken)3; and with respect to the
appellor himself, as early as 1367, when an acquitted appellee
vainly prayed for damages against a widow who had appealed
him of the death of her husband4. Such a defence was not
available to him if the appeal preceded the indictment, or if he
were indicted as principal and appealed as accessory, or vice
versa. Apart from this, was he allowed any general plea of good
faith in bringing the appeal ? Stanford admits that the letter of
the statute may be against this wider interpretation, but seeks
to justify it by authorities which do not support his reference5.
Coke states that malitia refers only to procurers and abettors6.
Hawkins, about a century later, argues that it is unimaginable
that the framers of the statute should have intended to imprison
for a year and to fine an appellor who had reasonable evidence
for commencing an appeal; but he owns that the reports and
books of entries shew that damages seem to have been awarded
as a matter of course against the appellor, malice or no malice,

1 Stanf. P.C. 168. 2 Hawk. P.C. ch. 23, sect. 28.

2 14 Hen. VII, f. 2 where the reason is put by FINEUX CJ.C.P. 22 Lib.
Ass. pi. 39. Pasch. 17 Ed. II, f. 534 indicates (without expressly deciding)
that no inquiry will be made of abettors in such circumstances. In Hil.
33 Hen. VI, f. 2, the whole Court agreed with obiter dictum of DANBY J.
to the same effect.

3 Trin. 26 Hen. VIII, f. 8, per Fixz-jAMES C.J.K.B., and the rest of the
Court.

4 40 Ed. Ill, f. 42. Same case in 40 Lib. Ass. pi. 18, which, however,
omits the reasons for the decision.

5 P.C. 168 citing Fitz. Abr. Corone, 178; 22 Lib. Ass. pi. 39 (which
merely shews that abettors are not liable if there be a previous indictment) ;
and Mich. 40 Ed. Ill, f. 42 (same rule as to appellor).

6 2 Inst. 384.

io ABUSE OF LEGAL PROCEDURE GENERALLY

if the appellee were acquitted1. In a case of Richard IPs time,
a plaintiff was fined £5 for admitting his appeal to be false, and
it is said, "the law is such, if a man knows his appeal is false,
he shall go to prison and be fined," from which it might be
inferred that good faith would have excused him ; but there is
nothing to shew that this case was upon 13 Ed. I c. i22.

§ ii. The "other Felonies" mentioned in the statute in-
cluded rape which was made a felony by another part of the
statute, and, according to the weight of authority, all crimes
subsequently made felonies by the legislature3.

§ 12. The appellee has no remedy unless "he doth acquit
himself in the King's Court in due Manner." These words
were "so material that all the weight of this statute lies upon
them"4; and it was by a strict construction of them that the
judges sought to prevent the statute from scaring just accusers.
They might have attained this object more directly by an
analysis of "malice," but the difficulties of probing motives
perhaps made them prefer the more technical course. Thus,
while an acquittal in law, just as much as an acquittal in fact,
sufficed to give the appellee his remedy, yet the only conspicuous
instance of the former was that in which acquittal of the principal
also freed an accessory, or a principal in the second degree, who
had been appealed with him5. On the other hand, there were
many apparent acquittals in law which gave the appellee no
damages because they were no real test of his innocence, e.g.,
alleging that the appellant was a bastard, had an elder brother,
or was never legally married6. So too, if the verdict were that the
appellee killed in self-defence or by misadventure, because he
must still buy his pardon7; or if a plea in bar or a demurrer

1 2 P.C. ch. 23, sect. 138. The references to the books of entries (e.g.
Rastall 56, Booke of Entries 52) support this. The references to the reports
are too slovenly to verify. 2 Pasch. u Rich. II (Bellewe, Appeal).

3 Stanf. P.C. 168. Coke, 2 Inst. 384. Cf. 2 Hawk. P.C. ch. 23, sect. 138.

4 Stanf. P.C. 169.

5 Stanf. P.C. 168. Coke, 2 Inst. 385. 2 Hawk. P.C. ch. 23, sect. 141
where the reason is given. Stanford's reference to 33 Hen. VI, f. 2 is not
convincing, that case being one of conspiracy. Copleston and Stowell's
Case. 2 Inst. 385. 6 Stanf. P.C. 169.

7 Ibid. 2 Hawk. P.C. ch. 23, sect. 140. But 22 Lib. Ass. pi. 77, which is
cited by Stanford and Hawkins in support of this is on conspiracy, not
false appeals, though an analogous point arose there. Coke takes it to be

ABUSE OF LEGAL PROCEDURE GENERALLY n

were successful1, or if the acquittal were on an insufficient
original writ, for these last three cases left the defendant liable
to another prosecution2; so too where the appellor was barely
nonsuited3, though in this case as in many others, where he
was not liable for damages under the statute, he might have
to make a fine4; but if the appellor were nonsuited and the
appellee were acquitted, the latter got his damages and inquiry5.
An erroneous acquittal was held to be useless in Y.B. Pasch.
9 Hen. V, f. 2, but the accounts of the case are inconsistent,
and in so far as error in procedure was salved by appearance,
there seems to be no principle in its favour6.

§ 13. It was settled that though justices of nisi prius could
assess the damages referred to in the statute, and make inquiries
directed by it as to the sufficiency of the appellor and as to the
abettors, yet they had no power to give judgment for the
damages ; for the statute applied only to justices before whom
the whole appeal was determinable, and not to those of nisi
prius who had no cognizance of the appeal before trial, and no
original power to try it7. This was probably not the serious
limitation on the efficacy of the statute which it appears to be,
since the commission of assize (which would enable them to
give judgment for the damages) was no doubt issued as at the
present day in combination with that of nisi prius to the same
persons.

§ 14. It was held not long after the passing of the statute

an authority on the absence of malice (2 Inst. 384); but the case as printed
does not bear this out.

1 Stanf. P.C. 169. 2 2 Hawk. P.C. ch. 23, sect. 140.

3 Br. Abr. Appelle, 151. Fitz. Cor. 102 leaves it open whether the nonsuit
there were a bare one. 4 Ibid. 159.

6 41 Lib. Ass. pi. 24. 2 Hawk. P.C. ch. 23, sect. 142. Coke, 2 Inst. 385.

6 Stanf. P.C. 169. Br. Abr. Restitution, 8. Fitz. Abr. Corone, 68. 2 Hawk.
P.C. ch. 27, sect. 107. The abridgments of the case are not consistent with
the report in the Year Book. Fitz. Abr. Corone, 444, refers to a case Pasch.
19 Ed. Ill (year not included in printed Y.B.) in which it was said that an
insufficient indictment or appeal prevents an acquitted appellee from re-
covering damages. This case does not appear in Y.B. in Rolls Series.
Trin. 26 Hen. VIII, f. 3, shews that appellee who had been acquitted on an
appeal, and against whom there had been an indictment for the same felony,
was entitled to an inquiry of damages and abettors, though he produced a
defective copy of the indictment. But this, of course, does not indicate that
the indictment itself was defective.

7 Stanf. P.C. 169-70. Coke, 2 Inst. 386. 2 Hawk. P.C. ch. 23, sect. 141.

12 ABUSE OF LEGAL PROCEDURE GENERALLY

that no inquiry of abettors could be made on behalf of a monk
or wife, because the monk could not sue without his abbot,
nor the wife without her husband1. In Coke's commentary on
the statute there is the more general proposition that they have
no remedy under it2, but the authority3 on which this is based
is impugned in the case of the wife by Hawkins, and at any
rate if husband and wife were acquitted on an appeal made
against them jointly, they could have a joint judgment for the
damage done to the wife4.

§ 15. If no damages were recovered against the appellor, no
inquiry was to be made as to abettors, unless the appellor could
pay part only5. Thus, in 1389, 500 marks damages were assessed
against a woman who had sued a false appeal. She had only
20 marks to satisfy them, and Thomas Metham and John Frere
who had abetted her were imprisoned and condemned to pay
440 and 40 marks respectively to make up the deficit6.

§ 1 6. If the jury fixed the damages at too low a figure, the
appellee could have an original writ of abetment and count for
greater damages, since the verdict on this point was not on the
merits of the case7. We have scanty authority on what justified
abetment of an appeal. The persons most likely to have a sound
excuse would be the injured party's kin. But even here the law
vacillated. In 1292, a defendant to a writ of abetment pleaded
that he was brother of the man for whose death another had
brought a false appeal, and that the statute did not apply to
him, because he could still bring an appeal on his own account
against the plaintiff in this writ. METINGHAM J. however,
forced him to answer whether he had abetted through malice,
which seems to shew that mere kinship was not a defence8.
Again, in the Eyre of Kent, 6 and 7 Ed. IP, a woman brought

1 Hil. 13 Ed. II, f. 403 (SPIGURNEL J.). 2 Coke, 2 Inst. 386.

8 Fitz. Abr. Corone, 276, where the rule as to the monk is alleged to
extend to the wife.

4 2 Hawk. P.C. ch. 23, sect. 144. There is evidence in earlier times that
the judgments should be separate. Hil. Rich. II (Bellewe, Baron andfemme>
p. 62).

6 Stanf. P.C. 170. Coke, 2 Inst. 386. 2 Hawk. P.C. ch. 23, sect. 145.

6 Rot. Parl. in. 260 a.

7 Stanf. P.C. 171. Coke, 2 Inst. 387. 2 Hawk. P.C. ch. 23, sect. 142.

8 20 and 21 Ed. I (Rolls Series), 310-12. 9 S. S. vol. xxiv. 126.

ABUSE OF LEGAL PROCEDURE GENERALLY 13

a false appeal for the death of her husband against John of T.
who was found not guilty. His counsel claimed damages under
the statute, and, the woman being unable to pay these, the jury
named three abettors, one of whom was the deceased's brother.
BRABAZON J. seemed to be of opinion that his relationship was
no excuse, but the reporter adds a note that he had heard it
laid down by BEREFORD and ORMESBY JJ. that neither the brother
of the man slain nor any of his blood could be abettors since
it was their natural duty to prosecute the slayer. Coke represents
a case of 6 Ed. Ill as deciding that the heir or other near of
kin may abet the wife in the appeal, and that the relatives of the
deceased are not within the statute, because they are bound to
avenge his death1; and in 6 and 7 Ed. VI, MOUNTAGUE C.J.
emitted an obiter dictum approving this case2. The law obviously
ought to have accepted blood relationship as evidence only of
an abettor's good faith, but this was urged at a period when the
whole law of appeals had become atrophied3.

§ 17. Whether the appellee could avail himself of the writ
of conspiracy, and what, if any, connection 13 Ed. I c. 12 had
with malicious indictments are questions which can be better
considered when conspiracy itself has been examined.

It may be added that boroughs occasionally answered the
manufacturer of false appeals according to their particular
customs. In the i5th century, a false appellor in Winchelsea
was attached and his goods were at the King's will; in Lydd,
he made a fine to the King or was imprisoned, and had to
compensate the appellee4.

Indictments

§ 18. Abuse of indictments before the Statute of Con-
spirators. Accusation by presentment or indictment5 grew up
under Henry II, rapidly became popular, and thrust aside
the appeal and its barbarous methods of trial. The Statute of

1 2 Inst. 384. The report in Trin. 6 Ed. Ill, f. 33 is of a case on champerty,
and HERLE J. merely says obiter that he had seen the party in a writ of
abetment avow the abetment because he was next in blood to the appellor.

2 Partridge v. Strange. Plowden, Pt. I at p. 88.

3 2 Hawk. P.C. ch. 23, sect. 140.

4 Borough Customs, vol. I, S. S. vol. xvni. 87.

8 The terms were not quite identical. P. and M. n. 652, n. 4.

14 ABUSE OF LEGAL PROCEDURE GENERALLY

Conspirators of uncertain date (but probably about 21 Ed. I)
was designed to check malicious indictments. But long before
this, false presentments had been punished. Amercements " pro
stulta presentacione," "pro falsa presentacione," are frequent
in Rotuli Curiae Regis1. There are pretty nearly as many
amercements for concealment, as for accusation of wrongdoers ;
and when we find on the same page a list of nine people
bracketed for amercement at half a mark each side by side with
another batch of six amerced for concealment2, we have but
one of many proofs that the law required a nice discernment
between officiousness and lethargy in the discharge of one's
public duties. On the Gloucestershire Plea Roll for 1221, there
appear ten cases3 of amercement for concealment, six for false
presentment4, and some of the former are so numerous5 that
these "unprofessional policemen" certainly needed awakening
to their duties by the King's justices. Corruption may have
had something to do with their silence6, but it is more likely
to have been due to dislike of performing an unpaid and thank-
less office7. The records of the minor courts tell the same tale.
It is said that in the Fair Court of St Ives there is a fine of
jurors for concealing offenders, and a few years later they are
amerced in the same Court for falsely presenting that Hugh Cut
receives harlots in his house8. There are hints that jurors could
escape the expensive risks attached to their functions by a
timely outlay of money. Yorkshire "judices9 et juratores" of
Henry Fs time bargained for future exemption from their
duties for £ioo10.

§ 19. Bracton11 points out the danger of accepting lying

1 E.g. i. 181-2; apparently 10 Rich. I. 2 Ibid. 182.

3 PI. 51, 121, 160, 180, 211, 263, 311, 338, 385, 432.

* PL 15, 55, 133, 181, 217, 239.

5 Concealment of eleven loquelae by one set of jurors. PI. 338. Cf. pi.
385, 432. 6 Cf. Fleta, i. 27. 15.

7 Glouc. Plea Roll, Introd. xxxiii. There had been no Eyre for five years,
and that may have tended to make them more apathetic. Ibid. xx.

8 Select Cases in the Law Merchant, vol. i. S. S. vol. xxm. pp. 18, 84
(A.D. 1287 and 1302). Technically, a court could probably not "fine"
anybody. P. and M. n. 517.

* The equivalent of "doomsmen." P. and M. i. 548.

10 Pipe Roll, Hen. I, p. 34, cited S. S. vol. xxiv., Introd. xxxix, note i.

11 "• 452-3 sqq.

ABUSE OF LEGAL PROCEDURE GENERALLY 15

rumours where persons are indicted upon common fame. The
source of suspicion should be good and grave persons, not
malevolent slanderers. It is not to be said, "Jesus crucifigitur
et Barabas liberatur." Again it may be that a lord is indicting
his tenant of some crime to have his land, or that one neighbour
indicts another for hatred. Our law knows the story of Naboth's
vineyard. There were jurors corrupt enough to confederate in
accusing the innocent, and it is directed that they be ransomed
at the King's pleasure and that their oath never again be ad-
mitted. Sheriffs were sometimes as bad, for they bribed persons
to indict falsely and packed panels to make this easier1.

§ 20. It was not merely in criminal litigation that the courts
made an unsuccessful claimant pay. Amercements "pro falso
clamore" followed loss of a civil case almost as a matter of
course2.

"Then again every default in appearance brought an amercement
on the defaulter and his pledges. Every mistake in pleading... brought
an amercement on the pleader if the mistake was to be retrieved.
A litigant who hoped to get to the end of his suit without an amerce-
ment must have been a sanguine man ; for he was playing a game of
forfeits"3.

The writ de odio et alia

§21. This writ was of common occurrence in early times,
though its very name has long ceased to be more than a memory.
It can conveniently be treated under the headings of (i) Its
nature and origin. (2) Its scope. (3) Its decay.

§ 22. Nature and origin. The form of the writ is given by
Bracton, and runs thus :

Rex vie. salutem. Praecipimus tibi, quod per probos et legates
homines de comitatu tuo diligenter inquiras, utrum A de N captus
& detentus in prisona nostra, de tali loco de morte B under rectatus
& appellatus est, rectatus sit vel appellatus de morte ilia odio et

1 Britton, I. xxii. 19 and note (d). The sheriff of Northampton in 30 Ed. I
organized a "company of the pouch" for this purpose.

2 Bracton 's Note Book, Index "Amercements." The Great Roll of the
Pipe for Rich. I (ed. Hunter) may be opened almost at random on the chance
of finding a payment of this sort. Cf. Rot. Cur. Regis, I. 174, 176, to take
two examples only. Bigelow, Plac. Ang.-Norm. 226 (Men of Thanet "in
misericordia pro falso clamore").

3 P. and M. u. 519.

1 6 ABUSE OF LEGAL PROCEDURE GENERALLY

atya, vel eo quod inde culpabilis sit: & si odio & atya, quo odio &
qua atia, vel quis inde culpabilis sit, & inquisitionem quam inde
feceris &C.1

The gist of this is that the sheriff is directed to inquire by
an inquest, whether A be appealed of B's death by hate and
spite, or because A is guilty. If it were found to be hate and
spite, B could get released by a further writ enjoining the
sheriff to put him in the keeping of twelve sureties2.

To what then does the writ de odio et atia owe its origin?
Would a modern lawyer think of it as analogous to the writ of
habeas corpus or to the action for malicious prosecution ? Is its
purpose to get a man out of gaol pending trial, or to get rid of
a lying charge against him ? Neither apparently. Not the first,
because most of the early cases do not so much as refer to
imprisonment — much less complain of it; nor the second,
because it was used as a plea, not as an action, and its main
object was to escape the hated trial by battle. Whatever popu-
larity this may have had at first with the upper classes, it was
detested by the traders and the community in general; and in
the end it was discountenanced by their betters and their ruler.
Henry II dare not kill it outright, but he could starve it by
offering his subjects a more rational form of proof — the sworn
inquest; and one of the agents in spreading the inquest was
the writ de odio et atia.

The mode in which it worked has been already traced for us.
In the 1 2th century, the only mode of accusing a felon was the
appeal, and the normal mode of trying him was by battle. The
appellee could flatly deny the charge, but beyond that he could
not go. No special plea was open to him. This was changed
with the introduction of the inquest procedure. It had to be
bought from the King, but it was worth the purchase, in order
to get a trial by the verdict of the neighbours instead of the
senseless battle. Moreover, the time had come when the appellee
could meet the appeal with exceptiones, or special pleas, one of

1 in. f. 123. Cf. Reg. Brev. f. 133. The writ is common enough in
MS. Registra, e.g. Camb. Univ. Lib. li. vi. 28 (early i4th century); Inner
Temple Lib. 504 (4), 511.4, 511.9 (all i4th century); Bodleian, Rawlinson
C. 612 B, 454, 464.

2 Bract, in. f. 123. Reg. Brev. 133. It got later the name of tradas in
ballium.

ABUSE OF LEGAL PROCEDURE GENERALLY 17

which was that he had been appealed by spite and hate. To
test this, or any other exceptio, he could buy the inquest pro-
cedure. If the inquest found against him, he could still deny
the charge and have trial by battle; if the finding were in his
favour, the appeal was quashed, and the appellee could get the
writ which directed the sheriff to release him from prison. But
soon the King insisted that every one appealed of felony should
be arraigned at his suit, even if the appeal had failed. Then
the only result of successfully pleading spite and hate to an
appeal was the replevy of the appellee until the next coming
of the justices in eyre1.

The writ has been attributed to Henry IP, and it was common
enough early in the time of John3.

The general plea to an appeal of felony, e.g. homicide, was
"venit et defendit omnem feloniam & pacem domini regis
infractam, & quicquid est contra pacem domini regis, &
omnia quae versus ipsum proponuntur " 4. The special plea of
hatred and spite could be dovetailed into this, as where Juliana
de Clive appeals Robert of rape, and Robert defends all, and
says that she appeals him by hatred and spite, and the jury
find him not guilty5. But spite and hatred may stand alone as
the only plea6. Sometimes the details of them are added7.

What is wanted is, in the great majority of cases, trial by
jury, but, exceptionally, after the general denial and the allega-
tion of spite, there is a request for battle8. The ordinary appellee,

1 P. and M. n. 587-589. Cf. Mayer, Geschworenengericht und Inquisitions-
prozess (Munich, 1916), 141-149. In the Eyre of Kent, 6 and 7 Ed. II, he
was to appear on the first day of the sittings, or his mainpernors would be
answerable. S. S. vol. xxiv. p. 7.

2 McKechnie, Magna Charta, 420-421. Is this traceable to Glanville,
lib. 14, ch. 3, who, in speaking of homicide, says "in hoc placito non solet
accusatus per plegios dimitti,nisiex Regie placito" ? If so, the evidence is weak.

3 Select Civil Pleas (temp. John), S. S. vol. m. pi. 181. Rot. Cur. Reg. n.
pp. 265 (A.D. 1199), 278. Select Pleas of the Crown, S. S. vol. I. pi. 25, 78,
86, 87, 88, 91, 92, 94, 95, 104 (ranging from A.D. 1201 to 1211).

4 Bract, f. 1386.

6 Pleas of Crown for Gloucester (A.D. 1221), pi. 76. Bract. N. B. pi. 1548.
Select PI. of Cr. S. S. vol. i. pi. 84, 86, 87, 94, 203.

6 Bract. N. B. pi. 1697.

7 Ibid. pi. 396. Select PI. of Cr. S. S. vol. I. pi. 84 (? A.D. 1201). Three
causes are particularized for the spite. So too pi. 87, 203.

8 Select PI. of Cr., ubi sup. pi. 202.

i8 ABUSE OF LEGAL PROCEDURE GENERALLY

however, had no stomach for this. In many cases, there is no
special plea of spite, but a general denial of liability, an offer
of money for an inquest to say whether the accused be guilty
or not, and a finding by the jury of not guilty, with a rider that
the charge was made by hatred and spite1. This marks a further
step in the development of the jury system. It is the stage
wherein the whole question of guilty or not guilty, and not
merely particular pleas are decided by the jury — the stage at
which the accused comes before the justices and puts himself
on the verdict of 12 jurors for good and ill2. When that point
was reached, the writ de odio et atia was doomed to become
obsolete. If the jury could take account of the question it
raised as part of the general issue there was no need to plead
spite and hatred specially.

There is abundant evidence to shew that the writ in its origin
was not designed primarily to procure release of an accused
person until his trial began3. In all the cases cited we hear no
complaint of imprisonment, and in one of them, although the
appellee's demand for an inquest is provisionally successful, he
is actually ordered to remain in custody till the day fixed for
his appearance4. Moreover, the sums paid for the writ were so
great in amount that it cannot be supposed that they were paid
merely to avoid imprisonment5. It is true that one consequence
of a successful plea of hate and spite was usually the liberation
of the accused until the eyre of the justices or further pro-
ceedings against him by the Crown6, but that was not neces-
sarily the only motive that prompted an application for the writ.
For we know that the same consequence of provisional freedom
followed if the accused were of good fame7. Not but what the
prospect of being at large must have influenced the accused to
some extent. Vile and malicious accusations were quite frequent

1 PL of Cr.for Gloucester, pi. 436, 314. 2 Ibid. pi. 384.

8 Bract. N. B. pi. 1548, 134. Select PL of Cr. S. S. vol. I. pi. 25, 78,
81, 84, 86, 87, 88, 91, 94, 95, 202, 203.

4 Sel. PL of Cr., ubi sup. pi. 104 (A.D. 1211).

6 " Der Beklagte, welcher sich auf das Breve de odio et atia beruft, bretet
fur dasselbe Sumrnen an von so hohern Betrage, dass man nicht annehmen
kann, sie seien bloss zur Vermeidung der Haft bezahlt worden." B runner,
Die Entstehung der Schwurgerichte (Berlin, 1872), 472.

6 Britton, Liv. i. c. xxv. sect. 9. Bract, m. f. 121. 7 Britton, ubi sup.

ABUSE OF LEGAL PROCEDURE GENERALLY 19

enough to plunge many a man into prison ; gaol deliveries were
often few and far between, and there he might have languished
if there had been no writ de odio by which he could ultimately
get rep levied till the next visit of the justices. Bracton draws
a picture of the writ being granted by a compassionate King in
answer to the tearful entreaties of the parents and friends of
an innocent person who has long been in prison. But John was
not the kind of monarch likely to be influenced by appeals to
his pity which were not also appeals to his purse, and, as has
been indicated, the chief motive in getting the writ was a
preference for trial by jury to trial by battle.

§ 23. Scope of the writ. It was certainly not limited to
cases of homicide, as Blackstone states1, and Coke2 and
Hawkins3 imply. The Mirrour gives as one item in its list of
legal abuses that the writ could only be obtained in this crime4,
but quite apart from the inherent unreliability of this book,
there is positive proof that it is wrong here. Britton makes the
writ applicable to any felony5, and between 1200-1225 it appears
in appeals of robbery, receipt of outlaws, wounding, arson and
felonious assault, as well as homicide; in fact the cases on
robbery are far more numerous than those on homicide6.

At first the writ was confined to appeals because they were
the only mode of accusation of a felony. But when indictments
became popular the writ spread to them7. Thus, while the writ
given by Bracton makes mention of appellees only, the writ in
the printed Register does not specify the mode of the malicious
accusation, and in its conclusion includes by implication both
appellees and persons indicted8. But it was quite possible for
the defence of hatred and spite to be set up to an indictment
without any application for the writ. In 1221, two men were
indicted, and it was said of one of them that the flesh of a
stolen cow was found in his outhouse. He replied that it was

1 in. 128-129. 2 2 Inst. 42. 3 i P.C. ch. 29, sect. 4.

4 Ed. Whittaker, S. S. vol. vn (Bk. v. ch. I, Abuse No. 59).

5 Liv. i. ch. xxv. sect. 9.

8 Select Civil Pleas, S. S. vol. HI. pi. 181. Select PI. of Cr. S. S. vol. i.
pi. 25, 78, 84, 86, 87, 88, 91, 94, 95, 104, 202, 203. Bract. N. B. pi. 134.

7 Britton, ubi sup. The Mirrour reckons this as an abuse. S. S. vol. vil.
Abuse No. 60.

8 Reg. Brev. 133.

20 ABUSE OF LEGAL PROCEDURE GENERALLY

put there to spite him and to disinherit him of some land which
he held of one Warren, whose wife had put the flesh there,
and then sent for the King's serjeant and shewn him how and
where to take the accused. He was acquitted of the charge ,,
and Warren was committed to gaol1.

The writ has been identified with one referred to in Magna
Carta, 1215, c. 36: "Nichil detur vel capiatur de cetero pro
brevi inquisicionis de vita vel membris, sed gratis concedatur
et non negetur." At any rate, this provision which was intended
to make issue of the writ, which it mentions, free, was taken
by the framers of the St. West. II (13 Ed. I) c. 29 (A.D. 1285)
to be that de odio et atia. It enacts that a writ of trespass ad
audiendum et terminandum2 shall not in future be granted before
any justices except those of either bench and those in eyre,
unless it be for a heinous trespass, where a speedy remedy is
required and the King thinks that it should be granted. Nor
from henceforth shall a writ to hear and determine appeals be
granted before justices assigned, unless in a special case and
for a cause certain, when the King commandeth. But lest the
parties appealed or indicted be kept long in prison, they shall
have a writ de odio et atia " like as it is declared in Magna Carta
and other statutes." Here the primary purpose of the writ
seems to have been to get a release from imprisonment pending
trial, but it is a mistake to regard it as in any way connected
with the writ of habeas corpus*.

Not long after Magna Carta of 1215, we find a case in which
one mark is offered for a verdict as to whether the appeal be
by spite or hate4. How is this to be reconciled with c. 36 of
the Charter which requires the writ to be issued "freely"?
It is said that "freely" still made it necessary always to pay
for the writ, but, if that be so, what was the use of inserting
the word in the Charter at all? Nor can c. 36 be interpreted

1 Select PL of Cr. S. S. vol. i. pi. 170.

2 A commission for hearing and determining any outrage or misdemeanour.
Cf. Reg. Brev. £.123.

8 McKechnie, 417 sqq. Another view of c. 36 marks it as the dividing
line between the period in which the appeal to the jury on the general issue
of not guilty was merely a privilege for sale by the Crown, and the period
in which it became a right. Brunner, Die Enlstehung der Schwurgerichte, 473.

* Bract. N. B. pi. 134 (A.D. 1222).

ABUSE OF LEGAL PROCEDURE GENERALLY 21

as meaning that there should be a mere drop in the price paid.
We have indeed cases before Magna Carta where as much as
ten marks were offered for the inquest1, but usually a bargain
was struck at much less than that — three or two marks, or even
one2. Perhaps the case of 1222 was an evasion of the law, for
in the year previous there are two instances in which nothing
was offered for testing the defence of hatred and spite by a
jury3, and the same applies to a case of I2264.

We shall find in the course of this book, that most of the
methods devised to check abuse of legal procedure were them-
selves abused. The writ de odio et alia was no exception to
this. In Edward Fs reign, persons indicted of murder got into
the habit of procuring inquests favourable to them by the sheriff
and the writ de odio. These inquests were packed with their
relatives and friends. The accused were thus rep levied till the
coming of the justices in eyre before whom they were found
guilty. The St. West. I (3 Ed. I) c. n stopped this by requiring
at least two of the members of such an inquest to be knights,
and none of the inquest to be akin to the accused, or otherwise
open to suspicion5.

§ 24. Decay of the writ. When the appellee got the right
to submit the whole question of his guilt or innocence to the
jury, and not merely special pleas, and when gaol deliveries
became more frequent, the ground was cut from under the
writ, and it fell into obsolescence6. Hale adds as another reason,
the trouble of getting and enforcing it, for there must be a
writ to inquire de vita et membris, then the taking of an inquisi-
tion, and finally a bailing by 12 persons7.

The theory held by some high authorities that it was abolished
in 1278 by the Statute of Gloucester (6 Ed. I) c. 9 cannot be
accepted8. That Statute dealt with a matter entirely different.

Rot. Cur. Reg. n. p. 265 (i John).

Select PL of Cr. S. S. vol. I. pi. 78, 84, 88, 91, 94 (one mark); 86, 95,
104 (two marks); 81 (three marks).

PI. of Cr.for Gloucester (A.D. 1221), pi. 76, 434.

Bract. N. B. pi. 1697. 5 St. of Realm, I. 29.

P. and M. n. 589. 7 2 P.C. 148.

Foster, Crown Cases, 285. Stephen H.C.L. i. 242, ill. 37. Coke says
that the writ was taken away by 28 Ed. Ill and revived by 42 Ed. Ill c. i,
and that the Stat. of Gloucester restrained it. 2 Inst. 42, 315.

22 THE STATUTE OF CONSPIRATORS

It provided that no writ should be granted to inquire whether
a man killed another by misfortune, in self-defence, or non-
feloniously in any other way, but that he was to be imprisoned
till the coming of the justices, and to put himself on the country
for good and ill. If self-defence or accident were proved, the
King might pardon him, if it so pleased him.

What had happened before this, was that persons charged
with homicide had made a practice of getting a royal writ
ordering the sheriffs and coroners to take an inquest as to
whether the death occurred by felony or misadventure, and if
the latter were found the accused was pardoned1. This was
forbidden by the Statute. It cannot have been aimed at the
writ de odio et atia, for the St. West. II (13 Ed. I) c. 29
mentions it as a remedy, and examples of the writ occur as
late as 1314-131 52. And long after this, writers like Coke and
Hale regarded it as still alive, though not active3.

THE STATUTE OF CONSPIRATORS

§ 25. The Statute of 'Conspirators must occupy the re-
maining sections of this chapter.

As translated in Statutes of the Realm, the Statutum de Con-
spiratoribus runs4:

Where it is contained in our Statute that none of our Court shall
take any Plea to Champerty by Craft nor by Engine ; and [that no 5]
Pleaders, Apprentices, attornies, Stewards of Great Men, Bailiffs
[nor any6] other of the Realm [shall take for Maintenance or the
like Bargain, any manner of Suit or Plea against other *] whereby all
the Realm is much grieved, and both Rich and Poor troubled in
divers manners ; It is provided by a common Accord, That all such
as from henceforth shall be attainted of such Emprises, Suits or
Bargains, and such as consent thereunto, shall have Imprisonment
of Three years, and shall make Fine at the King's Pleasure. Given
at Berwick upon Tweed the Twentieth year of the Reign of King
Edward8.

1 P. and M. I. 587-589, 480-481.

2 Rot. Parl. i. 323. Eyre of Kent, S. S. vol. xxiv. p. 7.

3 P. and M. ubi sup.

4 Brackets and notes are reproduced. Their rationale is explained St. of
Realm, Introd. xliii. 6 Now. 6 and

7 do take Pleas to Champertie, and by other Crafts all manner of Pleas
against all manner of Men. 8 Son of King Henry.

THE STATUTE OF CONSPIRATORS 23

Our Lord the King at the information of Gilbert Rowbery Clerk
of his Council, hath commanded, that whosoever will complain
himself of Conspirators1, Inventors and Maintainers of false Quarrels
[and Partakers thereof2] and Brokers of Debates, that [Gilbert
Thornton shall cause them to be attached by his writ, that they be
before our Sovereign Lord the King, to answer unto the Plaintiffs
by this Writ following : 3] Rex Vic. salutem ; Precipimus tibi quod si
A de B fecerit te securum de clamore suo prosequendo, tune pone
per vact & salvos pleg G de C q sit coram nobis a die See Trinitatis in
xv dies, ubicumque tune fuerimus in Angt, ad respondendum praefato
A de placito conspiracionis & transgressionis secundum ordinacionem
nostram nuper inde provisam, sicut idem A racionabiliter monstrare
poterit quod ei inde respondere debeat. Et habeas ibi nomina
plegiorum & hoc breve. T. G. de Thornton etc.4

This is printed in Statutes of the Realm5 after the enactments
of Ed. II and among those of uncertain date. The Statute Law
Revision Act, 1887, repealed the portion from "Our Lord the
King" to the end; time has buried alive the rest, and left part
of the headstone a blank. In attempting to fill this, we cannot
be wiser than the Commissioners charged with editing the
Statutes, but it is at least possible to get some hint of the date
from other evidence which they have supplied, and the point
is of some importance in discussing the question whether the
writ of conspiracy existed previous to this enactment. They
state that in all the English editions, as also in the printed
copies where both text and translation are inserted, this has
been printed as one Statute of 33 Ed. I6 under the title "the
Statute of Champerty"7; that in the oldest printed copies by
Pynson and Berthelet the first part is given as a separate instru-
ment intituled "Statutum de Champertie" and dated at
Berwick, n Ed. I, that these old printed copies also contain

1 Sustainers of false suits. 2 That they may thereout have a share.

3 Persons so grieved and complaining, shall come to the Chief Justices of
our Lord the King, and shall have a writ of them, under their seals to attach
such offenders to answer to the parties grieved, so complaining before the aforesaid
justices; and the writ following shall be made for them.

4 Et si quis super hujusmodi ad sectam conquerentium factam convictus
fuerit, habeat prisonam quousque lesis satisfecerit et versus dominum Regem
graviter redimatur. Tottett.

5 I. 216. * Pulton (ed. 1670) gives it a definite month — Sept. 1305.

7 In an edition of Stat. by George Ferrers about 1541, the title is "a
statute of conspyratours " (f. clxxxviii).

24 THE STATUTE OF CONSPIRATORS

an instrument intituled "Statutum de Conspiratoribus " as of
33 Ed. I in which the Statute of Champerty is again erroneously
printed with some verbal variations and dated 20 Ed. I, and the
provision and the writ against conspirators is subjoined ; that in
Tottell's printed copy, 1556, the two statutes are given as
separate articles, that as to champerty being dated n Ed. I,
that as to conspirators undated1. The Statute (assuming it to
be one and not two pieces of legislation) concerns itself in its
first part chiefly with champertors, in its second part chiefly
with conspirators and maintainers. The evidence in Statutes of
the Realm points to the date of Part I as n Ed. I or 20 Ed. I.
External confirmation of either date seems to be lacking. The
preamble refers to a statute prohibiting champerty on the part
of members of the King's court and maintenance on the part
of anybody else. Three such statutes (exclusive of this one)
passed in Edward Fs reign — 3 Ed. I c. 25 (West. I)2 which
directs the punishment of royal officers who maintain suits in
the King's courts in order to share the subject of the suit;

1 MS. in Camb. Univ. Lib. Mm. v. 19 is referred to by the Com-
missioners as giving the first part of the Statute with a marginal "quere
xxxiii." The MS. is said to be I4th century and on examination proved to
be in only roughly chronological order. It does not contain Part II of the
Statute. Without being guilty of the presumption of putting forward
evidence which the Record Commissioners may have thought comparatively
worthless, the results of an examination of the following MSS. of Statutes
in the Bodleian Library may be noted :

Rawlinson, C. 612 b ("Statutum de Conspiratoribus" practically the same
as in St. of the Realm)', Rawlinson, C. 666 (" Diffinitio Conspiratorum "
which is like Part II of the St. of Conspirators in St. of the Realm, and is
preceded by "Statutum de Chamnptours" which is like Part I of the St.
of Conspirators but is expressed to be made "Ian du regne le roi E quart" ;
and is followed by " Statutum de Conspiratoribus," 33 Ed. I, which is really
the "Ordinacio de Conspiratoribus" of that year); Rawlinson, C. 454
("Statutum de Conspiratoribus" which is Part II of the printed Statute
omitting all reference to Thornton, and "Statutum de Champart" which is
Part I of the same); Rawlinson, C. 459 ("Statutum de campi parte" like
Part I of the printed St. of Conspirators); Bodley 940 ("Statutum de
Champtie" as in preceding MS., but omitting dating clause); Douce 98
("Statutum de Conspiratoribus" — Parts I and II of the printed Statute
but no mention of Thornton) ; Tanner 450 (" Statutum de Conspiratoribus"
gives Part I as in printed edition and immediately after adds the writ of
Part II without any preface as to Rowbery or Thornton). These MSS. are
not mentioned in App. C to vol. I of St. of Realm. Their approximate
periods will be found post, pp. 33 sqq.

2 St. of Realm, I. 33.

THE STATUTE OF CONSPIRATORS 25

13 Ed. I c. 49 (West. II)1 which repeats the prohibition and
threat of punishment in fuller terms, directly mentions cham-
perty, and applies to the seller and buyer of the subject of
litigation; and 28 Ed. I c. n (Articuli sup. Cart.)2 which
forbids any officer or any other to take upon him the business
that is in suit in order to have part of the thing in plea, on
pain of forfeiting its value. Giving of such things is also pro-
hibited and any one is allowed to sue under the statute on
behalf of the King. The preamble is that

the King hath heretofore ordained by Statute that none of his
Ministers shall take no Plea for Maintenance [al. "to Champertie "]
by which Statute other officers [al. others than officers] were not
bounden before this time.

On these materials it is useless to speculate at any length as to
which (if any) of these three statutes Part I of the Statute of
Conspirators refers, or whether it preceded or followed the
third of them. Preambles were not constructed with much
exactitude, and the doubtful reading of parts of 28 Ed. I c. n
and the Statute of Conspirators adds to the uncertainty. Perhaps
the definite severity of the punishment in Part I of the latter
statute indicates that it was later than 3 Ed. I c. 25 and 13 Ed. I
c. 49 both which apparently leave the penalty to the judge's
discretion ; and so far 20 Ed. I seems a more probable date than
ii Ed. I for Part I. There is some colour for this view in a
petition to Parliament in I29O3.

§ 26. As to Part II of the Statute of Conspirators, two officers
of the King are mentioned in it — Gilbert Rowbery and Gilbert
Thornton4, the former as Clerk of the Council on whose in-
formation the King directs the remedy, the latter as the person

1 St. of Realm, I. 95. 2 Ibid. 139.

3 Rot. Parl. i. 58 6-59 a. An Abbot claimed an advowson from H, who
procured a corrupt judgment by promising this advowson to one of the
judges who tried the case. He also conveyed 15 acres to John of S. Helens
(who had been removed in the same eyre for conspiracy) to get the jurors
to speak falsely against the Abbot. The Abbot asks the King to inspect the
charters of the realm and make some remedy for him. The King "rogabit,"
and cannot act otherwise than according to the law of the land. This is a
case of champerty, and if Part I of the St. of Consp. had already passed,
one would expect some reference to it.

4 Tottell's variant reading does not mention Thornton. St. of Realm,
I. 216, note 5.

26 THE STATUTE OF CONSPIRATORS

to whom complaints may be made to secure the issue of the
writ which constitutes the remedy. Gilbert de Thornton was
King's attorney 8-14 Ed. I (A.D. 1280-6). It is uncertain
whether this office were then anything more than a special
appointment to act for the King in a particular proceeding. He
was made C.J.K.B., 18 Ed. I (1289), and there is evidence
of his acting as late as August 1295, 23 Ed. I1. It is not an
unreasonable inference that the writ mentioned in Part II wras
to issue from de Thornton as a judge, and this places the date
of that part between 18 Ed. I and 23 Ed. I. Gilbert de Rowbery
(or Roubery) was a man of some importance in the courts before
his promotion to the King's Bench in 23 Ed. I (i 295) 2. It is
likely that he ceased to be Clerk of the Council before or on
this promotion, and this, combined with the deduction as to
de Thornton, suggests that Part II of the Statute was not after
23 Ed. I. So much for the evidence inherent in Part II. The
first piece of extraneous evidence shews that it was not later
than 28 Ed. I c. 10 (Art. sup. Cart.), for that recites that the
King has provided a writ out of the Chancery against con-
spirators3.

§ 27. A so-called* "De Conspiratoribus Ordinatio" 21 Ed. I
(1293) must next be considered. The text is:

De illis qui conqueri voluerint de Conspiratoribus in patria placita
maliciose moveri procurantibus, ut contumelie braciatoribus placita
ilia et contumelias ut campipartem vel aliquod aliud commodum
inde habeant maliciose manutenentibus et sustinentibus, veniant de
cetero coram justic' ad placita Domini Regis assignatis, et ibi in-
veniant securitatem de Querela sua prosequend'. Et mandetur Vic*
per Breve Capitalis justic' et sub sigillo suo, quod attachientur quod
sint coram Rege ad certum diem: Et fiat ibi celeris justicia. Et illi
qui de hoc convicti fuerint puniantur graviter, juxta discretionem
justiciariorum praedictorum, per prisonam et redemptionem : Aut
expectent tales Querentes Iter Justic' in partibus suis si voluerint,
Et ibidem sequantur etc.4

This is not identical with Part II of the Statute of Con-

1 Foss, Judges of England, III. 162.

2 Foss, in. 293. He is several times mentioned jointly with de Thornton
as delivering a record to the latter. Rot. Parl. i. 29 (A.D. 1290), i. 81, 82
(1292), i. 113 (1293).

8 St. of Realm, i. 139. 4 Rot. Parl. i. 96 a.

THE STATUTE OF CONSPIRATORS 27

spirators, but it bears such a strong family resemblance to it,
that there must have been some connection between them, and
it is to be found in the terms of the writ which are set forth in
the Statute, but omitted in the Ordinance, and indicate that
the Statute was not later than 21 Ed. I and probably passed in
that year1. It may be that the Ordinance was later mistaken
for a Statute2, and there is some significance in the fact that
the Statute does not appear on the Roll3. Coke speaks of Part II
as an Ordinance and the writ given in it as being allowed by
authority of Parliament. The Ordinance, according to him, was
enacted at the Parliament holden 21 Ed. I,

which ordinance you may read in Vet. Magna Charta. But there it
is set down to be made 33 Ed. I which errour there, and the mis-
taking by Richard Tottell the printer, in quoting 33 Ed. I to this
branch (as if the makers of this act had been imbued with a pro-
pheticall spirit) would in the next impression be amended 4.

That there was urgent need for strengthening the law against
conspirators shortly before De Conspiratoribus Ordinatio is
shewn by a complaint of many citizens of London to Parliament
that justice will never be done to plaintiffs owing to the con-
spiracies and machinations of the City Clerks and Officers, and
their corrupt favouring of wrong doers5.

1 A petition of 1293 against champerty recites 3 Ed. I c. 25 and requests
its enforcement. Had Part I of the Statute of Conspirators passed previously,
it would probably have been recited. Rot. Parl. i. 92 b.

2 Cf. Bryan, 15-17; and see P. and M. i. 181 for the difficulty of dis-
tinguishing ordinance and statute in Bracton's time.

3 Its source in St. of the Realm is a Harleian MS.

4 2 Inst. 561 sqq. No independent authority, apart from those already
cited, has been found to confirm Coke's implication that the two parts of
the Statute were made at different dates. His view as to the date of Part II
was adopted by Lord Holt in Savile v. Roberts (Mich. 10 Will. Ill) i Ld.
Raym. 374, and by Reeves, Hist, of Eng. Law, 11. 239. Jenks, Short Hist,
of Eng. Law, 143-4, savs tne writ °f conspiracy was based on 28 Ed. I
st. in. c. 10 (Art. sup. Cart.) and the ordinance, 33 Ed. I st. u; but
28 Ed. I c. 10 indicates that the writ is older (ante 26). Wright, Crim.
Consp. 18, refers to "the first Ordinance of Conspirators" (this is the St.
of Consp. Pts. I and II); "the second Ordinance of Conspirators (28 Ed. I
c. 10)" (ante 26); and "the third Ordinance of Conspirators (33 Ed. I)'*
(ante i).

6 Rot. Parl. 1. 48 a, A.D. 1290. Preceptum est by the council of the auditors
of complaints in the City that those suspected of machinations, conspiracies
and procurations be removed from their offices, until inquisition and com-
plaint be ended.

28 THE STATUTE OF CONSPIRATORS

§28. The result is:

(1) There is some likelihood that Part I of the Statute of
Conspirators was made law in 20 Ed. I rather than
ii Ed. I, and that it cannot be proved beyond reason-
able doubt that it was not made 21 Ed. I.

(2) The date of Part II is likely to have been 21 Ed. I.

The year 33 Edward I was assigned to the Statute by Tottell
and others1 perhaps through confusion of the "Ordinacio de
Conspiratoribus " of that year which defines conspirators2 with
the "De Conspiratoribus Ordinatio" of 21 Edward I3.

1 E.g. i Hawk. P.C. ch. 72, sect. i.

2 Ante i. * Ante 26.

CHAPTER II
THE WRIT OF CONSPIRACY

ORIGIN OF THE WRIT

§ i . Did a writ of conspiracy1 exist at Common Law, or was
it due only to the Statute of Conspirators ? Later commentators
on the Statute thought that there was a writ at Common Law2.
Coke states that the ordinance was but an affirmance of the
Common Law, and that the writ was maintainable both in
criminal and civil cases3. But the authorities4 he quotes do not
support this, and from similar remarks of his in another part of
the Institutes^, it is clear that his real source is an imaginative
passage in Mirrour of Justices which includes among "homi-
cides in will" those who appeal or indict an innocent man of
a mortal crime and fail to prove their charges, and alleges that
such were formerly punishable with death, but that Henry I
mitigated this to corporal punishment6. The Mirrour elsewhere
enumerates among abuses of the Common Law the issue of
this writ without inserting in it the substance of the plaint, and
one might argue from this to the existence of the writ at
Common Law, on the assumption that though a writer might
misstate the law, he would hardly manufacture it first and then
criticize his product; but the author of the Mirrour was un-
fortunately capable of doing both7.

§ 2. We have judicial as well as juristic dicta that the writ
existed at Common Law. FAIRFAX J. in n Henry VII says

1 Strictly, one can scarcely speak of "the" writ, for writs of conspiracy
in the written and printed Registers differ in important details from that
in Part II of the St. of Conspirators.

2 Stanf. P.C. 172, 2. Hawk. P.C. ch. 23, sect. 138.

3 2 Inst. 561. 4 The Register, Fitz. N. B.

6 2 Inst. 383.

• Ed. S. S. vol. vii. iv. 16. 136. Cf. P. and M. n. 539, n. 7. The Mirrour
was probably written between 1285-90. S. S. vol. vn. Introd. xxiv. Brunner,
A-A Essays, n. 38.

7 iv. 16, sect. 40. Thus he states that leases are not allowed beyond
40 years (which was not the law) and that it is an abuse that this should
be so. S. S. vol. vii. pp. 75, 164 and Introd. xxxvii.

30 ORIGIN OF THE WRIT

that at Common Law it did not lie except upon an indictment
for felony, but that it had been extended by statute to trespass1.
CLENCH J. in Shotbolt's Case said that a conspiracy grounded
upon an indictment of felony must be against two at least, for
the action is founded upon the Common Law2. Four judges
in Smith v. Cranshaw are reported to have gone further than
this. In the course of a resolution, they say that false accusations
and conspiracies concerning the life of a man at the Common
Law were an offence and injury to the party, though no indict-
ment were preferred, that the Statute made on this point only
affirmed the Common Law, and that the definition of con-
spirators in 33 Ed. I gives no remedy, but refers this to the
Common Law, "whereby it appears that the Statute conceives
this to be wrong and punishable by Common Law, otherwise
it had given a remedy"3.

§ 3. The difficulty of considering the truth of this view is
naturally increased by the uncertainty of the date of Part II of
the Statute of Conspirators, but assuming that it was 21 Ed. I,
nothing has been traced of a writ of conspiracy before that date.
Glanvill says nothing of it. Bracton is equally silent in his
Note Book and De Legibus Angliae. Indeed, in the latter, a writ
of inlawry is given in circumstances to which the writ of con-
spiracy if it had then existed would also have been applicable.
A's neighbours, coveting his land, maliciously cause him to be
indicted of robbery when he is abroad, and the County Court
in ignorance of the cause of his absence outlaws him. The writ
sets out these facts, and directs A's inlawry. Surely, if the writ
of conspiracy had been invented, Bracton would elsewhere have
noted it, as one of A's remedies on his acquittal of the charge
of robbery4. The Mirrour, it is true, mentions the writ in a
passage which has already been dismissed as untrustworthy5;
and in the chapter on the view of frankpledge states that
all hundredors are to inquire once a year of all- manner of

1 Trin. n Hen. VII, f. 25. Serjeant Keeble was under the same im-
pression arguendo. So too Mich. 5 Ed. IV, f. 126; but the report leaves it
open whether the allegation were judicial or forensic. No decision is reported.

2 28 and 29 Eliz., B.R. Godbolt, 76.

8 i Car. I, B.R. W. Jones, 93. 2 Rolle, 258.
4 II. 362-3. * Ante 29.

ORIGIN OF THE WRIT 31

conspirators1, but this merely refers to the criminal remedy ; and
so, no doubt, does Britton when he speaks of an inquiry to be
directed concerning "alliaunces" between neighbours to the
hindrance of justice, and as to those who procure themselves
to be put upon inquests and juries; such offenders are to be
ransomed at the King's pleasure, and their oath is never again
to be admitted2. In Goldington v. Bassmgburn3, BEREFORD C.J.
said that the St. West. II "gives a writ in a general way for
a plea of conspiracy, etc. But the King, being advised that this
Statute was too general, ordained another which names the
cases of conspiracy; and this he has done in this writ" (sc. in
this action). The parts of the Statute relevant to abuse of pro-
cedure are cc. 12, 36, and 49. None of them mentions con-
spiracy, and one only (c. 12) refers to a writ — which compels
malicious abettors of appeals to come before the justices4. It
may be that this is the writ to which BEREFORD refers. There
seems to be no doubt that the subsequent Statute which he
says " names the cases of conspiracy" is either the Statute of
Conspirators, 21 Ed. I, or Ordinacio de Conspiratoribus,
33 Ed. I5. In a second report of the case, BEREFORD says,
"This writ is not founded on law, but is provided to punish
falsehoods and wicked deeds," and the learned editor takes this
to mean that the writ is not given by the Common Law6.

§ 4. There are eight MSS. of Registrum Brevium in Cambridge
University Library attributed to the I3th century. Six of these
contain no writ of conspiracy7 . In one of the two remaining MSS . 8
there is one such writ, but it is that annexed to the Statute of
Conspirators, and like it includes the words "secundum ordi-
nationem nostram"; in the other MS.9 we have six writs of

1 Book I, ch. 17 2 i. xxii. sect. 9.

3 (1310), Y. B. Trin. 3 Ed. II, ed. S. S. 194. 4 Ante 6. 6 Ante i.

• Y. B. Trin. 3 Ed. II (ed. S. S.) 196 and n. i.

7 Hh. vi. 5; li. vi. 13 (Register only 14 pages); Mm. i. 27 (temp. Ed. I);
Add. 3584 F (circ. 1300); Kk. v. 33 (1236-1267. See Maitland, Coll. Pap. n.
142) ; Ee. I. i (earliest years of Ed. I ; probably includes none of his statutes.
Mait. ibid. 156). Maitland's warning as to settling the date of any Register
needs emphasis, op. cit. 116. 8 Add. 3022 D (?i294).

9 Add. 3469 E. It is probably early i4th century rather than I3th. A writ
of champerty founded on Art. sup. Cart. 28 Ed. I c. 1 1 is added immediately
after the writs on conspiracy. It is nearly identical with the writ of champerty
in the printed Register, f. 183.

32 ORIGIN OF THE WRIT

conspiracy. The first is remarkable. The facts which raise it may
be thus paraphrased. A and B, " conspiratione inter eos prae-
habita," and "subdole machinantes " get C who is under age
to make a recognizance in the form of a statute merchant con-
stituting an acknowledgment of indebtedness to A, their object
being to use this for the purpose of swindling him of his lands
on his coming of age. C procures a writ of certiorari, which
sets out these facts stating them to be " contra legem et con-
suetudinem " ; it orders those before whom the recognizance
was made to certify its time and tenor to the King1. It is
doubtful whether this should be classified as a writ of conspiracy
at all. The fact that it has no duplicate among the writs of
conspiracy in the printed Register, and only one in the other MSS.
examined2 might lead to the inference that it was a product of
the Chancery, which did not stand for long the fire of the law
courts3. In Goldington v. Bassingburn*, however, we get a writ
of conspiracy on much the same facts, and though the writ was
abated because the words "and have there the names of the
pledges and this writ" were omitted, yet there was no allegation
that it was inappropriate to the circumstances ; a second writ of
conspiracy seems to have been purchased after the abatement
of the first, and no notice was taken of the argument that a
writ of deceit would have been proper, and the plaintiff won
his case. The argument, however, appears to have prevailed
at a later date, for in the printed Register there is a writ of
deceit so closely akin to it that it would probably have passed
muster under that heading5. The writ there is a pone, but the
type of grievance for which it is framed as a remedy is the
same. By it, several persons are directed to shew why "con-
spiratione inter eos...praehabita," they "callide praegravare
machinantes" X went before the Mayor of Southampton, and
there swore that one of them (A) was Xy and A, under this

1 In the Bodleian Library, MS. Rawlinson, C. 310 has a writ (No. i under
conspiracy) practically identical.

2 21 in C. U. Library, 24 in Bodleian, 3 at Inner Temple. Those at the
British Museum I have not had an opportunity of consulting. There are
many. Maitland, Coll. Pap. n. 116.

3 Other writs had the same fate. Mait. ibid. 122.

4 (1310), Y. B. Trin. 3 Ed. II, ed. S. S. 195-8. It is probably the case to
which Reeves refers, Hist. Eng. Law, n. 328. 6 f. 115.

ORIGIN OF THE WRIT 33

pretence, entered into a recognizance in the form of a statute
merchant acknowledging a debt to K. Thereon, the defendants
afterwards procured false and malicious proceedings against X
"contra formam ordinationis in hujusmodi casu provisae." This
well illustrates deceit1 in its earliest legal form — cozening a
court in some way2. It was a wrong strongly resembling con-
spiracy, and more will be said of it later. Here it is enough to
note the fluidity of some writs before the phrases in them had
crystallized as terms of art. The absence of any definition of
conspiracy before 33 Ed. I would justify experiments with the
writ, and the Ordinance of that date gives a description generous
enough to admit the cases now under discussion. The writ in
the MS. concludes " contra legem et consuetudinem," that in the
printed Register substitutes "contra formam ordinationis"; in
Goldington v. Bassingburn3, it runs "against the form of the
ordinance by the common counsel of the King's realm in this
case made"; but "lex" was used too vaguely at the period of
the first writ to imply in it any necessary reference to some
enactment4.

The second writ in this MS. is for false indictment "de
latrocinio" and other trespasses, and is much the same as
No. i5 in conspiracy in the printed Register; the wrong is
alleged to have been committed "contra formam ordinationis
per nos et consilium nostrum in hoc casu provisae "6.

The third writ is against persons who by conspiracy have
falsely and maliciously procured the accusation, imprisonment,
and maltreatment of another for breaking a seal attached

1 There was a writ of audita querela which might have covered this case.
F.N.B. 1 02 H. Cf. ibid. 991 "And there are divers other writs of disceit
in the form of a writ of audita querela"

2 Cf. P. and M. n. 534-6. The writ has been traced to John's time.
Select Civil Pleas, pi. 3 (1201). 3 S. S. vol. xx. p. 198.

4 P. and M. n. 175. "The whole mass of legal rules enforced by the
English temporal courts can be indicated by such phrases as ...lex et con-
suetudo." Bracton in at least one passage contrasts the two. Ibid.

5 I have numbered these writs for convenient reference.

6 Practically similar writs are included in Bodleian MSS. under con-
spiracy— No. i in Bodleian 940 (probably temp. Ed. I), and No. 2 in
Rawlinson C. 310 (i4th century. It winds up "contra formam ordinationis
per nos & filium nostrum in hoc casu provisae"). The ordinance referred
to is no doubt " De Conspiratoribus Ordinatio," ante 26.

W.H.L.P. 3

34 ORIGIN OF THE WRIT

"cuidam pixide" and carrying away four pounds "pollard-
orum," and there is apparently no conclusion similar to that in
the second writ1. The fourth is a writ of pone on the following
facts. R made a recognizance in the form of a statute merchant
acknowledging a debt of £45 to A, was imprisoned thereon, and
died in prison. Seisin of his lands and tenements was adjudged
to A. The defendants falsely and maliciously procured a charter
in A's name, alleging that some one else was seised of the lands
after A's death. They are summoned to shew cause why they
did this "contra formam ordinationis." The word "con-
spiracy" is not mentioned, and it is difficult to see how the
case could fall within either the definition of Ordinacio de
Conspiratoribus2, or De Conspiratoribus Ordinatio3, assuming
that these were at that time law. If the writ were ever adopted,
it is not included in the printed Register under conspiracy4.
The fifth writ is one of conspiracy with the usual ending5, and
so is the sixth6.

§ 5. The MSS. of Registrum Brevium in the Bodleian Library
also afford no evidence that the writ of conspiracy existed at
Common Law. Of 24 examined, no such writ was discoverable
in 15 which range over the late i3th century, the i4th and
even the early i5th7. It may seem surprising that i4th and
1 5th century Registra should not contain writs of conspiracy,

1 The last words are " ad dampnum ipsius T etc." But it is quite possible
that the usual conclusion is implied in "etc." and this is confirmed by the
same writ in Bodleian MS. Rawlinson, C. 310 which has the conclusion
implied (Writ No. 3). 2 Ante i. 3 Ante 26.

4 Bodleian MS. Rawlinson, €.310 has a writ (No. 4) practically identical.

8 A blank in the MS. makes part of the false indictment uncertain. But
it seems to have corresponded with that in a writ in MS. Add. 3505 G (C. U.
Lib.) where false and malicious procurement of an indictment for the
receipt of a homicide is alleged.

6 Inserted among the writs of trespass in the next folio but one.

7 Rawlinson, C. 331 (Edwardian); 507 (only a few folios); 292 (Ed. I
or II); 612 B (ditto); 666 (probably early Ed. Ill); 168 (isth century);
665 (possibly Ed. II ; there is a writ of champerty based on articles made by
Edward "nuper Rex Angl."); 692 (Rich. II); Douce 137 (i3th century,
after 1272); 98 (Ed. I or II); 139 (perhaps early I4th century); Bodley 559
(Ed. I or II) ; Add. C 188 ("teste" clause in writ of right has date Jan. 22nd,
22 Ed. [I]); Laud Misc. 596 (early i$th century); Tanner 400 (early i4th
century, part of MS. is missing). In approximating the dates of these MSS.,
some help has been derived in many of them from the fact that copies of
the Statutes in similar handwriting were bound up with them.

ORIGIN OF THE WRIT 35

particularly when it is pretty clear from other MSS. of the like
dates that Registrum Brevium so far as this head was concerned
was settled before the end of Edward Ill's reign. But the MSS.
of the Register vary greatly in size and completeness, and even
where two of them are nearly contemporaneous, one may
consist of but a few folios, while the other may be five or ten
times as large. The nine MSS. examined which do include writs
of conspiracy are remarkably instructive both of the fluctua-
tions through which they passed before the printed Register is
reached, and of the intensely organic growth of the Register
itself. We begin with three MSS. each containing two writs of
conspiracy. The first of these is probably of Edward Fs reign1,
and the first writ in it has already been classified2. The second
has no duplicate in the printed Register, and shades off into
deceit. It alleges that the defendants "de uno mes [uagio] etc.
exheredare & aliis modis inquietare subdole machinantes
eundem [the plaintiff] " procured his indictment and imprison-
ment for robbery, and while he was in prison caused him to be
impleaded of this messuage without his knowledge, and thus
judgment went against him by default, until he "inde fuerat
deliberatus." It has the common form ending "contra formam
ordinationis "3. The second Register is probably early i4th
century4, and its first writ is like that in the printed Register5,
while the second merely consists of variants of this. The third
Register is i4th century6, and its first writ resembles that in
the first Register7; the second is like No. 4 in the printed
Register8. A MS. probably of Edward Ill's reign9 has five writs,

1 Bodley 940.

2 Ante 33, n. 6. It has the usual reference at its end to the ordinance
which is expressed to be made "per nos et consilium nostrum."

3 Cf. Palgrave, King's Council, 71-75, for a petition to Parliament raising
a somewhat similar question (4 Hen. IV).

4 Tanner 450. The writ of champerty implies that Ed. I was still living
{" Cum inter caeteros articulos quod ad emendationem status populi de
regno nostro..,duximus concedend," etc.). In it are also "capitula narra-
tionum" in Norman- French. The note on conspiracy is LXV.

5 f. 134. It states acquittal of the plaintiff before " Johne de Stannde &
sociis suis," justices of gaol delivery. This judge is untraceable in Foss.

6 Rawlinson, C. 464.

7 Bodley 940. But it concludes "contra formam ordinationis per nos &
nlium nostrum in hujusmodi casu provisae." 8 f. 134.

9 Rawlinson, C. 310. A list of dates of the different kings of England is

36 ORIGIN OF THE WRIT

but there is some internal indication (as indeed might be ex-
pected) that they issued from the officina brevium at different
dates. The first has been previously noted1. So have the
second2, third3 and fourth4. Some writs of trespass follow, then
three on champerty, and then a fifth on conspiracy not repro-
duced in the printed Register5. It is directed against con-
spirators who have maliciously procured the disseisin of the
plaintiff from a common of pasture, and appears to be an early
experiment6. Two more i4th century Registers have six writs
apiece7, which are identical with the first six in the printed
Register, and are followed by the note, also to be found there,
that the writ does not lie against indictors 8. Our next Register,
probably of the earlier years of Ed. Ill, is like these two, but
has a seventh writ where the indictment complained of was for
the receipt of one charged with divers felonies and trespasses9.
Finally we have the nine writs of the printed Register complete
with notes in a MS. probably of the latter part of Ed. Ill's
reign10 and in another of the earlier years of Richard II11.

§ 6. There are three MSS. Registra in the Inner Temple
Library, all assigned to the i4th century. One of them has no
writ of conspiracy, and we gather from it that whoever may have
been the parent of the mythical Common Law writ of con-
spiracy, Walter of Merton of Henry Ill's Chancery was not;

inserted in similar writing on the front of the folio with which the Register
begins. It winds up with a note of Ed. Ill's coronation (his death is added
but apparently by a different hand).

I Ante 32, n. i. 2 Ante 33, n. 6. 3 Ante 34, n. i.

* Ibid. n. 4. 5 f. 134.

* It refers to the ordinance [of conspiracy] as having been made "per
nos et consilium nostrum."

7 Rawlinson, C. 454 (The Statutes in similar handwriting by which the
Register is preceded seem to shew that it is after 1350); and 667.

8 f. 134-

9 Rawlinson, C. 459. The "Teste" clause in the writ of right gives the
date Feb. I4th in the fourth year of Edward. And the Statutes in the same
volume which precede "extenta manoris" end with "Statutum de anno
quinto" the commencement of which refers to Edward III.

10 Rawlinson, C. 897.

II Bodley 941 ; a large Register. The "Teste" clause in the writ of right
has the date July iath in 4 Rich. II. In neither of these MSS. are the
marginal notes so full as in the printed Register, and both omit the query
appended to the note which follows the seventh writ which runs "quare
tamen, quare le secunde brief que sensuit est fayt en tiel cas et cetera."

CLASSIFICATION OF WRIT IN REGISTER 37

for it does not appear among a list of writs attributed to him1.
The second represents the writs and notes complete as in the
printed Register, except that No. 9 is missing2. The third is
also similar, but No. 2 and No. 9 are not included3, and an
unusual writ begins the list4. Th. de S. had succeeded to a
prebend formerly held by J. A,B and C conspired to defraud
Th. de S. of his prebend by forging an instrument which
alleged that A had a title in it prior to that of J. This looks
like any modern case of conspiracy and is detached from the
customary mediaeval meaning of abuse of legal procedure)
though it is very likely to lead to it.

§ 7. Regis trum Brevium in its printed form yields no more
proof of the existence of a Common Law writ of conspiracy
than do the MSS. The nine writs of conspiracy given there all
express or imply (as do the Bodleian and Inner Temple MSS.)
the conclusion "contra formam ordinationis in hujusmodi casu
provisae"5.

The writ was certainly in existence as early as 22 Ed. I, but
the case which shews this is no answer to the question of its
Common Law or statutory origin6. There is nothing in it
contrary to the view that it is based on the Statutum de Con-
spiratoribus, Part II, to which we have assigned the conjectural
date of 21 Ed. I.

The conclusion then seems likely that no writ of conspiracy
existed at Common Law7.

CLASSIFICATION OF THE WRIT IN THE REGISTER

§ 8. The writ under the Statute of Conspirators8 differs
from those in the printed Register. As the nine writs there
conform for the purpose of this comparison to one type, the
first only need be quoted :

Rex vicecomiti L salutem. Si A fecerit te securum etc. tune pone
etc. B and C quod sint coram nobis etc. ostensuri quare conspiratione

1 511.9 (vn. f. 89). See the prefatory remark at f. 1 19 b (" Sequitur mine,"
etc.). 2 511.4. Writs of conspiracy are at f. 75.

3 504 (4). Conspiracy begins f. 95.

4 It is in a different hand from the rest.

5 Reg. Brev. f. 134. 6 Abb. Plac. 291. Ante 3.
7 Wright, Crim. Conspir. 15 is to the same effect. 8 Ante 23.

38 CLASSIFICATION OF WRIT IN REGISTER

inter eos apud N. praehabita, praefatum A de quodam jumento
furtive apud N capto & abducto indictari, & ipsum ea occasione
capi, & in prisona nostra War, quousque in curia nostra coram
dilectis & fidelibus nostris R and S justitiariis ad gaolam nostram de
War deliberand'. assign, secundum legem & consuetudinem regni
nostri inde acquietatus fuisset, detineri falso & maliciose procurarunt,
ad grave damnum ipsius A & contra formam ordinationis in hujus-
modi casu provisae Et habeas ibi nomina etc. T. etc.1

This writ differs from that under the Statute (i) in being
more explicit, for it gives details of the alleged conspiracy ; and
(2) in being levelled against two defendants, while the statutory
writ mentions but one. Both these differences will be discussed
later2. The statutory writ is not incorporated in the printed
Register, though it is doubtless the parent of the writs there,
and leaves traceable resemblances in its offspring. The MS.
Registra have in historical progression a steadily increasing
number of writs which all, with the exceptions already noted,
conform to the type in the printed Register3.

§ 9. Whether these writs are to be classified as original or
judicial is a question to which our law replies differently at
different stages of the meaning of those terms. In 22 Ed. I,
it is argued that the writ is "breve de judic[ibus] vel quasi in
speciali casu concessum" as compared with the writ for ab-
ducting a woman which is a Common Law writ formed in the
Chancery4. The distinction here taken corresponds nearly with
Maitland's : "The original writ issues out of the Chancery, the
judicial issues out of a Court of Law; we can say no more"5.
In this case the Court expressed no opinion either way on the
soundness of the argument. On the other hand, Art. sup. Cart.
28 Ed. I c. io6 refers to the writs of conspiracy as "briefs de
chancellarie " ; and Y. B. 32 and 33 Ed. I7 implies that such
writs were issued by the Chancery very soon after the Statute
of Conspirators, for it is noted that such writs are now for-
bidden in the Chancery, though the writ in this particular case

1 f. 134- z Post 59.

3 Ante 31 sqq. 4 Abb. Plac. 291. Ante 3.

5 Coll. Pap. n. 124. The St. of Consp. it will be remembered mentions
GILBERT DE THORNTON CJ.K.B. as the person from whom the writ is to
issue. Ante 23, 25.

' St. of Realm, i. 139. 7 Ed. Horwood in Rolls Series, p. 463.

SCOPE OF THE WRIT OF CONSPIRACY 39

was allowed because it had been purchased before the pro-
hibition1. It might be inferred from this either that the Chancery
had been issuing writs of conspiracy in competition with those
issued by the Courts under the Statute of Conspirators, or
that writs of conspiracy should be classed as "original." But
either inference is unsafe at a period when "original" and
"judicial " are not used exactly. According to Bracton2, original
writs are formed "super certis casibus de cursu et de communi
consilio totius regni concessa et approbata," and are unchange-
able without the consent of the makers, while judicial writs
arise from original, and vary according to the pleas of the
litigants. A puzzling third class — " magistralia "3 — is added ; and
nothing is said to shew that all three classes may not have had
to pass the officina brevium ; in fact, the author of Fleta expressly
states that they must, and speaks of "brevia judicialia in Can-
cellaria"4. By the time that we reach the printed Register5,
writs of conspiracy are original in the familiar sense that they
begin litigation as opposed to judicial writs which are issued in
the course of litigation6.

SCOPE OF THE WRIT OF CONSPIRACY

i . Its application to false appeals

§ 10. Before considering generally the scope of the writ, the
question of its application to appeals had better be discussed,
for it is easily detachable from the rest of the topic, and the
law of appeals soon became etiolated by the growth of the
indictment above it.

Stern and definite punishment was fixed for those who
brought or abetted false appeals by 13 Ed. I c. I27. It is
asserted that even before this, the writ of conspiracy lay against
them. Thus, MS. Registra Brevium state in their notes on

1 Ed. Horwood in Rolls Series, p. 463. 2 vi. 260-3.

3 P. and M. i. 194, n. i suggests an explanation. Coke makes them a
species of original writs (Co. Litt. 73 b). Theloall suggests alternatively that
they are writs on the case (Le Digest des Briefs Originals, 1687).

4 Lib. n. cap. 13, sect. 14. Ibid. sect. 8. Cf. P. and M. i. 197, n. 3.

5 Maitland knew of no edition earlier than 1531. Coll. Pap. n. 124.

6 As a general classification, even this is not exact, for some writs figure
under both heads. Maitland, loc. cit. 7 Ante 6.

40 SCOPE OF THE WRIT OF CONSPIRACY

conspiracy that by this statute a man shall not have a writ thereof
for any appeal which shall be terminated before justices of
record, and that the judicial writ conferred by the statute against
abettors is in lieu of conspiracy1 ; and the printed Register is to
the same effect2; but it queries the statement in a marginal
note on the ground that there is no express prohibition of the
writ of conspiracy by 13 Ed. I c. i23, and in the text on the
ground that the next writ but one (No. 9 in the series) was
made to meet the case of those who procured false appeals
against another. These doubts and writ No. 9 are lacking in
the MS. Registers. Again, Stanford thought that the writ of
conspiracy applied even before 13 Ed. I c. 12 to procurers of
false appeals, and that the statute gave a speedier remedy to
the appellee than the writ4, and Coke reproduces this in more
general terms5, Hawkins says that by the Common Law a
defendant may recover damages for a false and malicious appeal
by writ of conspiracy against the appellant6. But these opinions
are based on the assumption that a writ existed at Common
Law, which is probably wrong, and the point of its application
to appeals could not, it is submitted, have been raised before
the Statute of Conspirators Part II (21 Ed. I).

Is there any evidence that it was raised or settled after that
date? The Statute of Conspirators itself gives us no direct
information. It speaks of "Conspirators" (without defining
them), "Inventors and Maintainers of false Quarrels, [and Par-
takers thereof] and Brokers of Debates " as the persons who are
amenable to the writ of conspiracy7. It seems that " Quarrels "
(querelae) did not include appeals8, and it is unknown whether
"Conspirators" there included false appellors. The definition
of conspirators in Ordinacio de Conspiratoribus (33 Ed. I) is
not much more explicit9 ; but within it are those who confederate

1 MSS. C. U. Lib. Ff. i. 32 (f. 140, 141*1 century) ; Gg. v. 19 (isth century) ;
Ff. v. 5 (temp. Rich. II); Ll. iv. 17 (temp. Ed. I). So too Bodleian MSS.
Rawlinson, C. 897 and Bodley, 941; and Inner Temple MSS. 511, 4 and
504 (4). * f. 134- So too F.N.B. 114 F.

3 Given as c. 9 in Rastall's ed. 1531, and as c. 14 in Yetsweirt's ed. 1595.

* P.C. 167. * 2 Inst. 384. 6 2 P.C. ch. 23, sect. 138.

7 Ante 23. 8 P. and M. n. 571-2.

9 MS. Ll. iv. 17 in C. U. Lib. (temp. Ed. I) makes the definition of
33 Ed. I comprise those who combine "pur destruer occidere ou inditer

SCOPE OF THE WRIT OF CONSPIRACY 41

"falsly to move or maintain Pleas," and appeals may well be
implied in " Pleas "1. After 33 Ed. I, a writ of conspiracy would
lie against two at least, and therefore only against two or more
false appellors or procurers of appeals. No attempt is recorded
to apply it between 21 Ed. I and 33 Ed. I to one false appellor2.
Such authority as we have after the later date deals with the
writ as applying to joint false procurers, not to false appellors,
with one dubious exception3. Before proceeding to discuss this
authority, it may be asked why the person falsely appealed
should have wanted the writ of conspiracy at all, when 13 Ed. I
c. 12 provided a seemingly efficient remedy against false
appellors and procurers. At first sight, there is no conspicuous
difference between the sanctions under the writ4 and 13 Ed. I
c. i25. Indeed in one class of cases, the latter seems to have
been regarded as superior6. But Stanford points out as possible
advantages of the writ of conspiracy that perhaps the damages
assessed by the inquest taken by the parties in conspiracy
would be more beneficial than those assessed by the inquest of
office under 13 Ed. I c. 12, and that the former inquest could
be challenged and attainted for a false verdict; again process
by capias and exigent which applied in conspiracy was not
possible under the statute, so that if the abettor were not dis-
trainable, the appellee would have no remedy; lastly, the
damages payable by the abettors under the statute were payable
on the appellor 's account (since he would be incapable of
satisfying them himself) and not on their own, and thus the

ou faire appeller ou inditer ascun home," and states that the writ of con-
spiracy lies in such cases; but its rendering of the Ordinance in this and
other parts is untrustworthy. Natura Brevium (ed. Tottell, 1576) reproduces
this, as well as a remark in the MS. that the St. West. II c. 12 substituted
the judicial writ there mentioned for the writ of conspiracy in so far as the
latter applied to false appeals. Both MS. and book impliedly confine the
writ to the acquitted person in a false appeal or indictment.

1 Used to mean both civil and criminal proceedings. Glanv. Bk. I, ch. i.
Cf. Bract, in. 76, 266; iv. 32 (civil cases).

2 The writ in St. of Consp. Pt. 2 (21 Ed. I) mentions only one defendant.

3 Per SCROPE C.J.K.B. in Mich. 13 Ed. II, post 42.

4 Plaintiff to recover damages, and defendants to be taken. The villainous
judgment was limited to conviction at the suit of the King. Stanf. P.C. 175.

5 Ante 6.

6 Rot. Parl. HI. 505 a. Ante 8.

42 SCOPE OF THE WRIT OF CONSPIRACY

writ of conspiracy would be useful to enable the appellor to
recover these independent damages against the abettors1.

§11. Assuming these to be the reasons why appellees desired
the writ of conspiracy, there is little doubt that it was ultimately
held that they could have it. The simplest case is where the
appellee is acquitted by verdict apart from any complication
arising from a previous indictment, or a nonsuit on the appeal.
Fitzherbert states positively that the appellee shall not have a
writ of conspiracy, because by 13 Ed. I c. 12 it shall be inquired
of abettors, and if they be found, he shall have a writ of scire
facias against them out of the same court where he is acquitted
to render him damages2. But this is criticized by Stanford, who
concedes that there would be some sense in the alleged rule so
far as it would prevent the appellee from getting damages twice
over (first by the statute and then by the writ of conspiracy),
but objects to the unreasonableness of converting this into the
assertion that no writ of conspiracy lies on a false appeal3. The
note in the Register already quoted4 is also adverse to Fitz-
herbert, and writs Nos. 3, 4 and 9 in it seem applicable to the
acquitted appellee5.

§ 12. We have next to consider the case of nonsuit of the
appellor. In Mich. 13 Ed. II, ScROPE6 said that the statute
(sc. of Conspirators) gives conspiracy where one man causes
another to be indicted, and not where he makes an appeal7.
Here, the plaintiff in a writ of conspiracy counted that the
defendant and another had procured C to sue a false appeal
against the plaintiff, and that C was nonsuited on the appeal.
It was argued that this action sounded in abetment, and that

1 P.C. 172. This last argument on Stanford's own shewing is not con-
vincing. For he cites (171 b) Fitz. Abr. Ace. sur lestat. 28 (Mich. 3 Ed. II;
not in the printed Y.B.) to shew that an original writ of abetment for greater
damages than those assessed in the appeal was held good.

2 F.N.B. H4F. 3 P.C. 172. 4 Ante 40.

5 Fitzherbert confines No. 9 to the special case of acquittal by verdict
after nonsuit of the appellor. Such acquittal would be on arraignment of
the appeal by the King. Post 47.

6 Probably HENRY LE SCROPE C.J.K.B., June 15, i3i7~Sept. 1323. The
case is in Fitz. Abr. Consp. 25, not in the printed Y.B.

7 The report is ambiguous: "lou il fait appele" may be an ellipsis for
"lou il fait autre estre appele." In that case SCROPE'S opinion is that the
St. of Consp. does not apply to those who abet false appeals.

SCOPE OF THE WRIT OF CONSPIRACY 43

the appropriate writ was that of abetment1 not of conspiracy.
Herle, the other counsel tried to prompt the memory of the
Court as to another case in which a writ of conspiracy was
successfully brought against abettors. But nothing was decided,
and a series of subsequent cases proceeds on the assumption
that the writ did lie, subject to qualifications against the pro-
curers of false appeals. Thus in Pasch. 17 Ed. II, f. 544, a writ
of conspiracy was brought against B2 for falsely procuring the
plaintiff to be appealed by T who was nonsuited ; no decision
is reported, but from neither bench nor bar is there a hint that
the writ was abateable merely because it was totally inapplicable
to false appeals. One of the main arguments was that as the
appellor was only nonsuited there was no proof that the appeal
was false3, but SCROPE 4 pointed out that as there was no previous
indictment, this shewed the innocence of the appellee and the
falsity of the appeal. In Mich. 17 Ed. II, f. 509, where there
had also been a nonsuit of the appellor, and inquiry of the
Sheriff and Coroners shewed that no previous indictment had
been arraigned, Hervy argued that this was not acquittal because
the appellee could be attainted of the same thing ; but again no
decision appears, and in later law this view does not seem to
have been adopted5. It was argued also that the writ of abet-
ment, not of conspiracy, was the proper remedy, but the Court
expressed no opinion on this. In Hil. 5 Ed. Ill, the writ was
adjudged good where an appellor was nonsuited, and the
appellee had been acquitted at the suit of the King6. Several MS.
Registers7 note that the writ was abated by the King's Bench
at Nottingham8 before G. LE SCROPE in the tenth year9 because
it was brought in a case where 'an appellor had been non-

1 Under 13 Ed. I c. 12.

z According to Fitz. Abr. Consp. 26, there were several who procured
the appeal. 3 Shardelowe.

4 Ante 42, n. 6. 6 Stanf. P.C. 148.

6 Fitz. Abr. Consp. 22. Not in the printed Y.B.

7 E.g. Camb. Univ. Lib. Ff. I. 32 f. 140; Ff. v. 5; Gg. v. 19. Bodleian;
Rawlinson, C. 897.

8 Northampton in MS. 504 (4) Inner Temple Library.

9 Apparently of Ed. III. GEOFFREY LE SCROPE was appointed C.J.K.B.
in 2 Ed. Ill, and perhaps resumed his office about 1 1 Ed. III. I am indebted
to Mr Hilary Jenkinson, of the Public Record Office, for verification of the
initial "G."

44 SCOPE OF THE WRIT OF CONSPIRACY

suited, and alleged that the appellee "acquietatus fuisset," thus
giving rise to the inference of law that he had been acquitted
by a jury, whereas the record stated merely "quietus recessit."
This note is reproduced in the printed Register1. But a writ
was pretty soon framed which avoided this procedural mistake2.
It appears as No. 7 in the printed Register, and is included in
the MS. Registers cited3. In 18 and 19 Ed. Ill4, John Beauflour
brought a writ of conspiracy against several for conspiring to
cause him to be appealed by one Isabel of the death of her
husband. Isabel was nonsuited, and John was then arraigned
at the King's suit and acquitted5. Nothing was decided, but
again no objection was raised on the score that the writ was
inapplicable to false appeals. In 19 Ed. Ill6, the facts were
similar except that after the appellor's nonsuit, a writ was issued
to the Sheriff and Coroners to certify whether they had any
indictment against the appellee. They had none, and he passed
quit. In his writ of conspiracy, he used the common form
phrase "acquietatus fuit," and it was objected that he had
never been acquitted. But WILLOUGHBY J. did not accede
to this.

§ 13. So far, the cases considered have been those in which
no indictment preceded the appeal. Of the next two cases,
Mich. 21 Hen. VI, f. 28 raises the question whether the writ
of conspiracy would lie for one who had been indicted and
appealed of the same offence, and acquitted on the indictment;
while in Hil. 33 Hen. VI, f. 7 it was mooted whether he could
have it if he were acquitted on the appeal, but not on the in-
dictment. In the first case, Henry Brokesby sued a writ of
conspiracy against several for conspiring to indict him of the
death of J. P. The defence was that when Brokesby was

1 f. 134 b. "G. LE SCROPE" of the MSS. appears in Rastall's ed. 1531 as
"syr E. i," and in Yetsweirt's ed. 1595 as "syr G. L."

2 Y.B. 19 Ed. Ill (Rolls Series), 346 shews that in at least one case after
10 Ed. Ill "acquietatus fuit" was as good as "quietus recessit."

3 No. 6 in Ff. I. 32, Ff. v. 5, and Gg. v. 19.
1 Y.B. (Rolls Series), 566-8.

5 Plaintiff alleged in his pleading that the defendant's acts were " contrary
to the Ordinances in such case provided." The learned editor notes that
these were 28 Ed. I c. 10 and 33 Ed. I (Ordin. de Consp.). It is submitted
that De Consp. Ord. 21 Ed. I (ante 26) might be added.

6 Y.B. (Rolls Series), 346.

SCOPE OF THE WRIT OF CONSPIRACY 45

arraigned upon the indictment, J. P.'s wife came before the
justices before whom Brokesby was arraigned, and delivered to
the Sheriff within a year of J. P.'s death a writ of appeal of his
death1. The Sheriff notified and read this to the justices, who
nevertheless arraigned Brokesby upon the indictment, and he
was acquitted. Could it be said that this was an acquittal
sufficient to support the writ of conspiracy ? NEWTON C.J.C.P.
said :

I know well that it is usual on our circuit, if one be indicted of
the death of a man to arraign him within the year if we have full
notice and knowledge that he will be convicted 2 ; for if he be arraigned
and convicted, no wrong or error is done; and the law in such cases
is that he shall suffer death for death, but the justices cannot know
if the dead man have a wife or any heirs. And if he have a wife or
heirs, if he who is indicted be convicted, the wife or heirs have
[achieved] their object; for all they want is his death, i.e. execution;
if then one be arraigned within the year, this arraignment is lawful,
and though he be acquitted, he shall not be acquitted at the suit of
the wife or heir3, for then he would put his life twice in jeopardy,
and rather than this the wife and heir shall lose their action4, and
this in favour of life; so it seems that he was lawfully arraigned, and
consequently lawfully acquitted.

A good deal of discussion ensued, much of it being directed to
the question whether the justices had had proper notice of the
appeal. In the meantime, Brokesby died and the other de-
fendants waived the plea and pleaded not guilty. NEWTON C.J.
and PASTON J. thought that the notice was insufficient, as the
Sheriff had broken the seal before it was handed to them, and
it was but an escrow, and that therefore they did well to arraign

1 "And no such appeal shall be abated for default of fresh suit, if the
party shall sue within the year and the day after the deed done." St. of
Gloucester 6 Ed. I c. 9.

2 PASTON J. thought that in strict law the Judges should not delay judg-
ment for the benefit of a possible appellor, though they might do so as a
matter of practice. This the Court admitted.

3 Later, 3 Hen. VII c. i expressly preserved this right, while it abolished
the mischievous judicial practice established in 14.82 of not allowing a man
indicted of homicide to be arraigned within a year for the same felony at
the King's suit. Stephen H.C.L. i. 248.

4 The report is puzzling here. It makes NEWTON save the wife's or heir's
right to bring the appeal, and in the next breath take it away — a rather
violent twist of the St. of Gloucester (n. i supra). The versions in Fitz. Abr.
Consp. 6, and Br. Abr. Consp. omit the quotation.

46 SCOPE OF THE WRIT OF CONSPIRACY

Brokesby on the indictment1. According to another report2,
PASTON (as well as NEWTON) was of opinion that there had
been a proper acquittal, and that the writ of conspiracy would lie.

In Hil. 33 Hen. VI, f. i (also reported in Mich. 34 Hen. VI,
f. 9), DANBY J.3 said obiter that if a man be indicted and then
appealed, and acquitted on the appeal, he shall never have
conspiracy nor recover any damages, for no inquiry of abettors
is possible ; and the whole Court conceded this, PRISOT C.J.C.P.
adding as a reason that the plaintiff was acquitted on the
appeal, not on the indictment. DANVERS J. then said that if
the appellant had been nonsuited, the appellee would have had
conspiracy. PRISOT said this was true, because the appellee was
arraigned afresh at the King's suit, that is, on the appeal, not
on the indictment. DANVERS J. added that it had been adjudged
that the appellee should have conspiracy where the appellant
was nonsuited before declaration4.

The principles underlying the restrictions on the right to
bring a writ of conspiracy against procurers of false appeals
which appear in the cases are not easy to disinter from the
graveyard of mediaeval procedure in which they are buried,
unless something be said of the procedure itself.

And first, it must be noted that to appeal any one of a crime
implied a far more serious probability of his guilt than to indict
him of it5. For while the rumours upon which many early
indictments were founded were often discovered to be unsub-
stantial6, an appellor, if he were honest, had definite reasons
for instituting his accusation, and the penalties to which he
was liable if his appeal failed were a constant reminder to him
not to undertake it lightly7. As an appeal raised a strong pre-
sumption of guilt, even if the appellor were nonsuited, the
appellee was not allowed to go quit, but was arraigned upon

1 Br. Abr. ubi sup. It is added that if they had had sufficient notice, they
ought not so to have arraigned him.

2 Fitz. Abr. Consp. 6. So too F.N.B. 115 H.

3 So the report in 33 Hen. VI, f . i , and Fitz. Abr. Consp. 4. In 34 Hen. VI,
f. 9, this is put in the mouth of Billing, one of the counsel.

4 So both reports. Fitz. Abr. Consp. 4 makes DANVERS J. say that he shall
not have conspiracy; but F.N.B. H4E seems to tally with the reports.

* Stanf. P.C. 147.

0 Bract, n. 452-3. Cited by Stanf. P.C. 97. 7 Stanf. P.C. 147.

SCOPE OF THE WRIT OF CONSPIRACY 47

the declaration1 in the appeal at the suit of the King2. The
reason for this was as old as Bracton, and it still obtained in
Stanford's time3. As the King did not fight and had no champion
but the country, the trial of the appeal was by the country, not
by battle4. But no such strong presumption of guilt was raised
nor consequently on nonsuit was there any arraignment at the
suit of the King where the appellor had not appeared and
declared, for it was quite possible for the writ of appeal to have
been procured in the appellor's name by some person of whom
he knew nothing, and this possibility could not be eliminated
till the appellor had appeared and declared5. Assuming that
he had not done so6, and that he had been nonsuited, the King,
it is true, made no arraignment of the appellee; but the law
did not even then regard the accusation as entirely rebutted,
for the practice was that the Court inquired of the Coroner if
there were any indictment against the accused7, and only if
there were none did he go quit8. Now suppose that an appeal
were preceded by an indictment, and that the appellor as before
were nonsuited after declaration. The rule still holds that the
appellee is to be arraigned at the suit of the King ; for the pre-
sumption of his guilt stands, and stands so firmly that this
arraignment is on the appeal, and not on the indictment9.

This outline of procedure on appeals goes far towards making
the cases intelligible. The result of them is that those who

1 Appeals could be commenced by writ or bill ; in the former case, they
had to be followed by the declaration which specified the cause of the appeal.
Stanf. P.C. 64. 2. Hawk. P.C. ch. 23.

2 There was no such arraignment where the appellee was acquitted on
the appeal, or where an approver admitted his appeal to be false. Stanf. P.C.
148. 2 Hawk. P.C. ch. 25, sect. 10.

8 Bract, ii. 446-9; "quia adhuc subesse possit felonia quamvis appellatus
appellum declinaverit." Stanf. P.C. 147. Cf. Britton, I. xxiii. 10.

4 Bract, n. 448-9.

6 Stanf. P.C. 147-8 ; cited and adopted by Hale, Hist. PL Cor. n. 149*, 150*.
Cf. 2 Hawk. P.C. ch. 25, sect. 9 where it is added that the writ of appeal by
itself contained no certainty of the facts.

6 Pasch. 17 Ed. II, f. 544.

7 The absence of a declaration made this necessary since all details of
the charge were in consequence unspecified. Stanf. P.C. 148. 2 Hawk. P.C.
ubi sup.

8 Stanf. P.C. 148. Y.B. ubi sup.

9 Stated as common practice ("le ley est use de faire issint") in Pasch.
4 Ed. IV, f. 10. Cited Stanf. P.C. 148.

48 SCOPE OF THE WRIT OF CONSPIRACY

procured appeals could be made liable in the writ of conspiracy
at the suit of the appellee :

(1) Possibly if the appellee were acquitted by verdict, but
this is doubtful1.

(2) If the appellor were nonsuited2 in his appeal, and the
appellee were arraigned and acquitted at the suit of
the King3.

(3) If the appellor were nonsuited before appearance and
declaration in his appeal, and there were no indict-
ment against the appellee4.

In (2) the nonsuit of the appellor combined with the appellee's
acquittal at the suit of the King, in (3) the nonsuit of the appellor
coupled with the absence of any indictment of the appellee,
dissipated the charge against the appellee and made it likely
that the appeal had been made with an improper motive. The
writs appropriate to (2) and (3) are given by Fitzherbert5. They
do not differ materially, except that in (2) the plaintiff alleges
"acquietatus fuisset," which indicates acquittal by verdict at
the King's suit; while in (3) the phrase changes to "quietus
recessit," and thus evades any possible objection that might be
raised against the use of "acquietatus" on the score that that
word must be limited to acquittal by verdict. In (3), as already
stated, there would be no verdict (unless presumably the Sheriff
and Coroners found that on nonsuit of the appellor, there was
nevertheless an indictment against the appellee, in which case
he might be acquitted by verdict on that)6. Earlier in the

1 Ante 42. z Semble after declaration.

3 Hil. 5 Ed. Ill, Fitz. Abr. Consp. 22. Cf. Y. B. 18 and 19 Ed. HI (Rolls
Series), 566.

4 Semble, Pasch. 17 Ed. II, f. 544. 19 Ed. Ill (Rolls Series), 346. The
latter case does not state whether the nonsuit were before appearance and
declaration. Hil. 33 Hen. VI, f. i , and Mich. 34 Hen. VI, f. 9, per DANVERS J.,
" It has certainly been adjudged that he [the accessory — a fortiori the
principal] shall have conspiracy where the appellant was nonsuited before
declaration." Contra Fitz. Abr. Consp. 4 "he shall not have conspiracy";
but the context shews that this is a slip.

6 F.N.B. ii4F, G.

6 The first of the two writs in Fitzherbert is for procurement of a false
indictment where one would have expected appeal. The hypothesis inserted
in brackets in the text might explain this, but the omission of any reference
in the writ to the false appeal would still be remarkable. Other conceivable
explanations are the textual emendation of "indictari" into "appellari"

SCOPE OF THE WRIT OF CONSPIRACY 49

history of the writ, " acquietatus " had a looser meaning, and
passed or would have passed as correct in at least two cases
where there was no verdict1. But in 10 Ed. Ill, as we have
seen, the writ was abated on the ground that "acquietatus
fuisset " implied acquittal by verdict, and the words were there-
fore out of place on nonsuit of the appellor2. And this seems
to have led to the framing of two alternative writs which appear
in the printed Register3, and correspond in general with those
given by Fitzherbert. They are No. 7 and No. 9. The former
runs:

[Rex vicecomiti etc. Si A fecerit te etc. tune pone etc. B and C
quod suit coram nobis etc.] " ostensuri quare conspiratione etc. ipsum
S per R de morte I patris sui appellari, & ipsum, etc. in prisona
nostra, etc. quousque idem A etc. per considerationem curiae nostrae
inde quietus recessit detineri, etc. Et ipsum in prisona Marescalciae
nostrae coram nobis quousque etc."

This covers the same ground as Fitzherbert's second writ.
No. 9 substantially resembles No. 7 except that the words
"secundem legem & consuetudionem regni nostri inde acquie-
tatus fuisset " are substituted for "per considerationem... re-
cessit," and thus make the writ roughly equivalent to the first
given by Fitzherbert.

(4) If the appellee were indicted and then appealed, and
the appellor were nonsuited; and it was immaterial
whether the nonsuit were after or before declaration.
For, in the former case, the appellee would have been
arraigned and acquitted at the suit of the King4, in

(which is arbitrary), or application of the writ to any false procurer of an
indictment, and limitation of Fitzherbert's second writ to any false appellor
(which does great violence to the preceding paragraph in Fitzherbert's text).
Stanf. P.C. 174 says that "quietus recessit" is used when a writ of con-
spiracy is brought on acquittal in appeal at the suit of the King after non-
suit of the party.

1 Y.B. 19 Ed. Ill (Rolls Series), 346, ante 48. Mich. 17 Ed. II, f. 509,
where HERVY J. admitted the argument that where there is a nonsuit of the
appellor and no preceding indictment, the writ of conspiracy should say of
the appellee " acquietatus est," not " deliberatus est." No decision is re-
ported.

2 Ante 43-44- 3 ff- 134-5-

4 Per DANVERS and PRISOT JJ. Hil. 33 Hen. VI, f. i. Mich. 34 Hen. VI,
f.9.

50 SCOPE OF THE WRIT OF CONSPIRACY

the latter on the preceding indictment1, and once
again any doubts as to his innocence would be dis-
pelled, and there would be evidence of abuse of the
appeal.

On the other hand, if the accused were first indicted, and
then appealed, and acquitted on the appeal, he could recover
nothing by the writ of conspiracy2. This seems inconsistent.
Why should the writ be inapplicable when the appellee is
actually acquitted3, and applicable when the appellor is merely
nonsuited? The problem puzzled Stanford. His reason for
the difference — and he alleges that Fitzherbert gave it4 — is that
the appeal could not be deemed to be founded on malice in the
former case, because there was an indictment. But he points
out that this would apply just as well in the latter case. A
possible explanation is the following. It has been pointed out
that if there were a nonsuit, the appellee was arraigned afresh
at the King's suit; and that the trial was by the country, not
by battle. If he were acquitted as against the King, it would
therefore be an acquittal by verdict which would at the same
time dispose of the suspicion raised by the indictment, for any
proceedings on the latter would be barred by plea of autrefois
acquit. Hence, there is a complete vindication of the appellee's
innocence. But where he has been acquitted of the appeal, on
the arraignment at the suit of the appellor, his acquittal may
have been by battle, and not by the country, and while it
disposes of the presumption of his guilt arising from the appeal,

1 F.N.B. 114 E. Cf. dictum of DANVERS J. that it had been adjudged that
the appellee should have conspiracy where appellant was nonsuited before
declaration. Ante 46: also Hil. 21 Hen. VI, f. 28 where NEWTON C.J.C.P.
asked MARKHAM (counsel) whether, if the appellor were nonsuited after a
year and a day, an arraignment previously made on an indictment would
be good, and the action of conspiracy lie, adding his own opinion that it
would. "Ad quod non fuit responsum."

2 Per totam curiam Hil. 33 Hen. VI, f. i ; nor could he recover under
13 Ed. I c. 12, ante 9.

8 Stanf . P.C. 172 states that " Appel [an obvious mistake for " conspiracy "]
gist a cest jour, auxibien in acquital sur appel, come il faut in acquitall sur
enditement." But this statement must be limited by the context to acquittal
on nonsuit in an appeal where there is no indictment.

4 In the editions which I have consulted F.N.B. ii4E merely states that
the reason is "because he is acquit upon the appeal, and not upon the
indictment, etc."

SCOPE OF THE WRIT OF CONSPIRACY 51

it leaves untouched the presumption raised by the indictment,
for which of course battle was not the appropriate mode of
trial, and to which autrefois acquit could not be pleaded. Thus
a stain is still upon his reputation which makes the appeal a
just one. But the authority which supports this explanation is
not free from doubt. Stanford himself states the rule that
autrefois acquit cannot be pleaded by an appellee acquitted in
battle to an indictment1. But he queries it on the ground that
Bracton held the contrary2. Fitzherbert's Abridgement gives a
note in Hil. 12 Ed. II (Corone 375) which is in favour of the
rule, but it is not clear whether it reproduces anything more
than an obiter dictum.

SCOPE OF THE WRIT

2. Its application in general

§ 14. The writ, we have seen, was created by the Statute of
Conspirators of the probable date, 21 Ed. I, which made it
applicable to "Conspirators, Inventors and Maintainers of false
Quarrels [and Partakers thereof,] and Brokers of Debates"3;
and the law did not define "Conspirators" till 33 Ed. I. The
cases in which the word is used between these dates are scanty.
That of John, the parson of Sulthorn, has already been men-
tioned4. One of his defences to a writ of conspiracy brought
against him apparently for having given legal advice to some
of his parishioners was that it was lawful for anybody to assist
or advise his friends in litigation in the King's Court. The
complainants got leave to withdraw, and John went quit, but
on which of his defences does not appear5.

It is conceivable that he might have been, if not a "con-
spirator," at least an "inventor and maintainer" of a false
"quarrel," or a "broker of debates." Seven years later, the
writ was held to cover the malicious procurement of one,
de Welleby, to be cited before the Archdeacon to the Bishop of

1 P.C. 106.

2 n. 416-7. Hale, Hist. PL Cor. (ed. 1736) 11. 249 repeats Stanford's
statement and doubt.

3 Ante 23. 4 Ante 3.
6 Abb.Plac. 291.

52 SCOPE OF THE WRIT OF CONSPIRACY

Lincoln for trespass1. On the other hand, John de Den, in
the same year sued the writ unsuccessfully against jurors who
had procured a certificate which enabled them to give a false
verdict against him, the argument being that he could have
recovered by attaint or in some other way2.
§ 15. The definition of 33 Ed. I includes:

(1) Those who combine falsely and maliciously to indict
or cause others to be indicted.

(2) Those who combine falsely to move or maintain pleas.

(3) Those who cause infants to appeal men of felony.

(4) Those who retain men in the country with liveries or
fees to maintain their malicious enterprises.

(5) Stewards and bailiffs of lords who by virtue of their
office undertake maintenance of pleas concerning
other persons3.

Such authority as we have on the writ of conspiracy after
33 Ed. I is in fact confined to the first and second of these
heads4, and by far the greater bulk of it illustrates the first.
If advantage were ever taken of the third, fourth and fifth heads
by applying the writ to them, it soon became obsolete to that
extent, not because the evil (at any rate in the last two cases)
disappeared but, because the periodic disorder of the kingdom
made stronger measures necessary. Of livery, maintenance, and
champerty more will be said hereafter ; it need only be premised
here that they were the changes upon which lawlessness was
rung throughout our history till strong central government was
established.

§ 1 6. Criminal accusations. An analysis of the cases re-
lating to the writ in the Year Books5, and the Abridgements of

1 Abb. Plac. 295 (29 Ed. I). Coke, 2 Inst. 561 sqq. states (as Abb. Plac.
does not) that this was "an action by original writ of conspiracy," and gives
the terms of the writ.

2 Abb. Plac. ibid, ante 2. There is a plea of conspiracy in Abb. Plac. 237
(25 Ed. I); but the ambiguity of "placitum" makes it uncertain whether
the case involved a writ of conspiracy, or were criminal. 3 Ante i.

4 Cf. Ruston's argument in Goldington v. Bassingburn (3 Ed. II, S. S. 193)
that the writ is given by Statute in two cases — champertous pleas, and
imprisonment on a false indictment. BEREFORD CJ. did not assent to this.

6 Including those edited by the Selden Society or in the Rolls Series, and
also the reprint of Bellewe in 1869. The indexes of i7th century editions
of Y.BB. are bad. Ashe's Promptuary is more reliable.

SCOPE OF THE WRIT OF CONSPIRACY 53

Brooke and Fitzherbert1, gives a rough guide to the circum-
stances in which its aid was most often sought. Of 52 such
cases, no less than 35 are raised upon the alleged procurement
or making of false criminal accusations. Seven only of these
accusations were by appeal, the other 28 by indictment. There
were eight cases in which the object of the conspiracy was abuse
of procedure, but not of criminal procedure; one case which
is not abuse of procedure at all ; and eight in which the reports
do not state the object. This proportion of the cases on malicious
criminal to malicious civil proceedings, is pretty well repro-
duced in the writs of the printed Register2, where eight out of
the nine writs are against those who have procured false appeals3
or indictments4.

§ 17. Where the procurement is of a false indictment, it is
usually indictment of felony, and this in later times is reflected
in commentaries on the definition of conspiracy, which "in a
more special meaning is understood to be a confederacy between
two or more falsely to indict another, or to procure him to be
indicted of felony"5 or "is a consultation and agreement
between two or more to appeal or indict an innocent falsely
and maliciously of felony"6; and this is supported by a weighty
opinion that the writ in cases other than these is founded on
deceit or trespass rather than conspiracy7. But even in the
early history of the writ, there are signs that it could be sued
against defendants who procured a false indictment of mere
trespass, and not of felony. One such case at least is reported
even before the definition of 33 Ed. I8, and in Pasch. 3 Ed. Ill,
f. iQ9, ScROPE10 met the argument that the writ is given only

1 Who obviously had access to MSS. not always identical with those upon
which the Y.BB. were based. 2 f. 134. 3 Nos. 2, 3, 7, 9.

4 Nos. i, 4, 6, 8. 5 Termes de la Ley (ed. 1641).

6 3 Inst. 143. Cf. 2. Inst. 561 sqq. "the writ of conspiracy was maintain-
able both in cases criminal concerning life, and civil"; and Bl. in. 125. In
a Bodleian MS. of Reg. Brev. (Tanner 450, early i4th century) there is a
note that the writ can be made if a man be indicted of larceny or of a thing
for which he ought to be " reynt " at least, if convicted. " Reynt " is apparently
past participle of "raembre" and means "ransomed" (Godefroy).

7 F.N.B. n6Asqq. 8 Ante 51-52.

9 3 Lib. Ass. pi. 13 (bill of conspiracy maintained in K.B. for one indicted
of common trespass and acquitted) is probably the same case.
10 Probably CJ.K.B.

54 SCOPE OF THE WRIT OF CONSPIRACY

where the plaintiff has been indicted of felony "whereof, if he
were attainted, he would lose life and limb," by the reply that
the plaintiff was just as much endangered by imprisonment in the
case of indictment of trespass as of felony, and that the Court was
not advised to abate the writ merely because the peril was not as
great in the one case as in the other1. In Mich. 7 Hen. IV, f . 3 1 ,
W. Gervais recovered £40 damages in an action of conspiracy,
and when he prayed judgment, it was objected that the writ
does not lie on indictment of trespass, "quod fuit negatum."

Against this authority there is the view of PRISOT C.J.C.P.
in Trin. 31 Hen. VI, f. 15, that no action of conspiracy
lies for trespass, but FORTESCUE CJ.K.B. without dissenting
from this regarded the alleged facts upon which the false charge
had been made as constituting a felony2 ; the dictum was there-
fore unnecessary to the decision3. In Registrum Brevium4 writ
No. 6 on conspiracy is for false procurement of the indictment
of A of certain trespasses in the park of W. de N., and this is
paralleled in several MS. Registra5. This writ has the common
form ending "contra formam ordinationis " implied in "etc.,"
but Fitzherbert considers that this and other writs of conspiracy
for false indictment of trespass and divers other writs of con-
spiracy are grounded upon deceit and trespass, and are properly
actions of trespass upon the case6.

1 He winds up with the dictum (which anticipates by nearly 400 years the
famous saying of LORD HOLT CJ. in Ashby v. White), "for the law sees that
in every case where a man is damaged, he has a remedy without regard to
the quantity of damage."

2 Plaintiff had been indicted for attacking B with force and arms and beating
and wounding him, and at the same time feloniously stealing 4$. from his purse.

3 So was that of FAIRFAX J. in Trin. n Hen. VII, f. 25 (ante 30). LORD
HOLT C J. in Savile v. Roberts (10 Will. Ill, B.R.) i Lord Raym. 374, seemed
to think that the Court had been of opinion in Henley v. Burstall (21 Car. II,
B.R.) Raym. 180; i Ventr. 23, 25; 2 Keble 494, that no action would lie
for falsely and maliciously procuring a man to be indicted of trespass ; and
he disapproved of that opinion. But, as reported, the decision is only that
an action on the case will lie for maliciously indicting the plaintiff of a
scandalous trespass. All reports of the case are condensed, but they are
unanimous as to the result. 4 f. 134.

8 E.g. Camb. Univ. Lib. li. iv. 42; Ff. i. 32; Gg. v. 19. Bodleian,
Rawlinson, C. 454, 459, 667, 897. Inner Temple, 504 (4); 511, 4.

6 F.N.B. 116 C, F, A. It is somewhat misleading to say that false indict-
ments for misdemeanour "were beyond the purview of the writ of con-
spiracy." Bryan, p. 27.

SCOPE OF THE WRIT OF CONSPIRACY 55

§ 1 8. Civil proceedings. Illustrations of the writs men-
tioned at the end of (§17) maybe given. Quite a number of them
are against land-grabbers, who would snatch with the law's
hands that form of property which then epitomized wealth and
power. Thus in Goldington v. Bassingburn a false judgment
had been obtained on an alleged recognizance in the form of
a statute merchant and, in default thereof, adjudication of lands
had been secured. An attempt (whether successful or not is
unmentioned) was made to apply the writ of conspiracy to
defendants who had got F to personate the plaintiff in an assize
of novel disseisin1. A more ingenious piece of fraud occurs in
Pasch. 42 Ed. Ill, f. 14*. The Abbot of 71, T, and J got T to
bring an assize of novel disseisin in Ws name, and as his
attorney against the Abbot. Of this W knew nothing. At the
trial, the Abbot pleaded that W was his villein. T pleaded
that W was free. The assize found that he was villein. On
this, W sued the Abbot, J", and J for conspiracy. The Abbot
died apparently before the case was decided, and we do not
know the result of a fresh writ against his successor3. In the
same year W. J. and R are defendants to the writ because they
have procured W. J., to oust the plaintiff and to enfeofT B
against whom R sued scire facias, and had execution so that
the plaintiff lost his warranty4. 26 Lib. Ass. pi. 72 is another
case of conspiracy to get a man to bring an assize of novel
disseisin against the tenants, who won their case because the
claimant was the nief of J. M. The tenants then brought a bill5
of conspiracy against those who had procured the assize, and
two of them who appeared were cast in £20 damages. Again,
in 38 Ed. Ill, the defendant conspired and procured A to bring
a bill against W before the Constable because W did not wish
to enfeoff him of his land6. Another device for making the law
defeat its own ends was for a demandant in a writ of entry by

Ante 32. 2 Cf. F.N.B. 116 E.

Bryan represents an emphatic opinion of one of the judges (Thorpe)

a decision (p. 25 n.).

42 Ed. Ill, f. i. Cf. report in Br. Abr. Consp. 5.

Post 61, n. 2.

Hil. 38 Ed. Ill, f. 3. Cf. Fitz. Abr. Consp. 8. There is something
lacking in the facts, which makes one of the grounds of the decision not
entirely intelligible.

56 SCOPE OF THE WRIT OF CONSPIRACY

agreement with his adversary to get the writ adjourned for
a certain time, and then before that time expired to return to
Court without notifying the other party and so to recover by
default. His adversary sued conspiracy but failed, because the
transaction being under the forms of law could not be called
a false alliance, confederacy, and collusion1. In another case,
a Vicar, a Bailiff, and another wishing to defraud R of his
messuage procured J (who had enfeoffed R) to pretend in
Chancery that he was an idiot, and a writ was issued to the
Escheator to inquire whether J had been an idiot from birth
or not. R was allowed a writ of conspiracy2. So was a peti-
tioner a few years later who had been deprived of his manor
by a writ of elegit collusively procured3. In Ed. Ill's reign,
we have an extraordinary tale of an ejectment obtained by false
conspiracy4. A cruder form of plotting is an allegation that
A has a better right to lands than 5, the tenant, and procure-
ment of A to sue B thereon, so that B is compelled to sell other
lands to meet the expenses of protecting his title5. Whether
conspiracy were maintainable against those who combined to
forge false deeds which were put in evidence, and so caused
loss of a tenant's lands is not clear ; Fitzherbert thought that it
was6, but this is not borne out by the Year Books, nor his own
Abridgement of those cases7, though it is true that the writ
failed in each of them on technical grounds which did not touch
the real issue. A case which shews the abuse of inquisitorial
rather than judicial procedure before the justices was, where

1 Reeves, H. E. L. n. 328.

2 Rot. Parl. i. 320 b (1314-15). 3 Ibid. 376 (1320).

4 Rot. Parl. H. 418 a (Annis incertis). Petitioner says that Sir John Pecche
shewed the petitioner's wife naked to his retainers at midnight to prove that
she was not enceinte. Fear prevents him from pursuing his right. Reply:
ad communem legem.

5 F.N.B. n6B. Writ No. 5 in Reg. Brev. f. 134 (Qu. whether "A"
should not be "M" in lines 5 and 8 from top of f. 134 6?). The case is as
old as the I4th century, for the writ appears in MS. Reg. Brev., Cambridge
University Library, Ff. i. 32; Ff. v. 5: Bodleian, Rawlinson, C. 454, 459,
667, 897; Bodley, 941. So too C. U. Lib. Gg. v. 19 (isth century), Inner
Temple, 504 (4) and 511,4. 6 F.N.B. 116 D.

7 Pasch. 39 Ed. Ill, f. 13. Fitz. Abr. Consp. 9 (forgery by defendants at nisi
prius of false release by tenant in tail), and Trin. 46 Ed. Ill, f. 20. Fitz.
Abr. Consp. 17 (forgery of false deed alleging that tenant's lands were en-
tailed to others).

SCOPE OF THE WRIT OF CONSPIRACY 57

the conspirators falsely presented before the justices of oyer
and terminer and all manner of rights touching the King,
wardship, marriage, escheat, and relief, that the tenant of a
manor had given an advowson appendant to the manor to the
chaplain of a chauntry; the King thereupon by his escheator
seized the manor until the tenant recovered it from the Ex-
chequer, and sued the writ of conspiracy1.

§ 19. There are a few instances of the issue of the writ of
conspiracy for miscellaneous forms of malicious legal pro-
ceedings not necessarily having as their object the acquisition
of the injured person's landed property; as where some mal-
feasors sued a writ of trespass against T. de C., and procured
the Sheriff falsely to return an inquest (without summons) of
people who had neither lands nor tenements, and T. de C.'s
attorney consented to this2; so too conspiracy to indict another
because he had not arrested a felon fleeing from justice3. And
we have at least one case in which there was no abuse of liti-
gation at all; in Pasch. 40 Ed. Ill, f. 19, de Bernais and
de Herlestone brought a writ of conspiracy against a man, his
wife, and a third person, because they conspired to make a false
letter under the seal of two of them to the Bishop to receive
their clerk for institution and Induction to an advowson, after
these two had already granted it to the plaintiffs ; the clerk was
appointed accordingly, and the plaintiffs lost their presentation
for that time, but sued quare impedit and got their nominee
put in. The defendants' acts are styled "faux ententes, disceits
ou conspiracies," and it is said that an action of conspiracy lay
for them, though it is not clear whether this is the decision, or
merely the reporter's or compiler's opinion4. The case well

1 Mich. 47 Ed. Ill, f. 15. Fitz. Abr. Consp. 18. The result does not
appear in the reports, but F.N.B. 116 H says of this writ as of many others,
"I shall have a writ of conspiracy." This probably means that the writ
was good in the eyes of the Court, for the statement would scarcely be worth
while making if it merely referred to the matter of course issue of the writ
by the Chancery. 2 Rot. Parl. I. 382 a (1320).

3 F.N.B. n6A. The writ raising this issue is No. 4 in the Register. It
is one of the earliest writs of conspiracy and constantly appears in MS.
Registers, e.g. C.U. Lib. li.vi. 28, Ii.vi.42; Ff. I. 32; Hh. n. n ; Gg. v. 19;
Ff. v. 5; in the Bodleian, Bodley, 940; Rawlinson, C. 454, 459, 464, 467,
897; in the Inner Temple, 504 (4); 511, 4.

4 Bryan takes it to be a decision (p. 25 n.).

58 SCOPE OF THE WRIT OF CONSPIRACY

illustrates the lack of a complete set of pigeon-holes for early
writs. So do several writs in the Register on the borderland
of conspiracy, trespass, and deceit which might as easily be
classified under one of these heads as another1. To the examples
already cited2 may be added one which sets out that the de-
fendants by force and arms took and imprisoned the plaintiff
and ill-treated him, and took 300 of his sheep till he released
himself and them by making a fine with his persecutors. This,
though there is no mention of conspiracy, appears under that
title in a MS. (but not the printed) Register3; writs similar to it
are however included in the printed Register under trespass4,
In later law, these writs may know their family name well
enough, but their early pedigree gives us their clan rather than
their family.

§ 20. A question that was not raised in the Courts till
James I's reign was whether the writ of conspiracy lay for one
accused and acquitted of high treason. The two cases which
we have then are not on the old writ but are actions on the
case in the nature of conspiracy, into which all the vitality of
the old writ was then passing. But in one of them, Lovet v.
Fawkner5, the question was indirectly important, because
COKE C.J.K.B. thought that where conspiracy would not lie
against two, case would not lie against one6. The plaintiff sued
the defendant for falsely accusing him of high treason. Coke
said that he never yet knew of any writ of conspiracy having
been brought for a prosecution of high treason, that there was
no case in law for this, and no book in law that warranted it.
" It had been a hard and a strange thing if the Powder Traitors,
for the prosecutions against them, might have had writs of

1 Cf. Mich. 13 Ed. II, f. 401, where several were attached to reply to a
plea of conspiracy and trespass for falsely and maliciously procuring W. B.
to be indicted of thieving five pigs; also Rastall's Entries (ed. 1596), 124
where similar facts are set out in a writ of certiorari.

2 Ante 32 sqq. 3 C. U. Lib. Hh. II. n.

4 "De imprisonamento quousque finem fecerit" (f. 92). " De ovibus in
uno loco capto" etc. (f. 96). "De imprisonamento," and "De imprisona-
mento quousque concesserit reversionem" (f. 99). "De imprisonamento
quousque fecit acquietantiam " (f. 102). " De homine in prisona" etc.
(f. 1 06). "De imprisonato quousque remisisset duas pensiones" (f. 109).

6 (Mich, ii Jac. I, B.R.), 2 Bulst. 270. This is the best report.

6 Report in i Rolle 169 sub nom. Lovett v. Faukner.

ESSENTIALS OF LIABILITY TO THE WRIT 59

conspiracy in case of High Treason"1. No judgment was ever
given2. But in Smith v. Cranshaw3, a Court of four judges held
after much debate that action on the case would lie. At a
previous hearing, CREW C.J. pointed out that treason was so
heinous that every man ought to reveal it, and to allow this
action would be to encourage misprision of treason4, but the
Court replied that no man is bound to reveal what is not true
or to accuse any of high treason maliciously, and that it was
immaterial whether the accusation were of treason or felony
for neither 28 Ed. I5 nor 33 Ed. I6 drew such a distinction7.

ESSENTIALS OF LIABILITY TO THE WRIT

(i) Combination

§ 21. We begin with the question whether the writ lay
against one defendant. That combined wrong-doing needed
much more attention from the law than individual offences is
axiomatic. If in our own settled state of society "numbers may
annoy and coerce where one may not"8, much more was this
possible under monarchs whose government could scarcely cope
with concerted oppression, and whose law in the hands of the
wicked became more deadly to the innocent than to the guilty.

The records shew that down to the end of the Tudors the
great majority of the writs were against two or more con-
spirators. But was combination essential to the wrong? The
answer to this must be considered historically, and it is as well

1 The comparison is not happy, for all the accused were convicted there.
2 St. Tr. 185.

So the report in Cro. Jac. 357.

(Mich. 20 Jac. I, B.R.), W. Jones, 93 (best report).

Rep. in 2 Rolle 258.

c. 10 (Art. sup. Cart.).

Definition of Conspirators, ante i.

All the judges delivered their opinions seriatim to the same effect. Rep.
in Cro. Car. 6. Another rep. is in 2 Bulst. 271. It will be recollected that
there was no clear distinction between treason and felony till the St. of
Treasons, 25 Ed. Ill st. 5, c. 2. P. and M. n. 500. Holds, in. 253.
Pemberton's argument in Skinner v. Gunton, T. Raym. 176, in so far as it
cites Trin. n Hen. VII, f. 25, as authority on treason is unsound, for the
word is not mentioned there. It may be added that a conspiracy to accuse
of high treason seems to have been punishable in the Star Chamber (Case
cited without further reference in Ashley's Case, Moore at p. 817).
8 Per Lord Lindley in Quinn v. Leathern [1901] A.C. at p. 538.

60 ESSENTIALS OF LIABILITY TO THE WRIT

to clear the ground by premising that it is the writ of conspiracy
with which we are here concerned, and not with criminal
proceedings, where it was well settled that combination was
essential to the offence; nor with the action upon the case in
the nature of conspiracy, where combination was not necessary.
Neglect of this distinction has occasionally obscured the solution
of the question1.

§ 22. Taking the Statute of Conspirators 21 Ed. I as a
starting point, no hint is there discoverable that the writ which
it creates ran only against two or more defendants. In fact, the
writ itself mentions one only2, and presumably it was good
against one till 33 Ed. I. Thus the Parson of Sulthorn did not
object to the writ merely because it was brought against him
only3. But the writ whose terms are given in the Statute soon
ceased to be demanded, or at least was issued with material
alterations4. It is easy to guess why it was unsatisfactory as it
stood; it needed more padding to apprise defendants of the
details of the conspiracy alleged 5. The definition of Conspirators
in 33 Ed. I makes combination essential for conspiracy which
consists of (i) false and malicious indictment, or (2) false
moving or maintenance of pleas ; but not in conspiracy which
took the form of (3) causing infants to appeal men of felony,
or (4) livery, or (5) maintenance by stewards and bailiffs. But,
as has been pointed out6, the writs of conspiracy do not seem
to have been employed for these last three cases, and the de-
duction is a fair one that after 33 Ed. I such writs should run
against two defendants at least. On the whole, the authorities
support this view7.

1 E.g. Stanf. P.C. 173 where a ref. to 28 Lib. Ass. 12 (a criminal case)
is used to support an opinion as to the writ; so too F.N.B. 1140 note,
i Hawk. P.C. 72, sect. 8 cites 38 Ed. Ill, f. 3 (a case on the writ), to support
a proposition on criminal liability.

2 Ante 23.

3 Ante 3.

4 I have traced it to but one MS. Register (C. U. Lib. Add. 3022 D). All
nine writs in the printed Register f. 134 are against more than one defendant.

6 "This writ is general, not making mention of the manner of the con-
spiracy." Stanf. P.C. 175 D.

6 Ante 52.

7 For text-books, see Stanf. P.C. 173 ; F.N.B. 114 D; Bl. Comm. HI. 125 ;
Coke, 2 Inst. 562.

ESSENTIALS OF LIABILITY TO THE WRIT 61

Thus, in Henry IV's reign1, R. Avery brought a bill2 of
conspiracy against John Eldestony and others for conspiring to
indict him in the Marshalsea. Eldestony 's defence was that
the Sheriff of Middlesex had sent a precept to him as bailiff
of Savoy to return 12 jurors, that he had done so, and that
on the order of the Court he had sworn and informed the
jurors of Avery 's alleged crime. The others said that they
were sworn of the same inquest, and, like Eldestony, pleaded
that what they did was upon their oath and by coercion of law.
GASCOIGNE CJ.K.B. held that the jurors were excused, that
Eldestony 's plea was doubtful, but that as only one other was
named in the writ and he had been found not guilty, Avery
could receive nothing against Eldestony, for "one alone cannot
conspire." In another case of Henry IV's reign3, a writ of
conspiracy was brought against two. The jury found one guilty
and acquitted the other. THIRNING C J.C.P. said,

your verdict is contrary to itself, for if the one be not guilty, both
are not guilty, because the writ alleges that they conspired together,
each with the other ; but, because you are not learned in the law, be
better advised of your verdict.

And then they were put in ward, and returned and said that
both were guilty. In Mich. 20 Hen. VI, f. 5, three out of four
defendants pleaded guilty; the fourth alleged in justification
that he with the others were a presenting jury. NEWTON C. J.C.P.
thought that this plea was bad, because it did not state
that the three other defendants were the "others" of the pre-
senting jury, "for one by himself cannot conspire." Marsh v.
Vaughan & Veal* is more emphatically to the same effect. One
conspirator was found guilty, the other not. It was moved that

1 Mich. 9. Hen. IV, f. 8 b, and Mich. 8. Hen. IV, f. 6 (latter part of
report).

2 Equivalent to writ; in GASCOIGNE'S judgment it is referred to as such.
" Bill " has historically a variety of legal meanings, not by any means confined
to Chancery or criminal proceedings. Tomlins' Law Dictionary (ed. 4,
1835); Termes de la Ley; Stroud's Judicial Dictionary. Rast. Ent. f. 1246
has a precedent of a bill of conspiracy; so too Booke of Entries (ed. 1614),
f. 109 (against several in Mich. 3 Jac. I for conspiring to indict Nicholas
Stockdale for killing another by witchcraft).

3 Mich, ii Hen. IV, f. 2.

4 Cro. Eliz. 701 (Mich. 41 and 42 Eliz. B.R.).

62 ESSENTIALS OF LIABILITY TO THE WRIT

the bill1 should abate, for it ought to be against two, and one
cannot conspire alone, "and of that opinion was the whole
Court." Judgment was given for the defendant. A similar
unanimous expression of opinion occurs obiter in Subley v. Mott
on facts practically similar2; so too Coke as Chief Justice, "no
writ of conspiracy lieth unless there be two conspirators"3;
and the leading commentators4.

§ 23. On the other hand, in Mich. 24 Ed. Ill, f. 34, an
Abbot and his monk sued conspiracy against J. M. and others,
and counted that J. M. procured the monk to be appealed of
robbery. J. M. was found guilty at nisi prius, but sued for
reversal of the ruling, and assigned as error that judgment
was returned against him before attaint of any other defendant,
and he alone could not conspire. SHARESHULL C.J.K.B.5 held
that the judgment was good enough since the record stated
that J. M. conspired with others by conspiracy previously had,
and procured the false appeal, and thus supposed the procure-
ment to be solely in J. M. This does not seem to be any answer
to the error assigned, and is queried by Stanford, who cites to
the contrary Trin. 27 Ed. Ill, f. 80 6, where it is said that one
shall not reply until his companion comes, owing to the incon-
venience of acquitting the latter when the former is found not
guilty7; and according to another report of 24 Ed. Ill, f. 34,
both were found guilty, but one did not appear, and judgment
was held to bind him who appeared and not the other8. In

Ante 61, n. 2.

(1747), i Wils. 210; action was case, not conspiracy.

Obiter in Lovet v. Fawkner 2 Bulst. 270 (n — other reports 12 — Jac. I,
B.R.); so too in Knight v. Jermin (31 Eliz. B.R.) Cro. Eliz. 134; and in
Smith v. Cranshaw (i Car. I) W. Jones at p. 194.

Stanf. P.C. 173; F.N.B. 1140, USE, n6K, L.

Sch. and Sh. in the report. * Not in printed Y.B.

Contra Mich. 41 Ed. Ill, pi. 40, where Belknap conceded in argument
that if default be made by one defendant in conspiracy — a personal action —
the other shall reply. It is not stated what the purpose of the conspirators
was. If it were to indict another of trespass, the case would agree with the
general rule that the writ could lie against one for false indictment of
trespass (post 63). The three other defendants pleaded protection. Fitz.
Abr. Protection, 101 states that there were two other defendants and that the
plea of protection on behalf of one did not avail the other, though this was
an action upon the case.

8 Br. Abr. Consp. 21. The Abridgements of Brooke and Fitzherbert are
occasionally more like collateral reports than abstracts. Coke's qualification

ESSENTIALS OF LIABILITY TO THE WRIT 63

Pasch. 14 Hen. VI, f. 25, the plaintiff got his verdict against
one defendant, but the other pleaded successfully in bar, and
it was held that he could get his judgment1 against the former,
because the latter was not acquitted by verdict, and possibly
they had conspired together2. But this case is consistent with
the general rule that one conspirator cannot be convicted and
the other acquitted; all that it decides is that there was no
acquittal of even one of the conspirators in the circumstances3.

§ 24. It is said that the writ would lie against one defendant
if the conspiracy were to indict of trespass or other falsity, but
then it is only an action upon the case upon the falsity and
deceit done, because one cannot conspire with himself; and
there is certainly an early case in which one of two conspirators
against whom the writ was brought successfully pleaded that
he was "communis advocatus" and went quit, while the other
whose defence was not accepted was found guilty4. This was
before the statutory definition of 33 Ed. I had made combination
in general essential, but there are later dicta in favour of the rule
in Trin. n Hen. VII, f. 25 5; this decided that one defendant
to a statutory writ of conspiracy under 8 Hen. VI c. 10 must
reply without the other.

§ 25. In Mich. 22 Rich. II6, it was debated whether one
defendant to a writ of conspiracy could be attainted if the other
two died pending the writ. THIRNING C.J.C.P. thought that
the writ should be abated, because the survivor could not be
convicted since one cannot conspire. Counsel said that he had
seen a writ before Thirning and Charleton7, where one de-
fendant had been convicted and the plaintiff had released his
suit against the other, and had judgment against him.
RICKHILL J. said,

of his praise of Brooke in 10 Rep. Introd. — "sed satius petere fontes quam
sectare rivulos" — would be more valuable if we knew certainly what the
"fontes" were.

1 Y.B. rep. does not give the judgment. Fitz. Abr. Consp. i does.

2 So F.N.B. 115 E. Cf. Stanf. P.C. 173-4.

3 In Smith v. Cranshaw, Rolle Abr. "Action sur Case (en nature dun
conspiracie)," the C.J. is made to say " Conspiracy can lie against one only,"
but the case is ill abridged, and perhaps his dictum refers to action upon the
case. See rep. in W. Jones, 93.

4 Abb. Plac. 295 (29 Ed. I) and Coke, 2 Inst. 562. 5 Per FAIRFAX J.
6 Bellewe. 7 C.J.C.P. 1388. Fitz. Abr. Briefe, 888.

64 ESSENTIALS OF LIABILITY TO THE WRIT

There is a difference between the two cases; for in your case if
the one be found guilty^in a manner^both are convicted, though he
can plead after, and a writ of conspiracy is not maintainable against
one only.

Gascoigne argued that the death of one extinguished the liability
of the other of two conspirators. MARKHAM J. thought that as
the writ was good at its commencement, the death of the other
defendants did not abate it. No decision is reported. But a
century later it was held by the whole Court that the writ
would not abate in such circumstances1.

§ 26. Text-books tell us that the writ would not lie against
husband and wife, though it would against husband and wife
and a third party; for husband and wife are one person2. The
authority cited for the first proposition is not, as reported,
satisfactory. In Hil. 38 Ed. Ill, f. 3, the writ was brought
against husband, wife and a third party, and it was argued that
husband and wife could not conspire. The writ was abated
because it did not shew by whom it was sued, and because
there was mere advice, and not procurement3. No opinion was
expressed on the main point. In 19 Ed. Ill4, where a writ was
brought against husband and wife and others, and exception
was taken to it on the ground that a woman, and particularly
a feme covert could not be understood in law to conspire, the
writ was adjudged to be good5.

§ 27. The writ of conspiracy, if this analysis be correct, only
lay against two at least. But was that all that the law required ?
Was combination not only essential to conspiracy but also the
gist of it? In criminal proceedings it was; but in the writ it
seems fairly clear that it was not. The writ included in Statutum
de Conspiratoribus, 21 Ed. I, certainly does not refer to execu-
tion of the purpose of the combination, but then it refers to
no other detail either — not even to combination ; but every writ
in the printed Register and its MS. predecessors (with the

1 Pasch. 18 Ed. IV, f. i. No reasons are reported.

2 F.N.B. u6K. Stanf. P.C. 174.

3 Something seems to have been omitted in the facts.

4 Ed. Rolls Series, 346.

6 In Pasch. 40 Ed. Ill, there is a mere argument that the writ will not
lie against husband and wife, but no decision is reported, and the writ was
against husband and wife and another.

ESSENTIALS OF LIABILITY TO THE WRIT 65

exception of those which reproduce merely the writ given in
the Statute) states with particularity the acts done in pursuance
of the combination. The definition in the Ordinance of Con-
spirators, 33 Ed. I, might easily raise the inference that com-
bination sufficed. But the inference cannot stand, except as to
conspiracy in its criminal aspect, against the evidence of the
Register, the practice as stated by Fitzherbert1 and Coke2,
implied in Stanford3, the Books of Entries4, and Blackstone5.
Lord Holt, both at the bar6, and on the bench7, was emphatic
that something must be done in pursnanr.ft.of the combination,
An argument of Keble to the same effect8 about a century
earlier puts the rule on the ground that no damage is suffered,
and that the complainant is not in jeopardy of his life till he is
indicted9. Thus, though no actual decision can be vouched for
the rule, it cannot be maintained that the slight evidence to
the contrary in the Year Books seriously affects it10.

§ 28. It may be added here that where the plot had
been formed in one county and executed in another, there
was a procedural rule that the writ should be sued in the
former11.

I N.B. ii4D. 2 3 Inst. 143.

3 P.C. 172-5.

4 E.g. Rastall, Browne.

5 in. 125.

0 Earl of Macclesfield v. Starkey (1684-5) St. Tr. X. 1330; "for I take the
law to be plain, no conspiracy doth lie without some act doth follow."

7 Obiter in Savile v. Roberts (10 Will. Ill, B.R.), i Ld. Raym. 374; "for
an action will not lie for the greatest conspiracy imaginable, if nothing be
put in execution; but if the party be damaged the action will lie."

8 " If two confeder to indict me, and I am not indicted, I shall never have
action of conspiracy." Hil. 9 Hen. VIII, f. 18 (champerty). So too Br.
Abr. Champ. 9.

9 Hawkins (i P.C. 72, sect. 2) admits the first part of this reason; he
urges that the law ought to be otherwise if the grand jury ignore a bill;
but in that case there is something more than mere combination.

10 Dictum of WAD HAM J. in 19 Rich. II (Bellewe Consp.) that a man shall
have a writ of conspiracy, though the defendants did nothing but the con-
federacy only; and obiter dictum of MOYLE J. in 36 Hen. VI, f. 27 (main-
tenance), that if two conspire, and one give money to a juror to carry out
their purpose, the gift is not conspiracy, but the speaking between them is.
A dictum of PRISOT C J.C.P., in Mich. 35 Hen. VI, f. 14, implies no more
than that there must be at least some previous communication between the
defendants to constitute conspiracy.

II Post 90.

W.H.L.P. ">

66 ESSENTIALS OF LIABILITY TO THE WRIT

ESSENTIALS OF LIABILITY TO THE WRIT

(2) Falsity and Malice

§ 29. The defendants to a writ of conspiracy were not liable
unless they acted falsely and maliciously. We shall look in vain
in the earlier law for any minute dissection of either term.
Certain acts or occurrences were a good defence, and not much
discussion was spent upon their psychological bearing, whatever
the rule may have been at a later period1.

The nexus by which we have bound many of these defences
under one title is but a loose one ; yet it is partly justified by
the half conscious classification of the Tudor commentators.

"The charge of conspiracy," says Stanford2, "ought to be
that he did this with others and falsely and maliciously, as
in part appears by the said St. West. II c. 12, and more
fully by the Stat. 33, Ed. I3." And it seems that before the
definition of conspirators in the latter enactment, judgment
might pass against a defendant because he would not reply to
the alleged malice4. The writ in the Statute of Conspirators,
21 Ed. I, makes no mention of malice or falsity, but it is in
such general terms that it may well have implied these words ;
and it is very early after the Statute that the writ in the modified
form in which it so soon becomes familiar contains them5. The
genuine descendants of the writ, as distinct from those moulded
on deceit or trespass, invariably incorporate them.

Not one of the nine writs of conspiracy in the printed
Register6 omits them, nor does any true writ of conspiracy in

1 In Varrell v. Wilson (Pasch. 36 Eliz.) Moore, 600, pi. 828, it was held
a defence to conspiracy that defendant's goods had been stolen, and found
in the possession of the plaintiff against whom defendant preferred a bill of
indictment, and gave evidence to the jury which acquitted plaintiff; for
finding the goods in plaintiff's possession was sufficient cause of suspicion.
In Viner's Abr. Consp. (F) 26, this is cited as a case of conspiracy. The
report leaves it open whether the writ was conspiracy or case.

2 P.C. 173. Cf. 9 Rep. at p. 57 where Coke states the essentials of "con-
federacy."

3 Ord. de Consp. ante i.

4 Trin. 32 Ed. I. Abb. Plac. 297.

5 de Welleby's Case. Hil. 29 Ed. I, Abb. Plac. 295.

• f. 134. Cf. Mich. 47 Ed. Ill, f. 17, where the writ with which the
report begins includes these words.

ESSENTIALS OF LIABILITY TO THE WRIT 67

the MS. Registers consulted1. The Ordinacio de Conspira-
toribus, 33 Ed. I, defines as conspirators those (inter olios) who
each "aid and bear the other falsely and maliciously to indite,
or cause to indite, or falsely to move or maintain pleas"2.

Probably no importance attaches to the absence of "ma-
liciously" in the latter part of this clause. The Courts appear
to have founded no distinction upon it3.

§ 30. Indictors. The story of what justifies conspiracy in*
its old sense is the story of a long struggle to solve the legal
puzzle of punishing the rogue who would kill and rob with the
law's own weapons without at the same time terrifying the
honest accuser or plaintiff. The King needed officials to ad-
minister his justice and from time immemorial laymen — now
doomsmen, now jurors — were called upon to assist them, and
again and again the King seems in danger of having his justice
made the tool of the corrupt official, and the malicious layman.
An oft-repeated rule is that the writ will not lie against indictors.
It occurs with monotonous regularity in written and printed
Registers4, and very early in the former5; so too in the books
of practice or comment6. The Year Books attest its age. In
Trin. 17 Ed. II, f. 547, it was decided that indictors on the
inquest could not be sued by writ of conspiracy. SCROPE? at
first inclined to the view that if one procured himself to be
put on the panel for the express purpose of indicting somebody

1 E.g. (to take the earliest only) C. U. Lib. li. vi. 28 and 42 (early i4th
century). When Bryan (p. 40) states that express reference to malice in
conspiracy cases between 1307-1509 practically ceased, we must add that
the writ in every such case almost certainly included "malitiose."

2 Ante- 1.

3 In a bill preferred in the Star Chamber for conspiracy, the words
"falso et malitiose" were essential. Per RICHARDSON J. in Tailor v. Towlin
(Mich. 4 Car. I) Godbolt, 444. * f. 134.

6 C. U. Lib. li. vi. 42; LI. iv. 17 (temp. Ed. I); Ff. i. 32; Ff. v. 5;
Gg. v. 19. So too Bodleian Lib. MSS. Rawlinson, C. 454, 459, 667, 897;
Bodleian, 941.

8 Stanf. P.C. 173; F.N.B. 115 c; Reeves, n. 328. Rastall, f. 123-4 gives
several pleas in bar for indictors. The indictor should put in the record of
the indictment. Otherwise he would be met by the replication "mil tiel
record." Y.B. Mich. 19 Hen. VI, f. 19; Br. Abr. Consp. 17 and Rastall's
Entries, f. 123 a. Bryan (p. 24) correctly states the general rule that the
writ did not apply against indictors, but on p. 27 proceeds on the assumption
that it did.

7 Judge C.P. Sep. 27, 1323. C.J.K.B. March 21, 1324.

5—2

68 ESSENTIALS OF LIABILITY TO THE WRIT

the writ would lie. But to this counsel replied that when the
indictor is put on the panel the law intends that he comes by
the Sheriff and by distress of law, and that he does not wish
to say anything except the truth on his oath. SCROPE took the
broader ground in his judgment that "if the writ were granted
against indictors, they would often rather refrain from indict-
ing anybody, through fear of being oppressed." In Mich.
7 Hen. IV, f. 31, the defendants pleaded to a writ of conspiracy
for indicting W. Gervais that they were impanelled for the
King before the Justices of the Peace in Norfolk and that what
they did was by their oath; and not a word was said against
this by the other side, though they took other objections1, and
in Pasch. 4 Hen. VI, f. 23, the only objection raised to the plea
that one of the defendants was an indictor was that he had not
produced the record which would shew it2. At a later period
another reason given for the exemption of indictors is " because
the law intends when a man is sworn that he wishes to clear
his conscience"3. But the doubt that troubled SCROPE was
raised again in a slightly different form in Pasch. 21 Ed. Ill,
f. 17, where a defendant pleaded that he and n others on oath
presented the plaintiff at a leet, so that what they did, they did
as indictors. The plaintiff answered that the defendants had
conspired to indict long before the indictment was made.
W. DE THORPE J. said that while conspirators are all the time
in falsity, the defendant's oath, when he was on the inquest
and sworn to speak the truth, prevented this from being con-
spiracy ; and that it was not right to convict a man of it when
he did nothing but what the law wished. But he is not reported
to have dealt with the main point or to have given any decision.
Nor does a later case in the same reign4 carry us any further.
There one defendant pleaded that he with other defendants was
an indictor, another that he was a hundredor, and that the
indictment was taken before him, and so he was like a judge

1 Ante 54.

2 MARTYN J. indulged in personalities at the expense of Rolf's persistent
but unsuccessful arguments; "Rolf ad bien disn£ cest jour; car come me
semble il ad mang£ d'un error."

3 Per ENGLEFIELD J. Pasch. 27 Hen. VIII, f. 2.

4 Mich. 47 Ed. Ill, ff. 16-17.

ESSENTIALS OF LIABILITY TO THE WRIT 69

in this case. It was objected to this that the defendants who
were indictors had made the conspiracy before the indictment.
Candish argued, "we must in this case maintain the ancient
judgments of our predecessors — that conspiracy cannot exist in
this case." But "all was demurred and adjourned." The
problem presented itself with an additional complication in
Mich. 20 Hen. VI, f. 51, where the plea was that the defendant
had been sworn with others before the Justices of the Peace
to present for the King, and informed his companions of the
felony alleged against the plaintiff. Then, before verdict, the
Justices removed him from the panel. The plaintiff replied
to this that the conspiracy took place two days before the
defendant was sworn. NEWTON C.J.C.P. drew a distinction
between the juror who gives a verdict after a conspiracy pre-
viously had, and the juror who is discharged before verdict.
After verdict given, the law implies that all that was conspired
previously was lawfully done, because his oath excuses him;
but on discharge the conspiracy shall not be deemed lawful.
Some argument and discussion ensued and Yelverton2 (then a
Serjeant) exposed the technicality of NEWTON'S distinction by
pointing out that if the defendant could lawfully inform his
companions when he was a juror, it would be marvellous that
this should become wrongful by the act of the judge, and
PASTON J. admitted the force of this. NEWTON adhered to his
view. According to another report3, the best opinion was that
the plea was good, and with this most commentators agree4.
But this still leaves open the question raised by the plaintiff's
replication — that the defendant had conspired before he was
sworn5. In Pasch. 5 Jac. I, the point raised in Pasch. 21 Ed. Ill,
f. 17, was incidentally settled in favour of indictors and their
immunity was stated in sweeping terms by POPHAM and

1 Report continued Trin. 20 Hen. VI, f. 33.

2 Not in Y.B. report, but in Fitz. Abr. Consp. 2.

3 Br. Abr. Consp. i.

4 F.N.B. 1150; Stanf. P.C. 173; Contra Tottell, Nat. Brev. "Writ de
Conspiracione." Viner, Abr. Consp. A (4) reproduces Br. Abr. Consp. i.

5 Stanf. P.C. 173 states that no writ of conspiracy will lie because it
cannot be intended false or malicious when the jurors do it by virtue of their
oath. The reports cited by him are not positive. 27 Lib. Ass. 12 is on a
prosecution, not a writ, of conspiracy.

70 ESSENTIALS OF LIABILITY TO THE WRIT

COKE C.JJ., the chief Baron, the Lord Chancellor, and all
the rest of the Court in the Star Chamber case of Floyd v.
Barker*. They are said to have resolved that when a grand
inquest indicts one of murder or felony, and the accused is
acquitted, yet no conspiracy lies for him who is acquitted
against the indictors, because they are returned by the Sheriff
by process of law to make inquiry of offences upon their oath,
and it is for the service of the King and the Commonwealth ;
and they shall not be impeached for any conspiracy or practice
before the indictment, for the law will not suppose any un-
indifferent, when he is sworn to serve the King. Before leaving
the topic of indictors it must be noted that they were under a
Statute 9 Hen. V c. i (made perpetual by 18 Hen. VI c. 12)
liable both criminally and civilly if they were procured mali-
ciously to indict persons of treason or felony alleged by the
indictment to have been committed at a place which did not
exist. Of the facts which led to the making of this law more
will be said hereafter.

§ 31. Jurors. Thus far we have dealt with the indictor as
distinct from the juror in general, but their exemption was the
same, and is referred to occasionally and naturally in the same
context2. But not always3; in Mich. 13 Ed. II, f. 401, the
defendants say that they ought not to reply to the writ because
they were sworn on the same inquest together with others, and
gave their verdict according to their understanding on oath,
and they claim judgment for that they werejudicatores. Answer ;
they were procurers of the indictment, not judicatores. How
the matter ended is not stated, but shortly afterwards it was
held that an action in conspiracy could not, and ought not, to
lie against jurors who had found one an abettor in a false appeal.
Error was alleged and allowed, but on another ground4. Less
than a century after, GASCOIGNE CJ.K.B.5 held that their

1 12 Rep. 23. The report points Sir E. Sugden's criticism of Coke's
system of turning every judgment into a string of general propositions. We
are not eVen told what the facts were here, except that one of the defendants
was a justice of the grand sessions in Anglesey.

2 Browne, Ent. (1671) 130, plea of jurors put on inquest which indicted.

3 Ibid. 133 (plea of defendant forced by Justices to indict and give evidence).

4 Abb. Plac. 355 (Trin. 19 Ed. II).
6 Mich. 9 Hen. IV, f. 8.

ESSENTIALS OF LIABILITY TO THE WRIT 71

oath excused 12 men who were sworn to inquire of divers
articles for the King, and who pleaded to a bill of conspiracy
that what they did was upon their oath and by coercion of
law. But at a later date, a jury which acquitted a felon or
traitor against manifest proof might be charged in the Star
Chamber1.

§ 32. Witnesses. We have dealt with jurors. But what of
those who informed them or the Court? Had the witness or
informer as distinct from the juror a good defence to an action
for conspiracy ? At the outset of our history of trial by jury,
the easy but plausible answer seems to be that the jurors were
the witnesses. But this is true only in the sense that the jury
were supposed to be pretty well acquainted with the merits of
the case; "but even in the early years of the i3th century
they were not, and were hardly supposed to be, eye-witnesses "2.
Their knowledge might be made more accurate by excluding
the sick, the poor, the villein, by selecting them from the
neighbourhood, by the challenge, by the judge's "charge/' by
the statements of the party or his counsel3, by their general
duty to ascertain the facts before the trial began4 — and yet it
might be but second-hand knowledge. Was the first-hand
evidence of the man who did see admitted in Court to help the
jurors? There is nothing to shew that it was not, though it
was probably not sworn evidence5. By what means or at what
period the rule of making witnesses give evidence on oath in
Court became universal we do not know6, but the line between
jurors and one class of witnesses appears in the practice (known
in the early i3th century) of getting the evidence of a composite
body of jurors and the witnesses to a deed where there was a
dispute as to its genuineness ; and the line becomes a fissure —
perhaps a gulf — by Edward Ill's reign when the Year Books
tell us that a person under age may be a witness, that witnesses

1 Floyd v. Barker, 12 Rep. 23-24 (Pasch. 5 Jac. I). Ante 70.

2 P. and M. 11. 622, 628.

3 Thayer, Evidence, Pt. I (1896), pp. 90, 112, 120.

4 They had at least a fortnight for this. P. and M. n. 627. The practice
is referred to by REDE J. in Mich. 20 Hen. VII, f. n.

6 P. and M. n. 628.
6 Thayer, 122 et sqq.

72 ESSENTIALS OF LIABILITY TO THE WRIT

cannot be challenged, and that they are charged differently from
jurors1.

It was for the false giving of "real" rather than "personal"
evidence that the writ of conspiracy was sought in Pasch. 39
Ed. Ill, f. 13. One Clinton, had sued a writ of wardship against
T. B. who said that he was tenant in tail under a gift of Clinton.
Clinton replied that T. B. had released the lands, and at nisi
priusy certain persons conspired to forge a false release by means
of which the inquest found against T. B. The question was
whether their act was conspiracy. THORPE2 said, "And do you
think that you shall have a writ of conspiracy by reason of
evidence? You shall not have it," and later, "What was put
in evidence is not comprised in the record. Wherefore the
Court adjudges that you take nothing by your writ." In
Mich. 7 Hen. VI, f. 13, conspiracy was brought against three
for indicting the plaintiff. The defence was that Elis Davy one
of the defendants was before the Justices "with his eye out and
his tongue cut" and was sworn by them to give evidence for
the King. He asked the other two defendants what he should
do, and they told him to obey the Justices' order. He did so,
and contended in defence that this was all the alleged con-
spiracy. HALS J. said that it could not be deemed the alleged
conspiracy "for he has supposed in you a tortious conspiracy,
and you have not, 'conu cela,' 'eins un droitrel'3: which thing
he did by command of the Justices." But a note is added that
it seems a wrongful conspiracy, because the Justices charged
him to inform the inquest of those who beat, maimed and
blinded him in one eye4, and he informed the inquest of others,
and so was not warranted by the Justices. This case is incon-
clusive. So is Mich. 35 Hen. VI, f. 14 — a much fuller case
which dealt rather with the informer of the jury which indicts
than with the witness who testifies to the jury which tries.

1 Thayer, 97-100 and Y.B. n and 12 Ed. Ill, 338, and 12 and 13
Ed. HI, 4 (Rolls Series); 12 Lib. Ass. pi. 12; Fitz. Abr. Challenge, 9; 23 Lib.
Ass. n, there cited p. 100; cf. P. and M. n. 628-629.

2 Either ROBERT DE THORPE C.J.C.P., June 17, 1356 for nearly 15 years,
or WILLIAM DE THORPE, judge, April 23, 1342.

3 "Droiturel" according to Godefroy means "just."

4 "Monoculerent" presumably means this. It is an expressive com-
pound word.

ESSENTIALS OF LIABILITY TO THE WRIT 73

A writ of conspiracy was brought against two. It was pleaded
for them that they saw the plaintiff kill J. S. and informed one
of the Guardians of the Peace of this at the Sessions of the
Peace at Exeter. A clerk took down in writing one of the de-
fendant's information; and that defendant delivered it to the
Guardian of the Peace, who handed it on to the grand inquest
and they found a true bill. Considerable discussion, and differ-
ence of judicial opinion followed. According to DANVERS J.
it was not conspiracy, for any man could inform the Justices
of a felony and pray the jurors to inquire thereof, provided he
did not "labour" them to indict the accused thereof. AsHTON1
backed this view by quoting the proclamation of the justices
at every Session, "Et si ascun voit venir eins, & monstr' ascun
chose pur le Roy, il aura audience." PRISOT C.J.C.P. thought
that the plea was bad, because it did not traverse, but merely
denied a conspiracy which did not exist. The information given
by the defendants was no conspiracy, for JL conspiracy is_a
speaking among persons before a thing is done as_to_JiQw_it
shall be done, and the words of the writ, " conspiratione inter
eos praehabita," prove this. Here no such speaking was shewn.
According to MOYLE J. it was conspiracy, because the de-
fendants had shewn no interest in informing the justices, except
that they had seen the deed. Had it been alleged that the
deceased was the cousin or servant of the defendants, or that
the common rumour of the country was that the plaintiff had
killed the man, that would have given some colour to the
charge2. Again, if this were not conspiracy nobody could ever
have that action, for every defendant to it would plead that he
saw the plaintiff commit the deed, and if that issue were taken
against the plaintiff, then the Court would cause him to be
hanged, " le quel sera inconvenient." Thus when the defendants
said that they "saw," that was false by the common presumption
of law, since the plaintiff was acquitted3. DANBY J. took the

1 Unmentioned in Foss. Fitz. Abr. Consp. however seems to imply that
he was a judge.

2 So too DANBY J. According to Br. Abr. Consp. 4 "it was agreed that to
say that he who was killed was his cousin or servant, or that the common
fame was that the plaintiff killed him — these are good matters of plea in
conspiracy." See too Rast. Entries, L 1246; Browne, Ent. 130.

3 A fallacy. It was put forward by Serjeant Grevill and exposed by
FINEUX CJ. in Mich. 20 Hen. VII, f. n (post 75-76).

74 ESSENTIALS OF LIABILITY TO THE WRIT

same view, holding that the plaintiff's acquittal stopped the
defendants from saying that they were present when the alleged
felony was committed1. According to another report, the best
opinion was that the special plea was bad (apparently on the
ground taken by Prisot) and that the general issue should be
pleaded and the matter of excuse should be put in evidence2.
The matter was again fully debated in Mich. 20 Hen. VII, f. 1 1,
which was an offshoot of the remarkable case Kebell v. Vernon*
(A.D. 1502) tried on the ravishment of a woman in the Star
Chamber. In the Year Book case, conspiracy was brought
against E. Keble (sic) and several others, who pleaded that the
common voice and fame was that a certain felony had been
committed, and that the defendants as they were riding to a
certain town, found a great multitude of people arrayed in a
forcible manner, among whom was the plaintiff, and that then
at the Sessions held at D. before the Justices proclamation was
made that if there be any to inform the Justices, etc., that he
come ; that the defendants therefore came and were sworn, and
shewed this matter to the justices, and then the plaintiff was
indicted, etc., and that this was the alleged conspiracy. It was
argued for the plaintiff that the defendants came of their own
pleasure, for the defendants that great mischief would ensue if
every one who gives evidence should be charged with conspiracy,
for then no one would give evidence, and that would favour

1 "And he wished to have said more, but he was interrupted, because all
the Justices went in the Chancery."

2 Br. Abr. Consp. 4. A note is added " See 37 Hen. VI, f. 3, and 22 Hen. VI,
f. 35, where his [defendant's] matter is justification, he shall take this by plea,
but where this is not conspiracy, administration, nor maintenance, he shall
take the general issue, and shall give the matter in evidence." The cases
referred to are not on conspiracy, but assuming the correctness of Brooke's
statement of the law a few words may be added as to the distinction in the
law of pleading here indicated. There was a considerable advantage in a
special plea as contrasted with the mere plea of the general issue; it was
possible for the defendant to insert in it a good deal of what would now be
called evidence, and thus to apprise the jurors of his defence in a clear and
permanent form instead of leaving the facts in a hazy condition in their
minds, as was quite possible at a time when the evidence of witnesses apart
from jurors was, if given at all, of little account and when the jurors,
though they were supposed to know the facts, themselves, might have
gleaned a very indefinite account of them before the trial. See Thayer,
114-120.

3 Select Cases in the Star Chamber. S. S. vol. xvi. p. 130.

ESSENTIALS OF LIABILITY TO THE WRIT 75

felons. GREVILL J. (then a Serjeant) contended that the de-
fendant [Keble] gave evidence at his peril, for the law does not
wish a man to give false evidence: therefore, because the
plaintiff was acquitted, the evidence was false1; and the life of
a man ought to be more specially favoured than these men who
give evidence. Coningsby (then a Serjeant) argued for the
defendant that everything could be pleaded in excuse of con-
spiracy except matters merely contrary to the issue previously
tried; but that he could not say that the plaintiff in the con-
spiracy is guilty of felony, because he is estopped by the verdict
which can never be put in issue again; here, however, the
matter of the plea was not merely contrary to the issue; and
TREMAILE J. and FINEUX C.J.K.B. approved this argument.
REDE J. was of opinion that special matters should be pleaded
for the doubts of laymen unacquainted with the law, and to
put them in the judgment of the justices. He put it that the
deceners2 and reeve of a certain town are called before the
Justices, and that one for the town gives evidence and informs
the Justices, and the Justices command him to make a bill,
and he does so, and that the person whom he accuses is ac-
quitted and brings conspiracy ; REDE thought that the defendant
in such a case should plead this specially and not be driven to
the general issue, and that this was not conspiracy; "for if the
four men and the reeve do not come when they are called,
they shall be amerced"; and he wound up, "when the de-
fendant for the zeal of justice comes and informs the justices,
and not of malice, it is right that he be discharged." FINEUX
C.J.K.B. followed on the same side; his view was that the plea
was an excuse, for at each sessions every man can come for
the common profit, and if he come for this purpose and for
the zeal that he has for justice, and not of malice, he does well
enough for the common profit, which ought to excuse him,

1 A harsh view, for the acquittal implies no more than that the jurors
think that the witness's evidence against the accused was mistaken, not that
it was a lie. See the judgment of FINEUX C.J. (infra).

2 The term varied in meaning. At one time decener signified the chief
man of a "dozen," later, one that is sworn to the King's peace. Deceners
are also spoken of as presenting felons for theft. Termes de la Ley (ed.
1636).

76 ESSENTIALS OF LIABILITY TO THE WRIT

secus if it were of malice; and in false imprisonment or con-
spiracy, the defendant shall justify, because a certain felony
was done, and the defendant had the plaintiff in suspicion, and
because he arrested him; and this excuses him because he did
lawfully, though the plaintiff was not guilty, and so here;
"wherefore he shall have the plea." According to another
report, it was conceded by the whole Court that the plea of
not guilty was inapplicable where the conspiracy was lawful
[i.e. matter of justification should be pleaded specially]1 and
the witnesses who informed the Justices seem to have established
their immunity2 provided they came without a malicious motive ;
and not long after, a decision consistent with it is reported in
Pasch. 27 Hen. VIII, f. 2, which makes the Justices order an
excuse for the production of documentary evidence and perhaps
(though this was not necessary to decide the case) for oral
testimony. One of the defendants alleged that he was steward
of the manor of Dale, and at the leet the plaintiff was presented
to him for having committed a felony. He therefore went to
the Justices at the next Sessions, and shewed them the Court
rolls containing the presentment. They ordered him to shew
the rolls to the jurors, and he did so, and the other defendant
came with him as his servant and brought these rolls. ENGLE-
FIELD J. thought that though no law forced the first defendant
to bring the rolls to the Justices, yet he did well in doing so,
and that then the command of the Justices to shew the rolls
to the jurors discharged him from any conspiracy; that if a
man be present in Court and the Justices order him, because
he has good notice of the felony, to give evidence to a jury, and
he thereby gives such evidence, he is not punishable in con-
spiracy; and that it is immaterial that he be not sworn to give
such evidence3. The case like many others in conspiracy and

1 This tallies with the distinction drawn in Br. Abr. Consp. 4, ante 74, n. 2.
Had it been no conspiracy at all instead of a "lawful conspiracy," a special
plea would probably have been inapplicable, PRISOT C.J.C.P., ante 73.

2 Keilwey, 81 b, " Et fuit sembl' per le court que les def. sont hors de case
de lestat."

3 F.N.B. USE does not go as far as this — "And he who cometh into
Court, and discovereth felonies, and is sworn to give evidence to the jury,
is not chargeable in conspiracy." So too Stanf. P.C. 173, who adds the
qualification that he must not have previously conspired falsely and mali-

ESSENTIALS OF LIABILITY TO THE WRIT 77

maintenance shews the almost inevitable uncertainty of the law
in checking these wrongs. The difficulty is in understanding
why the action was brought at all, for no reasonable man would
think that the defendants had done wrong. On the other hand,
the constant abuse of procedure in this period is shewn both
by the stream of statutes and the number of cases on the topic.
Even where the accusers did right in making the accusation,
there is a significant tendency to speak of their act as a justi-
fiable conspiracy rather than to admit that it is no conspiracy
at all. In Tudor times, one might say that where the accused
is acquitted any accusation against him is presumed to be false
unless justification can be shewn, just as killing is presumed to
be murder till proved to be something less1. The law at times
seems to barricade its windows against light and air, and to
leave its doors unlocked to rascals. To modern readers MOYLE J.
takes an extraordinarily harsh view in the case to which reference
has been made2. He admits that kinship, service, or common
rumour may justify a man in informing the justices, and yet
denies that he may do so if he merely saw the crime committed.
This seems to put a premium on hearsay evidence, but it must
be remembered that though the admission of witnesses was
possible, yet it was not then popular3, and that the facts of
this case do not shew that the defendants were called as wit-
nesses at the trial at all. Indeed there is no case which lays
down the immunity of witnesses generally, apart from those who
informed the grand jury, until Anonymous Pasch. 3 Ed. VI
(post 79) and it is not clear whether this refers to civil or criminal
conspiracy or is anything more than a judicial opinion as distinct
from a decision4. And of not much more value is a resolution

ciously with others. But it must be noted that Stanford certainly, and
Fitzherbert probably, refer to those who testify to the indicting as opposed
to the trying jury.

1 See FINEUX CJ. Y.B. Mich. 20 Hen. VII, f. n; cf. ENGLEFIELD J.
Pasch. 27 Hen. VIII, f. 2, "When the defendant pleads a conspiracy which
is justifiable, he must conclude [in his plea] that it is the same conspiracy
[as that alleged by the plaintiff]."

2 Ante p. 73. 3 Thayer, p. 130.

4 In Browne's Ent. (ed. 1671) 133, the plea of a deft, in an action of con-
spiracy 1 6 Eliz. was that the Justices compelled him to bring a bill of indict-
ment and give evidence thereon against the plaintiff, and the plaintiff was
nonsuited. Cf. similar plea in Vidian, Ent. 145.

78 ESSENTIALS OF LIABILITY TO THE WRIT

of the Star Chamber in Floyd v. Barker (Pasch. 5 Jac. I)1 that
witnesses ought not to be charged in that Court, or elsewhere,
with conspiracy, when the party indicted is convicted or attaint
of murder or felony, but the almost total absence of facts in
the report leaves it open whether this were more than obiter
dictum and, in any event, the earlier part of the report qualifies
this by making him liable for conspiracy made out of Court
before he is sworn, since it is a private person who produces
him and not the Sheriff as in the case of jurors2.

§ 33- Judges. Within limits Judges and Justices of the Peace
were probably exempt from liability under the writ of con-
spiracy. Probably a judge before whom an indictment was
found had no protection, unless he were a judge by com-
mission3. In Mich. 12 Ed. IV, f. 18, J. Genney pleaded this
as a defence to the writ. All that the defendant seems to have
done was to read to the jury a bill of indictment which had
been delivered to him and to command them to find out
whether it were true or not. The plea seemed good to LAKEN J.
for it could not be intended that as a Justice of the Peace he
wished to do otherwise than he ought. No result is stated4.
But a few years afterwards5 "Catesby came to the bar and
moved that there was no difference in conspiracy between a
juror who is indicted6 and a justice of Peace, but both shall be
excused always." Pigot opposed this by arguing that the juror's
oath salved any wrong that he had done in speaking before the
appointed time of indictment, but that Justices of the Peace
had no such excuse for "empar lance." Catesby countered this
by pointing out that justices are sworn to do their office just
as much as jurors. BRYAN C.J.C.P. pointed out that a Justice
of the Peace would need to confer, because he could neither

1 12 Rep. at p. 24, ante 70, n. i.

2 Ante 70.

3 Fitz. Abr. Consp. 19 citing Trin. (? Mich.) 47 Ed. Ill, 17. There was
an attempt to put the hundredor on the same footing as a judge, and this
the Court refused to allow. For more details of case see ante 56-57.

4 Br. Abr. Consp. 33 states an adjournment.

5 Mich. 21 Ed. IV, f. 67.

6 The case (though no facts are expressed) was probably on prosecution,
not action, for conspiracy, but the judges' opinions whether they decided
anything or not are of general application.

ESSENTIALS OF LIABILITY TO THE WRIT 79

make nor hold Sessions alone, nor do anything by himself
except take sureties of the Peace ; that therefore he could not
take necessary preliminary information alone, and that for what
he did in Sessions he was excusable, but not for what he spoke
outside. CHOKE J. put the case even more favourably for the
defendant.

It is hard that a Justice of the Peace cannot take information
outside. And if an indictment be shewn to Catesby and Pigot,
Serjeants of the King, [to see] whether it be sufficient or not, they
would like to converse of the matter and of the manner of the
indictment in point of law.

The result is not stated1. The opinion of MOUNTAGUE C.J. in
an anonymous case of Pasch. 3 Ed. VI2 was that if one comes
to a Justice of the Peace, and complains that J. S. is a felon
and has stolen certain things, and thereon the Justice commands
the complainant to prefer a bill of indictment at the next
Sessions and to give evidence, and he does so, neither the
Justice of the Peace, nor the complainant shall be punished in
conspiracy, if the party so indicted be acquitted of the felony3.
It was resolved in Floyd v. Barker (Pasch. 5 Jac. I)4 that the
defendant who as judge of assize had given judgment upon the
verdict of death, the Sheriff who executed it, and the Justices
of the Peace who executed the accused were not to be drawn
in question in the Star Chamber for any conspiracy; and that
even though the accused be acquitted of murder or felony, yet
the judge, whether of assize, Justice of the Peace, or any other
judge by commission and of record, and sworn to do justice,
cannot be charged for conspiracy, for what he did openly in
Court as a judge ; " and the law will not admit any proof against
the vehement and violent presumption of law." But if he
conspired previously out of Court, this would be extrajudicial.

1 F.N.B. 116 i is equally indecisive. Stanf. P.C. 173 states that the
J.P. shall not be punished for conspiracy, but the only positive authority
which he cites is on criminal conspiracy (27 Lib. Ass. pi. 12).

2 Moore, 6.

3 "Punished" makes it doubtful whether the case were one of civil or
criminal conspiracy. In Vin. Abr. Consp. (C), 23, this is classed under
actions upon the case in the nature of conspiracy, but in Moore's report
(which Viner literally translates) "case" is not mentioned.

4 12 Rep. 23.

8o ESSENTIALS OF LIABILITY TO THE WRIT

Due examination of causes out of Court and inquiring by
testimony, et similia are not conspiracy for this he ought to do;
but subornation of witnesses, and false and malicious prose-
cutions out of Court, to such1 whom he knows will be indictors
amount to unlawful conspiracy2.

§ 34. Officials. There is scanty authority on the protection,
if any, of officials who assisted the Court in an administrative
rather than a judicial capacity. Sheriffs are referred to in the
dubious case just cited (Floyd v. Barker). In Henry IV's reign,
GASCOIGNE C.J.K.B. doubted whether a bailiff who had re-
turned 12 jurors by the Sheriff's order, and had informed them
of an alleged crime by the Court's order, had as such any defence
to a bill of conspiracy3. Under Henry VIII, it seems to have
been held that the Steward of a manor who shews to the
Justices and (by their order) to the jurors a presentment on the
Court Roll is justified by the order4, but his immunity seems
to rest rather upon the command of the Justices than his office5.
That advice of some sort was permissible in litigation without
incurring the risk of a writ of conspiracy is likely, but the
limits of it are not clearly marked in the very few cases we have.
Their paucity is probably due to the much more frequent use
of the kindred writ of maintenance in such circumstances, and
the point is fully discussed there. The Parson of Sulthorn6 in
Pasch. 22 Ed. I argued (inter alia) that the writ of conspiracy
was inapplicable to legal help and advice given to his friends,
and the plaintiffs withdrew from their suit, though it is not
known whether this particular defence influenced them in doing
so; and it has already been noticed that a plea of "communis
advocatus" was good7. In Goldington v. Bassingburn, there is
an opinion of BEREFORD C.J. that advice innocently given on

1 Sic.

z The mere breadth of this string of resolutions lays its accuracy as a
report under suspicion. Ante 70, n. i.

3 Mich. 9 Hen. IV, f. 8 (ante 61).

4 Pasch. 27 Hen. VIII, f. 2 (ante 76).

5 Cf. Browne's Entries (ed. 1671), 130, where there is a precedent of a
plea that defendant had been ordered by the Justice to write out the indict-
ment, read it over to the jury and explain it to them in English.

8 Abb. Plac. 291. Ante p. 3.

7 de Welleby's case. Abb. Plac. 295 (Hil. 29 Ed. I), ante 63.

ESSENTIALS OF LIABILITY TO THE WRIT 81

request is a defence1, and in Hil. 38 Ed. Ill, f. 3, where it was
alleged that husband, wife and another had conspired and pro-
cured A to bring a bill against W, ROBERT DE THORPE C.J.C.P.
said "You have not shewn in your writ by whom the bill was
sued ; and also the cause of your action cannot be called con-
spiracy ; for then every man of law will be called a conspirator " ;
and the writ was abated on these grounds. In Pain v. Rochester
and Whitfield, the defendants to a writ of conspiracy pleaded
that they had got a warrant for the arrest of the plaintiff on
suspicion of robbery, that the plaintiff absented himself on
notice thereof, and that a Justice after examining the matter
had committed the plaintiff to gaol, and advised the defendants
to indict him. They did so and the plaintiff was acquitted. All
the Court resolved that the plea was good because their causes
of suspicion and the plaintiff's absenting himself sufficed2.

ESSENTIALS OF LIABILITY TO THE WRIT

(3) Procurement

§ 35. Neither in the Ordinacio de Conspiratoribus of
33 Ed. I which defines conspirators, nor in the Statutum de
Conspiratoribus of 21 Ed. I and the writ incorporated with it
is there any reference to procurement. But all the nine writs
in Registrum Brevium refer to the defendants as falsely and
maliciously procuring the wrong laid at their door3. Where
two conspirators got a third person to injure another by im-
proper legal proceedings, the case seems to have been too clear
to raise any litigation; but it is doubtful whether the writ was
good if the person procured were himself one of the conspirators.
It was argued in Y.B. Pasch. 21 Ed. Ill, f. 17, on behalf of one
of several defendants that he was one of 12 indictors charged
to present at a leet, and that he and the rest of them had

1 A.D. 1310, Y.B. 3 Ed. II, S. S. vol. xx. 196.

2 Cro. Eliz. 871 (41 Eliz.) Bulst. 150, where arguendo it is said to be
action upon the case in the nature of conspiracy. Vin. Abr. Consp. classifies
it under conspiracy, but he frequently includes case under that heading.

3 f. 134. No. 5 varies slightly the form of allegation. The MS. Registers
consulted also allege procurement. Add. 3022 D is exceptional, because it
reproduces the writ given in the Stat. de Consp. 21 Ed. I. Cf. BEREFORD
CJ. in Goldington v. Bassingburn, Y.B. Trin. 3 Ed. II, S. S. vol. xx. at p. 197.

W. H.L. P. » 6

82 ESSENTIALS OF LIABILITY TO THE WRIT

thereupon indicted the plaintiff, and that even if a writ would
lie, conspiracy was not the appropriate one, because one of the
indictors could not procure himself; but the Court, as reported,
ignored the argument. In Y.B. Hil. 42 Ed. Ill, f. i1, con-
spiracy was brought against W. J. and R. and another2 for
procuring W. J. to oust the plaintiff and enfeoff B. against
whom R. sued scire facias, the plaintiff thus losing his warranty.
Belknap objected to the allegation that W. J. had procured
himself, and a man could not do so. Non allocatur, because the
procurement might be taken to mean that the two procured
the third to oust the tenant and to make the feoffment3. So too
Y.B. Pasch. 42 Ed. Ill, f. 14, where the Abbot of T, T9 and J
were sued for conspiring to bring an assize of novel disseisin
in Ws name against the Abbot and procuring T to be Ws
attorney, and it was argued that T could not procure himself,
and non allocatur. But these cases give us no answer to the
question whether the writ would lie against two co- defendants
one of whom procured the other ; and on this point there is a
decision in Y.B. Trin. 46 Ed. Ill, f. 20. Conspiracy was
brought against several, alleging that one of them had forged
a false deed to the effect that certain lands whereof the plaintiff
was tenant were entailed to others, and he was thus put to
great labour and expense to defend himself. Belknap challenged
the writ because it stated that the defendants had procured one
of them to forge the deed, and he could not procure himself;
and for that reason the writ was abated4. No sound principle
underlies this decision; it distinctly opens a door of escape to
conspirators by a piece of procedural logic, and the writs in
Registrum Brevium avoid the trap by referring to the de-
fendants as having procured the plaintiff to be appealed or
indicted without specifying who the actual appellor or indictor

1 Partly reported also in Hil. 43 Ed. Ill, f. 10.

2 So Br. Abr. Consp. 5. The Y.B. 42 Ed. Ill, f. i, reads as if W. J. and R.
were the only defendants. Hil. 43 Ed. Ill, f. 10, confirms Br. Abr.

8 Br. Abr. Consp. 5 queries whether the writ would lie, because, though
the defendants procured as above, yet if the act were not done, the action
does not lie. Hil. 42 Ed. Ill, f. i, seems to indicate that the warranty was
lost through the procurement.

4 So too Fitz. Abr. Consp. 17 and Br. Abr. Consp. 7. The latter adds,
"mes est malement report."

ESSENTIALS OF LIABILITY TO THE WRIT 83

was, or at most merely mentioning some person distinct from
the defendants1.

ESSENTIALS OF LIABILITY TO THE WRIT

(4) Acquittal of plaintiff

§ 36. Proof that the plaintiff in conspiracy had been acquitted
of that with which he had been falsely charged was in general
necessary, presumably to make good "falso " in the writ, and in
the Ordinacio de Conspiratoribus, 33 Ed. I, which defines con-
spirators. We have already considered acquittal of a person
falsely appealed2, and it remains to discuss the same topic in
connection with one falsely indicted.

Coke makes lawful acquittal of the party by the verdict of
12 men one of the elements in his definition of conspiracy3,
and, in his report of The Poulterers' Case*, he notes "No writ
of conspiracy lies, unless the party is indicted and lawfully
acquitted ; but a false conspiracy is punishable though nothing
be put in execution"5. This qualification makes the definition
more accurate6, and it must be added that the plaintiff need
not always be acquitted by a verdict in his favour, e.g., one
accused as accessory to a crime7. Apart from this, Coke repre-
sents pretty closely the law of his time, and there is no lack of
authority textual and judicial in his favour. Fitzherbert8,
Stanford9, the Books of Entries10, and Reeves11, attest the
existence of the rule both before and after Coke's time.
Blackstone states that the plaintiff must obtain a copy of the
record of his indictment and acquittal, but that in prosecutions
for felony it was usual to deny a copy of the indictment where
there was the slightest probable cause for the prosecution12,

1 As in No. 7. 2 Ante 42 sqq.

3 3 Inst. 143. 4 9 Rep. 55 b (Mich. 8 Jac. I).

5 This, though included in the head-note, is no part of the decision.
J. F. Eraser's ed. 1826.

6 Cf. i Hawk. P.C. ch. 72, sect. 2.

7 Acquittal was not needed in action upon the case in the nature of con-
spiracy. 8 N.B. ii4D. 9 P.C. 172.

10 "Conspiracy" in Booke of Entries (ed. 1614), f. 109; Browne's Entries,
129; Vidian's Entries, 145; Rastall's Entries, f. 123. " II. 329.

12 in. 125. In Coleridge's edition, the learned editor admits this qualifica-
tion, but questions the grounds of it.

6—2

84 ESSENTIALS OF LIABILITY TO THE WRIT

since it would greatly damage public justice, if prosecutors who
had a tolerable ground of suspicion were liable to be sued
whenever their indictments miscarried. Hawkins1 reluctantly
concedes the necessity of acquittal but adds a strong criticism
of its principle. He argues that a new writ might well be
formed for a mischief which was just as much within the
Statute of Conspirators, and that if the prosecution were so
palpably groundless that a grand jury ignored the bill of in-
dictment, it was just as much a grievance as a vexatious action
for which the Register did give a writ without using either
acquietatus fuisset or quietus recessit2. But the point was, as
Hawkins admits, of small practical importance in his time, when
the writ of conspiracy was dying out as a mode of checking
abuse of legal procedure and its vigour had passed into the
action upon the case in the nature of conspiracy, which had the
same scope as the old writ, and in which no acquittal of the
plaintiff was essential.

Passing to decisions, the rule that acquittal was necessary
was implied in Hil. 33 Hen. VI, f. i, was agreed to obiter by
all the Court in Mar ham v. Pescod3, and was ruled in the Star
Chamber in Hurlestone v. Glaseour*. In Floyd v. Barker5, it
was resolved that when the party indicted is convicted of felony
by another jury upon "not guilty pleaded, there he never shall
have a writ of conspiracy," and not long afterwards there is an
opinion of CREW C.J. that conspiracy does not lie unless a man
be indicted and acquitted6. A rule constantly appearing in
books of practice is that a man shall have the writ upon an
indictment before the mayor and bailiffs of any city or borough
who have gaol delivery therein, if he be acquitted before them,

1 i P.C. ch. 72, sect. 2.

a No. 5 in Reg. Brev. f. 134. But the writ is really one of trespass upon
the case (F.N.B. 116 B), and Hawkins' statement that an acquittal by verdict
is not always necessary to maintain the writ of conspiracy must be limited
to this, which he gives as an example.

3 Cro. Jac. 130 (4 Jac. I, B.R.).

4 Goulds. 51 (latter years of Elizabeth).

5 12 Rep. 23 (5 Jac. I, Star Chamber). It may be mere obiter dictum.
The case is ill-reported. Ante 70, n. i.

6 Smith v. Cranshaw (20 Jac. I, B.R.) 2 Roll, at p. 259, so too obiter in
Taylor's Case (17 Jac. I, B.R.) Vin. Abr. Actions (Case Conspiracy. Viner's
ref. to Palm. 44 is untraceable), p. 33.

ESSENTIALS OF LIABILITY TO THE WRIT 85

for that acquittal discharges him of the felony1. Perhaps the
reason was that the jurisdiction of the mayor and bailiffs was
limited to prisoners in the local gaol, who had committed
offences within the town, city, or borough, and to felons taken
in the act within the same bounds. They could not try felons
indicted elsewhere and caught within their franchise except in
conjunction with the King's justices of gaol delivery. In cases
where they could act and did acquit one accused of felony,
who then proposed to sue conspiracy against his accuser, it
was as well to call the litigant's attention to the fact that it was
useless to employ a writ which stated that he had been acquitted
"in curia nostra coram...justitiariis nostris." Writ No. 4 was
designed to cover this case of acquittal in a court leet2, and
there is nothing to shew that it did not include acquittal in
both communal and manorial courts leet.

A person who had been accused of killing and justified it in
self-defence could not have a writ of conspiracy3, and this held
where the death had occurred by misadventure4; in each case
there was reasonable ground for the accusation. Acquittal in
law was not in general an acquittal which entitled the plaintiff
to bring conspiracy. Thus in Sydenham v. Keilaway5, all the
judges resolved that where the party was not indicted because
the bill was ignored, no conspiracy lies ; nor did it lie apparently
if the acquittal were on a void indictment, even if the accused
did not take advantage of the flaw, but pleaded not guilty and
were acquitted6. If one were falsely indicted of felony, and
afterwards by Act of Parliament a general pardon of all felonies
were granted, the accused could not sue conspiracy, even though
in his pleading he did not avail himself of the Act, but pleaded
not guilty and were acquitted; for his life was not in peril7,

1 F.N.B. 115 B. Reg. Brev. f. 134 reproducing almost exactly MS. in
C. U. Lib. LI. iv. 17. Cf. Ff. i. 32; Ff. v. 5; Gg. v. 19. Tottell, Nat. Brev.
ed. 1576. 2 Reg. Brev. f. 134.

3 Fitz. Abr. Consp. 21 (Mich. 10 Hen. IV; not in printed Y.B.).

4 Stanf. P.C. 173.

5 16 Eliz. Cited by POPHAM C J. in Cro. Jac. 7.

6 Per LYTTLETON J. in Trin. 9 Ed. IV, f. 12 (action of debt), Br. Abr.
Consp. 23. And see Rastall's Entries, Consp. 124 b. Stanf. P.C. 175 A.

7 F.N.B. 1150; quoted in a condensed form in Br. Abr. Corone 204.
So too Hil. ii Hen. IV, f. 41, where persons indicted of felony sought to

86 ESSENTIALS OF LIABILITY TO THE WRIT

and indeed he should not have been arraigned at all since the
Court must take cognizance of a general Act1. But where a
charter of pardon had been purchased and pleaded, and then
this plea had been waived and that of not guilty set up, followed
by an acquittal, the writ of conspiracy was available2; but
where the pardon was statutory, waiver was strictly speaking
impossible.

Whether a successful claim by the accused of benefit of clergy
prevented him from suing conspiracy was unsettled. Finchden
as counsel in Trin. 47 Ed. Ill, f. 15, recollected that he had
seen a case in which it was argued that there was no acquittal
of the plaintiff who had had his clergy, but that the action was
held maintainable, though the acquittal had been by an inquest
of office. The question was raised as a side issue in a case
doubly reported in Hil. 33 Hen. VI, f. i, and Mich. 34 Hen. VI,
f. 9. DANBY J. said that if on arraignment the accused said he
was a clerk, and prayed for a book and was afterwards found
not guilty, he should not have conspiracy, because his acquittal
was merely by an inquest of office. PRISOT C.J.C.P. thought
that he should, since no mention of the clergy would be made
in the record3, but the report questions the soundness of
this reason, for according to books of entries mention should
be made of clergy4. According to another report per optimam
opinionem, the action would not lie5.

The Courts did not go the length of holding that wherever
one who had been falsely accused as principal to a felony and
acquitted had an action for conspiracy, there too those accused
as accessories should have it ; but they seem to have acted upon

waive the benefit of a general pardon of felonies of 5 Hen. IV in order to
get an acquittal by verdict and so ground the action of conspiracy. GAS-
COIGNE C.J.K.B. refused to allow this.

1 Trin. 26 Hen. VIII, f. 7, and Br. Abr. Charter de Pardon, i.

2 Stanf. P.C. 173 A. If the charter were not waived, and the accused went
quit upon that, presumably he would not have been "acquitted." Perhaps
this explains the opinion of DANBY J. in Mich. 34 Hen. VI, f. 9, and the
argument of Kirketon in 42 Ed. Ill, at f. 15.

3 Both opinions are taken from the later report. The earlier states that
Choke (counsel) and DANVERS J. were against PRISOT.

4 So too Fitz. Abr. Consp. 4 (note).
* Br. Abr. Consp. 2.

ESSENTIALS OF LIABILITY TO THE WRIT 87

this idea. In the case just cited, an appeal1 of felony was brought
against two — one as principal, the other as accessory — and the
principal was acquitted, and the question was whether the
accessory could have conspiracy. It was argued that he could
not, because his life had never been in jeopardy by any jury,
since the principal was acquitted. But DANBY J. said, "in this
case his life was indirectly in jeopardy, for if the principal was
convicted, now those of the same inquest ought to inquire if
the accessory was guilty or not, or if he had appeared, etc."
At the same time he admitted that the accessory would not
have had the writ if the principal had died before conviction
or received a charter of pardon, for non constat then whether
the principal were guilty or not2. Had the appellant been non-
suited, the accessory would have had the action, for the appellee
would have been arraigned afresh at the suit of the King upon
the appeal3, and the acquittal would have been by verdict4.

Whether the verdict of acquittal passed upon the accessory
or the principal, it did not affect the accessory's right to sue,
but it was material to the precise form of the writ which he
selected. In the first case, the writ alleged acquietatus fuisset,
in the second, acquietatus fuisset of the principal and quietus
recessisset of the accessory5. The two reports of the case cited
above conflict as to whether the writ sued out by the accessory
should mention the imprisonment of the principal as well as
that of the accessory6, but the better opinion was that it need
not7, and the writs themselves support this8.

1 That it was a false appeal, not an indictment appears from a dictum of
DANVERS J. "If the appellant had been nonsuited in this case, the other
should have conspiracy." Hil. 33 Hen. VI, f. 2.

2 So too Stanf. P.C. 173 A; F.N.B. 115 A, F.

3 Per DANVERS J. and PRISOT CJ.C.P.

4 Ante 48. F.N.B. 115 A.

5 Stanf. P.C. 174 D; these writs in the printed Register are respectively
Nos. 3 and 8. Judging from MS. Registra, No. 3 is earlier than No. 8, and
both appear in the i4th century. The passage in Stanf. makes clear the
corresponding parts of F.N.B. 115 A and H.

6 Hil. 33 Hen. VI, f. 2, "This was held a good plea." Mich. 34 Hen. VI,
f . 9, " PRISOT. The writ supposes that the said T. Swike, the present plaintiff,
was imprisoned, and that is enough for him." At all events the defect was
not vital, for plaintiff got his judgment.

7 Stanf. P.C. 174 D.

8 Reg. Brev. f. 134.

88 APPLICATION OF THE WRIT TO WOMEN

APPLICATION OF THE WRIT TO WOMEN

§ 37. It has been alleged that a writ of conspiracy would
not lie against women, but there is no clear authority for such
an inexplicable rule1. In Y.B. Mich. 17 Ed. II, f. 509 a writ of
conspiracy was brought against two women and four men and
it was said in argument, "This writ is not maintainable against
women, for the writ has been abated here before now." CANT.2
said, "What do you reply for the man?" Other arguments
followed on this and other points, but nothing more was said
as to the women, and no decision is reported. On the other
hand, Y.B. 19 Ed. Ill, 3463 is against any such view. The writ
was against a man, his wife and others, and exception was
taken to it on the ground (among others) that it cannot be
understood in law that a woman could be supposed to conspire,
and particularly a feme covert. But the writ was adjudged to
be good, and there is evidence that suitors had experimented
with a writ in the I4th century4. It is difficult to think of any
intelligible reason for the alleged immunity, but perhaps a
confused analogy with the rule that the writ did not lie against
husband and wife — a rule itself of doubtful foundation5 — may
have been the root of it.

EFFECT OF DEATH OF ACCUSED

§ 38. We are told that Richard III6 in the inner Star Chamber
called before him all his Justices and put to them the question
whether, if anyone should have brought a false writ and action
against another, whereby he is taken and imprisoned and dies
in prison, there would be any remedy for the party, or for the
King. The facts raising the question were that Thomas Stanton

1 Reeves, H.E.L. n. 328-9 citing Y.B. Mich. 17 Ed. II, f. 509.

2 The context implies that he is a judge but according to Foss neither of
the Cantebrigs, and none of the Cantilupes was at that time a judge, though
John de Cantebrig was continually employed in the judicial commissions
for Cambs. from 4 Ed. II onwards.

3 Ed. Pike.

4 Bodleian MS. Reg. Brev. (Rawlinson, C. 310) writ No. 4 of conspiracy
states one of defendants to be the wife of a certain person. Cf. Vidian's
Entries (1684) where there is a precedent of conspiracy against several,
including a widow.

6 Ante § 26. 6 Y.B. 2 Ric. Ill, f. 9.

COMPROMISE BY THE PLAINTIFF 89

had a judgment in Chancery against Thomas Gate for certain
lands, and had execution thereof; and that Gate in contravention
of this had re-entered the lands, and taken and imprisoned
Stanton by colour of a false and fictitious action. The Justices
replied that there was no punishment for prosecution of the
false action, since it was not ended. This opinion does not in
terms apply to the writ of conspiracy, but the question was
a general one, and the Justices mention no remedy except
attachment by the Chancellor for contempt against the judg-
ment. Their reply is consistent with the general principle that
the writ is inapplicable where the plaintiff has not been acquitted.

COMPROMISE BY THE PLAINTIFF

§ 39. It is probable that compromise by the plaintiff barred
the action.

In Y.B. Hil. 18 Ed. IV, f. 24, ten men were sued for con-
spiracy. One defendant pleaded that an accord had been taken
between him and the plaintiff by the mediation of their friends,
who agreed that the defendant should pay to the plaintiff los.
for this procurement and all other offences, and the defendant
paid that sum. Each of the other defendants pleaded the same.
The plaintiff imparled, and there the report ends. But in
Rastall's Entries there is a precedent of a bar to the writ by
arbitration1, and Stanford states that concord is a good bar2.

MISCELLANEOUS POINTS OF PROCEDURE

§ 40. A count in conspiracy need not specify details of the
offence with which the plaintiff had been charged in a false
appeal, for the defendants must have been well aware of what
it was that they had conspired and procured, and the plaintiff
could scarcely be blamed for not repeating verbatim the lie
which had injured him to the very persons who had invented it3.
The writ while it had to state the place where the conspiracy
was made4 was good though it did not state the Justices before

1 Consp. f. 125 b. 2 P.C. 175 A citing the above case.

3 Y.B. Pasch. 17 Ed. II, f. 544. SCROPE [HENRY LE SCROPE C.J.K.B.]
"and if you conspired and imagined an appeal to be sued against him of
a thing which was never done, so much the greater is the malice."

4 Obiter in Mich. 24 Ed. Ill at f. 76. So too the writs in Reg. Brev.
f. 134.

90 MISCELLANEOUS POINTS OF PROCEDURE

whom the plaintiff was arraigned and acquitted on a false in-
dictment1 nor the manner of acquittal2, nor that the place where
he was acquitted was in the county over which the Justices
who acquitted him had jurisdiction, for this was presumed in
his favour till the contrary was shewn3; and though it alleged
that the conspiracy took place in two towns, for that did not
negative the possibility of its commission at one time4. It was
enough that it rehearsed the substance of the false indictment5.
But if the plaintiff made no mention of the indictment he would
be met successfully by the plea "mil tiel record"6. But the
writ should be brought in the county where the conspiracy was
made, and not where the indictment was, or where the deed
was done7, for if the rule were otherwise it might expose the
defendants to another action on the same set of facts after
judgment in their favour in the first8. Purchase of one writ of
conspiracy pending another for the same conspiracy against the
same defendants did not vitiate the former, for a plaintiff could
have "twenty writs of conspiracy or trespass against a man for
one and the same trespass and each pending at the same time "9 ;

1 Y.B. Trin. 3 Hen. VI, f. 52. It was queried whether the declaration were
ill for alleging the acquittal to have been before Justices of the Peace instead
of Justices of gaol delivery. Cf. Stanf. P.C. 174 c.

2 Trin. 47 Ed. Ill, f. 15. Stanf. P.C. 1740. This must be qualified by
what has been said as to the difference between "acquietatus fuisset"; and
"quietus recessisset."

3 Hil. 35 Hen. VI, f. 46. Stanf. P.C. 174 B.

4 Pasch. 22 Hen. VI, f. 49. F.N.B. 116 M.

5 Stanf. P.C. 174 c. Mich. 19 Hen. VI, f. 34. By a slip, the plaintiff in
abstracting the indictment in his writ said "felonice cepit" instead of
"cepisset," and it was urged that he thereby admitted that he had taken
what he was charged with stealing, in spite of his acquittal. But the reply
was that the writ need recite only a rehearsal of the indictment.

6 Conceded obiter by the Court in Trin. 9 Hen. VI, f. 26. Br. Abr.
Consp. 36.

7 F.N.B. 116 M. Stanf. P.C. 176 E. 22 Ric. II (Bellewe) is shewn by the
fuller report in Fitz. Abr. Challenge, 177, not to be in point. Pasch. 42 Ed. Ill,
f. 14 (conspiracy at Lincoln to bring an assize of novel disseisin in York.
Writ brought in county of Lincoln, and adjudged good, for the conspiracy
had commenced by speaking in Lincoln, though the assize had been sued
in York). In Hil. 15 Ed. IV, f. 20 (a case of maintenance) LYTTLETON J.
said obiter that the writ of conspiracy can be brought in the county where
the conspiracy was made, and in Hil. 13 Hen. VII, f. 17, FROWYK (not then
a judge) said that conspiracy in Bucks, cannot be sued upon in any other
county.

8 FROWYK (loc. cit.). 9 Y.B. Mich. 19 Hen. VI, f. 34.

MISCELLANEOUS POINTS OF PROCEDURE 91

and the same applied to a statutory writ of procurement1, nor
was any injustice done to the defendants, for "though a man
procure another to be indicted a hundred times, he shall receive
but once his damages"2. It is not certain whether two could
join as plaintiffs in a writ of conspiracy ; in Y.B. Mich. 47 Ed. Ill,
f . 17, though the argument was that the damages of the one could
not be the damages of the other, nor the recovery of the one
the recovery of the other, it was held by Robert Knivet, the
Chancellor, that they could join, because they were damaged by
the conspiracy, but in 19 Ric. II a writ brought in common by
two was abated because their grievance was several. MARKHAM3
contended that as the indictment was common to both plaintiffs,
so was the grievance, but RICKHILL J. held that the grievance
was several since the imprisonment of the one could not be
the imprisonment of the other, and that they could take nothing
by the writ4. On a verdict for the plaintiff the defendants were
taken without further process, though the case was otherwise
where they were indicted at the suit of the King5.

1 Y.B. Trin. 9 Ed. IV, f. 23. The statute is probably 8 Hen. VI c. 10.

2 GENNY J. (loc. cit.).

3 JOHN MARKHAM was made judge of C.P. July 7th, 1396.

4 Bellewe (ed. 1869), Briefe, pp. 80-81. Fitz. Abr. Briefe, 926.

6 Trin. 43 Ed. Ill, f. 33. Fitz. Abr. Consp. u. Stanf. P.C. 175 B.

CHAPTER III

EARLY HISTORY OF CONSPIRACY TO ABUSE
PROCEDURE AS A CRIME1

DISTINCTION BETWEEN CIVIL AND CRIMINAL
PROCEDURE

§ i. In treating of conspiracy as a crime, we are met by the
well-known difficulty of distinguishing the civil from the
criminal proceeding. That there was at the time when the writ
of conspiracy originated a perception of the distinction in both
theory and practice is clear2. That there was no sharply cut
division between them is equally clear. The two might be
described as a viscuous intermixture, for "every cause for a
civil action is an offence" and "every cause for a civil action in
the king's court is an offence against the king, punishable by
amercement, if not by fine and imprisonment "3. The distinction
between Pleas of the Crown and Common Pleas was not
perfectly certain4; nor can it be said that writs connoted civil
proceedings — least of all the writs of trespass with which the
writ of conspiracy is closely allied both as a matter of historical
origin and mechanical arrangement in the1 Register ; and the writ
of trespass took the place of writs relating to criminal appeals —
probably was born of them — and trespass itself was persistently
treated as a crime in the Middle Ages5. Again, any fraudulent
abuse of procedure in the course of a civil action would be
punished by imprisonment, and of this there are examples more
than half a century before the writ of conspiracy was invented6.
When allowance has been made for the blurred line between

1 For the whole topic, see Wright, Consp.

2 Glanv. Bk. I. ch. i. Bracton, HI. f. 115. Fleta, lib. I. cap. 16.

3 P. and M. n. 572. 4 Ibid. 573.

5 Holds, n. 434; Mait. C.P. n. 157, 164, 165, 168. P. and M. n. 526.

6 P. and M. ii. 519. Bract. N.B. pi. 1946 (A.D. 1221) closely resembles
conspiracy (Assize of novel disseisin brought by Copsy against husband
and wife. This was found to be brought by collusion between Copsy and
the husband with a view to defeating wife's marriage portion. Copsy and
the husband were committed to prison).

CONSPIRACY AS A CRIME 93

civil and criminal redress, we can still take advantage of the
difference between procedure which begins by the writ of con-
spiracy, and that which is based on the presentment of a local
court or before the King's justices1, and this will be adopted
as a test.

EARLY HISTORY OF THE CRIME AS ABUSE
OF PROCEDURE

§ 2. The early history of conspiracy in its criminal, as in
its civil, aspect, is closely (but not entirely) implicated with
combination to abuse procedure, and the exposition under this
section will as far as possible be confined to that. But at the
outset it must be noticed that the idea of punishing com-
binations of a certain — or rather uncertain — kind appears in
our law even before the Statute of Conspirators, 21 Ed. I2 and
the Ordinance of Conspirators, 33 Ed. P. Nothing of the sort
is traceable in Glanville, but a case of 1225, and another of
1230 from Bracton 's Note Book bearing upon the point have
been already quoted4. Bracton himself in speaking of "facta,"
" scrip ta," and "consilia" that are punishable exemplifies the
last named by "conjurationes"5, but the passage is a transcript
from Roman Law6. Elsewhere in discussing the liability of an
accessory, he remarks on the rule that there cannot be an
accessory without a principal, "quia ubi principale non con-
sistit, nee ea quae sequuntur locum habere debent, sicut dici
poterit de praecepto, conspiratione et consimilibus," and adds
that these are sometimes punishable if followed by an act,
otherwise not7. This does not illuminate " conspiratio," nor
does Bracton include anything akin to it in the Articles of the
Eyre which he gives8 ; and the same applies to other Articles
of the Eyre prior to Ed. I which have been examined9. Ac-
cording to Britton, inquiry is to be made of "alliaunces"
between jurors and the King's officers, or between one neighbour

1 Cf. P. and M. 11. 518 et seq. 2 Ante 22.

3 Ante i. 4 Ante 3. 5 n. 154-6.

6 Dig. 48. 19. 16 pr. Mait. Bracton and Azo (S. S. vol. vm), 190.

7 n. 334-7- 8 «• 240-253.

9 E.g. Hoveden, in. 263 (A.D. 1194); iv. 61 (1198); Rot. Cl. n. 213 (1227).
The Mirrour apparently refers to conspiracy as a crime (ante 30-31).

94 EARLY HISTORY OF THE CRIME

and another to the hindrance of justice, and such persons are
to be ransomed at the King's pleasure, and their oath is never
after to be admissible1. Here we are not far from conspiracy
in its strict sense. We have combination, and it is combination
to abuse procedure ; and the germ of the "villainous judgment "
which later appears with more detailed severity as the punish-
ment of a convicted conspirator. Yet the mere fact that this
is not styled conspiracy shews that lawyers had not then a
definite conception of the term. A marginal note to this passage
in an early i4th century MS. copy of Britton by a contemporary
commentator also shews this fluidity of thought. The note calls
the offence to which Britton has referred "conspiracie des
assisours & des jurours," and immediately after exemplifies it
by an "alliance" in 30 Ed. I between a Sheriff, Sir Robert
de Veer and several other persons in the county of Northampton,
that some of them should indict persons, and the others save
them, for bribes, according as the Sheriff should arrange the
panels2. Cases have been quoted from the Parliament Rolls
mentioning conspiracy in 1290, and in one of these (the com-
plaint of the citizens of London) there is some reason for
thinking that the object was abuse of procedure3; but no
reference to it as a crime eo nomine can be found before De
Conspiratoribus Ordinatio, 21 Ed. I4. This provided that those
convicted of conspiracy should be severely punished ac-
cording to the discretion of the justices by imprisonment and
ransom. Coke's belief in the existence of a crime of conspiracy
(meaning abuse of procedure) at Common Law has apparently
nothing better to recommend it than the Mirrour which gave
him the equally wrong impression that there was a Common
Law writ of conspiracy5. The Statutum de Conspiratoribus,

1 Liv. I. ch. xxii. sect. 19.

2 C. U. Lib. Dd. vn. 6. And see Nichols' ed. of Britton. Introd. xlix,
Ixi and p. 95, note d.

3 Ante 27.

4 Ante 26. Wright (p. 15) makes the source "the first Ordinance of
Conspirators, A.D. 1292, 20 Ed. I." The context shews that this means
Statutum de Conspiratoribus (for which we have conjectured the date
21 Ed. I), wherein De Conspiratoribus Ordinatio is recited.

6 2 Inst. 382 et sqq. In O'Connell v. R. (1844), n Cl. and F. 155,
TINDAL CJ. (at p. 233) says that it was manifestly known to the Common
Law. This cannot be extended to conspiracies to abuse legal procedure.

AS ABUSE OF PROCEDURE 95

21 Ed. I1 which followed De Conspiratoribus Ordinatio,
levelled its three years' imprisonment and fine rather at cham-
pertors than conspirators. Either because the punishment in the
Ordinatio was too vague, or more probably because it needed
emphasis to check a crying abuse, 28 Ed. I c. 10 (Art. sup.
Cart.) passed. It ran thus:

In right of conspirators, false informers, and evil procurers of
dozens2, assizes, inquests, and juries, the King hath provided remedy
for the plaintiffs by a writ out of the chancery3. And notwithstanding
he willeth that his justices of the one bench and of the other, and
justices assigned to take assizes, when they come into the country
to do their office, shall upon every plaint made unto them, award
inquests thereupon without writ, and shall do right unto the plaintiff
without delay4.

Shortly after this, Ordinacio de Conspiratoribus5 makes its
definition of conspirators include those who commit main-
tenance. These offences are not easy to disentangle historically,
and maintenance must be left for future discussion. After the
definition, Articles of the Eyre direct inquiry as to conspirators
either by description6 or name, and, in the middle of Edward
Ill's reign, in the string of criminals to be inquired of by
inquest of office in the King's Bench are conspirators and con-
federators who ally themselves by oath, covenant, or other
alliance that each shall aid and sustain the other's undertaking,

Mr Bryan points out that on his side of the Atlantic hasty judicial influences
have been drawn as to the ancient conception of conspiracy; pp. n and 20,
notes on State v. Buchanan, 5 H. and J. 317.

1 Ante 22.

2 Termes de la Ley, tit. " Deciners."

3 Either the writ under De Conspiratoribus Ordinatio (ante 26), or that
under Statutum de Conspiratoribus (ante 22). Cf. JONES J. in Smith v.
Cranshaw, W. Jones at p. 94. Coke, 2 Inst. 562, takes it to be the writ under
the Statutum.

4 St. of the Realm, I. 139. The writ founded upon the Stat. is given in
F.N.B. 116 N. There is a commentary on the Stat. in Coke, 2 Inst. 561.
Cf. Stephen, H.C.L. n. 227-9; Bryan, 17-18. 5 Ante i.

6 "Of those who by oaths bind themselves to support or defend the
parties, quarrels and businesses of their friends and well-wishers, whereby
truth and justice are stifled." St. of the Realm, I. 233 (temp, incert. Ed. III).
Cf. Rot. Par 1. 1. 330 b where on a petition from the City of Lincoln and the
county, Justices were assigned to inquire into robberies, homicides, murders,
disseisins, false judgments, forstallments and conspiracies made by ministers
of the King, and others in Lincolnshire (A.D. 1314-1315).

96 CONFEDERACY

be it false or true; and those who falsely make people to be
indicted and acquitted, or falsely move or maintain pleas in
manner of alliance1. The Statute 4 Ed. Ill c. n had already
passed owing to the inadequacy of 28 Ed. I c. 10 to extirpate
conspiracies, confederacies and maintenance. We know from
its preamble that some lost their lands by these means, while
others preferred to abandon their rights rather than risk maim
and battery at the hands of their enemies, and jurors were
intimidated from returning verdicts. The statute provided that
Justices of both Benches and of Assize in their sessions should
inquire and determine, both at the suit of the King as well as
that of the aggrieved party of such maintainers, undertakers, and
conspirators, and also of champertors ; if they could not deter-
mine the case at nisi prius owing to the shortness of their visit,
they were to adjourn it to their own courts and settle it there.

CONFEDERACY

§ 3. Here we may conveniently say something of "confede-
racy" and "confederators," terms which are constantly en-
countered in connection with conspiracy on its criminal side . They
begin and end in the history of our law with no very technical mean-
ing. An early instance of their use is to signify privity to a felony,
as where Nicholas de Appelby was killed by John Fraunceys
and others, and an appeal of this by Adam de Prynge was
quashed. B. de S. then made inquest on behalf of the King,
but took it 60 leagues from the place where the felony was
committed, and by the parents and confederates of the felons,
to the prejudice of the King and his peace2. Again, there is
some trace of an idea that confederacy signified the combination
in conspiracy to abuse procedure, apart from the abuse itself3;
on the other hand, at a later period, WYNDHAM J. in R. v.
Starling took an almost exactly opposite view and spoke as if
conspiracy were the mere combination to commit crime, and
confederacy or " coadunation " were the consummation of it*.

1 27 Lib. Ass. 44. Cf. pi. 34.

2 Rot, Parl. i. 49 a (A.D. 1290). Cf. I. 127 a (1290. Complicity in some
unnamed wrong-doing against the King).

3 19 Rich. II (Bellewe " Conspiracy"), ante 65, n. 10.

4 i Keb. 675 (15 and 16 Car. II, B.R.).

CONFEDERACY 97

Frequently "conspiracy and confederation" appear as a phrase
— sometimes without any meaning specified for either word1,
but more usually as synonyms for some wrong the nature of
which can be gathered from the context. This wrong certainly
involves combination on the part of its perpetrators, and it may
be abuse of procedure2. Confederacy is sometimes equivalent
to maintenance3, but it is by no means limited to that, and
continually appears in the sense of combination to commit a
crime or wrong of any sort4, such as confederation to murder
the King5, or to oppose him6, confederacies in restraint or to
the prejudice of trade7, or to kill another, as where John of
Lancaster complains that five of the Thornburgh family with
the assent of their father imagined the death of John by false
confederacy, by sleeping armed in the same room where he
was spending the night with intent to kill him in his bed8; or

1 Rot. Parl. i. 216 b (A.D. 1306); iv. 104 b (1416). Cf. 28 Lib. Ass. pi. 12
(where they are mentioned distinctly).

2 Rot. Parl. n. 1410 (1343), 165 a (1347), 2596 (i354>> 2656 (1355);
in. 248 a (1387-8). So too 18 Ed. Ill st. i ; 4 Ed. Ill c. u ; 27 Lib. Ass.
pi. 44; The Poulterers' Case (Mich. 8 Jac. I) 9 Rep. 55 b; Abb. Plac. 295
(ante 3). Other words to which confederacy is joined are " colligaciones "
(Rot. Parl. i. 371 a, A.D. 1320), " champerty," " maintenance," " alliance." Rot.
Parl. ii. 374^(1376-7) ; 111.42 a (1378) ;and several of the preceding references.

3 27 Lib. Ass. pi. 34. Eyre of Kent, 6 and 7 Ed. II, S. S. vol. xxiv. p. 62.
According to Wright (Crim. Consp. 15) from very early times "conspiracy"
and "confederacy" were distinguished as different crimes under 33 Ed. I,
conspiracy becoming appropriated to false and malicious indictments, while
confederacy was especially used to designate combinations for maintenance.
No doubt this holds of conspiracy, for though it applied to appeals, these
rapidly became obsolete; but, with deference to the learned author, it is
difficult to admit his specialization of confederacy to maintenance. See
many of the passages cited in preceding note, where confederacy often seems
to be a variant word for conspiracy as well as for maintenance; also Rot.
Parl. I. 198 a (1306) where conspiracy is used to cover a case of maintenance.
The authorities cited in Wright are 27 Lib. Ass. pi. 44 and 29 Lib. Ass.
pi. 45. The note to Art. 5 in 27 Lib. Ass. pi. 44 supports his suggestion,
but Art. 6 makes confederacy equivalent to conspiracy. 29 Lib. Ass. pi. 45
is a mere opinion or argument that an indictment which alleges only that
the accused is a champertor or conspirator is insufficient, "sed non sic de
confederatione. Quaere." Cf. Bryan, 54 n.

4 Rot. Parl. I. 201, 202 a (1306).

6 3 Hen. VII c. 14; certain officials are to inquire by "xii sadde and
discrete persones of the Chekk rolle" of confederacies, compassings and
conspiracies with any person to murder the King.

6 Rot. Parl. i. 127 a (1294). ' Post 98.

8 Reply to John's petition is that the Thornburghs are to be bound over
not to injure him. Rot. Parl. iv. 163 a (1421).

98 CONFEDERACY

to get a man out of gaol1; or to disturb the staples2; or to rob3,
or to extort money by the detention of goods4; or to commit
a riot, as where a petitioner in Chancery complains that the
two defendants by confederacy and conspiracy made between
them and certain persons of a guild to the number of two or
three hundred to whom the defendant had promised the peti-
tioner's lands, entered by forcible assemblies upon the peti-
tioner5. Sometimes it is difficult to say that the combination
is to commit any specific wrong; thus in 1411, the Commons
complain on behalf of dwellers on the Severn that certain
persons have confederated together to compel the inhabitants
to cross the Severn, whose passage till then had been free, in
great boats called "trowes" to be hired of the owners6.

Coke, in stating the essentials of confederacy, employs the
word as if it were conspiracy in the old strict sense, and also
distinguishes it not very intelligibly from "coadunatio" and
"falsa alligantia"7. In R. v. Best, where the accused were
indicted for conspiring to charge another falsely with being the
father of a bastard child, the counsel for the accused "took a
diversity between a conspiracy and a confederacy ; the one must
be in judicial proceedings, the other may be in pais"\ but
HOLT C.J. in his judgment did not pin himself down to such
a distinction8, and a precedent of a similar indictment in West's
Symboleographie which was cited in this case is against it, for
the description of the crime "unitionis, conspirationis, con-
federationis, manutentionis," is a mere jumble of words indi-
cating the same idea9, and in Hawkins' treatise, conspiracy and

1 Rot. Pan. vi. 102 a (1474). 2 27 Ed. Ill st. n. c. 25.

3 Four men forcibly took from an alien 40 pence "per extorsionem et
confederacionem." Leet Jurisdiction in Norwich. S. S. vol. v. p. 64
(1374-5). Cf.p. 68.

4 R. v. Grimes and Thompson (3 Jac. II) 3 Mod. 200. Detention of goods
alleged to be "per confederationem et astutiam."

5 Select Cases in Chancery, S. S. vol. x. Case 79 (1396-1403 A.D.). Cf.
2 Rich. II st. i. c. 6. « Rot. Parl. m. 665.

7 Note to The Poulterers' Case (8 Jac. I) 9 Rep. 55 b. "Coadunatio" is
a uniting of the wrong-doers together, " confederatio " is a combination
amongst them, and "falsa alligantia" is a false binding each to the other,
by bond or promise, to execute some unlawful act.

8 6 Mod. 186 (3 Ann. B.R.).

9 Pt. II. sect. 97. POWELL J. and HOLT C.J. differed in their opinions
of West's value.

THE VILLAINOUS JUDGMENTS' •''•

confederacy are used interchangeably1. The conclusion is that
though no exact meaning can be attached to confederacy apart
from its context, it is roughly equivalent to criminal conspiracy
in its broad modern meaning, and is not limited to the old
sense of that word.

THE VILLAINOUS JUDGMENT

§ 4. There was at first no definite punishment for conspiracy,
for the Statutum de Conspiratoribus, while it imposed three
years* imprisonment on champertors, and required them to
make fine at the King's pleasure, did not refer to conspirators
generally2. Very likely the punishment of the assisa who swore
falsely led to the selection of something similar for the kindred
offence of conspiracy3; and then by accretions — some per-
ceptible, some imperceptible — this developed into the villainous
judgment. Even before the i3th century if the assize perjured
themselves in court, and confessed, or were convicted of, the
perjury, they forfeited all their chattels to the King, were
imprisoned for a year at least, were deprived for ever after of
their law, and subject to perpetual infamy4. A century later,
neighbours who ally themselves to the hindrance of justice are
bracketed with jurors who ally themselves with the royal officers
for the same purpose, and both are to be ransomed at the
King's pleasure, and their oath is never again to be admitted5.
In Fortescue's time, we hear of additional penalties — their
houses and buildings are to be razed, their woods felled and
their meadows ploughed6. It has been inferred that the penalties
against perjured jurors were so inadequate towards the end of
Ed. I's reign that it was intended to include them in the
definition of Conspirators of 33 Ed. I, though judicial con-
struction of it gave them immunity7.

i P.C. ch. 72, sect. 3 et sqq. especially sect. 9.

Ante 22. 3 Reeves, in. 126.

Glanv. II. xix; and see P. and M. n. 542, n. i.

Britton, i. xxii. 19.

De Laud. Leg. Angl. ch. xxvi. Termes de la Ley, "Attaint." Coke
(3 Inst. 222) says that the villainous judgment is given in conspiracy and in
attaint of a jury, and in those cases only.

7 Sir F. Palgrave. "Essay upon the Original Authority of the King's
Council," sect. xxii. See too the interesting ballad of that period in sect, xxiii.

7—2

ido THE VILLAINOUS JUDGMENT

Conspiracy had scarcely been christened when a scandalous
case of it led to a petition recorded on the Parliament Rolls.
Several men were indicted of conspiracies and other trespasses
and made fine for these; yet they were afterwards placed on
the inquest and jury, to the confusion of those who had faith-
fully indicted them. To the petitioners* request for a remedy,
it is replied that if the conspirators have made false con-
federacies, or procured themselves to be put on inquests for
gain, or have taken gifts from either side and have been con-
victed thereof, they may not in future be put on any jury,
inquest or assize1. Another short step and we get a fresh
instalment of the villainous judgment. In 1314, the Commons
complain to the King and Council of conspirators who infested
every city, borough, hundred, and wapentake, and were allied
by oath to maintain and procure false parties against law and
right. It was ordained by the Council that no one convicted of
conspiracy should be placed on any jury, assize, or recognition,
or get himself admitted to any County, Hundred or other
Court, or any " congregationes " or "tractatus," except for pur-
suing or defending his own affairs, on pain of heavy forfeiture;
and every sheriff in England must publicly proclaim this2. In
Ed. Ill's reign, the law repeats in substance these penalties,
and adds to them further terrors — some of them purely vin-
dictive. Two were convicted of conspiracy at the King's suit.
The judgment was that they should lose their "franke ley,"
to the intent that they should not thereafter be put on juries
or assizes, nor otherwise on testimony of truth; that they
should transact their business in the King's Court by attorney
only; that their lands, goods and chattels should be seized
by the King, and stripped if they could not get this miti-
gated; that their trees should be uprooted, and their bodies

1 Rot. Parl. i. 201 a (A.D. 1306).

2 Ibid. i. 289 a. Those who complain of such convicted conspirators
can get a writ of trespass from the Chancery formed upon this ordinance
and proclamation. The year before this, two found to be guilty in the Eyre
of Kent of conspiracy and maintenance were committed to prison, and
afterwards made fine. This leaves it open whether the disabilities mentioned
in Rot. Parl. I. 201 a were implied on a conviction, and need not be ex-
pressed in the sentence. S. S. vol. xxiv. p. 62. And see Henry le Swan's
case, A.D. 1325, post 103.

THE VILLAINOUS JUDGMENT " bi'

imprisoned1. Later still in the same reign, one who was con-
victed was sentenced in the same way with the refinements that
he was not to come within i22 leagues of the King's court, and
that his wife and children were to be ousted3. Here we have
the villainous judgment in full flower, a composite product of
ordinance and judicial decision4. It was said at a later date
when the judgment was no more than a legal fossil, that it
could not be given except where the conspiracy was to take
away a man's life, but the reports of the case are not trustworthy
on this point5. The name was due to the "villanie et huntie"
which it brought upon the criminal6, and Coke gives as a further
reason the loss of freedom and franchise of the law which
entailed a kind of bondage and villainy, and he is at some pains
to support the moral justice of its severity7. This remedy was
limited to conviction at the King's suit and did not apply to
the defendant in a civil suit8. The last recorded instance of it
is 46 Lib. Ass. pi. n, and for it were substituted fine, pillory,
imprisonment, and sureties for good behaviour9. The Star

1 27 Lib. Ass. pi. 59; slightly fuller in Br. Abr. Consp. 28. Already in
1343, in response to a prayer of the Commons, the King had declared that
no one attainted of confederacy or conspiracy should hold office of the King,
Queen, or great men, or be a sheriff, or escheator. Rot. Parl. n. 141 a. Cited
3 Inst. 222.

2 Fifteen ace. to Br. Abr. Consp. 31. Hudson (p. 133) surmises that he
could not prosecute a suit in the Star Chamber.

3 46 Lib. Ass. pi. ii. Cf. Br. Abr. Consp. 31.

4 Cf. Stanf. P.C. 175 B. Coke contradicts himself, for in 3 Inst. 143, 222,
and 2 Inst. 562, he states that the judgment is given by the Common Law,
while in 2 Inst. 384, he bases it on an imaginary Act of Hen. I. Hawkins
(i P.C. 72, sect. 9) attributes it to the Common Law; so does Blackstone
(iv. 136). Cf. Wright, p. 15. In Sydenham v. Keilaway (16 Eliz.) Cro.
Jac. 7, it is said that conspiracy is a misdemeanour punishable at Common
Law.

5 Obiter dictum in Savill v. Roberts (10 Will. Ill, B.R.) 12 Mod. at p. 209.
The report in i Ld. Raym. at p. 379 makes the Court say, "But in an action
for a conspiracy no villainous judgment shall be given, unless the life was
endangered by that conspiracy," and Carthew 416 is to the same effect.
But the villainous judgment, according to earlier authority, could not in
any event be awarded except on conviction at the suit of the King. Mich.
24 Ed. Ill, f. 34 (note by Shard[elowe?]).

6 Stanf. P.C. 174 B.

7 3 Inst. 143. 8 Note 5 supra.

9 Leach's note to i Hawk. P.C. (ed. 1787) 72, sect. 9; so too Bl. iv.
136-7. It is mechanically repeated in Vin. Abr. Consp. (I) 2. In R. v. Best
(3 Ann. B.R.), 6 Mod. 186, it is mentioned.

102 DEVELOPMENT OF THE CRIME

Chamber punished conspiracy by branding in the face and
slitting of the nose1. Thus in Henry VI IPs reign, a priest was
branded with F and A in his forehead for false accusation2.
So too in James I's reign, Basset and an attorney named
Reignolds, were convicted in that Court, and the sentence was
that Reignolds be degraded and cast over the Common Pleas
Bar, and that both defendants should lose their ears, be marked
with a C in the face for conspirators, should stand upon the
pillory with papers of their offences, should be whipped, and
each of them fined £500. These sentences were executed3. It
may be added that Edward III consulted his justices and
Serjeants whether persons indicted of conspiracy for indicting
another of felony were mainpernable, and received the express
opinion that they were not4, no doubt on account of the odious
nature of the offence5.

DEVELOPMENT OF THE CRIME IN ITS ORIGINAL SENSE

§ 5. There is not much wonder that the punishment of con-
spiracy culminated in the savagery of the villainous judgment.
The crime was rife in high places, and the watch-dog too often
a disguised wolf. In 1314-15, the men of Romney complain
that felons and murderers are received in Romney, that the
bailiff lets felons escape, and with his fellows conspires against
the petitioners to prevent justice being done to felons and
murderers, so that the inhabitants dare not remain there unless
a speedy remedy be applied. The Council answers the petition
by assigning Henry Spigurnel, Henry of Cobham, Custodian
of the Cinque Ports, and Roger le Sauvage to inquire into the
petition and hear and determine for the King6. Edward II
sought the help of the Church in suppressing conspirators and
maintainers of false pleas. He issued a writ to the Bishop of

1 Hudson, 224.

2 Hil. 37 Hen. VIII, ace. to Coke's note to The Poulterers' Case, g Rep.
57 a. So also one of the conspirators in Sir Anthony Ashley's Case (Mich. 9
Jac. I) Moore, 816, was branded.

3 Miller v. Reignolds and Basset (n Jac. I) Godbolt, 205. Hawkins (i P.C.
72, sect. 2) speaks of branding as one of the punishments for a false and
malicious accusation.

4 27 Lib. Ass. pi. 12. 5 3 Inst. 143.
6 Rot. Part. i. 324 b.

IN ITS ORIGINAL SENSE 103

Cicester directing him to fulminate the greater excommunica-
tion against these and many other offenders, and Parliament a
century later recited this in a petition requesting the same
remedy against the prevalence of crime in half-a-dozen counties1.
Henry le Swan, according to another petition at the end of
this disorderly reign, whilst " gardein del Murage de Loundres,"
was attainted in the Eyre of London for false and malicious
conspirations, whereby the King's Council ordered that he
should hold no office in the realm. Yet he was never so bold,
malicious, and oppressive to the people as now. The reply is
that if the facts alleged be found on scrutiny of the record in
the Chancery, the sheriff is not to put him on assizes, juries,
inquests, etc.2 But the sheriffs themselves had not clean hands.
It was but two years after the Definition of Conspirators that
the auditors of plaints hear John de Tany's complaint against
the sheriff of Essex because he has conspired with another to
disseise de Tany of some manors and will not allow him to
view the panel or the writ, and for this the sheriff makes fine
of £ io3. This is only an isolated instance, but in 1330 a sweeping
provision of the King and Council requires all the sheriffs of
England to be removed and not to be received back, and good
people and sages of the law to be assigned throughout all
England to inquire, hear, and determine, at the suit of both
King and party, conspiracies, oppressions, grievances, and
trespasses made between i Ed. II and 4 Ed. Ill by sheriffs,
coroners, constables, bailiffs, hundredors, and such other
ministers, and others4. Among the long list of things into
which justices assigned for keeping the peace are, in 1343,
directed to inquire we find conspiracies, confederacies, cham-
perties, ambidextres, meyntenours, meffesours, false quarrels,
and all other falsities made in deceit of the law; and in the
same year the writ of exigent, which outlawed a defendant who
did not appear with moderate promptitude, was made applicable

1 Rot. Parl. iv. 121 a (1433). The petition is met by a promise to consult
the Lords.

2 Ibid. 435 a (1325), where the Bishop of Durham is charged with con-
spiracy and collusion in inducing the petitioner's relations to bring a law
suit.

8 Abb. Plac. 305 (35 Ed. I). 4 Rot. Parl. 11. 60. Cf. 416 a.

io4 DEVELOPMENT OF THE CRIME

on the prayer of the Commons to conspirators, confederators,
and maintainers of false quarrels1. But again in 1347, the King
is importuned to forbid under a certain penalty great men
from maintaining maintainers, conspirators, confederators, em-
bracers, champertors, and others, and he fends them off with
the promise of a homoeopathic cure — he will consult with the
great men and ordain such remedy as shall please God and
man2.

This cancer of administrative corruption spread to the
judicial bench, for in the Parliament of 28 Ed. Ill, the King
assents to the request of the Commons that inquest upon
conspiracy, confederacy, and maintenance shall be returned
only by the sheriff of the most lawful men, and nearest to the
place of the supposed fact, and that all evidence therein shall
be openly given at the bar, and no justice or other shall commune
with the inquest to move or procure them after their departure3.
In the next year, the grievance is not corruption of the judges,
but their hastiness. Justices assigned to inquire of confederacies,
conspiracies, and maintainers, judge "molt reddement"4, and
the Commons ask the King and his Council that the points of
confederacies, etc., be declared. The answer is that no one is
to be judged or punished for confederacy except in the case
where the statute has made express mention on the points
contained in the same statute5.

Sometimes the petitioner is bluntly referred to his Common
Law remedy, even where it has conspicuously broken down,
as when Sir Hugh le Despenser makes a stranger buy a false
writ for certain lands against another, who loses his verdict
because the inquest are terrified, and gets imprisoned by Sir
Hugh when he sues writ of trespass and conspiracy6. In
Richard IPs reign, Parliament begs the King — not for further

1 Rot. Parl. n. 137 ay 141 a.

2 Ibid. n. 165 a. Cf. Palgrave, King's Council, 71-75, where two of the
commissioners directed to inquire into a conspiracy, and the bailiffs who
returned an inquest for that purpose, behaved no better than the conspirators
themselves.

3 Ibid. n. 259 b ; also 266 a.
"Rapidement" (Godefroy).

6 Rot. Parl. n. 265 b.

6 Ibid. ii. 385 b (ann. incert. Ed. III). Cf. ante 56, n. 4.

IN ITS ORIGINAL SENSE 105

redress against criminals but — for a general white-washing of ,
them, including those who have committed conspiracies, con- I
federacies, champerties, ambidextries, falsities and deceits1; and
from a later petition it appears that attempts were made to
hoist the law with its own petard, and that the writ of con-
spiracy, originally designed to stop false accusations was being
employed to stifle honest ones. Evil-doers who had been
properly indicted procured their acquittal by a favourable
inquest, and then sued writs of conspiracy against their in-
dictors2 and others, alleging the conspiracy to be made in a .
county where they had powerful friends; and thus good and
lawful men dared not speak the truth. The King met this
abuse by giving the Chancellor power to make a remedy till
the next Parliament3. A case something like this had occurred
only the year before. Thomas Hardyng was committed to the
Fleet by the King and Lords for falsely impeaching Sir John
and Sir Richard de Sutton, on the ground that they had wrongly
imprisoned Thomas for one year in the Fleet by conspiring to
accuse him before the King's Council4.

A petition by the Commons in 1402 curiously exemplifies
the political history of the times. It alleges that conspirators
maliciously indict in Middlesex persons resident in other
counties, who are outlawed for treason or felony on these in-
dictments before they know of them. The prayer is that the
accused when acquitted may get the conspirators convicted by
the same inquest which acquits the accused, and that their
accusers may be punished. The reply is that the statutes and
Common Law are to be observed, and such conspirators, on
conviction, must pay damages to the injured parties, and make
fine and ransom to the King5. It was not long before this that
the Despensers had been impeached for procuring false in-
dictments, and, probably as an act of political revenge, packed
juries were impanelled without being returned by the sheriff,

1 Rot. Parl. in. 248 a (1387-8); iv. 1046 (1416).

2 Contrary to the well settled rule that the writ did not lie against indic-
tors. Ante 67 et sqq.

3 Rot. Parl. m. 306 a (1392-3). Cf. ill. 318 a (1393-4)-

4 Ibid. m. 2886(1391).
6 Ibid. 505 a (1402).

io6 DEVELOPMENT OF THE CRIME

and these juries falsely accused at Westminster persons, some
of whom were outlawed. Such indictments were made void
by ii Hen. VI c. 91, and the sheriffs were made essential
parties to the impanelling of juries. But the device was then
hit upon to which the petition just mentioned refers, and it
was applied with further success in Lancashire where geo-
graphical peculiarities favoured it. Morecambe Bay so splits
that county that juries drawn from either division of it might
well be ignorant of the existence of places in the other, and
indictments and appeals of treason and felony were falsely
procured against persons who were accused of having com-
mitted them in a fictitious place. These persons went in such
fear of being beaten and maimed by the procurers that they
dared not appear to answer the accusation. 7 Hen. V c. i
recites this, and requires every justice having jurisdiction over
such treasons and felonies in Lancashire to inquire before
award of the exigent which entailed outlawry whether the place
mentioned existed in the county and, if it did not, such appeals
and indictments were to be void, and the indictors punished
by imprisonment, fine, and ransom at the discretion of the
justices. This ordinance was limited in place to Lancashire
and in time till the next Parliament. 9 Hen. V st. i, cc. i and 2
extended it to England generally, and a later statute provided
that defendants' outlawries, though good in Lancashire, should
not be operative in other counties so as to forfeit their lands
and goods elsewhere. 18 Hen. VI c. 12 made the ordinance
perpetual2. Two varieties of the fraud just discussed had also
to be met by legislation. One was to issue a capias ad respon-
dendum to the sheriff of Middlesex returnable within so short
a time that a person so indicted who lived at a distance had no
opportunity to appear, and thus forfeited his goods and chattels
on an award of exigent*. This was remedied by 6 Hen. VI c. i .
The other was to procure indictments and appeals of treason,
felony, and trespass in counties or franchises unknown to the
parties accused, with the similar result of exigent and outlawry.

1 Cf. Rot. Parl. HI. 627 b.

z See I. S. Leadam, Introd. to S. S. vol. xvi. pp. ciii et seq. The peculiar
exception of Cheshire from 9 Hen. V st. i, c. 2 is there explained.
3 I. S. Leadam, ubi supra.

IN ITS ORIGINAL SENSE 107

8 Hen. VI c. lo1 gave the acquitted party action upon the case
against the procurer with treble damages. Of this more will
be said in developing the history of the writ of conspiracy;
here it is enough to note that where an appellor appealed one
who was not merely out of a particular county, but abroad,
there are traces in earlier times of a much more summary
procedure, for in a case in which the appellor admitted to the
Court that the appellee was in Flanders, it was awarded that
he be hanged, for the appellee could not be convicted2.

The iniquities of jurors and sheriffs break out again under
the feeble rule of Henry VI, and statutes of Edward IV, and
Richard III were aimed against them3. There can be little
doubt that it was the Star Chamber that withered conspiracy
at its root. As it reaches the zenith of its power for good in
the reign of Elizabeth, so does the shadow of conspiracy stricto
sensu dwindle. In the country, the suitor might have to face
magistrates unprincipled and ill-educated, and juries intimi-
dated or corrupted by a powerful opponent ; and if he tried to
upset the unjust verdict against him, he might, if it were a
civil case, resort to an obsolescent remedy4 and perhaps tread
the vicious circle of attempting to attaint one jury by another
just as corrupt; or, whether the case were civil or criminal, he
would probably have to plunge into further tedious litigation
in order to right himself5. In the Star Chamber, on the other
hand, he was sure of a strong Court and was free from a jury6
Its jurisdiction over conspiracy was not established without
question. In Rochester v. Solm, Coke maintained that the
remedy of the acquitted party was to prefer an indictment at
Common Law, but Lord Egerton "did gravely confute that
opinion," and shewed that the Common Law remedy did not

1 Stanf. P.C. 176 B; F.N.B. 115 H ("c. 80" is a misprint for "c. 10").

2 Trin. i Ed. Ill, f. 16.

3 I. S. Leadam, loc. dt. i Ed. IV c. 2; i Rich. Ill c. 4. The popular
suspicion of juries did not vary much from one century to another. Cf.
the verses cited by Palgrave, pp. 58-9, 103.

4 Sir Thomas Smith said in 1565 that attaints were very seldom put in
use. See Thayer, 153.

6 Palgrave, sect, xxxiv-v; Hudson, 14; Thayer, 149.

6 The Council had long before been given by legislation a short-lived
authority to deal with false suggestions made to it. 37 Ed. Ill c. 18,
38 Ed. Ill st. i, c. 9, 42 Ed. Ill c. 3.

io8 ORIGINAL MEANING OF THE CRIME

exclude the Court of Star Chamber from proceeding for the
King also1. Moreover, the Court was willing to overlook formal
defects in pleading in order to save its jurisdiction in such

cases

In early times the fool occasionally appears to have received
punishment more appropriate to the knave. One Knige, in
Edward IPs reign, indicted the coroner, Mekelfield and
Berneham, whereon the jurors said that they confederated
themselves on account of enmity borne by Mekelfield to Knige,
and that they falsely and maliciously published that Knige had
killed Isabella de Shapstone. Notice of this death reached the
incompetent coroner, who, in ignorance of the law, and not by
any conspiracy, took an inquisition without inspecting the body.
Six other persons honestly but blunderingly consented to the
indictment of Knige, who was convicted. Isabella in fact was
alive. The six were imprisoned in spite of the lack of malicious
intention; so apparently were the coroner, Mekelfield and
Berneham. Berneham assigned as errors that he was compelled
to be a juror by the coroner, and that he need not reply to
the indictment for conspiracy, because conspiracy is always
voluntary. The ultimate result does not appear3.

As conspiracy gradually widens into the crime known at the
present day, the cases in which its object is to abuse procedure
dwindle in proportion to those where the aim is wrong-doing
of other kinds, and modern examples are not easy to find4.

1 Hudson, 104-5.

2 Tailor and Towlin's Case (4 Car. I). Godbolt, 444. Cases of conspiracy
were not always so styled in the S.C., if Amerideth's Case (41 and 42 Eliz.)
Moore, 562, be correctly reported. There a "combination" of tenants
(apparently copyholders) to maintain each other in suits relating to the
freehold was punished.

3 Abb. Plac. 322 (9 Ed. II).

4 R. v. Teal (1809) n East, 307, seems to be the last case of combination
to accuse before a Court as distinct from accusation to the public.

CHAPTER IV

DEVELOPMENT OF CRIMINAL CONSPIRACY GENERALLY
TO THE END OF THE i8ra CENTURY

PRELIMINARY

§ i. It has been shewn that if conspiracy had any strict
meaning in early law, it was that of combination to promote
false accusations and suits before a Court. This is in extra-
ordinary contrast with the modern law which has expanded
the crime so much as to make it almost incapable of definition.
The change has come by astute adaptation of a term which
never lost its early plasticity1, and had an equally plastic doublet
in " confederacy." Cases occur from the beginning which would
later have been called conspiracies, but which have no special
name2. On the other hand, "conspiracy" and "confederacy"
—the latter especially — are traceable at an early date with the
broad signification that they were to bear in the developed law.
But they are not to be found in the Year Books. The solitary
example of any attempt to extend criminal conspiracy beyond
its original boundary occurs in Mich. 24 Ed. Ill, f. 75, where
a judgment against two on a presentment for conspiracy was
reversed partly because the presentment omitted the day, year
and place of the conspiracy, and partly because the chief cause
of the offence was not so much conspiracy as wrongful damage
and oppression of the people, for the presentment alleged im-
prisonment of a person till he had made fine.

THE PARLIAMENT ROLLS

§ 2. It is rather in the Parliament Rolls that evidence of the
growth of conspiracy is to be sought. We read there of con-
federation by oath to oppose the King in I2Q43, and confedera-
tion in the sense of combination to commit crime in 133 1-24.

1 See Termes de la Ley for the colourless French and Latin meanings of
the word. 2 Ante 3-4.

3 Rot. Parl. i. 127 a. 4 Ibid. n. 65 a.

no THE PARLIAMENT ROLLS

A curious case illustrating both terms forms the subject of a
petition to Parliament in 1306. Four citizens of York were
indicted before justices appointed to inquire of a certain con-
federation made between the four, for having removed a gild
[gildam] anciently set up for making certain alms, and for this
trespass they afterwards made fine to the Treasurer. Four
other persons then spread it abroad that the original four were
convicted before the Council of conspiracy and collusion, and
would not allow them to come among them so that they could
not know the plans or secrets of the city. The Mayor, Sheriffs
and community of the city are ordered in the reply to the
petition to refrain from this civic ostracism1. Another petition
throws a side-light on the feeble rule of Edward II. It sets out
that he had commanded Elizabeth de Burgh to stay with him
on Christmas Day, and that by the abetment and ill counsel
of Hugh de Spencer, Robert de Baldock, and Sir W. de Cliffe,
he had caused her to be arrested and to make a bond obligatory
for forfeiture of her property, if she married against the King's
wishes. The writ issued by Ed. Ill in response to the petition
recites these facts and that "our said father, by the conspiracy
and crafty plotting" of the men mentioned, acted as he did.
The script of the obligation is to come before Parliament without
delay. Parliament advised that it was against law and reason
and caused it "to bee damned"2. Next, conspiracy appears as
a combination to hinder the realization of the Royal revenue,
when, in 1340, punishment is decreed for those who by con-
spiracy or false covin prevent the sale for the King's benefit
of the ninth sheaf, fleece, and lamb granted by the preceding
Parliament to the King3; and not long afterwards as a com-
bination to contravene the Ordinance of the Staples (27 Ed. Ill
st. 2) c. 25 of which forbids any merchant to make confederacy
or conspiracy to the disturbance of the Staples4. Conspiracies
to commit treason are mentioned several times5, and the

1 Rot. Parl. i. 202 a. 2 Ibid. 11. 440 a.

3 Ibid. n. 117 b, and see sect. 3 of the Statute.

4 So too Rot. Parl. n. 251 a.

5 Rot. Parl. in. 3166 (1393-4); St. of the Realm, n. 46-47 Ibid. 509
(3 Hen. VII c. 14). So too in later law, Blunt's Case, St. Tr. I. 1410 (1600).
R. v. Hardy, 24 St. Tr. 438 (1794).

TRADE COMBINATIONS in

Lollards are spoken of as conspirators to subvert the Catholic
faith1. In 1413, the Commons pray for a remedy against those
who by false conspiracy and covin forge false deeds2. Keeping
greyhounds among the lower classes seems to have lead not
merely to Sabbath breaking and poaching, but to conspiracies
to disobey their allegiance3.

TRADE COMBINATIONS

§ 3. But by far the commonest use of conspiracy and con-
federacy is in connection with combinations to restrain or to
interfere with trade. In 1320, fishmongers complain to Parlia-
ment of a confederation among other fishmongers that fish
should no longer be sold by retail on a particular wharf4; in
21 Ed. Ill the grievance is against a confederacy of merchants
who had farmed the King's wool5. Among the Articles of
inquiry by inquest of office in the King's Bench, 27 Lib. Ass.
pi. 44, is one relating to merchants who by covin and alliance
form a "ring" to fix the price of wool annually to the great
impoverishment of the people. In a Norwich leet court, there
is a verdict in 1390 against some who have cornered wheat6,
and in 1415, Parliament is asked to supervise the dyers of
Coventry who have confedered to raise the cost of dyeing7.
In fact, the prevailing idea was that trade combinations when
they interfered with prices were an economic evil to be stamped
out by the state, and a Parliament which was parental enough
to fix the price of a young capon at threepence, and an old one
at fourpence8 was not likely to shirk this duty. That its attempts
to regulate trade were not always satisfactory in result was only
to be expected. A statute of 13 Rich. IP in effect forbade any
tanner to be a shoemaker, or shoemaker a tanner, and shoe-

1 Rot. Parl. iv. 106 a, 108 a.

2 Ibid. iv. 10 a. For riot, see ante 98.

3 13 Rich. II st. i, c. 13.

4 Rot. Parl. i. 370 a.

6 Ibid. n. 1706. Cf. 350 b (conspiracy to defraud by the merchants of
Florence and Lombardy).

6 S. S. vol. v. p. 74. 7 Rot. Parl. iv. 75 a.

8 37 Ed. Ill c. 3.

9 St. i, c. 12. Partially repealed 4 Hen. IV c. 35 and wholly 5 Eliz. c. 8
and i Jac. I c. 22.

ii2 CRIMINAL CONSPIRACY IN THE LATTER

makers who disobeyed were to forfeit all leather so tanned. The
tanners took advantage of this to form a conspiracy and con-
federacy to beat down the price of leather and oxen at market,
so that they could sell leather at an extortionate price, and thus
raise the price of boots. On this the Commons petitioned that
shoemakers should be allowed to tan, but the request was not
granted1. Confederacies of masons in their chapters and
assemblies subverted the Statutes of Labourers so seriously
that causing the holding of such chapters was made a felony2.
But 2 and 3 Ed. VI c. 15 surpasses any previous enactment in
scope and graduated severity, for it punishes in effect all pur-
veyors of food who conspire to sell their goods only at fixed
prices, and all artificers or labourers who conspire not to work
except at a fixed wage or for a fixed time3.

CRIMINAL CONSPIRACY IN THE LATTER HALF OF THE .
I7TH CENTURY

§ 4. The latter half of the i7th century witnesses a swift
approach of criminal conspiracy to the meaning it now bears.
It was a favourable time for its extension, for on the civil side
the writ of conspiracy was obsolete because its work was more
efficiently done by the action of case founded upon it, and on
the criminal side the Star Chamber had crushed combinations
to accuse before a Court. The original meaning was dis-
appearing, save for the idea of combination, and it was not
difficult to tack on to that idea almost any conceivable evil object
that two or more persons might have. The transitional era is
well illustrated in the reports. Even in the earlier half of the
century there are signs of the coming change. The Star
Chamber in 4 Jac. I had held to be illegal a "combination" of
tenants who joined in a petition to the King relating to the

1 Rot. Parl. in. 330 b (1394-5).

* 3 Hen. VI c. i. Rot. Parl. iv. 292 a.

3 It is instructive to notice that West's Symboleographie (ed. 1647), 11.
sect. 98, has a precedent of an indictment for a conspiracy of bakers Oct. 2nd,
39 Eliz. that the penny loaf should not weigh more than 2 Ib. 6 oz. while
sect. 97 is an indictment for conspiracy in the old sense. Again in Midwinter
v. Scrogg, i Keb. at p. 756 (1636), the Star Chamber fined the butchers of
London £3000 for glutting the markets to the impoverishment of several
country farmers.

HALF OF THE SEVENTEENTH CENTURY 113

customs of the manor, and had bound themselves by writing
to bear the expenses rateably. The ground of the illegality
was not the joining in the suit nor the contribution as such,
but giving a blank power to one Perkins to write what he liked
in the petition and formulating a claim as to tenure and not
merely as to the customs1. And Coke, though he confines his
definition of conspiracy to its old sense, clearly recognizes
elsewhere that it had a wider interpretation2. In R. v. Starling*,
a case much cited in later authorities, an information was laid
against London brewers because they were of confederacy, and \/
had conspired "deprender" the "gallon trade" (by which the
poor were supplied), and so caused the poor to mutiny against
the farmers of the excise. A jury found the defendants guilty ^'
of nothing except the conspiracy to impoverish. One of the
grounds of a motion in arrest of judgment was that the de-
fendants had not been found guilty of any offence, since it
was no legal offence to impoverish another with intent to enrich
oneself as by selling commodities at cheaper rates. But after
several debates, it was adjudged by the Court that this was a
good verdict upon which judgment should be given for the
King. For the verdict related to the information, and the
information recited how the excise was part of the revenue
and to impoverish the farmers of the excise would make them \/
incapable of rendering to the King his revenue. And HYDE,
TWYSDEN, and KELYNGE held that the bare conspiracy in this
case to diminish the King's revenue, without any act done, was
finable. WYNDHAM J. said that if it was no more than a
conspiracy without an act done, it was not punishable, but
that here there was more — a confederacy and a coadunation,
by assembling themselves for this purpose. Here then, the
Court has taken the step of applying to the law of criminal

1 Lord Greye's Case, Moore, 788. Cf. Wright, 22. The learned author
classifies this under combination to commit maintenance, and perhaps it
falls within Coke's definition of this. Co. Lift. 368 b.

2 3 Inst. 143. Ibid. 196, where he says that every practice or device by
act, conspiracy, words, or news, to enhance the price of victuals or other
merchandize, was punishable by law, and also refers to 2 and 3 Ed. VI
c. 15 (ante 112).

3 i Sid. 174 (15 and 16 Car. II, B.R.); i Keble, 650, 655, 675, 682;
i Lev. 125.

W.K.L.P. 8

ii4 CRIMINAL CONSPIRACY IN THE LATTER

conspiracy in general the principle which had already been
settled in criminal conspiracy to accuse another of crime before
a court — that combination is the gist of the offence; and
WYNDHAM J.'s dictum merely relates to the evidence needed to
prove the combination, not to the execution of its purpose.
But it will be noted that there is nothing in the decision which
implies that the purpose of the conspiracy need not be un-
lawful1. In R. v. Opie the conspiracy was in the nature of
embracery2, and soon after cases occur on conspiracy to cheat3.
A case which was argued on adjournment, but of which no
decision is reported, was R. v. Thorp*, where the information
laid was that Thorp and others had conspired to take an infant
under 18 from the custody of his father and to persuade him
to marry a person of ill name, and the purpose was effected.
All were found guilty except Thorp. It was moved in arrest
of judgment that the information did not contain any matter
of misdemeanour, and that one alone could not conspire as one
only had been found guilty. The discussion seems to have
been centred on the first objection. There had, however, been
a unanimous decision not long before that this was an offence
punishable by fine and imprisonment at Common Law, but
though the offence was committed by several acting together,
there was no allegation of conspiracy5. In 10 Will. Ill, leave
was granted to file an information against several button makers,
for combining not to sell under a set rate, and HOLT C.J. said
that it was fit that all confederacies by those of trade to raise
their rates should be suppressed6. Early in Anne's reign counsel
argued that the defendants in R. v. Starling were liable because
the conspiracy would affect the public revenue, but that if the
conspiracy had been that none should buy coffee from By it
would not bear an indictment, so too if there were a confederacy

1 Cf. Wright, pp. 11-12, 38, and App. II.

2 i Wms. Saund. 300 e (1671).

3 Thody's Case, i Vent. 234 (24 and 25 Car. II). R. v. Orbell, 6 Mod. 42
(2 Anne, B.R.). R. v. Maccarty, 2 Ld. Raym. 1179 (3 Ann. B.R.) is not a
case of conspiracy; Wright, 106.

4 5 Mod. 221 (8 Will. Ill, B.R.) Comb. 456.

6 R. v. Twistleton, i Sid. 387 (20 Car. II, B.R.) ; i Lev. 257. Cf. Lord
Grey's Case (1682), 9 St. Tr. 128, and the criticism in Wright, 106.
6 Anon. 12 Mod. 248.

HALF OF THE SEVENTEENTH CENTURY 115

to waylay a man and kill or rob him. But HOLT C.J. denied
the last two instances, and in any event the case was not on
conspiracy; he also said that in R. v. Starling the gist of the
offence was its influence on the public, not the conspiracy, for
that must be put in execution before it is a conspiracy1. This
must be qualified by his decision next year in R. v. Best*,
where the conspiracy was falsely to charge (but not before a
Court) a man with being the father of a bastard child. It was
urged (inter alia) upon demurrer that it ought to appear that
the accusation was before a lawful magistrate. But HOLT said,

This indeed is not an indictment for a formed conspiracy, strictly
speaking, which requires an infamous judgment.... But this seems
to be a conspiracy late loquendo, or a confederacy to charge one
falsely, which sure, without more, is a crime.

And the whole Court thought that the mere agreement to charge
a man with a crime falsely was a consummate offence, and
indictable; and that the crime charged need be no more than
an ecclesiastical offence (here fornication), and that the con-
federacy was the gist of the indictment.

CRIMINAL CONSPIRACY IN THE BEGINNING OF THE
i8TH CENTURY

§ 5. It may be said then that about the beginning of the
1 8th century, we have decisions or indications in decisions that
criminal conspiracy had been extended to include combina-
tions (i) to accuse, but not necessarily before a Court, of some
offence; (2) to commit embracery; (3) to cheat; (4) to sell goods
at a fixed price (but this is the merest indication)3; (5) to extort
money; and that combination was the gist of the offence. In
considering further developments in the i8th century, there is
no need to examine each case in detail, for that has already
been done in the learned monograph of WRIGHT J. The salient
points may, however, be noticed. And first, it was said by the

1 R. v. Darnell (2 Anne, B.R.) 6 Mod. 99.

2 6 Mod. 185 (3 Anne, B.R.), i Salk. 174. 2 Ld. Raym. 1167.

3 Anon. 12 Mod. 248 (ante 114). R. v. Rispal (i^fa) 3 Burr. 1320. Wright
{p. 61) refers to 37 Ed. Ill c. 5 as the statute which covers this (Ibid. 44);
but that chapter was repealed 38Ed.IIIc.2.

8—2

n6 RESULT

Court in R. v. Journeymen Taylors of Cambridge (lyai)1, and
in other cases, that conspiracy is an offence at Common Law.
This must be limited to conspiracy in its extended sense, and
not in its original meaning of abuse of process, for there it is
traceable to " De Conspiratoribus Ordinatio "2. The Court held
as a consequence that the indictment need not include contra
formam statuti, for the case was that the defendants had con-
spired to raise their wages, and this was alleged to be a breach
of 7 Geo. I c. 13 which prohibited journeymen from entering
into any agreement for advancing their wages. But the answer
was that the case was outside the statute "because it is not the
denial to work except for more wages than is allowed by
Statute, but it is for a conspiracy to raise their wages, for which
these defendants are indicted." These last words raise a
question very difficult of solution. Need the object of any
combination be criminal, or at least unlawful, in order to make
it a conspiracy ?

RESULT
§ 6. The result seems to be :

(1) Where the combination is against the government, or
public safety, it is possible that it may be criminal
although the acts proposed may not be criminal3 ; but
even here, they were perhaps at least unlawful4.

(2) Where the combination is to pervert justice, otherwise
than by false accusation, though the perversion of
justice may not be criminal apart from the combina-
tion, yet this may be criminal conspiracy, though the
actual decisions seem to shew that the perversion must
be at least a contempt of Court5- The earliest of these
cases is R. v. Mawbey (i796)6.

(3) Combinations against public morals and decency have
been held to be conspiracies; but there is nothing to
shew that the immoral acts which were the purposes

1 8 Mod. ii. 2 Ante 94.

3 Wright, sect. n. § 7 and cases there cited.

4 R. v. Starling (ante 113) is the case which makes this doubtful. All the
other cases shew an unlawful object.

* Wright, sect. n. § 8 and cases there. 6 6 T.R. 619.

TEXT-BOOKS n7

of such combinations were not in themselves criminal1.
R. v. Delaval (1763) is the earliest case2.

(4) In combinations to injure individuals otherwise than
by fraud, it is doubtful whether the purpose need be,
apart from combination, criminal3, such as bribing a
cardmaker's apprentice to spoil his master's cards by
greasing them4.

(5) There are some indications, but no clear authority
that combinations to raise wages were punishable,
though such demands if made by individuals would
not be5.

TEXT-BOOKS

§ 7. The text-books lag behind the reports in taking account
of the expansion of criminal conspiracy. There is no mention
of it in the 1778 edition of Kale's History of Pleas of the Crown.
Blackstone contemplates no variety of the original crime6, and
Hawkins, though he lays it down that all confederacies wrong-
fully to prejudice a third person are highly criminal, inserts
this statement of questionable accuracy without further dis-
cussion in his exposition of conspiracy in its old meaning7.
So stands the general history of criminal conspiracy to the end
of the 1 8th century, and, as we are concerned with abuse of
legal procedure only, the statement of the modern law of con-
spiracy relating to other objects is outside the scope of this
book.

1 Wright, sect. n. § 9 and cases.

* 3 Burr. 1434. See Lord Mansfield at pp. 1438-9. In R. v. Young cited
in R. v. Lynn (1788) 2. T.R. 733, the conspiracy was to prevent the burial
of a corpse apparently for purposes of indecent exhibition, and there is a
strong probability that this was illegal, as in R. v. Lynn, the .Court held that
if one carried away a body for mere dissection it was a crime.

3 Wright, sect. n. § n.

4 R. v. Cope. Str. 144 (5 Geo. I), which appears to be the first genuine
case. It is not easy to see, on the authorities cited by the learned author, that
such an act was then punishable apart from combination.

5 Wright, sect. 11. §§ 12-14 especially pp. 52-53.

6 iv. 136.

7 i P.C. 72, sect. 2. Cf. Wright, 38.

CHAPTER V

THE ACTION ON THE CASE IN THE NATURE
OF CONSPIRACY

§ i . In this chapter we must trace the decay of the writ of
conspiracy and the supersession of it to the action upon the
case in the nature of conspiracy, which ultimately developed
into the modern action for malicious prosecution.

DECAY OF THE WRIT OF CONSPIRACY

§ 2. Examples may be taken from the Parliament Roils to
shew that the writ of conspiracy was not an entirely adequate
remedy in the ordinary Courts. Such cases possibly represent
the abnormal, but judging from petitions for amendment of the
criminal law in part materia, there is reason to think that the
corruption of officers or the fear of great men often made the
law in its usual course ineffectual. Thus, in Edward IPs reign,
a London goldsmith suffered much at the hands of John of
Lincoln and his sons. He was insulted, thrashed, maimed and
imprisoned till he made a fine of four marks assessed apparently
by an inquisition of John's tenants procured by his conspiracy.
On another occasion, he was imprisoned by the King's Marshals
on a false allegation of speaking disaffection of the King. For
this the Council gives him a writ of conspiracy before the King1.
Oppressors were not invariably great men2, and occasionally a
man in high position was himself oppressed, for the Archbishop
of York complains in 1330 that two had by conspiracy and false
alliance between them procured the indictment3. The peti-
tioner sometimes gets a writ of conspiracy either as a sufficient
remedy or as additional to some other remedy4, sometimes the
subpoena5, sometimes a special remedy6, and occasionally is

1 Rot. Part. i. 316 a (1314-15).

2 Ibid. 3206 (same date), where the persons petitioned against were a
vicar, a bailiff, and another.

3 Ibid. II. 316. (He is given a writ of conspiracy.)

4 Ibid. i. 328 b. 6 Palgrave, King's Council, 71-75.
• Rot. Part. i. 307 b (8 Ed. II); 320 a (same date).

DECAY OF THE WRIT OF CONSPIRACY 119

referred to the Common Law1. The writ of conspiracy becomes
less and less common as we approach the end of the printed
Year Book period, partly because the writ of maintenance was
more popular. From that time onwards its place is taken by
the action of case in the nature of conspiracy and the history
of this must now be traced.

ACTION UPON THE CASE IN THE NATURE OF CONSPIRACY

§ 3. There was always room for the growth of a fresh action
from the original writ of conspiracy for it was closely akin to
the malleable writs of deceit and trespass, as examples drawn
from MS. Registra have already shewn2, and the narrowness of
the old writ in its limitation to two defendants at least, and its
requirement of acquittal on the false charge, made the creation
of a more elastic remedy a necessity. It is only by processes
not very palpable that it comes into being. Thus Fitzherbert,
in discussing the writ of conspiracy in his Natura Brevium, the
first French edition of which was published in 1534, says that
there are divers other writs of conspiracy grounded upon deceit
and trespass done unto the party. His examples are the writ
against two men for conspiring to indict another because he
did not arrest a felon, and the application of the writ against
one person only, as where the accusation was of trespass or
other falsity3. But it is worth noticing that the writ in the first
of these cases is unseparated in both MS. Registra and the
printed Register from the other writs of conspiracy, and that
there is no clear decision of conspiracy, or case in the nature
of it against one only, before Fitzherbert4. Not but what there
are signs of action upon the case long before Fitzherbert. In
Brooke's Abridgement of 27 Lib. Ass. pi. 73, there is a reference
to it5, and in 30 Lib. Ass. pi. 41, an assize was brought against
two, one of whom took the tenancy of a parcel to himself, and

1 Rot. Parl. I. 418 a (ann. incert. Ed. III). Cf. Mem. de Parl. 1305 (ed.
Maitland) pet. 197 where John de la Cressovere was indicted and imprisoned
on the procuration of three persons. "Let him have a writ according to the
ordained form."

2 Ante 57-58. 3 H6A.K.L.

4 Ante 57 sqq. See Trin. n Hen. VII, f. 25, post 120.

5 Act. sur le Case 81.

CHAPTER V

THE ACTION ON THE CASE IN THE NATURE
OF CONSPIRACY

DECAY OF THE WRIT OF CONSPIRACY

§ 2. Examples may be taken from the Parliament Roils to
shew that the writ of conspiracy was not an entirely adequate
remedy in the ordinary Courts. Such cases possibly represent
the abnormal, but judging from petitions for amendment of the
criminal law in part materiay there is reason to think that the
corruption of officers or the fear of great men often made the
law in its usual course ineffectual. Thus, in Edward IPs reign,
a London goldsmith suffered much at the hands of John of
Lincoln and his sons. He was insulted, thrashed, maimed and
imprisoned till he made a fine of four marks assessed apparently
by an inquisition of John's tenants procured by his conspiracy.
On another occasion, he was imprisoned by the King's Marshals
on a false allegation of speaking disaffection of the King. For
this the Council gives him a writ of conspiracy before the King1.
Oppressors were not invariably great men2, and occasionally a
man in high position was himself oppressed, for the Archbishop
of York complains in 1330 that two had by conspiracy and false
alliance between them procured the indictment3. The peti-
tioner sometimes gets a writ of conspiracy either as a sufficient
remedy or as additional to some other remedy4, sometimes the
subpoena5, sometimes a special remedy6, and occasionally is

Rot. Parl. i. 316 a (1314-15).

Ibid. 320 b (same date), where the persons petitioned against were a
vicar, a bailiff, and another.

Ibid. n. 316. (He is given a writ of conspiracy.)

Ibid. i. 328 b. 6 Palgrave, King's Council, 71-75.

Rot. Part. i. 307 b (8 Ed. II); 320 a (same date).

DECAY OF THE WRIT OF CONSPIRACY 119

ACTION UPON THE CASE IN THE NATURE OF CONSPIRACY

2 Ante 57-58. 3 H6A.K.L.

4 Ante 57 sqq. See Trin. u Hen. VII, f. 25, post 120.

5 Act. sur le Case 81.

120 ACTION UPON THE CASE IN THE

successfully challenged a juror. The other did not challenge
the juror and prayed that he should be sworn. The Court
would not do this, for thus they would take different assizes.
STOUFORD J. said that if the tenant who challenged, and the
plaintiff were of one mind for ousting the other tenant of his
advantages, this might be in case adjudged conspiracy. " Query
how?"1 Mich. 5 Ed. IV, f. 126, seems to shew that the action
was not then particularly well known or at least not clearly
distinguished from conspiracy proper. This was an action on
the case for forging an obligation, and it was said (by whom
does not appear) that if this action were allowed, then the in-
convenience would ensue that on every obligation sued, and
every action real or personal, the defendant would have action
upon his case against the plaintiff alleging that he had sued a
false suit against him, and that our law would not maintain this,
for the defendant shall not recover damages against the plaintiff
except in special cases, as in appeal of felony where the de-
fendant is acquitted, or where on indictment he is acquitted,
his remedy is by the writ of conspiracy on St. West. II,
13 Ed. I c. 12 2. A statutory action on the case in peculiar cir-
cumstances has already been mentioned3. In Trin. 1 1 Hen. VII,
f. 25, it was held upon the construction of this statute that the
action under it could be brought against one only, "and so it is
of a conspiracy on an indictment of trespass "4. It is not till
Elizabethan times that the reports shew the action on the case
as becoming better known5. Coke thought thatjerom v. Knight6
(Trin. 29 Eliz. B.R.) was the first instance of it7, but Fuller v.

1 In Smith v. Cranshaw, W. Jones 93 (i Car. I, B.R.), the Court stated
that it was held in 19 Rich. II that action on the case lay for conspiring to
indict a man though he was not indicted. Neither in Bellewe nor in Fitz.
Abr. Br. 926 is the action said to be on the case. In both it appears as a
writ of conspiracy. 2 Ante p. 6.

3 8 Hen. VI c. 10 (ante 107). It has been said that this statute first
brought the action upon the case into the field heretofore occupied solely
by the action of conspiracy (Bryan, 28-29). This assertion is too bold;
so is the author's criticism of Lord Holt's dictum in Savile v. Roberts, 12 Mod.
209. * FAIRFAX J.

* In Rastall's Entries (1596) the only precedent for action upon the case
in conspiracy is on 8 Hen. VI c. 10.

' i Leon. 105, Cro. Eliz. 70, 134 where its aliases are Knight v. German
or Jermin.

7 In Lovet v. Faukner, 2 Bulst. 270 (n Jac. I, B.R.).

NATURE OF CONSPIRACY 121

Cook (Pasch. 26 Eliz.) is still earlier1; and the decision proceeds
upon the assumption that there was no intrinsic objection to
the action2, but in Jerom v. Knight this was raised as a vital
question. The defendant, intending to detract from the name
and fame of the plaintiff, and to put his life in jeopardy, mali-
ciously caused a bill of indictment of felony to be exhibited
against him, on which he was indicted and acquitted. The
plaintiff then sued action upon the case against the defendant
and got judgment. Upon this error was assigned in that no
action lay upon the matter shewn. The Court were in doubt,
but WRAY C.J. thought that it should lie, as the indictment had
been written and preferred maliciously, "and if two conspire
maliciously to exhibit an indictment, and the party be acquitted,
he shall have a conspiracy; so when one doth it, this action
upon case lieth." SCHUTE and GAWDY JJ. thought otherwise
because every felon who should be acquitted would then sue
the action. The case was twice argued later, and the Court
seems to have weighed then not so much the question of the
action lying at all, as the matter which should be pleaded in
defence to it. According to one report, the judgment was
affirmed3. In Cutler v. Dixon*, where articles of the peace had
been exhibited to justices, which contained divers abuses and
great misdemeanours, concerning other people besides the peti-
tioners, to the intent that the accused should be bound over, it
was held that the accused had no action upon the case, for the
ordinary course of justice had been pursued, and if actions should
be permitted in such cases, those who had just cause of com-
plaint would not dare to complain for fear of infinite vexation.
In Bradley v. Jones5, however, it was resolved that the action
would lie if the articles after being exhibited in the proper
Court were pursued in a Court which had no jurisdiction, and
in Allen v. Gomersall6 the whole Court adjudged the action to

1 3 Leon. 100.

2 So too Bulzver v. Smith (Mich. 26 Eliz.) 4 Leon. 52.

3 i Leon. 105.

4 4 Rep. 146 (27 and 28 Eliz. K.B.). Cf. Buckley v. Wood (33 and 34
Eliz. K.B.). Ibid.

5 Godbolt, 240 (ii Jac. I, C.P.).

Roll. Abr. Act. sur Case (c). En Courts de Justice, i (17 Jac. I).

122 ACTION UPON THE CASE IN THE

lie apparently without even this qualification. The ground there
stated is "deceit and vexation," and on principle there is no
reason why this form of malicious proceeding should not be as
illegal as any other. It has been clearly recognized as actionable
in modern times, and the plaintiff is released from the duty of
shewing that the proceedings before the magistrate ended in
his favour, since they are of an ex parte nature and incontro-
vertible1. A decade later much the same opposite analogies as
in Jerom v. Knight were raised in Throgmortori 's Case2, where
the action was for procuring the plaintiff to be indicted as a
common barrator. ANDERSON C.J.C.P. held that if one indicted
another, it was to be assumed that he did this lawfully in zeal
of justice, but that if two or more conspired to procure another
to be indicted it should be intended by the law to be maliciously
done. WALMESLEY could see no reason for distinguishing be-
tween causeless procurement of an indictment by one person
and by two. The case was adjourned, and no decision is
reported. For some time the law oscillated between appre-
hension of frightening the just accuser, and encouraging the
false one. In Arundell v. Tregono3, where there was a verdict
against the defendant for maliciously preferring a bill of indict-
ment against the plaintiff for stealing wheat on which a true
bill was found, it was moved in arrest of judgment that there
was no sufficient cause of action because the defendant had done
nothing but prefer an indictment in the course of justice, and
that was lawful, and the rather so because non constat whether
the plaintiff were acquitted or not. This was conceded by the
whole Court, and the plaintiff took nothing by his bill4. And
in Paulin v. Shaw5, judgment for the plaintiff was stayed by
the Court on the ground that it would greatly discourage the
execution of justice if an action would lie on every ignoramus.
So too in Vanderbergh v. Blake6, where the defendant seized

1 Steward v. Gromett (1859) 7 C.B.N.S. 191. Cutler v. Dixon was not
cited.

2 Cro. Eliz. 563 (39 Eliz. C.B.). 3 Yelv. 116 (5 Jac. I, B.R.).

4 Sherrington v. Ward (41 and 42 Eliz. B.R.) Cro. Eliz. 724, is to the
same effect.

5 T. Jones, 20 (temp. Car. II).

6 Hardres, 194 (13 Car. II, Exch.).

NATURE OF CONSPIRACY 123

the plaintiffs' goods, and falsely and maliciously laid an in-
formation in the Exchequer that they had been customed as
denizens' goods, though they belonged to aliens, and without
notice to the plaintiffs, the Court condemned the goods;
HALE C.B. objected to an action upon the case by the plaintiffs
that they could have prevented the condemnation of the goods
by claiming them before the judgment of forfeiture, "and if
such an action should be allowed, the judgment would be blowed
off by a side-wind." The view which favoured freedom of
prosecution reached its high water-mark in Hereof v. Underhill
and Rockley1, where CROKE J., though he admitted that action
upon the case lies where no felony has been committed and it
is falsely alleged that the plaintiff did the act, and the plaintiff
is acquitted, said that if a felony were committed and the
plaintiff acquitted of it, he should not have the action, because
this is in advancement of justice.

§ 4. But the need for stopping malicious prosecution soon
shews itself in the reports as a competing principle. In Henley v.
Bur stall2, a defendant to an action upon the case moved un-
successfully in arrest of judgment that such action does not lie,
because it deters a man from prosecuting for the King; and
LORD HOLT CJ. in Savile v. Roberts*, perhaps the most im-
portant case in the development of this action, disposed of the
argument that allowing such an action would discourage prose-
cutions, and that there, was no more reason for allowing it
against a prosecutor who had failed to get a conviction than
against a plaintiff who had lost a civil action, by pointing out
that there is a great difference between suing an action mali-
ciously and indicting maliciously, for in the former the plaintiff
claims a right to himself or complains of an injury. Frivolous
and vexatious litigation, he said, was hindered at first by
amercement of the pledges for the prosecution of the claim,
and, when this fell into disuse, by allowing costs to defendants;
but there was no amercement upon indictments, and the party
had no remedy to reimburse himself except by action. Again,

1 2 Bulst. 331 (12 Jac. I).

2 Raym. 180; i Ventr. 23, 2*; 2 Keble 494 (21 Car. II, B.R.).

3 i Lord Raym. 374 (Mich. 10 Will. Ill, B.R.).

i24 ACTION UPON THE CASE IN THE

PARKER C.J. in delivering the resolution of the whole Court in
Jones v. Gwynny said, "The only remora to those actions is the
fear of discouraging just prosecutions ; but to this malice is a
full and sufficient answer"1.

§ 5. As the action was the offspring of the Common Law
it shewed in its growth both the defects and virtues of that
pliable system, and it requires some groping among a number
of ill-reported cases to follow the changing views of the judges
as to what was the rationale of the remedy. At first its analogy
to conspiracy proper influenced both pleaders and the bench.
The declaration in the action closely followed the wording of
the old writ of conspiracy, and according to CLENCH J. in
Shotbolt's Case2, the only difference between conspiracy arid
case was that the former must be against two at least, while
the latter might lay against one; and in both actions acquittal
of the plaintiff must be shewn. The Court in Smith v. Cranshaw*
seems to have applied 28 Ed. I c. 10 and 33 Ed. I (the definition
of conspirators) to a decision upon action on the case4. But
nearly a century later PARKER C.J. insisted that there was no
arguing from one sort of action to another.

Actions of conspiracy are the worst sort of actions in the world to
be argued from; for there is more contrariety and repugnancy of
opinions in them than in any other species of actions whatever —
There is certainly no arguing from an action which is a formed one,
for which there is a formal writ in the Register, to an action upon
the case, that is tied down to no form at all5.

In fact, between Elizabethan and Georgian times another
motive for the action besides abuse of procedure was carefully
fostered — that of scandal to the reputation. This was suggested
early in James Fs reign. The resemblance between false accu-
sation and defamation had already been noted in Barnes v.

1 10 Mod. at p. 218 (12 Anne, B.R.).

2 Godbolt, 76 (28 and 29 Eliz. B.R.).

3 W. Jones 93 (20 Jac. I, B.R.). Cf. the opinion of COKE CJ.K.B. in
Lovett v. Faukner (12 Jac. B.R.) i Rolle, 109, that where conspiracy will
not lie against two, case will not lie against one.

4 Cf. Coke arguendo in Knight v. Jermin, Cro. Eliz. 134 (31 Eliz. B.R.).
"The words here, and in a conspiracy, are all one": and reporter's note to
Skinner v. Gunter (21 Car. II, B.R.), i Wms. Saund. 269.

8 \njones v. Gzvynn (12 Anne, B.R.) 10 Mod. at p. 219.

NATURE OF CONSPIRACY 125

Constantine1. There, one who had been indicted as a common
barrator and acquitted sued action on the case in the nature of
conspiracy against the prosecutor; and it was said that the
action was only for damages for a slander, and well lay, although
the indictment were erroneous2. In 4 Jac. I, it was laid down
that the action lies for the infamy of the false indictment, and
was thus independent of the plaintiff's acquittal upon it3. It
was strongly argued in Taylor's Case, where the objection was
that the plaintiff did not allege acquittal, that case differed much
from conspiracy, and that the indictment was not the cause of
the action, but the scandalous words which might have caused
loss of reputation, and the damage sustained by the plaintiff
was cause sufficient, though the jury had found ignoramus.
"And this was the opinion of the Court at this time"4. A year
previously there had been an equally emphatic decision of all
the judges of the Common Pleas and the Barons of Exchequer
that false, malicious, and causeless exhibition of a bill of indict-
ment for robbery to a grand jury who ignored the bill, was a
great cause of slander and grievance and a just ground of action5.
HOBART C.J. in Wright v. Black, thought that the giving of
false evidence to the grand jury was as great a scandal as the
publication of it upon an alebench, and that while the cause of
justice ought not to be stopped, so neither ought the good name
of a man in things which concern his life to be taken away
without good cause6. In Manning v. Fitzherbert, the defendant
had caused the plaintiff's wife to be brought before a Justice
of the Peace, and had there falsely and maliciously charged her
with a felonious theft. The defendant moved in arrest of

1 Yelv. 46 (2 Jac. I, B.R.).

2 Norman v. Symons (10 Car. I) Roll. Abr. Act. sur Case en Nat. dun
Consp,, shews the close likeness of the action to that of defamation, and the
consequent difficulty of classification. The defendant exhibited a scandalous
libel stating that plaintiff had committed immorality with her, and thus pre-
vented his marriage. The action was held not maintainable because (inter
alia) there was no allegation of malice in the libel, but it was only a legal
proceeding in a spiritual court.

3 Pescod v. Marsam (4 Jac. I, B.R.) Noy, 116.

4 Vin. Abr. Act. Case. Consp. p. 33. Reference to Palm. 44 is untraceable
(17 Jac. I, B.R.).

6 Payn v. Porter (16 Jac. I, B.R.), Cro. Jac. 490.
6 Winch, 54 (20 Jac. I, C.P.).

126 ACTION UPON THE CASE IN THE

judgment that the plaintiffs had joined together actions for
words and in the nature of conspiracy, but the Court held that
the action was not in the nature of conspiracy, but an aggrava-
tion of the false and malicious accusation1. Here then there
was a tendency to sever the action from conspiracy altogether,
and to base it solely upon the false accusation ; and in Palke v.
Dunnyng there was a further tendency to use this broad general
principle for disposing of technical difficulties which might
arise through modelling the action too closely on the old writ
of conspiracy2; and ROLL C.J. in getting rid of a similar flaw
in an anonymous case of 1653 said,

in truth it is not material before what authority he was indicted;
and in this case the trouble the party is put unto by reason of this
indictment, is the cause of his bringing this action, and not his trial
upon it, and therefore the authority is not material ; nor is it material
whether the indictment be good or no3.

Some hesitation was shewn in allowing the action to lie for
malicious indictment of a trespass, and at one time injury to
the reputation seems to have been put forward as the chief
reason for permitting it4. It was admitted in Messenger v. Read
that the action was permissible to one acquitted on an accusation
of common barratry5. The plaintiff in Low v. Beardmore6 got

1 Cro. Car. 271 (8 Car. I).

2 Roll. Abr. f. in (n Car. I, B.R.). So too Atwood v. Monger (1653,
Bane, sup.) Style, 378, where false proceedings were coram non judice. In
Wine v. Ware (12 Car. II) i Siderf. 15, one objection was that the Court
which was alleged to have had jurisdiction over the indictment had none.
This was decided against the defendant, and the reporter appends a note
of the justices that even if the Court had had no jurisdiction yet the plaintiff
could have his action because its grounds were the malice and the indicting.
"Mes nihil positive de ceo." Here the idea of scandal to the plaintiff's
reputation seems to have been unnoticed.

3 Style 372. In Anon. ibid. 10 (23 Car. I, B.R.), the Court said that the
action lay against defendant although he procured some one else to indict, and
that it might be grounded on the scandal and trouble to the plaintiff.

4 Gardner v. Jollye (1649, Bane, sup.) Vin. Abr. Act. Case Consp. Qc.
sect. 8, is too jejune to make it clear whether defendant objected to the
judgment for plaintiff on the ground that the false indictment was for
trespass, not felony, or on the ground that plaintiff's acquittal was due to
ignoramus of a defective indictment. In any event it was held that the
action lay.

6 Roll. Abr. Act. sur Case. Consp. (10 Jac. I, B.R.).

* Raym. 135 (17 Car. II). Siderf. 261. In Chamberlain v. Prescott, Raym.
*35 (drc. 1660), judgment for the plaintiff was reversed not because he had

NATURE OF CONSPIRACY 127

his verdict against the defendant who had indicted him for a
rescous. It was moved in arrest of judgment that the action
did not lie where the indictment was only for a bare trespass.
WYNDHAM and TWYSDEN JJ. held that the action would not lie,
and stayed the judgment, though TWYSDEN said that if it had
been laid more specially that the defendant, knowing it to be
false, did it purposely to vex and draw the plaintiff into trouble,
and to cause him expense, perhaps the action would have been
maintainable1. In Smithson v. Symson, where the false indict-
ment was for perjury, judgment was for the plaintiff, and there
is no hint that the action was inherently inapplicable2; and two
years after, in Norris v. Palmer*, where the plaintiff had been
acquitted on an indictment of common trespass, and it was
argued on demurrer for the defendant that the action lay only
for false indictment of a trespass which involved great scandal,
such as battery with intent to ravish4, the Court agreed that
the action would lie after acquittal upon an indictment for a
trespass, irrespective of its magnitude. But the distinction
suggested by counsel in this case had already been drawn in
Henley v. Bur stall5. The plaintiff, a Justice of the Peace, had
been maliciously indicted for delivering a vagrant out of custody,
without examination. Verdict was given for him in an action
upon the case, and on a motion in arrest of judgment, his counsel
argued that where a malicious indictment contained matter of
imputation and slander as well as crime, there the action lay
(as in this case), but that it did not lie where the indictment con-
tained crime without slander. All the Court were of this opinion,
and judgment was given for the plaintiff. The distinction is also
traceable in Brigham v. Brocas6, where the indictment was for
deceitful sale of hair, and the court refused to stay judgment

been falsely indicted for misdemeanour, but because he had been indicted
for something which was not an offence at all (per LORD HOLT in Savile v.
Roberts (10 Will. Ill, B.R.)). i Lord Raym. 374.

1 Lev. 169 sub nom. Loe v. Bordmore.

3 Keble 141 (25 Car. II, B.R.). Nor was there in Atwood v. Monger
(1653, Bane. sup.). Style. 378.

2 Mod. 51 (27 Car. II, C.B.).

Langley v. Clerk (1658, K.B. No further reference given by the report).
Raym." 180; i Ventr. 23, 25; 2 Keble, 494 (21 Car. II, B.R.).

3 Keble 837 (29 Car. II, B.R.).

128 ACTION UPON THE CASE IN THE

for the plaintiff in action upon the case, upon defendant's
motion that the accusation was of mere trespass or trover, and
not of an indictable matter. They held that the matter was
criminal, slanderous, and fraudulent. In an anonymous case of
the next year, the ground upon which the action is based is
slightly shifted, and is said to be the expense to which the
plaintiff was put in defending the charge1. In Moore v. Shutter y
it was ruled by the whole Court that the action lay for a false
information for ill words and a battery, there being no dis-
tinction between a false indictment and information2.

§ 6. Savile v. Roberts* is a land-mark in the history of the
action. The pleadings4 shew that the action there was trespass
upon the case, and the declaration alleged that Savile

contriving and wickedly and maliciously intending unjustly to
aggrieve him [Roberts] and to weary, oppress, and damnify him
very much with various labours and expenses, by pretence and
colour of justice, and process of law, without a reasonable cause, and
of his malice aforethought [at the Quarter Sessions] the said Roberts
[and others]... did falsely and maliciously cause and procure to be
indicted

of riot till Roberts was acquitted thereof. Roberts then sued
this action against Savile and got £30 damages. Savile moved
in arrest of judgment on the point whether an action lies for
procuring another falsely and maliciously to be indicted of riot,
upon which that other is acquitted. The point was argued two
or three times at Common Pleas Bar, and two judges to one
gave judgment for the plaintiff. The defendant brought error
in the King's Bench. The Court were unanimous that judgment
should be affirmed. HOLT CJ. who delivered their resolution,
carefully examined the grounds of the action, and said that the
point was not primae impressionis , but that it had been much
unsettled in Westminster Hall, and that it was very necessary
to set it at rest. He classified damages as of three kinds, any

1 2 Mod. 306 (30 Car. II, C.B.). If the report be correct, it seems to have
been held that where a party has a civil remedy, he cannot prosecute an
indictment for it without being liable, if it be a trespass whereof the accused
is acquitted, to an action upon the case.

2 2 Show. 295 (35 Car. II, B.R.).

3 i Lord Raym. 374 (10 Will. Ill, B.R.).

4 3 Lord Raym. 264.

NATURE OF CONSPIRACY 129

one of which might ground this action: (i) Damage to a man's
fame, as if the matter whereof he is accused be scandalous;
here there was no scandal in the accusation of riot. (2) Damage
to the person, as where there is peril of losing life, limb, or
liberty, and HOLT appeared to think that conspiracy in its old
sense was an example of this. Here, however, there was not
this kind of damages. (3) Damage to a man's property as where
he is forced to expend his money in necessary charges to acquit
himself of the accusation, which was the charge here, and
reasonably grounded the action. HOLT then answered the ob-
jection that former cases of this kind were based upon conspiracy
which of itself was sufficient to support the action, by stating
that conspiracy was not the ground of such actions, but the
damages done to the party. He added that if the bill of indict-
ment were ignored, where the indictment contains neither
matter of scandal, nor cause for imprisonment, loss of life, or
limb, no action would lie, but that if there were any of these, it
would. The action in Savile v. Roberts would not have lain, in
his opinion, if the grand jury had ignored the bill, because the
plaintiff then would not have been imprisoned, scandalized or
put to expense1. Thus in Savile v. Roberts three alternative
reasons are given for the action, and they are the plinths upon
which English Law has been reared — reputation, personal
security, and property2. Jones v. Gzvynn3, a well-considered
case, carried the law still further. The Court resolved that
even if the indictment were insufficient, the action would lie.
PARKER CJ. confessed that he had changed his mind before
coming to this decision, but justified his final view on the
ground that the imprisonment, vexation, and expense are the
same upon an insufficient indictment as upon a good one, since
a man may not have the power to quash an indictment, and

1 LORD HOLT disapproved of Henley v. Burstall on the ground that it
decided that no action would lie for falsely and maliciously procuring a man
to be indicted of trespass. The case did not decide this. Ante 54, n. 3.

2 "Annoyance, expense, and possible loss of reputation" are suggested
as the reason for the action by LORD DAVEY in Allen v. Flood [1898] A.C.
at pp. 172-3. The C.A. adopted Holt's classification in Quartz Hill Gold
Mining Co. v. Eyre (1883) n Q.B.D. 674, and Wiffen v. Bailey Council
[1915], i K.B. at pp. 606, 610.

3 10 Mod. 148, 214. i Salk. 15 (12 Anne, B.R.).

W.H. L. p.

1 3o NATURE OF CONSPIRACY

demurrer is hazardous, and possibly expensive. According to
another part of the Court's resolution, " if scandal be mentioned,
it is only mentioned in the nature of damage"1, and it was
held to be immaterial whether the accusation were scandalous
or not2. A recent decision of the Court of Appeal makes it clear
that if the accusation be not scandalous, it must at least involve
damage either to a man's person or to his property; in other
words, that no action will lie for the malicious prosecution of
such an accusation unless it fall under at least one of the heads
of damage specified by LORD HOLT CJ. in Savile v. Roberts.
Savile v. Roberts and Jones v. Gwynn (where the false indict-
ment was for exercising the trade of a badger without licence)
may be taken to settle the rule that the action would lie for
malicious prosecution of a misdemeanour, just as much as of
a felony. It had already been decided in Smith v. Cranshaw
that it would lie for a malicious charge of treason3.

§ 7. The action does not seem to have been popular; ROLL
C.J. in 1653 regretted its infrequency in view of the prevalence
of malicious suits4. Perhaps the burden of proof frightened off
possible plaintiffs, as it appears to do at the present day; or it
may have been because the action was not favoured by other
judges5. Soon after the Restoration, BRIDGMAN C.J. expressed
himself as against all such actions6, and HOLT C.J. though he
allowed the action in Savile v. Roberts, thought that it ought
not to be favoured, but must be managed with great caution7.
Fifty years later, LEE C.J. was of the same opinion8.

1 Jones v. Gwynn was followed on the point of law in Chambers v.
Robinson (12 Geo. I) i Stra. 691, where the action was for malicious prose-
cution for perjury. A bad indictment, in the Court's opinion, served all
the purposes of malice, but none of justice.

2 Wiffen v. Bailey Council [1915], i K.B. 600. Cf. Byne v. Moore (1813)
5 Taunt. 187.

3 W. Jones, 93 (20 Jac. I, B.R.); ante 59.

4 Atwood v. Monger, Style, 378.

5 It became too common in Charles II 's reign in the opinion of the
Judges, who thought that it deterred people from prosecuting on just occa-
sions. Kelyng 3 (16 Car. TI).

6 Chamberlain v. Prescott, Raym. 135.

7 i Lord Raym. 374 (10 Will. Ill, B.R.).

8 Reynolds v. Kennedy (1748). i Wils. 232.

CHAPTER VI

MAINTENANCE AND CHAMPERTY
HISTORICAL OUTLINE

COKE'S DEFINITION

§ i. Other forms of abuse of procedure closely connected
with conspiracy are champerty and maintenance. According
to Coke,

Maintenance, manutenentia...sigmfieth in law a taking in hand,
bearing up or upholding of quarrels or sides, to the disturbance or
hindrance of common right;... and it is two-fold, one in the country
and another in the court.

The former species Coke called ruralis, the latter curtails1.
Manutenentia ruralis he explains elsewhere as stirring up and
maintaining quarrels, that is, complaints, suits and parts in the
country other than the maintainer's own, though the same
depend not in plea2, and he exemplifies it from Littleton who
puts the case of F enfeoffing barrators and extortioners, in the
country, of A's house, to have maintenance from them of the
house by a deed of feoffment with warranty, so that A through
fear quits the house3.

The other kind of maintenance

is called curialis, because it is done pendente placito in the courts of
justice; and this was an offence at the Common Law, and is three-
fold. First, to maintain to have part of the land, or anything out of
the land, or part of the debt, or other thing in plea or suit ; and this
is called cambipartia, champertie. The second is, when one main-
taineth the one side, without having any part of the thing in plea,
or suit; and this maintenance is two-fold, general maintenance and
special maintenance.... The third is when one laboureth the jury,
if it be but to appeare, or if he instruct them, or put them in feare,
or the like, he is a maintainer, and is in law called an embraceor,
and an action of maintenance lyeth against him; and if he take
money, a decies tantum may be brought against him4.

1 Co. Litt. 368 b. 2 2 Inst. 213.

3 Co. Litt. 368 b. 4 Co. Litt. 368 b.

9—2

132 MANUTENENTIA RURALIS

MANUTENENTIA RURALIS

§ 2. The distinction therefore between manutenentia ruralis
and curtails is that curialis is confined to pending litigation, and
it will be shewn that a pretty wide construction was put upon
"pending." It appears to have been resolved in the Star
Chamber that manutenentia ruralis was punishable only at the
suit of the King1. The offence is akin to common barratry, the
chief difference being that the latter is the frequent stirring up
suits between His Majesty's subjects2. Hawkins varies Coke's
definition of manutenentia ruralis by adding an alternative
meaning — assisting another in his pretensions to lands by taking,
or holding, possession of them by force or subtlety3. This
seems to be based either on a loose reference of Coke's to the
example given in Littleton4, or on 4 Hen. IV c. 8 and 8 Hen. VI
c. 9 which are considered hereafter.

Perhaps the source of manutenentia ruralis is i Ed. Ill st. 2,
c. 14 which forbids in particular the King's Councillors,
ministers, household officers, and the great men of the realm,
and in general all other persons, to maintain quarrels or parties
in the country to the disturbance of the Common Law5. This
was in reply to one of the constant petitions of the Commons
on maintenance6. The lack of any sanction in the statute was
the ground of their petition for one in 1347. The reply is that
certain penalties are ordained — presumably under 28 Ed. I
(Art. sup. Cart.) c. n, which however is apparently limited to
what Coke called manutenentia curialis1 — and in cases where
the law does not certainly fix one, fine and ransom to the King
are intended according to the quantity of the trespass8. 4 Ed. Ill
c. ii probably also refers to the same thing. It recites the

1 Mich. 7 Jac. I (Doc. Plac. 240), cited in Co. Lift. 368 b. Cf. 4 Ed. Ill
c. ii which might be thought to give a civil remedy, i Hawk. P.C. ch. 83,
sect. 2 states that it is said not to be actionable. The marginal references
are too slovenly to verify, but the only relevant traceable source is Co. Lift.
368 ft.

2 Bl. Comm. iv. 134. 3 i Hawk. P.C. ch. 83, sect. 2.
4 Co. Litt. 368 b. 5 St. of the Realm, i. 256.

6 Rot. Parl. ii. 10 b (1327-8).

7 And see 3 Ed. I c. 25*and 13 Ed. I c. 49, where punishment is men-
tioned, but in indefinite terms.

8 Rot. Parl. i. 166 b (21 Ed. III).

MANUTENENTIA RURALIS 133

offences of those who combine "to maintain parties, pleas, and
quarrels," and empowers the justices of either Bench and Assize
to "hear and determine, as well at the King's suit, as at the
suit of the party, of such maintainers, bearers, and con-
spirators"1, i Rich. II c. 4 also forbids the persons mentioned
therein to "undertake or sustain any suit by maintenance in
the country, nor elsewhere." Whatever the framers of these
statutes may have meant, the wording of them does not express,
though it may imply, the meaning which Coke attributed to
manutenentia ruralis. It is possible that maintenance detached
from any idea of litigation is to be found in 4 Hen. IV c. 8
which gave a special assize against one who forcibly entered
another's land "by way of maintenance"2, and in the later
confirmatory statute, 8 Hen. VI c. 9, which avoided feoff-
ments by such forcible disseisors3.

The example which Coke cites from Littleton of this kind of
maintenance might well be classified under manutenentia curialis
of the kind obnoxious to i Rich. II c. 9 which would have
avoided such a feoff ment, except possibly as between feoff or
and feoffee4. Other instances of manutenentia ruralis are not
abundant, and there is evidence that the judges of Henry VI's
reign — when maintenance reached its zenith — were not familiar
with it. MARTIN J. is reported to have said, "there cannot be
a maintenance unless he [the plaintiff] has some plea pending
at this time"5. But Coke's distinction between it and manu-
tenentia curialis was referred to by the Lord Chancellor in
Wallis v. Duke of Portland (i797)6, where an undertaking was
alleged between plaintiff and defendant that defendant should
contribute to the expense of an election petition against the
return of a member of Parliament. His Lordship said that this
was maintenance, for maintenance is not confined to supporting
suits at Common Law, and he quoted the passage in Hawkins,
which as we have seen in based upon Coke7. Proceedings upon
an election petition were then under the Grenville Act, 1770

1 St. of the Realm, i. 264. 2 Cf. Rot. Parl. m. 497 b.

3 Ibid. iv. 353 b. 4 Co. Litt. 368 b, 369 a.

5 Trin. 3 Hen. VI, f. 53. So too Br. Abr. Maint. i.

6 3 Ves. 494. Decision affirmed by House of Lords. Brown, Parl. Cases,
App. i. 161. 7 i Hawk. P.C. ch. 83, sect. 2 (ante 132).

134 MANUTENENTIA RURALIS

(10 Geo. Ill c. 1 6), and the petition was tried by a small com-
mittee of the House of Commons. The trial was a legal pro-
ceeding, though conducted by persons possibly unacquainted
with the exercise of judicial functions. It would not have been
difficult, then, for the Lord Chancellor to have classified this
maintenance as curialis, and there seems to be no doubt that
since the present mode of trying petitions was established it
could be so treated1.

But long after statutes had passed dealing with maintenance
in its technical sense of interfering with the disputes, litigious
or otherwise, of other people, it retained the looser meaning of
aiding malefactors. \Ve read in the Parliament Rolls of "main-
tainers of felons and felonies"2, of lords who are forbidden to
retain or maintain any malefactor3, of those who have main-
tained robbers4, of those whose punishment is demanded for
maintaining such as procure extents against the King at under
value5, of those who maintain tenants in villeinage in mis-
behaviour against their lords6, or heretics7, or "the new sect
coming from beyond the sea, clad in white garments8." Some-
times it means support of rebels by their parents and cousins9,
or of one who breaks a truce or safe conduct10. A notable
illustration of the use of the word in its strict and its lax signifi-
cations in the same context occurs in an ordinance which forbids
any Lord of the Council from maintaining robbers or felons,
or from taking any man's cause or quarrel in favour or main-
tenance11. The more general meaning also appears in the
Statute-book. Thus, 10 Ed. Ill st. 2, c. 3 provides for the
imprisonment of notorious malefactors, or maintainers of male-
factors12. It is shewn too in mediaeval Chancery petitions13,
and in the Star Chamber records14.

1 31 and 32 Viet. c. 125 and 42 and 43 Viet. c. 75.

2 IV. 421 a (1433). 11.4460. 3 n. 620 (1331). Cf. 446 a.
4 II. 207 b. 5 11. 355 b. 6 in. 21 b. 7 in. 125 b.

8 in. 428 a (1399). 9 Rot. Parl. in. 666 a. 10 Ibid. iv. 22 b.

11 Ibid. iv. 344 a. Cf. v. 408 b, 435 a. 12 St. of the Realm, I. 277.

13 Select Cases in Chancery (A.D. 1364-1471) S. S. vol. x. case 28 (peti-
tioners cannot get their tenant to pay his rent because of "the maintenance
of John Skipwyth"); case 81 (defendants described as maintainers of evil
doers, robbers, and homicides); and cases 41, 54, 102 and 107.

14 Select Cases in the Star Chamber (A.D. 1477-1509) S. S. vol. xvi. p. 147
(alleged that Sir Robert Harecourt " contrary to the laudable statutes of this

MANUTENENTIA CURIALIS 135

Another meaning in which maintenance approaches a term
of art is that of having a presumptively good ground for sup-
porting legal proceedings, or some particular step in them.
This constantly occurs in the Year Books, and especially in
the i yth century "Tables of Matters" appended to them,
where it is usually distinguishable from the references to
maintenance stricto sensu by some such phrase as " Maintenance
del brief"1, and there are similar titles in the Abridgements of
Fitzherbert and Brooke. Thus in Mich, i Ed. IV, f. 2,

it was held by the Court that if there are two or three disseisors,
and they make a feoffment according to the statute, and one of them
take the profits of the whole, yet the action is not maintainable
against him2.

Curiously enough, the case is on maintenance in its strict
meaning, so that it exhibits the word in a double sense. Main-
tenance is also used in the sense now under discussion in Coke's
Reports3, and in Theloall's Digest (1579) which has a title
"Maintenance de briefe"4. It survives in legal parlance at the
present day when we speak of an action being maintainable
against a defendant.

There are, of course, plenty of examples in legal literature
of the purely popular meaning of supporting or protecting a
thing5.

MANUTENENTIA CURIALIS

§ 3. Manutenentia curialis is divided into champerty, main-
tenance (stricto sensu) and embracery. Embracery will be the

lande maynteneth" certain evil-disposed persons. See the learned editor's
note 28 to p. 146 and note i to p. 241); and pp. 201, 260.

1 In Bellewe (ed. 1585), "Maintenance of writ" is a separate title im-
mediately after "Maintenance." The Year Book indexers were not, as a
rule, so particular.

2 See also Pasch. 4 Ed. IV, ff. 17 and 38; Trin. 15 Hen. VII, f. 8; and
index to 40-50 Ed. Ill, which refers to nine cases under "Maintenance."
Eight are upon support of an action. The other is untraceable.

3 Lord Buckhurst's Case (1598) i Rep. i b.

4 "In this chapter will be included matter to maintain a writ against a
plea pleaded in abatement thereof" (f. 398).

6 E.g. Rot. Selecti ex Archivis in Domo Cap. West. (ed. Jos. Hunter, 1834),
p. 2 (Justice of Ireland is to maintain, protect, and defend the Archbishop
of Dublin); so too pp. 8, 29. Y.B. Hil. 10 Hen. VII, f. 18 ("the King can
maintain his jurisdiction by prescription"). Borough Customs, S. S. vol. xvm.
pp. 22, 25.

136 GENERAL AND SPECIAL MAINTENANCE

subject of later treatment, for it is doubtful whether even in
early times it may not better be described as an independent
offence1. Here we are concerned only with the origin and
development of champerty and maintenance in its narrower
meaning.

§ 4. According to another passage in the Institutes, " main-
tenance is an unlawfull upholding of the demandant or
plaintiff, tenant or defendant in a cause depending in suit, by
word, action, writing, countenance, or deed"2, and this on the
whole represents what is to be found in the Year Books. It is
true that we read of maintenance being brought against one
who was alleged to have improperly interfered in an appeal of
mayhem3, and it might be inferred from this that it applied to
officious meddling with criminal prosecutions, as well as civil
proceedings. But the appeal must be classified (so far as any
such classification is proper in our early law) as a civil pro-
ceeding. It is not maintenance to interfere in criminal pro-
ceedings at the present day.

GENERAL AND SPECIAL MAINTENANCE

§ 5. Here we may dispose of Coke's distinction between
general and special maintenance4. It is not clear what he
meant by it. He mentions it not only in his commentary upon
Littleton5, but in the passage just cited from the Institutes,
where there is a reference to his exposition of 28 Ed. I (Art.
sup. Cart.) c. n. But in none of these places does he elaborate
the distinction, which is reproduced mechanically in some of
the later text-books and digests of the law. So far as anything
can be extracted from the scraps of arguments and dicta in
the Year Books, the difference was a procedural one. Main-
tenance was general, when the plaintiff in his writ and declara-
tion merely alleged that the defendant in a specified trial between
the plaintiff and another before specified justices6 at a particular

1 HANKFORD J. in Hil. 13 Hen. IV, f. 16. MARTIN J. in Mich, n Hen. VI,
f. 10. i Hawk. P.C. ch. 83, sect. 3 follows Coke's division, but deals with
the offences in separate chapters. 2 2 Inst. 212.

3 Trin. 3 Hen. VI, f. 53. Mich. 21 Hen. VII, f. 15.
• 4 Ante 131. 6'3686.

' 6 Trin. 9 Hen. VI, f. 20 (justices must be mentioned in the writ).

GENERAL AND SPECIAL MAINTENANCE 137

place had maintained that other. It was special when he con-
descended on further details. Thus in 36 Hen. VI, f. 27, a
writ of maintenance was brought against three. Two pleaded
not guilty. The other said that he was retained as attorney by
the party maintained, and by his command went to a man
learned in the law, prayed him to be of his counsel, and gave
him forty pence of his master's money. The plaintiff replied
that the defendant had given 6s. Sd. of his own money to one
of the jurors. Verdict was given for the plaintiff against all
three defendants. It was objected that judgment could not be
given because damages should have been severed against the
three. MOYLE J. acceded to this argument, "for it appears
that the one is found guilty of special maintenance, and the
others are found guilty generally." PRISOT C.J.C.P. seemed to
be of the same opinion, and NEEDHAM J. (in a further report in
36 Hen. VI, f. 29) speaks of the plaintiff alleging special main-
tenance in the sense of setting out all the circumstances which
constituted the wrong. Here the distinction was of practical
importance and, if neglected, became a procedural trap.

The same meaning appears in Mich. 19 Ed. IV, f. 5, and in
14 Hen. VI, f. 6, the abridgement of which in Fitzherbert is,

Note, if a man in a writ of maintenance is compelled to shew
maintenance specially, such as to shew that he gave certain money
to one of the jurors to give his verdict, the defendant ought to
traverse that which is specially surmised, as by saying that he did
not give any money, and he shall not be driven to the general issue
that he did not maintain etc. By the whole Court1.

1 Fitz. Abr. Maint. 5. The Y.B. is practically the same, except that it says,
"the Court." Plea of the general issue seems to have been permissible where
the plaintiff did not allege the particulars of the supposed maintenance.
This is not certain but apparently results from the following authorities:
14 Hen. VI, f. 6 (supra)-, 36 Hen. VI, ff. 27, 29 (supra); 14 Hen. VI, f. 7;
one of the prenotaries of the Common Pleas was of opinion that " not guilty"
could not be pleaded in maintenance, because this writ was founded upon
the Common Law, whereas that of conspiracy was founded on statute.
Some apprentices, however, said that the reason was because special matter
was alleged in the writ of maintenance. This is not inconsistent with the
view that where the writ merely stated the circumstances of the maintenance
generally, plea of the general issue was possible. All that the opinion of the
prenotary and apprentices shews is that at that time it was usual in the writ
and declaration of maintenance to specify details of the alleged wrong ; and
this possibly explains Pasch. 8 Hen. VI, f. 36, where in a writ of maintenance
against two, one pleaded guilty, and the Court held that the plea was

138 WERE MAINTENANCE AND CHAMPERTY

In other passages of the Year Books, special maintenance seems
to mean nothing more than unlawful maintenance1, though it
is impossible to pin judges or counsel down to any expression
of opinion that ''general" maintenance referred to lawful
support in litigation.

WERE MAINTENANCE AND CHAMPERTY FORBIDDEN
BY THE COMMON LAW?

§ 6. Coke had no doubt that maintenance was an offence at
Common Law, and adduced as notable proof of it 3 Ed. I
(St. West. I) c. 28 which stigmatizes maintenance as delaying
"commun droiture"2. He also says generally that an action of
maintenance lay at Common Law, and in particular that one
in the nature of trespass " doth lie in ancient demesne, and other
base courts at the Common Law"3. In his opinion, the statutes

untenable, because the point of the writ should be answered. In Rastall's
Entries (A.D. 1596), f. 428, a precedent of the general issue being pleaded to
a writ of maintenance is given. When the defendant pleaded specially, he
had to be careful to put forward some defence which was not merely a
statement of what any one might lawfully do ; for that was not answering
the allegation of the plaintiff at all, and was bad pleading. Thus, in
14 Hen. VI, f. 6, the defendant pleaded that he was the cousin of the person
maintained, and became his mainpernor when he was arrested in the original
action of debt at the plaintiff's suit. This the Court held to be a good plea,
but very much to the astonishment of the apprentices, who did not think
that the plea was a good answer to the alleged maintenance. So too, in
Mich. 21 Hen. VI, f. 15, the report states that Edward Pomeroy sued a writ
of maintenance against the Abbot of Bukfast and that the Abbot was alleged
to have maintained Martin Prideaux in an appeal of mayhem which he had
brought against Pomeroy and others. Portington pleaded that before and at
the time of the alleged maintenance, Prideaux was retained by the Abbot
as carver for one year, that the Abbot had requested and desired John
Wolston and J. Wode, men learned in the law, to aid Prideaux and to be of
his counsel against Pomeroy in the appeal, and that they had aided him in
consequence, and that this was the alleged maintenance. Markham (then a
Serjeant) in criticizing this plea said, "This is no plea; for we have declared
a maintenance made to us in deed, and what he has alleged for maintenance
is not any maintenance, for it is lawful to pray and desire a man learned

in the law to be of counsel with another person But if he had said that

he had given money to the said J. and John, this would be a special main-
tenance, which was not lawful for other strange persons to do."

1 BABINGTON C.J.C.P. in Mich, n Hen. VI, f. 10 ("this is a special main-
tenance and he did otherwise than appertains to him to do"). Markham in
Mich. 21 Hen. VI, f. 15 supra. PIGOT in Pasch. 18 Ed. IV, ff. 2, 4. VAVASOUR
in Mich. 19 Ed. IV, f. 3. 2 2 Inst. 212.

3 Ibid, (commentary on 3 Ed. I c. 25). No example appears in Leet
jurisdiction in the City of Norwich, S. S. vol. v.

FORBIDDEN BY THE COMMON LAW? 139

merely increased the punishment against maintainers. Hawkins
follows Coke in holding that maintenance was restrained at
Common Law, and refers to three remedies — the action of
maintenance for damages, an indictment involving fine and
imprisonment, and committal by a court of record for an act
of maintenance done in the face of it1. BABINGTON C.J.C.P.
in Mich, n Hen. VI, f. n, said that the writ of maintenance
was at Common Law, and Rolle's Abridgement quotes this and
other authorities of a more doubtful kind2. The Star Chamber
spoke of maintenance at Common Law in Leigh v. Helyar
(i Jac. I)3. The Lord Chancellor in Wallis v. Duke of Portland
(I797)4 to°k tne same view, his authority apparently being the
passage in Hawkins just mentioned. LORD ABINGER C.B. in
Findon v. Parker (i843)5 implied that there was maintenance at
Common Law, and the Judicial Committee of the Privy Council,
in 1876, and some members of the House of Lords, in 1918,
spoke of maintenance as a Common Law offence6. It was
held in Pechell v. Watson (i84i)7 that a declaration in main-
tenance need not charge it to have been made contra formam
statuti, as it was a wrongful act at Common Law.

The impression that maintenance is a Common Law offence
reinforced in remedies by statute has therefore prevailed for a
considerable time, and other indications support Coke's view.
In 7 Ed. I, the King sent a writ to the justices itinerant of Kent
commanding them to inquire of men who made " detestabiles
confederationes " for maintaining pleas and suits, and a similar
writ was addressed to the other justices in eyre. This has been
regarded as evidence in favour of Coke8, but it is not clear

1 i Hawk. P.C. ch. 83, sect. 36. In sect. 42 he points out that there was
also a preventive writ founded on i Rich. II c. 4. It is given as writ No. 3
on maintenance in Reg. Brev. f. 182 b. SaulkelVs Case (3 Car. I), Het. 78,
is an instance of committal to the Fleet.

2 Hil. 22 Ed. Ill, f. i which does not directly support Rolle, and Mich.
8 Hen. V, f. 8 where all that is to the purpose is Martyn, J's dictum that
"this writ of maintenance is a writ of trespass in its nature."

3 Moore, 751.

4 3 Ves. 494, at. p 501. 5 n M. and W. 675, at p. 681.

* Ram Coomar Coondoo v. Chunder Canto Mookerjee, L.R. 2 A.C. 186,
at p. 208. 4 Ind. App. at p. 45. Neville v. London Express Newspaper, Ld.
[1919], A.C. 368, at pp. 382-383, 389, 392, 405, 406-421.

7 8 M. and W. 691. 8 Vin. Abr. Maint. (D), (3).

140 WERE MAINTENANCE AND CHAMPERTY

whether the " confederatio " may not have been looked upon
as the gist of the offence aimed at, irrespective of the object of
the combination. A document more in point is a petition of
the Commons in 1377 complaining of maintenance and livery.
The reply is that there are statutes and ordinances for the case,
and also the Common Law which the King wishes to be put
into execution1. Again, Britton tells us that sheriffs who have
maintained suits or the parties to actions shall be punished by
fine2. Yet it is odd that nothing is to be found in Glanvill,
Bracton, or Bracton's Note Book, on maintenance. These books
were written before the statutes passed dealing with that offence,
and though Bracton describes what is now called champerty3
he is silent about maintenance. We have long been told that
champerty is a species of maintenance. This is true now, but
historically it looks very much like an inversion of genus and
species. What really happened seems to have been this. Before
Edward Fs time, maintenance was used in its purely popular
sense of support. Merely to maintain or support the suit of
another was probably not a substantive wrong at all. But it was
wrongful if the support were for the purpose of sharing the pro-
ceeds of the suit. This very soon got the name of champerty,
but then it had no specific name and was expressed by some such
phrase as maintaining suits for lands to have part thereof, as in
3 Ed. I c.25- Next, it was seen that officiously aiding another in his
suit should be made unlawful irrespectively of the ulterior motive

1 Rot. Parl. in. 23 a 2 I. xxii. 7

3 Etymologically, champerty (properly "champarty") is a derivative of
"champart" (Latin campi pars) which has two meanings — popular and
technical. According to the former, it signifies division of the produce of
the land, and is exemplified at the present day in the Channel Islands as
a fixed share of produce received by the landlord. So too Britton, II. ii. 4
(Tree owner who takes another person's bees in his tree is bound to restore
them or to keep them on terms of divided enjoyment — "garder les a chaum-
part"). Its technical meaning is the legal one, and the same as that attached
to "champarty," which also occurs in Chaucer with the signification of
division of power :

" Thus may ye seen that wisdom ne richesse,
Beautee ne sleighte, strengthe, ne hardinesse,
Ne may with Venus holde champartye."

(Canterbury Tales, ed. Skeat, 1894. " Knighte's Tale " 1. 1949.) Another variant
meaning is that of combination for evil purpose ("A combination and hellish
champertie in these powers of darknesse." Bishop Hall, Contempt. N.T.
ill. v. A.D. 1612-15). See Murray, N.E.D.

FORBIDDEN BY THE COMMON LAW? 141

of sharing the gains. This was prohibited, and so we reach the
offence of maintenance, and the technical word maintenance1.

It is also odd that every writ of maintenance in the printed
Register has the conclusion "contra formam statuti," or similar
words2. But possibly the early dates of the statutes forbidding
maintenance led to the rapid supersession of the Common Law
writ (assuming that one existed) by those based on such
statutes.

It is practically impossible to detach the statutory history of
champerty from that of maintenance, but before proceeding to
consider it, it must be premised that Coke considered champerty
to be of Common Law origin, both as a crime and as a civil
injury.

It was an offence against the Common Law; for the rule of law is,
culpa est se immiscere rei ad se non pertinenti. And pendente lite nihil
immovetur. An action of maintenance did lie at the Common Law,
and if maintenance ingenere was against the Common Law, a fortiori
champerty, for that of all maintenances is the worst3.

The scraps of Latin in the first sentence are as unconvincing
as the dubious logic in the second. But Coke had better
authority for his first proposition. Bracton, in rehearsing the
articles inquirable by the justices in eyre speaks

de excessibus vicecomitum, et aliorum balivorum, si quam litem
suscitaverint occasione habendi terras vel custodias, vel perquirendi
denarios, vel alios profectus, vel per quod justitia et veritas occultetur
vel dilationem capiant4.

This is substantially reproduced in Fleta5, and is the more
notable because it is distinct from another article6 based upon
3 Ed. I c. 25, which had passed after the date of Bracton's work
and before that called Fleta was written.

It seems then that what we should now call criminal pro-
ceedings applied to champerty even apart from statute. But it
is by no means clear that there was a writ of champerty at
Common Law. There is a solitary writ of champerty in the

1 It is significant that the definition of champerty in Ordinacio de Con-
spiratoribus, 33 Ed. I, makes no reference to maintenance (ante p. 2).

2 There are three such writs; Reg. Brev. f. 182. A fourth at f. 189 is
really a writ of champerty. 3 2 Inst. 208.

4 Lib. in. f. 117. 5 Lib. I. c. 20, sect. 96. 6 Ibid. sect. 81.

i42 WERE MAINTENANCE AND CHAMPERTY

printed Register1 which is based on 28 Ed. I c. n2. It suffered
vicissitudes before it reached its final form, and it may have
been the survivor of a family3 ; but there is no hint that any of
its kin were not of statutory origin4. One of the writs of main-
tenance in the Register5 recites a portion of 3 Ed. I c. 25, but
it recites 28 Ed. I c. 1 1 as well. It is really a writ of champerty,
but there is nothing in its patchwork appearance to suggest that
any of its texture is of Common Law origin. In fact, in ex-
amining the history of conspiracy, champerty, and maintenance,
one is tempted to conclude that Coke, when he asserted the
existence at Common Law of civil remedies for these wrongs,
was snatching at straws rather than attempting to find a solid
foundation for the breadth of the early Common Law. It is
not here the place to discuss whether this benefited the develop-
ment of our law ; but it is well to bear in mind that the question
of importance in a modern law court is not so much whether
Coke and other writers were historically correct or not, but
whether their version of the law has been adopted as correct.
The maxim communis error facit legem may easily be overrated :
it cannot be ignored6.

We now pass to the surer ground of statutes and ordinances
relating to champerty and maintenance7. The first is 3 Ed. I
(St. West. I) c. 25.

No officer of the King by themselves, nor by other, shall maintain
pleas, suits, or matters hanging in the King's courts, for lands,

1 Britton (i. xxii. 17) refers to the statutory punishment under 3 Ed. I
c. 28, and 13 Ed. I c. 49. Coke also cites the Mirrour, Bk. I, c. i, sect. 5,
but the passage merely states that ministers of the King who maintain false
actions, appeals, or defences, are guilty of perjury.

2 MS. Add. 3469 E (C. U. Lib.) has the same writ.

3 F.N.B. 172 A gives the writ of Reg. Brev. and also at 172 N a writ
available against officers of the Court who committed champerty.

4 In a case of champerty in Mich. 22 Hen. VI, f. 7, the writ was an
original directed to the sheriff, and did not mention the defendant by name,
and the Court were of opinion that, though this was immaterial in the writ
when it was directed to the justices (as is the case in the printed Register),
yet it was a fatal defect here. In the printed Register, however, the de-
fendant's name appears. Markham refers to the variations of the Registers —
" Some Registers are like the writ here, and some not."

5 Reg. Brev. f. 189. 6 Broom's Legal Maxims, ed. 7, pp. 112-115.

7 Reviewed in Neville v. London Express Newspaper, Ld [1919] A.C. 368.
See in particular LORD SHAW'S judgment.

FORBIDDEN BY THE COMMON LAW? 143

tenements, or other things, for to have part or profit thereof by
covenant1 made between them ; and he that doth, shall be punished
at the King's pleasure2.

Coke took this to be the foundation of all the acts and decisions
that ensued3. He infers that "officer of the King" included
judges at any rate in Edward I's reign. It will be noticed that
neither in this nor in any other chapter of the statute does the
word " champerty" occur. The tendency to corruption in high
places which we have repeatedly noticed in the history of con-
spiracy easily explains the mention of the King's officers. The
statute referred to them only, not from any wish deliberately
to confine its prohibition to them but simply because they were
the most conspicuous offenders. Other relevant chapters of
the same statute confirm this. Cap. 26 forbids any sheriff or
other King's officer to take any reward for doing his office on
pain of forfeiting twice the reward, and being punished at the
King's pleasure4. This is not champerty, but is akin to it.
Cap. 28 5 forbids any of the King's Clerks or Justices to receive
without royal licence the presentation of any church which is
the subject of litigation in the King's Court. The punishment
is loss of the church, and of his service. Clerks of any justices or
sheriffs are also prohibited from maintaining any suits depending
in the King's Courts. In case of disobedience, they are liable to
the same punishment, of loss of service, or a more grievous one
if necessary. Cap. 33 6 provides that no sheriff shall suffer any
barrators or maintainers of quarrels in their shires, nor allow
stewards of great lords, or others, except attornies for such
lords, to make suit, unless he be requested to do so by all the
suitors, and attornies of the suitors at the court; "and if any
so do, the King shall punish grievously both the sheriff and him
that so doth." The reason for this chapter was that the Statute

1 Construed to mean an agreement by word or writing. F.N.B. 172 L.
2 Inst. 207.

2 St. of the Realm, i. 33. It is still in force. Feoffment after judgment is
not within the statute. 2 Inst. 207. 3 2 Inst. 209.

4 Repealed as to sheriffs by the Sheriffs Act, 1887 (50 and 51 Viet. c. 55),
to the extent mentioned in sect. 39. Sect. 20 made this necessary, because it
allows the sheriff a percentage on sums collected by him under process of
any Court. 5 Unrepealed.

6 Repealed as to England by St. Law Rev. Act, 1863; as to Ireland by
St. Law (Ireland) Rev. Act, 1872.

144 WERE MAINTENANCE AND CHAMPERTY

of Merton, 20 Hen. Ill c. 10, allowed every free suitor of the
county and other courts to employ an attorney to do his suit
there. Two mischiefs sprang from this. Barrators and main-
tainers of suits were encouraged by the sheriff to become such
attornies, to give judgment among the other suitors — perhaps
even to take the lead in pronouncing judgment on their behalf.
Further, stewards of great lords and others who had no letters
of attorney as required by the statute would do the like1.

Advantage was at once taken of 3 Ed. I c. 25, for an article
of the eyre founded upon it appears in 3 Ed. I2. A petition to
Parliament in 1293 shews that the justices in eyre were not
always strong enough to enforce it. John de Grey and Andreas
de Jarpenuill recite the statute, and complain that Elyas de
Hanwyll, a minister of the King, by agreement maintained
Hugo de Bray in pleas between Hugo and John de Grey and
between Hugo and de Jarpenuill concerning lands, to have
champerty thereof. Hugo admitted a general retainer by Elyas
for the sum of twopence. Elyas was committed to the Marshalsea
to suffer punishment in the terms of the statute3.

It is doubtful whether any writ were founded on c. 25.
A composite writ in the Register shews traces of it4, and
NEWTON J. in Pasch. 20 Hen. VI, f. 30, hinted that such a
writ was possible5.

13 Ed. I (St. West. II) c. 36 forbids lords of courts and their
stewards to procure malicious suits against persons with a view
to extorting money from them by a forced compromise. The
punishment is that they must make fine to the King and restore
treble damages to the aggrieved party6. In the same statute
there is a provision in which champerty is, for the first time,
mentioned eo nomine. Cap. 49 enacts that,

1 2 Inst. 225. Reeves, Hist. Eng. Law, n. 128.

2 Bracton (ed. Twiss), vol. u. app. n. It shews the lack of any technical
sense attached to maintenance. The statute uses the word "maintene";
this is latinized in the Articles of the eyre by "foverint."

3 Rot. Parl. i. 92 b.

4 Reg. Brev. f. 189 (ante p. 142).

5 " For we understand that this [writ] shall be warranted by the St.
West. I, if it shall be warranted by any statute." The statute did not apply
in the circumstances because the writ was not against a minister.

6 Repealed by 42 and 43 Viet. c. 59.

FORBIDDEN BY THE COMMON LAW? 145

The Chancellor, Treasurer, Justices, nor any of the King's Council,
no Clerk of the Chancery, nor any of the King's House, Clerk ne
lay, shall not receive any church, nor advowson of a church, land
nor tenement in fee, by gift, nor by purchase, nor to farm, nor by
champerty, nor otherwise, so long as the thing is in plea before us,
or before any of our officers ; nor shall take no reward thereof. And
he that doth [contrary to this Act] either himself, or by another, or
make any [bargain] shall be punished at the King's pleasure, as well
he that purchaseth as he that doth sell1.

This, says Coke2, added to, and explained 3 Ed. I c. 25, because
it was doubted whether "officer of the King" included the
Chancellor, Treasurer, Justices3, and those of the King's
Council, owing to their exalted position. The net is cast widely
in 13 Ed. I c. 49, but not widely enough to include any except
royal officials4. It forbids receiving of the property mentioned
(i) by gift, (ii) by purchase, (iii) to farm, (iv) by champerty,
(v) by other means. It may seem curious that there was any
need to distinguish five things all which to our eyes are only
modes of the fourth — champerty. But no doubt the offence
was not sharply conceived at this time, and the fact that
authoritative definition of it is given in Ordinacio de Conspira-
toribus, 33 Ed. I5, raises the inference that ideas on the topic
needed clearing. The chapter marks a further advance on
3 Ed. I c. 25 in punishing not only the taker, but also the giver,
of the property. Moreover, it is an extension of 3 Ed. I c. 28,
which forbids the Clerks of the King or of the justices to receive
the presentation of any church which is the subject of litigation.
The mischief aimed at was that litigants were naturally dis-
couraged from proceeding with the suit if the chaplain of the
King or of a judge became the defendant in this way6. The
scandal was all the greater because at that time when the

1 St. of the Realm, i. 95. The brackets are reproduced. This chapter is
unrepealed. 2 2 Inst. 484.

3 Coke contradicts his note on 3 Ed. I c. 25 that justices are included
(ante p. 143).

4 i Hawk. P.C. ch. 84, sect. 12 cites 2 Inst. 484 to this effect; but Coke
does not expressly say that the statute was thus limited in scope.

6 Ante p. 2.

6 Ecclesiastical persons at that time were not only clerks in Chancery and
in the King's courts, but also acted as stewards of household to noblemen
and justices. 2 Inst. 212.

W.H.L.P. 10

146 WERE MAINTENANCE AND CHAMPERTY

presentation to the living was by a person not having the right to
present, and the presentee was admitted, the true patron's only
remedy for recovery of the advowson was the writ of right1,
because the peace of the church took precedence over the right
of the patron2 ; and if the true presenter were a grantee from
the true patron, the former had no remedy whatever3. 3 Ed. I
c. 28 allowed clerks to receive the presentation with royal
licence. This exception is omitted in 13 Ed. I c. 49.

The so-called "Statutum de Conspiratoribus " alleged to
have been made at Berwick-on-Tweed in 20 Ed. I has been
fully considered in its application to conspiracy4. Its recital
shews that the previous statutes on champerty were inadequate,
and it enacts that all pleaders, apprentices, attornies, stewards
of great men, bailiffs, and any other of the realm, who shall be
attainted of taking for maintenance or the like bargain any suit
or plea against another, shall be imprisoned for three years and
make fine at the King's pleasure, and the same penalties apply
to such as consent thereto5. Then follows a clause which
provides that if any one complains of conspirators, inventors
and maintainers of false quarrels, and partakers thereof, or
brokers of debates, GILBERT DE THORNTON (then probably
C.J.K.B.) should cause the offender to be attached by a writ
(the form of which is incorporated in the statute) to come
before the King to answer the plaintiff6. What at once strikes
the modern eye is the apparent jumble of conspirators, cham-
pertors, and maintainers. The explanation is that none of these
terms was at that time clearly defined. Conspirators, we have
seen, were roughly speaking those who combined to abuse legal
procedure. But what less could be said of champertors and
maintainers ? A champertor of the late i3th century must always
have been a conspirator, for he must always have combined with
another person, and it is not intelligible how any man can
maintain another's suit without some previous agreement. The
"Statutum" differed from its predecessors in fixing a definite
punishment for the offences described in it, and perhaps in

1 2 Inst. 212. 2 Bl. Comm. in. 242.

3 P. and M. II. 139. 4 St. of the Realm, i. 216 (ante 22).

6 This part is unrepealed. 6 This part was repealed by S.L.R. Act, 1887.

FORBIDDEN BY THE COMMON LAW? 147

applying to every offender whatever his rank or vocation
though the words which warrant this are of doubtful authen-
ticity1.

Whether writs of champerty and maintenance were commonly
issued under the "Statutum" is not known. At a later period,
such a writ is spoken of in Pasch. 20 Hen. VI, f. 30. A writ
of champerty based upon the statute was issued which omitted
reference to the three years' imprisonment and ransom to the
King. The Court was of opinion that the writ could not be
supported, but the Prenotary unearthed a precedent of Mich.
1 6 Hen. VI where the defendant got three years imprisonment,
though the writ made no mention of it. The Court upon con-
sideration held, no doubt upon this precedent, that the writ was
good in spite of the omission, but bad because it was un-
warranted by any statute2. It is not a fair deduction from this
that in Henry VFs reign there was no writ which availed against
champertors who were not royal ministers. The report does
not reveal whether the plaintiff were trying to apply to civil
purposes the criminal remedies of Statutum de Conspiratoribus,
and it rather indicates that the Court consulted only the
Statutes of West. I and II. It might easily have found the
writ to be warranted by 4 Ed. Ill c. 1 1 .

In 28 Ed. I (Art. sup. Cart.) c. n we undoubtedly get a
general prohibition of champerty.

And further, because the King hath heretofore ordained by statute,
that none of his ministers shall take no plea for maintenance \al. to
champertie] by which statute other officers [al. others than officers]
were not bounden before this time; the King will, that no officer,
nor any other, for to have part of the thing in plea, shall not take
upon him the business that is in suit; nor none upon any such
covenant shall give up his right to another ; and if any do, and he be
attainted thereof, the taker shall forfeit unto the King so much of
his lands and goods as doth amount to the value of the part that he
hath purchased3.

The statute allows any one to sue on the King's behalf for
such attainder, and judgment is to be given by the justices

1 Ante p. 22 (words "nor any"). Moreover, the framers of 28 Ed. I
c. ii (infra) thought that the statute they were drawing was the first of
general application. 2 Ante p. 144, n. 5.

3 St. of the Realm, i. 139. It is unrepealed.

148 WERE MAINTENANCE AND CHAMPERTY

before whom the plea was tried. It expressly reserves the right
of any one to have counsel of pleaders, or of learned men, or
of his relations and neighbours. The procedure under this
statute seems to have been as follows. The King, or the com-
plainant on his behalf sued out an original writ to the justices
of the Common Bench. This writ recited the statute1, and
thereupon the justices issued a judicial writ to the alleged
champertor who had to appear and answer for his conduct2.
Several cases shew the law in operation. In Strode v. Prior of
Lodres (Pasch. 4 Ed. II)3, a writ of champerty was brought to
the justices of the Common Bench, and from this original there
issued a judicial writ to the sheriff of Dorset to make the Prior
come. He appeared and got the judicial writ against him
abated, because it was directed to the sheriff of Dorset, whereas
the tenements which were in dispute lay in Devonshire. But
the original writ held good, and BEREFORD C.J. recommended
Strode to sue out another judicial writ to the proper sheriff.
In Trin. 12 Ed. Ill4, the King sued a writ of champerty against
several persons. The writ recited the statute5, and was directed
to the justices of the Common Bench, and out of it issued a
writ to the defendants to come and answer the King.

It seems from Trin. 6 Ed. Ill, f. 33 6, that the writ based
upon 28 Ed. I c. ii was maintainable only by, or on behalf of,
the King. "Suit in this case," said HERLE C.J.C.P., "is to

1 See the writ in Reg. Brev. f. 183 which is based on 28 Ed. I c. n.

2 F.N.B. 172 A, B. Coke in 2 Inst. 563 notes that the party grieved may
upon this statute either have a writ directed to the sheriff, or a writ directed
to the justices before whom the principal action depends. The context
leaves it open whether "this statute" is 4 Ed. Ill c. n (in which case there
is no difficulty) or 28 Ed. I c. u. The marginal reference to 22 Hen. VI,
f. 7, does not clear up the doubt, but another to Reg. Brev. f. 183 goes to
shew that he meant 28 Ed. I c. u. There is the same ambiguity in
F.N.B. 172.

3 S. S. vol. xxvi. pp. 141-3. Four variant reports are given.

4 Y.B. Rolls Series, pp. 538-543, 634-637.

5 28 Ed. I c. ii. The learned editor at p. 538 notes it as 3 Ed. I c. 25.
This cannot be so, for that statute is not of general application. 28 Ed. I
c. ii is, and the very words that make it so are recited in the writ in this case.

6 The page heading wrongly gives 5 Ed. Ill, a mistake repeated in the
index. REDE J. in Mich. 13 Hen. VII, f. 8, while admitting that the King
could have a writ of maintenance, said that he did not get it by the words
of the statute. I do not know to which of the many statutes of maintenance
he referred.

FORBIDDEN BY THE COMMON LAW? 149

the King; for the party cannot have the suit." Piers de Salt-
marche had sued the writ against three others1, and the argu-
ment which called forth HERLE'S dictum was that the suit could
not be the King's, because he had not been sufficiently informed
of it2. The wording of the statute itself points to the conclusion
that the injured party could recover nothing on his own
account ; for the penalty fixed is forfeiture to the King. A note
in Mich. 14 Ed. II, f. 411, "that action of champerty and suit
of it are not given or reserved to anybody by any statute, except
to the King" is to the same effect3. A case apparently incon-
sistent with this occurred three years later. A writ of champerty
had been brought against John Siwist. It was found bad and
was abated. Shardelowe then "said for the King how he had
brought his writ [of praecipe] on a certain day etc., and after
purchase of the writ, the said John purchased the land, delaying
his right." To this it was replied that the writ [of champerty]
had been abated, and the Court had no jurisdiction to hear
the plea. But BEREFORD C.J.C.P. said, "The writ is abated
between the parties, but reply now to the plaint of the King"4,
thus implying that the law recognized a writ of champerty
available to the party injured. It may be that the writ of
champerty in this case was that under Part II of " Statutum de
Conspiratoribus " which is wide enough to include champertors,
but while this suggestion leaves the case consistent with the
remedy under 28 Ed. I c. 1 1 , it does not reconcile it with the
note in 14 Ed. II, f. 41 15.

At the end of the printed copies of Ordinacio de Conspira-

1 " L'estatute de Champertie," which is referred to, is shewn by the
context to be 28 Ed. I c. n.

2 POLE raised the same point in Trin. 12 Ed. III. Rolls Series, p. 540.

3 Per HERLE and STAUNTON JJ., Fitz. Abr. Champ. 13 (3 Ed. Ill, It.
North.) is ambiguous, but probably to the same effect. "Note [that it was]
adjudged by SCROPE that champerty is not given to punish [any one] except at
the suit of the King, and not at the suit of the party, and Hil. [Hillary — not then
a judge] said that the action is given only to the tenant for the punishment
of champerty, and here this plaintiff was demandant in the first action etc."

4 Mich. 17 Ed. II, f. 504. Fitz. Abr. Champ. 14 is the same case.

5 Supra. Non-suit of one plaintiff was not non-suit of his co-plaintiff;
Mich. 47 Ed. Ill, f. 6; Fitz. Abr. Severauns 12. Contra Coke, at least as to
real actions ; 2 Inst. 563 citing Br. Abr. Sommons and Severance 7, where the
opinion is expressed that the point is immaterial, because damages are
recoverable in this action.

1 50 REMEDIES DOWN TO REIGN OF RICHARD II

toribus, 33 Ed. I, there is inserted a definition of champertors:
" Campi participes sunt qui per se vel per alios placita movent
vel movere faciant; et ea suis sumptibus prosequuntur, ad
campi partem, vel pro parte lucri habenda "*. This is materially
what the offence is at the present day.

At the end of Edward Fs reign, we may therefore sum up
the law in this way. Under the Statutes of Westminster I
(3 Ed. I) and II (13 Ed. I), remedies were given against cham-
pertors and maintainers who held official positions. Under
28 Ed. I c. n, a quasi-criminal remedy was given against
champertors of any sort. But under none of these statutes was
a purely civil remedy given against champertors and maintainers
in general, and such scanty authority as there is in the Year
Books confirms this2. Theoretically, the Statutum de Con-
spiratoribus3, besides fixing criminal remedies in its first part
against both, also gave in its second part a writ of a general
character that would lie against both. No case in which the
writ was used has been traced in this period. There remains
the assertion of Coke and others that writs of maintenance and
champerty existed at Common Law. The evidence for this is,
as has been shewn, questionable.

REMEDIES DOWN TO THE REIGN OF RICHARD II

§ 7. Edward Ill's reign opens with a statute prohibiting
any one from committing what Coke calls manutenentia ruralis*.
Maintainers and barrators seem to have been such a pest that
according to one reading of i Ed. Ill st. 2, c. 16 care was
taken to exclude them from the newly created Keepers of the
Peace5. But the Statute-book and Parliament Rolls from this
reign to the middle of the Tudor dynasty are long registers of
constant failures to scotch evils of this kind. King after king
tried to extirpate them, but never wholly succeeded. 4 Ed. Ill

1 Ante p. 2. Reeves (H. E. L. n. 243) states that no original text of the
Statutes appears to warrant the inclusion of this definition, and suggests
that some reader added it to explain the enactment of uncertain date variously
known as Statutum de Conspiratoribus (ante 146) or the Statute of Champerty.

2 Pasch. 17 Ed. II, f. 455 (writ of champerty brought at suit of King).

3 Ante p. 146.

4 i Ed. Ill st. 2, c. 14. St. of the Realm, i. 256. Ante p. 132.
a St. of the Realm, I. 257.

REMEDIES DOWN TO REIGN OF RICHARD II 151

c. ii enacts that the justices of either Bench and of Assizes,
whenever they come to hold their sessions or to take inquests
upon nisi prtus, shall inquire, hear, and determine, as well at
the King's suit as that of the party, of (inter alios) maintainers
and champertors1. Here at length an undoubted civil remedy
is conferred on the persons injured.

In 20 Ed. Ill2 another attempt is made to kill the canker
of corruption which spread even to the judicial bench. Cap. i
forbids the judges to take bribes in the way of their office.
Cap. 4 is a comprehensive prohibition of maintenance by any
one of another's suits for "gift, promise, amity, favour, doubt,
fear, or any other cause in disturbance of law." Cap. 5 requires
lords and great men to discharge from their retinue all main-
tainers. Cap. 6 ordains that the justices of assize shall have
commissions to inquire of (inter alios) maintainers, and to punish
them as law and reason require as well at the King's suit as
that of the party; "and thereupon we have charged our Chan-
cellor and Treasurer to hear the complaints of all them which
will complain, and to ordain that speedy remedy thereof be
made." Once again, then, we have an enactment as to both
criminal and civil remedies for maintenance. But the inverte-
brate administration of the law made it little more than a dead
letter. In a petition of 1376, the Commons pray that the statute
touching actions of champerty may be more fully declared, and
that the Chancellor be commanded to grant writs thereon at
the suit of the party, and that the party may recover damages
in the said suit3.

i Rich. II c. 4 prohibits maintenance (i) by the King's

1 St. of the Realm, i. 264. Repealed 44 and 45 Viet. c. 59, sect. 3.

a Ibid. i. 304-5. Repealed 44 and 45 Viet. c. 59, sect. 3.

3 Rot. Parl. n. 3366. Reply; the King "se vorra adviser" till the next
Parliament. 4 Hen. IV c. 8 deals with coarser forms of oppression by the
powerful. If any person forcibly enters another's lands by way of main-
tenance to another's use, the aggrieved party may be given a special assize
by the Chancellor without suing to the King. If the disseisor were attainted,
he was liable to one year's imprisonment, and must pay double damages to
the other party. This was confirmed by 8 Hen. VI c. 9 (ante p. 133). Both
statutes are now repealed — the first by S.L.R. Act, 1863 (England), and
S.L.R. Act, 1872 (Ireland), the second by 42 and 43 Viet. c. 59, sect. 2.
The last-named statute also repealed 31 Eliz. c. 5, sect. 4 which restricted
in favour of informers, i Rich. II c. 4.

152 REMEDIES DOWN TO REIGN OF RICHARD II

great officers, upon a penalty to be ordained by the King
himself with the advice of the Lords ; (2) by the King's minor
officers, upon penalty of loss of their offices, imprisonment, and
ransom at the King's will according to their degree and desert ;
(3) by any other person, on pain of imprisonment and ransom
as aforesaid1. Cap. 9 recites complaints that many people,
great and small, having a good title to lands or goods are delayed
in actions for their recovery because the defendants convey
such property to lords or other great men, and the plaintiffs
are thus frightened from pursuing their claims. It also recites
that many disseise others of their tenements, and then alienate
them to lords and great men to have maintenance, and some-
times to persons whose very names are unknown to the dis-
seisees. It then enacts that in future any such alienation for
fraud or maintenance shall be void, and the disseisees shall
recover from the first disseisors the lands and double damages,
provided they began their suit within a year after the disseisin.
This time limit was found to be mischievous and prejudicial
because of its shortness, and 4 Hen. IV c. 7 extended it to the
life of the disseisor. The statute was also weakened in its
operation by the inference of some lawyers that it applied to
nothing except writs of assize of novel disseisin, n Hen. VI
c. 3 settled this doubt by making it cover all manner of writs
grounded upon novel disseisin2. It was held upon the con-
struction of these statutes that if there were a number of joint
disseisors, one of whom took the profits, the action lay against
him alone for the whole, but that the case was otherwise with
feoffees of the disseisor who made a feoffment. If one only of
them took the profits, action must nevertheless be brought
against all the tenants3.

At this stage, therefore, there was abundant statutory warrant
not only for the criminal punishment of champertors and main-
tainers of any rank or position, but also for their civil liability.
It remains to consider the writs by which this civil liability

1 St. of the Realm, n. 2. Confirmed 7 Rich. II c. 15. Unrepealed.

2 i Rich. II c. 9, 4 Hen. IV c. 7, and n Hen. VI c. 3 have all been
repealed as to England by S.L.R. Act, 1863, as to Ireland by S.L. (Ireland)
R. Act, 1872.

3 Mich, i Ed. IV, f. i.

REMEDIES DOWN TO REIGN OF RICHARD II 153

was enforceable. The printed Register has three writs of main-
tenance1. All are founded upon i Rich. II c. 42. This expressed
no sanction, as regards laymen generally, except imprisonment
and ransom to the King. Whether damages could be awarded
on this writ by virtue of 4 Ed. Ill c. n is not known. Even
if that were not so, probably there were other writs of main-
tenance which do not appear in the printed Register, for that
was not a complete catalogue of contemporary writs in its first
edition of 1531, or in its reprints of 1595 and i6873. Turning
to the writs on champerty, the Register gives one which is the
original writ issued to the justices based upon 28 Ed. I c. n4,
and one other (including a variant) which is a skilful inter-
weaving of 3 Ed. I c. 25 and 28 Ed. I c. n5. The first of these
statutes applied to champerty by royal officers, the second to
champerty generally, and the sutures which mark the recitals
of them are plainly discernible in the writ. The defendants
mentioned in it are two bailiffs of Winchester and two private
persons — hence its composite character6. Both these statutes
were penal, and one can only speculate why the Register includes
no writ of a purely civil kind. We know that there was such
a writ from Fitzherbert and Coke, and both appear to base it
on 28 Ed. I c. ii7. It is certainly mentioned in the Year Books,
as in Mich. 22 Hen. VI, f. 7, which has already been cited8.
This case arose 87 years before the first printed edition of the
Register, and it is impossible to say of such an organic docu-
ment, whether the judges in Mich. 22 Hen. VI, f. 7, were

1 f. 182. Another (together with its variant) at f. 189 is strictly a writ
of champerty. The third writ at f. 182 was preventive. Cf. i Hawk. P.C.
ch. 83, sect. 42.

2 They refer to a statute "apud Westm. nuper aeditam." Of course this
does not necessarily imply that the statute is that of West. I or II. The
usual phrase in the Register for those statutes is "cum in statute Westm.
primi [or secundi] inter caetera contineatur," etc. Cf. Rastall's Entries,
sub tit. Maintenance. The precedents there are all upon this statute or
32 Hen. VIII c. 9. 3 Maitland, Coll. Pap. n. 172-3.

4 f. 183. * f. 189.

6 It is addressed to the sheriff, but it cannot be regarded as the comple-
mentary judicial writ of the original writ on 28 Ed. I c. n (ante p. 147).
It may be noted here that there was no need (if it were undesirable) to join
those who gave up their rights under a champertous agreement as defendants
with those to whom they gave them. 30 Lib. Ass. pi. 15.

7 Ante p. 148, n. 2. . 8 Ibid. p. 142, n. 4.

156 FAILURE OF THE REMEDIES

rageous multitude of embracers and maintainers, "who are as
Kings in the country," and their doubt of Richard's good faith
in meeting their wishes is implied in their request to see his
intended ordinance against these criminals1. Statutes affirming
previous ones passed2, but in his reign the maintainer appears
as a liveried servant in many baronial households, and exercised
a vocation in return for which he was boarded and clothed.
He thus became an infinitely greater plague spot upon society,
for he had the definite protection of a man who could shield
him from the law by a display of brute force, and he had the
further security which companionship and esprit de corps could
give him. His relation to his lord was a grotesque inversion
of that borne by the ancient Roman patronus to his client.
The distinctive mark of service of this sort was a hat or some
kind of badge, and the sense of corporate strength which a
uniform gave these retainers is easily intelligible at the present
day. It was much more forcible in an age when heraldry was
part of a man's education, and its elements were understood
by those who could neither read nor write4.

The abuse had already been dealt with by statute5, and had
preoccupied Parliaments held at Cambridge and Westminster,
and by 13 Rich. II st. 3, lords were required to oust from their
retinue these professional litigants, and livery and maintenance
were again prohibited. Imprisonment, fine and ransom were
added as penalties. One of Henry IV's first acts was to forbid
the giving of livery of cloth to any man except menials and
councillors6. Under the incompetent rule of Henry VI and in
the stormy reign of Edward IV, matters were at their worst.

1 Rot. Parl. in. 1006 (1381); 104 a. For similar complaints see n. 1366
(1343), III. 339 a, HI. 184 b (1384).

2 7 Rich. II c. 15 affirming i Ed. Ill st. 2, c. 14, 4 Ed. Ill c. n and
i Rich. II c. 4.

3 Cf. Muirhead, Hist, of Roman Law, sect. 3.

4 See Stubbs, HI. sect. 471, and sect. 473 for the household economy of
great baronial castles.

6 i Rich. II c. 7.

6 i Hen. IV c. 7. Even the King's son required special legislative per-
mission to confer his badge of a swan on his domestic servants ; 2 Hen. IV
c. 21. Military uniform in time of war was excepted from another penal
statute on livery, 7 Hen. IV c. 14. This statute was repealed 3 Car. I c. 5,
sect. 8 (c. 4, sect. 27 in Ruff.).

SUPPRESSION OF THE OFFENCES 157

The Year Books are a notable reflection of this. In Edward Ill's
reign there are not ten cases of maintenance and champerty
all told. In Henry VFs shorter reign there are nearly forty, and
in Edward IV's over twenty. 8 Hen. VI c. 4 strengthened the
statutes of Henry IV and excepted from them the Mayor and
Sheriffs of London while in office. It subjected to the penalties
of those statutes persons who clothed themselves at their own
costs in the liveries of any lord, lady, or esquire for main-
tenance in any quarrel1. "Livery and maintenance, apart or
together, were signs of faction and oppression, and were two
of the great sources of mischief for the correction of which the
jurisdiction of the Star Chamber was erected in the reign of
Henry VII"2. A Year Book record of Mich, i Hen. VII, f. 3, is
instructive. It tells us that after dinner all the justices were at
Blackfriars, and discussed whether many good statutes profitable
to the realm could be executed. These were the statutes com-
piled in Edward IV's time and sent to the Justices of the Peace
in each county to proclaim and execute. They related to
robberies, felonies, riots, forcible entry, vagabonds, signs,
liveries, maintenance and embracery. The question was how
these laws should be executed. The Chief Justice said that this
would never be, until all the lords, spiritual and temporal, agree
to execute them; and he added that when he was Attorney to
Edward IV, he had seen all the lords swear to protect the
statutes made by the commandment of the King and with
others, and yet within an hour afterwards when they were in
the Star Chamber, divers of the lords had made retainments
by oath directly contrary to their oaths.

SUPPRESSION OF THE OFFENCES

§ 9. The Star Chamber did not immediately wipe out these
offences, for the cases shew only a slight proportional decrease
under that King3, and not only did statutes pass in 8 Ed. IV
confirming previous statutes and forbidding under pecuniary
penalties any person giving such livery or retaining any person

1 Repealed 3 Car. I c. 5, sect 8 (c. 4, sect. 27 in Ruff.).

2 Stubbs, in. sect. 471.

3 There are 16 in the Y.B.

158 SUPPRESSION OF THE OFFENCES

except a menial servant, officer or man learned in the law1,
and in 19 Hen. VII fixing a £5 penalty on any one giving or
taking livery otherwise than as a household servant2, but as
late as 33 Hen. VIII complaint is made of the neglect of statutes
against retainers, livery, maintenance, and embracery. A law
of that year required Justices of the Peace to hold Sessions in
every quarter six weeks before the general Quarter Sessions,
for the purpose of inquiring into these offences3. It was well
meant, but proved such an expensive interference with the
routine of local justice that it was repealed four years later by
37 Hen. VIII c. 7. But another earlier statute, 32 Hen. VIII
c. 9, had revived all the statutes concerning maintenance,
champerty, and embracery. Yet it is very significant that no
reference to the oppression of great lords appears in it, and
there can be no doubt that the strong Tudor government gave
abuse of procedure a crushing blow through the channel of
the Star Chamber. It survived, but rather as a pettifogging
means of swindling or annoying a neighbour than as an emblem
of baronial power and a monument of royal weakness4. This
last-mentioned statute also fixed a penalty of £10 for unlawful

1 C. 2. Inter alia are also excepted liveries given at the coronation, the
installation of an archbishop or bishop, the creation or marriage of any
lord or lady, the commencement of any clerk in any university, the making
of Serjeants at law, and liveries given by any corporation or in defence of
the Realm. The statute was repealed by 3 Car. I c. 5, sect. 8 (c. 4, sect. 27
in Ruff.).

2 19 Hen. VII c. 14. 3 33 Hen. VIII c. 10.

4 Cf. Stephen, Hist. Crim. Law, in. 234-240. The learned author points
out that India affords a historical parallel. Before the establishment of
British rule there, the litigant was often intimidated from pursuing his
legal remedies. Since then, what he has to fear is legal chicanery rather than
physical violence. The changed attitude of the English Courts towards
maintenance is marked in many cases from the judgment of BULLER J. in
Master v. Miller (1791) 4 T.R. at p. 340, to that of FARWELL LJ. in Defries
v. Milne [1913] i Ch. at p. no. See, for example, BEST L.C.J. in Williams
v. Protheroe (1829) 2 M. and P. at p. 786; LORD ABINGER C.B. in Findon v.
Parker (1843) n M. and W. at p. 679; LORD COLERIDGE CJ. in Bradlaugh
v. Newdegate (1883) at p. 7; COZENS-HARDY M.R. in British Cash &c. Ld.
v. Lamson & Co.Ld. [1908] i K.B. at p. 1012. But it would be a mistake
to assume from these dicta that officious meddling in litigation is less objec-
tionable than in earlier times. See TINDAL CJ. in Stanley v. Jones (1831)
7 Bing. at p. 378; LORD ESHER M.R. in Alabaster v. Harness [1895] i Q.B.
at p. 339; BRAY J. in Scott v. N.S.P.C.C. (1909) 25 T.L.R. at p. 790; LORD
SUMNER in Oram v. Hutt [1914] i Ch. at p. 106; LORD FINLAY L.C. in
Neville v. London Express Newspaper, Ld. [1919] A.C. at pp. 382-383.

SUPPRESSION OF THE OFFENCES 159

maintenance. And it provided that no one should sell, or buy,
or otherwise get any pretenced right in lands, unless the grantor,
or his predecessor in title had been in possession for one whole
year previously. This part (sect. 2) was repealed by the Land
Transfer Act, 1897, sect, n, for otherwise the powers of aliena-
tion given by that Act to a man's personal representatives, who
were thereby made his real representatives as well, would have
been seriously limited; for "pretenced" right might include
even those sales in which the buyer acted in good faith1. The
statute of 32 Hen. VIII allows a person who is in lawful pos-
session by taking yearly farm rents or profits of lands to get
by any reasonable means the pretenced right or title of any
other person. The penalty for trafficking in titles under the
Act was forfeiture of the lands by the buyer who took knowingly,
and of the value of the lands by the seller. The action on it was
penal, as half the forfeitures enured to the King, the other
half to the party suing. According to Coke, the statute included
terms of years, but not a lease for years to try the title in
ejectione firmae2, though this was held by the Star Chamber to
be maintenance at Common Law in Leigh v. Helyar (i Jac. I)3,
and this, though the lease which had been sealed had not yet
been delivered, nor anything further done4. At a later date
there is a juristic opinion that, quite apart from 32 Hen. VIII
c. 9, buying and selling of any doubtful title to lands known to
be in dispute, to the intent that the buyer may carry on the
suit, is a high offence at Common Law; but the authority cited
for the opinion is not convincing5.

1 Co. Lift. 369 a. Cases illustrative of the repealed section are Choi-
mondeley v. Clinton (1821) 4 Bligh N.S. i ; Doe d. Williams v. Evans (1845)
i C.B. 717; Cook v. Field (1850) 15 Q.B. 460; Kennedy v. Lyell (1885)
15 Q.B.D. 491. There are many others, see n. 5 infra sub fin.

2 Ibid. 3 Moore, 751.

4 Hudson, p. 91, quotes without detail, or further reference, Sir Oliver Lee
v. Lidyard (4 Jac. I) as deciding the same point in the same Court.

5 i Hawk. P.C. ch. 86, sect, i (the chapter is on "The offence of buying
or selling a pretended title"). The references are to Shelden v. Handbury,
Moore, 751, which is on 27 Eliz. c. 4; Flower's Case, Hob. 115, which is on
32 Hen. VIII c. 9 and is a Star Chamber case which concludes with a
.query if it would have fallen under the statutes in the Common Law Courts ;
Partridge v. Strange in Plowden at pp. 80, 88; p. 80 is merely argument;
p. 88 contains an obiter dictum of MOUNTAGUE C.J. that 32 Hen. VIII c. 9
affirmed, but did not alter, the Common Law. This was made the basis of

160 SUPPRESSION OF THE OFFENCES

The statute is still in force except as to sect. 2 above-men-
tioned, a part of sect. 3 relating to subornation of a witness to
maintain a cause1, and sect. 5 which required proclamation of
the statute at the assizes2.

his decision by TINDAL CJ. in Doe d. Williams v. Evans (1845) i C.B.
717, 734, that a particular conveyance was void both by the Common Law
and by 32 Hen. VIII c. 9. Cf. Dart, V. and P. (ed. 1905), I. 265-266. The
authorities on this statute down to 1793 are collected in Vin. Abr, Maint. (E),
22 note, 24, 30-32, 36, 37 and (T) 22-27. Hawkins deals fully with it in the
chapter above-mentioned. The statute was discussed in Neville v. London
Express Newspaper, Ld. [1919] A.C. at pp. 386-387, 397-399, 410-412.

1 Perjury Act, 1911 (i and 2 Geo. V c. 6), sect. 17.

2 S.L.R.Act, 1863.

CHAPTER VII
EMBRACERY AND MISCONDUCT OF JURORS

§ i. This chapter may conveniently be divided into two
nhrgrer^mrl mie mini LI i I i f

EMBRACERY

§ 2. Embracery may be defined for the purposes of the law
at the present day as the actual or attempted corrupt or forcible
influencing of jurors. Any attempt to corrupt or influence or
instruct a jury in the cause beforehand, or in any way to incline
them to be more favourable to one side than the other, by
money, promises, letters, threats, or persuasions, except only
by the strength of the evidence and the arguments of counsel
in open Court at the trial, is an act of embracery1. The law
relating to this offence is in as nearly a cataleptic state as the
rules with respect to some other forms of abuse of legal pro-
cedure with which we have dealt.

There was an indictment for embracery at the Central
Criminal Court in iSQi2, but that appears to be the only
reported case of it in the i9th century. For various reasons it
has fallen into obsolescence, and we may say of it, and of most
of the offences which form the subject matter of this book,
that the more obsolete the law is with respect to them, the
better it is observed. Maintenance, champerty, livery, em-
bracery, barratry, and conspiracy (in its original sense) were
commonest at times when the law was constantly set at naught,

1 i Hawk. P.C. ch. 85, sect. i. Cf. Bl. Comm. iv. 140; St. Dig. Cr. Law
Art. 139; Russ. i. 598; Arch. 1144. The word is derived from O.F. "em-
bracer," meaning "instigator," which is formed on "embraser," the literal
meaning of which is "to set on fire." N.E.D. "Embracery."

2 R. v. Baker, 113 C.C.C. Sess. Pap. 374, 589. In 1801, counsel, in
R. v. Higgins, 2 East at p. 14, referred to .R. v. Young as a case in which an
information had been lately exhibited against one for attempting to influence
a juror. In JR. v. Davis (1909), 150 C.C.C. Sess. Pap. 736, there was an
indictment for perjury and attempting to obstruct and prevent the due
course of law and justice, an attempt to influence a juror being alleged. The
accused was acquitted.

W.H.L.P. II

1 62 EMBRACERY

the government was weak, and the kingdom was very near
anarchy. (That the law now rarely has any need to use its
weapons against these offences is satisfactory, but that it would
be unwise to abandon them altogether no one can doubt) Even
now, it is easily possible to imagine parts of the United Kingdom
where legal procedure might be warped by corruption or over-
whelmed by violence.

§ 3. The first legislative mention of embracers occurs in
"De Conspiratoribus Ordinatio" of 1293 (21 Ed. I), the
opening words of which speak

de conspiratoribus in patria placita maliciose moveri procurantibus,
ut contumelie braciatoribus placita ilia et contumelias ut campi-
partem vel aliquod aliud commodum inde habeant maliciose manu-
tenentibus et sustinentibus.

From the very first, then, there is a close connection between
embracery, maintenance, and champerty, and the importance
of this connection will appear later1.

§ 4. If embracery can be regarded as distinct from main-
tenance, its statutory history begins 20 Ed. Ill c. 6, which
ordains that justices of assizes shall inquire of (inter olios)
maintainers, embracers, and jurors who take gifts, rewards, and
hire of the parties, and that they shall punish all who are found
guilty of such practices according as law and reason require, as
well at the suit of the King as that of the party2. This did not
satisfy the Commons, for in the very next year they petitioned
the King for an ordinance against traitors, felons, robbers,
trespassers against the peace, barrators, maintainers, "em-
braceours des busoignes," conspirators and champertors. The
King replied that he would ordain such remedy as should be
pleasing to God and man; but there is no record of any im-
mediate steps having been taken in that direction3. Embracery,
in fact, was only one of the signs of the internal disorder of the
kingdom at this time, for later in this reign we find an attempt
to check it in 38 Ed. Ill st. i, c. 12. Four years previously,
34 Ed. Ill c. 8 had provided that if any party to a plea should

1 For the rest of the Ordinance, v. ante p. 26.

2 Repealed by 6 Geo. IV c. 50, sect. 62.
8 Rot. Parl. n. 165 a (A.D. 1347).

EMBRACERY 163

complain that any juror in it had been bribed by either party
to give his verdict, the party complaining could sue before the
justices before whom the jurors swore, and recover damages by
assessment of the inquest. Any person other than a party to
the suit could also sue on behalf of the King, and was entitled
to half the fine.

38 Ed. Ill st. i, c. 12 runs thus:

Also, as to the article concerning jurors made in the four-and-
thirtieth year; it is assented in addition to the same, that if any
jurors in assizes, juries, and other inquests to be taken between the
King and party, or party and party, do any thing take by them or by
others of the party plaintiff or defendant, for giving their verdict;
and thereof be attainted by process contained in the same article,
be it at the suit of the party that will sue for himself, or for the
King, or of any other person whatever, every one of the said jurors
shall pay ten times as much as he shall have taken ; and he that will
sue shall have the one half, and the King the other half. And that
all embraceors to bring or procure such inquests in the country for
gain or profit to be taken, shall be punished in the same manner and
form as the jurors ; and if the juror or embraceor so attainted have
not whereof to make satisfaction in manner aforesaid, he shall have
imprisonment of one year. And the intent of the King, of the great
men, and of the Commons is that no Justice nor other Minister shall
inquire of office upon any of the points of this article, but only at
the suit of the party, or of other, as afore is said.

This is quoted in extenso, because, though only the latter
part of it expressly treats of embracers, yet that part fixes their
liability by reference to that of the jurors mentioned in the
earlier part; and this earlier part again refers to 34 Ed. Ill c. 8.
Hence, though nothing is said about embracers in 34 Ed. Ill
c. 8, it is open to question how much of it was incorporated by
reference in 38 Ed. Ill st. i, c. 12. The result of that statute
was that a juror who takes a bribe for his verdict from plaintiff
or defendant was liable to forfeit ten times the bribe, half to
the King, half to anybody who instituted the action against
him. If the juror could not pay that amount, he was to be
imprisoned for a year. An embracer "shall be punished in the
same manner and form as the jurors." This certainly made
him liable to the ten-fold penalty, or, in default thereof, to the

II 2

164 EMBRACERY

year's imprisonment. But did it also make him liable to the
fine and the imprisonment for one year mentioned in 34 Ed. Ill
c. 8? Did 38 Ed. Ill st. i, c. 12 embody the earlier enactment
as far as that? This cannot be determined. In any event, the
point is merely of antiquarian interest, for both statutes have
been repealed1.

§ 5. The writ framed as a remedy on 38 Ed. Ill st. i, c. 12
was baptized decies tantum, the name being derived from the
ten-fold penalty claimed under it. Judging from the reported
cases, it was of fairly frequent application in mediaeval times,
and there is a great deal more to be found about it in the books
than about embracers. This is because it was sought far oftener
against jurors than embracers, or, at any rate, against both of
them rather than against embracers alone2. If the embracer or
juror took bribes from both parties to the suit, he was an
"ambidexter"3.

§ 6. Litigation occurred on the statute soon after it passed,
for in Trin. 40 Ed. Ill, f. 33, we are told that four of the
defendants who were jurors and others, who were barrators and
embracers of the original plea, each took 20$. from the defendant
in it4; and an obscurely reported case of the next year is inte-
resting as shewing that the penalties were ruinous enough to
scare away intending offenders, for one of the defendants was
adjudged to pay £300 to the King and £300 to the party5.
But the very severity of the statute is a hint at once of the
prevalence of the crime at which it strikes and of the weakness
of the executive. Indeed, wherever we find in the mediaeval
Statute-book a batch of exceptionally harsh statutes, we can
nearly always infer that there were at that period a feeble or

1 34 Ed. Ill c. 8 by 6 Geo. IV c. 50, sect. 62 (England) and 3 and 4
Will. IV c. 91, sect. 50 (Ireland); 38 Ed. Ill st. i, c. 12 by S.L.R. Act,
1863 (England), and S.L.R. Act, 1872 (Ireland).

2 The writ in Reg. Brev. f. 188 b (a pone, with a variant) is against
both, and is so drafted as to make it adaptable against either. Cf. F.N.B.
171 G, where the writ is also against both and is founded on 38 Ed. Ill
st. i, c. 12.

3 F.N.B. 171 H.

4 It was contended that receipt of one defendant could not be receipt of
the other. Non allocator.

6 Pasch. 41 Ed. Ill, f. 9, Br. Abr. Dec. Tant. 5. The writ was against
jurors and embracers.

EMBRACERY 165

absentee King and a lawless baronage. It is the mark of such
times that the punishments for many of the worst crimes
against public order are in theory tremendous, and that the
laws which fix them are little more than a dead letter owing
to the venality or weakness of those charged with their execu-
tion. So it was with embracery. The misrule of Richard II
provoked a petition of the Commons in 1381, expressing their
conviction that if the government of the kingdom were not
amended, the kingdom would for ever be utterly lost and
destroyed. They complain of the outrageous multitude of
"braceours des quereles, et maintenours," who are like Kings
in the country. So little are they satisfied with the monarch's
good faith in redressing their grievance that they ask for a view
of the ordinance intended as a remedy against the malice of
jurors, embracers of pleas, and maintainers1.

§ 7. The other party to the embracery, where it took the
form of a corrupt bargain, also attracted the Commons' atten-
tion. The transaction between embracer and juror would
naturally be difficult to trace. This probably led to the fruitless
petition of 1413 that, in every inquisition, jurors should be
questioned on Oath whether any of them had received anything
for his trial of a challenge or verdict2. In the next year, this is
followed by a complaint of the powerful embracers, cham-
pertors, and maintainers in Middlesex and of the qualification
of jurors in that county being so low that they had nothing to
lose if attainted of a false oath. For once, the petition is suc-
cessful, and assent is given to an ordinance raising the qualifi-
cation to 40$. where the amount in dispute is 40 marks or
upwards3.

Some of the justices of nisiprius appear to have had as itching
a palm as jurors, for decies tantum is said to have lain against
them4. But there were greater men than judges who mocked
the law. The King's Council might fine and imprison the Earl
of Devonshire for threatening justices and jurors with violence,

1 Rot. Parl. in. 100 b, 104 a. See too the complaint as to John Rokell
who was committed to the Tower for embracery and maintenance in 1391.
Ibid. 287 a.

2 Ibid. iv. ii a. 3 Ibid. iv. 52 a. * F.N.B. 171 D.

1 66 EMBRACERY

but as he was of the royal blood, he could look to Richard II
for pardon. Nay, whilst his own trial was pending, he could
attend the meetings of the very body which was to try him and
deliberate on the King's business1. And the Council might
annul the acts of maintenance and collusion with jurors by
which Clifford, a Gloucestershire squire got his neighbour,
Atte Wood, committed to prison, and then robbed him of his
land and goods; but before the property is restored, Clifford
murders Atte Wood by a hired assassin. The King's Bench
convicts Clifford of this, and imposes a fine of £1000 which
the King commutes for 200 marks, and this proves to be the
price of Clifford's licence to resume his practices. Yet he "was
an honoured man in the county, serving in the King's com-
missions and keeping the castle of Caldecote"2.

§ 8. It was only natural that among the offences singled out
for special attention by the famous act "Pro Camera Stellata"
(3 Hen. VII c. i) embracery should find a place, and that the
vigorous action of the Court of Star Chamber should be a
strong element in its suppression3. "Infinite are the punish-
ments of jurors and those who have embraced juries," says
Hudson in his treatise on the Court, "for as the reverend Lord
Egerton would often remember, vendere justitiam infamia est,
vender e injustitiam nequitia." And Hudson recollected that the
Solicitor-General to Queen Elizabeth was standing behind
Robert, Earl of Leicester, among other lords when a cause was
being heard concerning the writing of a letter to a juror to
appear, and the great Earl asked if that were a fault, and swore
that he had committed it a hundred times4.

§ 9. The statute 32 Hen. VIII c. 9 includes embracery in
its preamble among the evils hindering the administration of
justice, and forbids embracery of freeholders or jurors on a
penalty of £40 for each offence, half to go to the King, half
to him who sues by action of debt, bill, plaint, or information

1 Esturmy v. Courtenay (1392). Select Cases before the King's Council
(S. S. vol. xxxv), Introd. ci. and p. 77.

2 Atte Wood v. Clifford (1402-3), Ibid. civ. and p. 86.

3 ii Hen. VII c. 3 also notices embracery and maintenance as obstacles
in the way of justice.

4 Pp. 92-93-

EMBRACERY 167

for it (sect. 3). The action must be brought within one year
after the offence (sect. 6). The statute is still in force

§ 10. The writ of decies tantum disappeared when the statute
38 Ed. Ill st. i, c. 12 creating it was repealed by the Juries
Act, 1825. This Act also repealed 20 Ed. Ill c. 6 and
34 Ed. Ill c. 8; but it contains a proviso that embracers and
jurors who wilfully or corruptly consent to embracery are liable
to indictment or information and punishable by fine or im-
prisonment just as before the Act1. There is an almost total
lack of decisions on embracery since the Juries Act, 1825, and
the law can only be illustrated now by such decisions of earlier
times on the writ of decies tantum or otherwise as are likely to
be suitable to changed circumstances2.

§ ii. The law, then, as it now stands depends upon the penal
action under 32 Hen. VIII c. Q3 and the Common Law.
Whether embracery as distinct from maintenance ever existed
as a Common Law offence is debatable. "De Conspiratoribus
Ordinatio" of 1293 and the statutes 20 Ed. Ill c. 6 and
38 Ed. Ill st. i, c. 12 spoke of embracers as if they were
offenders known to the law apart from enactment4. And the
same conclusion has been reached by another line of reasoning.
Coke regarded embracery as nothing more than a species of
maintenance. We have shewn that the balance of the evidence
is in favour of his view that maintenance is a Common Law
offence. If then embracery be only a variety of maintenance, it
could, as a matter of logic, be classified with it as obnoxious
to the Common Law. The first point, therefore, is whether the
following passage from Coke be correct. The third kind of
manutenentia curialis

1 6 Geo. IV c. 50, sects. 61, 62.

2 Extinct procedural points worth mentioning are that the plaintiff was
obliged to prove how much had been received, otherwise the Court would
not know the amount for which judgment must be given (per COKE J. in
Partrige v. Straunge (6 and 7 Ed. VI) Plowd. Comm. 85); and that the
defendants ought not to plead the general issue, but specially that they did
not take the money (i Hawk. P.C. ch. 85, sect. 17). The King might sue
for the entire forfeiture in decies tantum (per REDE J. in Mich. 13 Hen. VII,
f. 8). On the other hand, if the subject instituted the action, he got his
moiety of the penal sum before the King, for the latter's moiety was due
to him as a fine, not as a debt (i Hawk. P.C. ch. 85, sect. 18). As the action
was popular, the King's release before it was brought barred it ; not so the
release of the party grieved (ibid.).

3 Ante § 9. 4 Ante pp. 162 sqq.

1 68 EMBRACERY

is when one laboureth the jury, if it be but to appeare, or if he
instruct them, or put them in feare, or the like, he is a maintainer,
and is in law called an embraceor, and an action of maintenance
lyeth against him; and if he take money, a decies tantum may be
brought against him1.

This classification of embracery is supported to a certain extent
by some of the Year Book cases. It is true that HANKFORD J.
took a distinction between maintenance and embracery in Hil.
13 Hen. IV, f. 1 6, and said that an embracer is properly one
who takes upon himself to make the people of an inquest appear,
and that such an one is called in English "a leader of inquests."
This appears to have made the defendants who had come to
distribute fish among the jurors maintainers and not embracers.
And it was queried in Pasch. 21 Hen. VI, f. 54, whether main-
tenance or decies tantum were the correct writ against one not
sworn as a juror. But later cases do not adhere to Hankford's
distinction. Mich, n Hen. VI, f. 10, is inconclusive. An
attorney had bribed two of the inquest with IQS. apiece.
MARTYN J. thought that this was embracery, not maintenance,
but added that if the attorney had given of his own goods to
maintain the plea, he would have been a maintainer. BABINGTON
C.J.C.P. thought that even if the attorney's gift were of his
master's goods, it was special maintenance, and PASTON J. took
the same view. On the other hand, in a case reported at some
length in Mich. 21 Hen. VI, f. 15, and Mich. 22 Hen. VI, f. 5,
an Abbot's gift of 40$. to W. E. to labour the jurors was held
by all the judges to be maintenance. And in Clement Tailour's
case, where Tailour had given loos, of his own money for dis-
tribution among the inhabitants of the county for the purpose
of maintenance, it was held that this was maintenance2.
Finally, in Mich. 17 Ed. IV, f. 5, it was laid down by all the
Court that if a juror give money, be it his own or that of another,
to his companions, he commits maintenance3.

It seems then that mediaeval judges made no marked division
between maintenance and embracery, and it is unreasonable to
expect that they should have done so in an age not addicted

1 Co. Litt. 368 b.

- Trin. 28 Hen. VI, f. 12; Trin. 31 Hen. VI, f. 8. See too Jenk. 101.
3 Pasch. 1 8 Ed. IV, f. 4, is to the same effect, though the statement of
facts on which the decision is based appears to be defective.

EMBRACERY 169

to scientific classification. Perhaps Coke's neat subordination
of embracery to maintenance as species to genus is more
artificial than history warrants, and perhaps, too, the deduction
from this that embracery subjects the offender to all the legal
proceedings appropriate to maintenance, is a sweeping inference
of a later time when embracery was little known1.

§ 12. The particular mode of influence which the embracer
adopts, or attempts to adopt, is not material. The crudest form
is naturally the earliest — a money bribe whether given or
promised2. But it might well be that threats could do more
cheaply and quite as effectually what bribes could. " Speaking
great words" to jurors was held not to be maintenance in
Hil. 13 Hen. IV, f. 16, but we are not told what the great
words were. And in Mich. 22 Hen. VI, f. 5, NEWTON J. put
the hypothetical case of a man of great power in the county
coming before the jury, and stating openly that he wished to
spend £20 for a certain party, or to labour the jury. This he
thought would be maintenance, though nothing were given,
nor were the jury laboured, for possibly they would not dare
to give a verdict unfavourable to the great man. True, this is
a general offer of bribery rather than a threat, but there is a
veiled threat, and if a promised reward be objectionable, a
threatened evil ought to be more so. Moreover, Fitzherbert
describes an embracer as one who comes to the bar with the
party, and talks in the cause, or stands there to survey the jury,
or to put them in fear3.

The mere writing of a letter urging a juror to appear and to
act according to his conscience was held in the Star Chamber
to be embracery. But even in the Star Chamber, if the party
himself laboured the jurors to appear, this was not unlawful,
though the jurors were never summoned to appear4, and this ;
distinction was recognized by the Court there in Jepps v.
Tunbridge, where the defendant was fined and imprisoned for !
delivering a "brief" of the cause to jurors5. This throws some

1 i Hawk. P.C. ch. 85, sect. 7.

2 Trin. 40 Ed. Ill, f. 33; Pasch. 41 Ed. Ill, f. 9; Mich, n Hen. VI, f. 10.
F.N.B. 171 A. i Hawk. P.C. ch. 85, sect. 5.

3 F.N.B. 171 B. i Hawk. P.C. ch. 85, sect. 5. 4 Dyer, 48.

5 (9 Jac. I) Moore, 815. Hudson, 91-93. Hussey v. Cook (18 Jac. I)
Hob. 294. Co. Litt. 157 b, 369 a. i Hawk. P.C. ch. 85, sect. 2.

170 EMBRACERY

light on what " labouring" means. Merely shewing a juror an
exemplification in proof of the case, at the same time forbidding
him to read it, was not embracery1. Coke is credited with the
opinion that it is lawful to tell a juror what the issue was, if
that be no more than what was contained in the record at nisi
prius2. Soliciting a juror not to appear is punishable, no matter
who it is that solicits ; for that both delays justice, and is a mode
of packing the jury3.

Whatever be the manner of the alleged influence, it should
be detailed in the indictment for embracery. In JR. v. Baker,
one of the objections was that the mode of influence was not
stated. All that was alleged was that the accused unlawfully
and knowingly attempted to corrupt and influence a jury by
persuasions, entertainments, and other unlawful means. The
Recorder considered it needless to deal with this objection, as
he quashed the indictment on another ground4 ; but the inference
to be drawn for future indictments can scarcely be ignored5.

§ 13. At what moment must the pernicious influence be
brought to bear upon the juror? Does a man commit em-
bracery not only if he corruptly approach the juror during the
proceedings, but if he do so before the juror be sworn, or after
the verdict be returned? Upon the whole, it seems that, if the
juror has been summoned, this is enough for the purposes of
embracery, even though he has not been sworn. Against this
view it may be urged that it was a good plea in bar to the wrrit
of decies tantum that there was no record of the previous action
shewing that the juror was sworn, for an essential of the offence
was its commission in a previous action6; and that Fitzherbert's
commentary on decies tantum states that the jury must have
been sworn7. Pasch. 21 Hen. VI, f. 54, may be taken either
way. It records a statement of counsel that some of the justices

1 Becket v. Rashley. Hudson, ubi sup. 2 Ibid.

3 Hussey v. Cook (18 Jac. I) Hob. 294.

4 (1891) 113 C.C.C. Sess. Pap. 374. Upon a fresh indictment, the form
of which is not given, the accused was convicted. Ibid. 589. From the
evidence then given, it appears that he tried to persuade the jurors to favour
the prisoner whom they were trying.

6 The Indictments Act, 1915 (5 and 6 Geo. V c. 90), Sched. I, rule 9,
requires the particulars of the offence to indicate with reasonable clearness
to the accused the occasion and circumstances of his crime.

6 i Hawk. P.C. ch. 85, sect. n.

7 F.N.B. 171 A, B.

EMBRACERY 171

were of opinion that though a defendant had not been sworn
as a juror, decies tantum would yet lie, while others thought
that the appropriate writ was maintenance. If it be correct
that embracery is only a kind of maintenance, the difficulty is
one of form, not of substance, and would not be likely to trouble
a modern pleader. And there is some show of authority that
it is embracery to tamper with jurors before they are sworn.
Hawkins states that gift or promise of money to, or menaces
or instruction of, the jury beforehand is unlawful1. In Jepps v.
Tunbridge2, the two Chief Justices and the Lord Chancellor
were of opinion that instruction of jurors verbally or in writing,
or promising them any reward for appearance, whether by the
party himself or by a stranger, is embracery.

If a reward be given to the jurors after their verdict has been /
returned and this is done in pursuance of a previous offer or f
contract, it is embracery3. It is also said that the gift of money
without any preceding contract savours of the nature of em-
bracery, because, if such practices were allowed, it would be
easy to evade the law, by secretly intimating to jurors an intended
reward for their services, which would be as bad as giving
money beforehand4. This is no more than saying that if a
preceding agreement or offer can be inferred, the offence is
committed. But on principle it should be immaterial whether
there be any such agreement. It may be conceded that if the
jurors receive no reward till after their verdict, this cannot
affect their verdict in that particular proceeding. Yet it would
be highly inexpedient to raise any expectation of a gratuity for
doing their legal duty in future cases. It is possible that they
may be impanelled in a later case in which the person who
rewarded them is again concerned. Moreover, if such conduct
were of common occurrence, it would have an evil effect on the
integrity of jurors in general.

1 i P.C. ch. 85, sect. 5. Hudson, 91-93. It was also a ground of principal
challenge. Co. Litt. 157 b. 2 (9 Jac. I) Moore, 815.

3 In Edward Ill's reign, where there was no previous agreement, the
jurors were fined, and the only matter of surprise to the reporter was that
they were not imprisoned as well, as the proceedings were upon 34 Ed. Ill
c. 8; 39 Lib. Ass. pi. 19; Br. Abr. Dec. Tant. 15. But this decided nothing
as to the liability of him who gave the money.

4 i Hawk. P.C. ch. 85, sect. 3, 14.

172 EMBRACERY

§ 14. Decies tantum did not lie against an embracer who took
money from another for bribing the jurors, but never distri-
buted it1. But at the present day, such an act would probably
be a conspiracy to defeat the ends of justice. If the money were
given to the jurors, it was immaterial that the plaintiff was
non-suited2, or that the verdict were a true one, for the return
of the verdict was not the cause of the action of decies tantum,
but what the jurors took for returning it3. It is submitted that
this represents the principle of the law just as much now as it
did in Henry VFs reign.

§15. Some acts of interference with a jury are not embracery.
Lawyers, of course, may plead in a cause for their fees, but
they become embracers if they "labour" the jury and take
money for doing it4. In the Star Chamber, it was affirmed
that a party to the suit, his son, servant, or near kinsman might
exert himself to procure the jury to appear, if there were no
other ill-qualified circumstance in it5; but no man might write
to another to get him to appear in a case in which the persuader
was not interested6. But this, and other like opinions are of
little value at the present day. They were uttered in an age
when the jurors were still in a sense witnesses and not merely
judges of the facts. Now that they are solely the latter there
would presumably be no objection to urging them to appear,
but such an act would be rather unintelligible in view of the
punishment with which the law would visit them if they did
not obey its summons.

There are traces of this old theory that the function of jurors
is that of witnesses in an opinion of the i8th century that the
giving to them reasonable expenses for travelling and so forth
which they may fairly expect from the successful party is in no

1 DANVERS J. in Trin. 37 Hen. VI, f. 31 ("Ad quod curia concessit"),
F.N.B. 171 c.

2 Per PRISOT CJ.C.P. in case last cited.

3 PASTON J. in Mich. 21 Hen. VI, f. 20; F.N.B. 171 c; Co. Lift. 369 a.
Dyer, 95 b. i Hawk. P.C. ch. 85, sect. 15.

4 F.N.B. 171 B. Mich. 6 Ed. IV, f. 5 (Counsel was alleged to have taken
£20, only 6*. 8d. whereof was given to him as his lawful fee).

6 Hussey v. Cook (18 Jac. I) Hob. 294. Cf. Dyer, 48. i Hawk. P.C.
ch. 85, sect. 6. Lord Cromwell and Tozvnsend's Case (28 Eliz.) 2 Leon. 133.
G Bayneham v. Lucas (1603) Baildon, Cases in Star Chamber, 165.

EMBRACERY 173

way criminal, because if they could look to no such allowance,
it would be often difficult to prevail upon persons to serve on
juries at their own charge ; and that experience had shewn that
it was necessary to allow the parties to give some amends for
the jurors' charges1. Hence, no objection seems to have been
taken to a payment of £65 to a jury for coming up in very bad
weather from Dorsetshire2. But this was more generous than
was customary. Usually the party who secured their verdict
regaled the jury with a dinner, and that was all that they got,
though they might have been obliged to travel 40 miles or more3. I
At the same time, it was well to bear in mind that this, like
many other acts which involved no liability for embracery,
might raise a question as to whether the verdict ought not to
be set aside. And in Charles IPs reign, the Court, though it
refused -to take that course, thought that the practice of giving
refreshment to the jury by one of the parties was objectionable4.
At the present day, a new trial would be procurable in similar
circumstances.

The discharge of a juror's duty is now a public duty, for
which he is presumptively paid nothing. This holds un-
qualifiedly where issue is joined between the Crown and a
person charged with a criminal offence, except where an indict-
ment is removed by certiorari into the King's Bench Division
and ordered to be tried by a special jury. Nor has any fee ever
been paid to a jury which has asked to be discharged because
it could not agree upon a verdict. Apart from these cases, the
jurors' fees are as follow. Subject to the discretion of the judge,
a special juror's fee is one guinea. It cannot exceed that amount
except in causes where a view is directed and shall have been ,
had by the juror5. Common jurors are accustomed to receive
on each cause tried in the High Court at London is., at nisil

1 i Hawk. P.C. ch. 85, sect. 3.

2 R. v Inhabitants of Hermitage (4 W. and M.) Carth. 239, 242.

3 Forsyth, Trial by Jury, c. 18.

4 Duke of Richmond v. Wise (23 Car. II) i Vent. 124. In Vickery v. L.B.
and S.C.R. Co. (1870) L.R. 5 C.P. 165, the question of jurors' fees was
discussed historically.

5 6 Geo. IV c. 50, sect. 35. It was said by BOVILL C.J. in 1870 to go back
as far as living memory, and to have been recognized by the Courts as well
as by the legislature. Vickery v. L.B. and S.C.R. Co. ubi sup. at p. 171.

i74 EMBRACERY

prius on circuit 8d., upon writs of inquiry before the sheriffs
of London 4^., at the Mayor's Court, London, 2d.y in County
Courts is., and on inquiries to assess compensation under the
Lands Clauses Consolidation Act, 1845, ics. 6d. Upon views,
wherever held, there may be paid, in addition to reasonable
travelling expenses and 5$. a day for refreshment, to each
special juryman one guinea per diem ; to each common juryman
5$. per diem1.

§ 1 6. Embracery is a misdemeanour punishable by fine and
imprisonment without hard labour2. This appears to be
warranted by the Juries Act, 1825, which contained a saving
clause that embracers are liable to indictment or information
and punishable by fine and imprisonment as before the Act3.
Whether the draftsman of the Act had clearly in his mind what
the possible punishments were before the Act, and whether
they included all the remedies for maintenance, on Coke's
principle that embracery is a kind of maintenance, is unknown.
This principle is pressed to its logical conclusion if it be
argued that the civil remedies for maintenance would apply to
embracery as well4.

The penal action under 32 Hen. VIII c. 9, sect. 3, 6, still

survives

§ 17. In R. v. Baker, the last reported case of embracery,
there was a motion to quash the indictment because (i) The
names of the jurors influenced were not mentioned. The
offence, it was urged, consists in influencing individual jurors,
whereas the indictment alleged an attempt to influence a jury,
(ii) The mode of influence was not sufficiently stated. The
indictment was quashed on the first ground. The accused was
re-indicted, convicted and fined £ioo6.

p § 1 8. Conduct which might possibly be embracery, or which
falls outside it, but is yet improper with respect to jurors, may
be dealt with as contempt of Court. Hence, where the brother
of a convicted prisoner went to the foreman of the jury shortly

Laws of England, vol. xvm. §§ 650-651.

Russ. i. 598. 3 6 Geo. IV c. 50, sect. 61.

i Hawk. P.C. ch. 85, sect. 7. Ante § n.

Ante p. 170.

(1891) 113 C.C.C. Sess. Pap. 374, 589.

MISCONDUCT OF JURORS 175

after the trial and accused him of having bullied his fellow
jurors into finding the prisoner guilty, and challenged him to
mortal combat, an Irish Court decided that this was a contempt
of the Court itself, and was also of opinion that such conduct was
an indictable misdemeanour punishable by fine and imprison-
ment1. So too, counsel who in the course of his address to the
jury, insulted its foreman, was fined for contempt of Court2.

§ 19. Another way of attacking many offences which might
be regarded as embracery is through the law of conspiracy.
In modern times this has outgrown its original conception
almost beyond recognition. Where the act of embracery takes
the shape of a corrupt agreement, there seems to be no reason
why it should not also be the offence of conspiracy to defeat
the ends of justice. This, so far from demanding any extension
of the law, would be returning to the meaning with which
conspiracy started. More than a century ago, it was said that
all fraudulent contrivances to secure a verdict are high offences3 ;
and a century before that, an information for an offence in the
nature of embracery was laid against four persons who had
conspired that two of them should procure themselves to be
sworn de circumstantibus , and should give their verdict for the
defendant. This was carried out, and, on conviction of all four,
HALE C.J. would not even hear a motion in arrest of judgment,
because he thought the offence so serious ; and the most he would
do was to leave the parties to bring a writ of error if they
liked4. It is submitted that the Courts in our own day are not
likely to regard such offences with any less seriousness.

MISCONDUCT OF JURORS

§ 20. In addition to the statutes which dealt with embracers
and incidentally with jurors, there was one peculiar to jurors,
which enacted that if they took of the one party and of the I
other, they should never again be put on juries or inquests, J

1 R. v. Martin (1848) 5 Cox, 356.

2 Ex parte Pater (1864) 5 B. and S. 299. The question whether embracery
could be treated as contempt of Court was discussed In re Dunn (1906)
Victoria, L.R. 493.

3 i Hawk. P.C. ch. 85, sect. 4.

4 R. v. Opie (21 Car. II) i Saund. 301.

176

MISCONDUCT OF JURORS

( and should be liable to fine and imprisonment1. This, like the
other statutes, has been repealed2, and there is nothing to add
to what has already been said on their history3.

§ 21. The misconduct of a juror has a double aspect. It
may be a ground for punishing him for contempt. It may also
have the effect of annulling the verdict in which he takes part.
Most of the forms of misbehaviour which are now to be treated
have been regarded as contempts by Hawkins, though several
of the decisions do not go quite so far4.

§ 22. If a juror, after being summoned, made default, the
practice seems to have been settled as early as Edward Ill's
reign that those who did appear should ascertain the yearly
value of his lands, and that he should be amerced to that
; amount5. But before this step was taken he was given a chance
of appearing under a penalty which was forfeited if he still
made default6. That penalty, it is said, was fixed by reference
to the value of his lands found as above (or some less sum),
and it is also said that a fine of the like amount might be imposed
without any further proceeding7. The old rule — not entirely
unchallenged — was that, if neither party wished the defaulter
to be summoned under the penalty, the Court would not
summon him8.

Modern statutes have made this account of merely historical

[interest. The Juries Act, 1825, provides that if any one duly
summoned to attend on any kind of jury in any of the Courts
in England or Wales mentioned in the Act9 shall not attend
being called shall not answer, or if he or any talesman after

5 Ed. Ill c. 10.

As to England, by 6 Geo. IV c. 50, sect. 62 ; as to Ireland by 3 and 4
Wll. IV c. 91, sect. 50.

Ante pp. 162 sqq.

2 P.C. ch. 22, sect, i, 13 sqq.

20 Lib. Ass. pi. ii. '30 Lib. Ass. pi. 3.

2 Hawk. P.C. ch. 22, sect. 14.

Mich. 4 Hen. VI, f. 7. Mich. 4 Ed. IV, f. 37 (CHOKE and LYTTLETON JJ.
DANBY CJ.C.P. thought that he should still be summoned on the King's
account. No decision is reported). Hawk, ubi sup.

9 Apparently any of the King's Courts of Record at Westminster, the
Superior Courts of Counties Palatine, all Courts of Assize, nisi prius, Oyer
and Terminer and Gaol Delivery, Courts of Sessions of the Peace. 6 Geo. IV
c. 50, sect. i. The fine is from zos. to 405. in Courts of Record other than
these. Ibid. sect. 54.

MISCONDUCT OF JURORS 177

having been called shall be present but not appear, or after
appearance shall wilfully withdraw, the Court shall fine him
as it thinks meet, unless he prove by oath or affidavit some
reasonable excuse. If he be a viewer, the fine must be £10 at
least1. Similar power is given to every Court of nisi prius, oyer
and terminer, gaol delivery and sessions of the peace held for
the City of London2. Absence of the juror must not be com-
muted by a reward promised or given to the sheriff or other
officer3. A juror who makes default at an inquiry under the
Lands Clauses Consolidation Act, 1845, forfeits a sum not
exceeding £10, in addition to being liable to the same penalty
as a juror at any of the Superior Courts4.

The Mayor's Court of London Procedure Act, 1857, punishes
a defaulting juror in that Court by a fine not exceeding £55.
This is the limit also in County Courts6 and Coroners' Courts7.

No juror is liable to the penalty for non-attendance, unless
the attendance summons be served six days before the day on
which he is required8. Nor will the fine be estreated for 14 days,
and not then unless within that period the proper officer of the
Court shall have informed by letter the juror of the imposition
of the fine, and required him, within six days after receipt of
the letter, to forward him an affidavit of the cause of non-
attendance with a view to the remission of the fine9.

§ 23. A juror's refusal to be sworn on appearance is also
said to be a contempt of Court. The authority for this might
be stronger, but the principle is so palpably sound that it may
well fall within a resolution of the whole Court in Elizabeth's
time that if any contempt or disturbance to the Court be

1 Ibid. sect. 38. The Municipal Corporations Act, 1882 (45 and 46
Viet. c. 50), sect. 1 86, sub-sect. 7, has a similar provision with respect to
borough juries.

2 Ibid. sect. 51. 3 Ibid. sect. 43. 4 8 Viet. c. 18, sect. 44.
6 20 and 21 Viet. c. clvii. sect. 49.

6 County Courts Act, 1888 (51 and 52 Viet. c. 43), sect. 102.

7 Coroners Act, 1887 (50 and 51 Viet. c. 71), sect. 19.

8 Juries Act, 1870 (33 and 34 Viet. c. 77), sect. 20. It is said that this does
not apply to a Coroner's jury. Laws of England, ix. sect. 66 1. At any rate,
the law would scarcely be workable if it did.

9 Juries Act, 1862 (25 and 26 Viet. c. 107), sect. 12. As to the mode of
enforcing recovery of the fine, see the Juries Act, 1825 (6 Geo. IV c. 50),
sect. 54-55, and the Coroners Act, 1887 (50 and 51 Viet. c. 71), sect. 19,
sub-sect. 4.

W.H.L.P. 12

178 MISCONDUCT OF JURORS

committed in any Court of record, the judges may set upon
the offender a reasonable fine. The actual decision, however,
was that the constable-elect in a leet Court who would not
take the oath in the Court could be fined1.

§ 24. If a juror departed after appearance, he was held very
early in our law to have committed a contempt; and at the
present day if he withdraws himself from the Court without
leave after appearance he is liable to a fine at the discretion of
the Court, as has been noticed already2. The intermediate
liistory begins with a case of Edward Ill's reign, where one of
a jury in an action of trespass went away to drink, after he and
his companions had been sworn and brought to a room. He
was apparently suspected of having been with the defendant
during his absence, but on his return swore that this was not so.
He was ultimately fined 40^. and his companions were repri-
manded for not watching him better, and were ordered to find
mainprize for their appearance on the succeeding day3. The
case is a curious example of co-operative responsibility not un-
common in other branches of ancient law.

About a century later, both parties wished to have a juror
challenged who had departed after being sworn and who did
not reappear on being demanded. PRISOT C.J.C.P. thought
that this could not be permitted because, if it were, the King
would not have the fine for which the juror was answerable
for his contempt. But the judges of both Benches were
unanimous that he ought to be fined for his contempt, and they
inquired of his brethren of the value of his lands with a view
to assessing the fine by that4.

There was a remarkable discussion before all the judges of
both Benches in the Exchequer Chamber in Trin. 14 Hen. VII,
£30, as to the causes which would justify the jurors in departing
from the Court. In the course of an action between the Bishop

1 Griesley's Case (30 Eliz.) 8 Rep. 38. In Mich. 7 Hen. VI, f. 12,
Cotesmore said arguendo that if a juror at the bar will not be sworn, the
Court would fine or imprison him at its election. See 2 Hawk. P.C. ch. 22,
sect. 15.

2 Juries Act, 1825. Ante p. 177.

3 Mich. 34 Ed. II, cited in Fitz. Abr. Office del Court.

4 36 Hen. VI, f. 27.

MISCONDUCT OF JURORS

179

of N. and the Count of Kent, a thunderstorm of such violence
arose, that some of the jurors departed from the Court without
permission, there being nobody left to give it1. One of them
came to a house where several persons told him that he should
take care what he did, for the Count's cause was better than
that of the Bishop; and they prayed him to drink with them,
which he did. After the tempest, he and the other jurors re-
turned and, not being challenged, were agreed upon their
verdict. The Count of Kent revealed what had occurred to the
justices, to whom the jurors confessed. They were asked if
they were agreed, and replied that they were, and returned a
verdict for the Bishop. The question was whether the verdict
were good or not. Five of the eight judges thought it good,
three held it to be bad. Of the five, WOOD and DANVERS JJ.,
while they upheld the verdict, considered that the jury were
punishable by fine or imprisonment. FINEUX C.J.K.B. and
REDE and TREMAYLE JJ. took the more rational view that
circumstances might excuse the departure, the storm being
comparable to a sudden affray before the justices. Of the three
judges who held the verdict bad, BRYAN C.J.C.P. did so on
the ground that the departure was unreasonable ; and the other
two (HoDY C.B. and VAVASOUR J.) do not appear to have con-
templated departure of any sort as reasonable2.

More modern decisions shew that if the jurors go away I
without leave, this may be ground for ordering a new trial in I
a civil case if it can be so regarded as to shew that justice was I
not done between the parties ; as where they returned smoking I
cigars and had been seen talking to the plaintiff's attorney inr
a public-house, and there was no acquiescence by the defendant y
in this aberration3.

As to criminal cases, a distinction must be taken between
the departure of a particular juror, and the general separation
of the jury at the end of the day or otherwise. In the former
event, if his absence be discovered before the summing-up, the

1 Judgment of FINEUX C.J.K.B.

2 Et adjournantur. Further discussion, but no decision, is reported in
Hil. 15 Hen. VII, f. 2. Other grounds dealt with were (i) drinking by the
juror; (ii) lateness in taking the objection.

3 Hughes v. Budd (1840) 8 Dowl. 316.

12 — 2

1 So MISCONDUCT OF JURORS

jury must be discharged and a fresh one impanelled1; if after
the summing-up, the conviction must be quashed, though it is
open to the Crown to recommence the proceedings2. The
question as to the effect of a general separation of the jurors
was raised in R. v. Kinnear3, where the jury on a trial of the
defendant for misdemeanour, and without the defendant's con-
sent, separated at night, and their verdict was held to be good and
a new trial was not granted. The practice of separation before
the summing-up in the case of misdemeanours had then become
common, and it was pointed out that while dispersal without
the judge's consent would be a misdemeanour, yet it should
not disturb the verdict.

The true rule is, that it is left to the discretion of the judge to say
whether the jury are to be permitted to separate or not : of course,
if in his judgment that separation is likely to be detrimental to the
ends of justice, he will not permit it to take place4.

Such is the practice as to misdemeanours, and now the rigid
rule which made jurors on a trial for felony more like prisoners
than the accused himself, if he were released on bail, has been
modified by the Juries Detention Act, 1897. This allows the
Court, if it sees fit at any time before the jury consider their
verdict upon the trial of a felony (except murder, treason, or
treason felony), to permit them to separate in the same way as
the jury upon a trial for misdemeanour are now permitted to
separate5. And it has been held that even in a trial for murder,
a juror may separate from his companions on such an emergency
as sudden illness6.

After the jury have retired to consider their verdict, separa-
tion is not permissible7.

§ 25. It is said that jurors are liable to a fine for refusing to
give a verdict at all8. This must be taken to refer to obstinate

1 R. v. Ward (1867) 10 Cox, 573.

2 R. v. Ketteridge [1915] i K.B. 467.

3 (1819) 2 B. and Aid. 462. 4 BEST J. at p. 467.

5 60 Viet. c. 18. See the result of the Act discussed in R. v. Twiss [1918]

2 K.B. 853. 6 R. v. Crippen [1910] i K.B. 149.

7 R. v. Ketteridge [1915] i K.B. 467. R. v. Twiss [1918] 2 K.B. 853.
In R. v. O'Connell (1843) i Cox, 410, the famous Irish case, they were not
allowed to separate during the summing-up in a trial for misdemeanour.

8 2 Hawk. P.C. ch. 22, sect. 16 citing BushelVs Case (1670) Vaughan,
135, 152.

MISCONDUCT OF JURORS

181

evasion of their duty, not to honest and irreconcilable difference
of opinion.

§ 26. The older law which forbade the refreshment of jurors
during a trial is accurately stated by Coke. If after evidence
they ate or drank at their own charge, whether before or after they
were agreed on their verdict, they were liable to a fine, but the
verdict was unaffected. But if before agreement on the verdict
they ate or drank at the charge of one of the parties, that avoided
the verdict, unless it were cast against the party treating the
jury1. It is true that VAVASOUR J. in Mich. 14 Hen. VII, f. i,
granted a fresh venire facias where the jury had eaten and
drunk, and that he adhered to this view in a later case of the
same year where the verdict was against the party on whose
account, but without whose authority or privity, the juror had
been given some drink. But this view did not commend itself
to the majority of Vavasour's legal brethren, though BRYAN
C.J.C.P. and HODY C.B. were of his opinion2. REDE and
DANVERS JJ. held that the drinking produced no partiality, as
the jurors found against the party on whose behalf it was given.
There is no traceable dissent from the opinion of FINEUX
C.J.K.B. (who also thought the verdict good) and REDE J. that
the juror was liable to a fine for the drinking3.

Other cases of the Tudor period also illustrate the rule. In
Mich. 20 Hen. VII, f. 3, where all the jurors ate and drank
together after departing from the bar, three judges held that
their verdict was good, and they referred to the Bishop of
Lincoln's Case where one juror departed, and a stranger gave
him drink, and prayed him to favour the Bishop; the verdict
stood, as he found against the Bishop. FROWYK C.J.C.P. saw
less danger in all drinking than in a few only so doing, for "if
all drink together, each is in the good plight of resisting the
malice of the others.... But when two only drink, it can be
presumed that they will be more obstinate than the others."
This rather doubtful inference did not secure the assent of

:* 1 Co. Litt. 227 b.

' * Cf. PRISOT CJ.C.P. obiter in Hit. 35 Hen. VI, cited in Fitz. Abr.
Examination, 17.

3 Trin. 14 Hen. VII, f. 30, and Hil. 15 Hen. VII, f. 2. No decision is
reported. Ante pp. 178-179.

1 82 MISCONDUCT OF JURORS

VAVASOUR J. In Henry VI IPs reign, the Court regarded the
rule as long settled that jurors were fineable for refreshing
themselves at their own cost, but that their verdict held good1.

It was immaterial to their liability for contempt that the
jurors had not eaten food concealed about their persons. Thus,
jurors who had eaten figs were fined £5 apiece, while others
who had pippins, but had not eaten them, escaped with the
less penalty of 40$. each. It was only after a weighty debate
that the judges held that this surreptitious refreshment did not
upset the verdict2.

The mode in which the victuals are procured may be such
a scandalous piece of misbehaviour as to justify the Court in
«^ ordering a new trial. In Cooksey v. Haynes3, the jury, having
retired, covertly procured food and beer by means of a string
let down out of a window. It was contended that this should
not avoid the verdict, but POLLOCK C.B. while he admitted
that it would not be ground for error, held it to be good cause
for a motion for new trial; for this was an application to the
discretionary jurisdiction of the Court. In delivering the judg-
ment of the Court, he said that it concerned the interests of
justice itself that such gross indecencies in its administration
should not be allowed.

But there may be circumstances in which jurors are enter-
tained by the party who afterwards secures their verdict which
do not affect that verdict. Two jurors before the summing-up
dined and slept at the house of the defendant in the case in
which they had been impanelled. There was but one inn which
afforded very insufficient accommodation. No allegation was
made that they had been adversely affected by their visit, nor
was there any reason to suspect unfairness. The Court, acting
in its discretion, refused to set aside the verdict4.

1 Trewennarde v. Skewys (34 and 35 Hen. VIII) Dyer, 55 b.

2 Mounson v. West (30 Eliz.) i Leon. 132. In Sely v. Flayle (21 Jac. I)
Godbolt, 353, three jurors had sweetmeats in their pockets and were for the
plaintiff till they were searched and the food discovered. Then they agreed
with the other nine in a verdict for the defendant. Held : whether they ate
or not, they were fineable, for it was a very great misdemeanour.

3 (1858)27 LJ. Exch. 371.

4 Morris v. Vivian (1842) 10 M. and W. 137. LORD ABINGER'S opinion
that the cases applied only where the whole jury had been refreshed seems

MISCONDUCT OF JURORS 183

There seems to have been a judicial opinion of Henry VIIFs
reign that if the jurors ate and drank at the expense of parties
other than the litigants, this induced suspicion and affection
which would annul their verdict1. This is not inconsistent with
a case of the next century, where the jurors had bottles of wine
brought to them before they returned their verdict, and the
plaintiff's solicitor paid for the wine after the verdict had been
returned. It was held that the verdict was good. The judges
were unanimous that refreshment of the jury at the cost of the
party for whom they found avoided the verdict. Here, however,
it did not appear that the plaintiff or his agent had ordered the
wine, and the after-payment only raised a presumption that
the solicitor had bespoken it. Indeed the gift of a dinner by I
the successful litigant to the jury was admitted to be the usual >
practice. Nor was their privy verdict2 to be set aside because
the solicitor had treated them at a tavern before they affirmed •*
it in open Court. Had they changed it, it would have been a
different matter3. But while the verdict remained undisturbed,
the Court thought that the jury had been guilty of a great mis-
demeanour for which they should be fined, and that the
solicitor had carried himself with much blame and indiscretion.
Two tipstaffs who had connived at the matter were fined4.

What if the treating were the unauthorized act of some person
who professes to act as agent for the plaintiff or defendant ? If
the verdict be against the alleged principal, it would hold good
by the rule already stated ; but if it be for him, it seems harsh
to say that he should be put to the expense of a new trial for
the corrupt act of a meddlesome stranger which might con-
ceivably have had a trivial effect on the verdict. Yet who is to
measure whether the effect were trivial or not? And how can
his opponent's grievance be any the less merely because the
jurors took their bribe from a supposed agent instead of a real

consistent with neither authority nor principle. If this were the rule, as
counsel pointed out, a party might safely treat any number of the jury up
to eleven.

1 Trewennarde v. Skewys (34 and 35 Hen. VIII) Dyer, 55 b.

2 A verdict given to any one of the judges, but not in open Court. None
such could be given in a criminal case. Co. Lift. 227 b.

3 Ibid. 4 Duke of Richmond v. Wise (23 Car. II) i Vent. 124.

;

1 84 MISCONDUCT OF JURORS

one? "The law intends that, by the receipt of such money for
eating, hearing, or other matter, the jurors will be more favour-
able to that party." Such were the words of GASCOIGNE
CJ.K.B. 500 years ago on facts of this kind. It is true that
the case had not got so far as a finding by the jury, for we are
told that 12 tales were awarded ; it is true also that the functions
of jurors of the I5th century were far otherwise than those of
the 2Oth century. But the soundness of the general principle
has been undermined neither by the lapse of time nor by
change of circumstances1.

:Even in ancient times, it is likely that there was some per-
ception of the distinction between physic taken by jurors and
food "for their sensual appetites and desire"2, and at a much
later date, where one of a jury that had been locked up in a
capital case fell ill, the judge allowed a medical man to see him
and give him medicine, but not sustenance3.

The position of juries has been made more tolerable by the

I Juries Act, 1870, by which the judge in his discretion may

allow them at any time before verdict the use of a fire when

out of Court and reasonable refreshment at their own expense4.

As a matter of custom the cost is usually borne by the County.

§ 27. Coke gives a fair summary of the law down to his own
time as to the reception by the jury of information other than
that laid before them in Court. If, he says, the plaintiff or one
for him, after evidence given and the jury departed from the
bar, deliver any letter from the plaintiff to any of the jury
concerning the matter in issue, or any evidence or escrow
touching the matter in issue, which was not given in evidence,
it shall avoid the verdict if it be found for the plaintiff, but
not if it be for the defendant, and sic e converse. But if the
jury carry away any writing unsealed, which was given in
evidence in open Court, this shall not avoid their verdict,
albeit they should not have carried it with them5.

Long before Coke, it had been held that the jury after they

1 Hil. 13 Hen. IV, ff. 12-13.

2 Arguendo, Mich. 20 Hen. VII, f. 3.

_^ 8 R. v. Newton (1849) 3 Car. and Kir. 85.
_^4 33 and 34 Viet. c. 77, sect. 23.
5 Co. Lilt. 221 b.

MISCONDUCT OF JURORS 185

were sworn ought not to see or take with them other evidence
than that delivered to them by the Court and by the party put
in Court upon the evidence shewn. Judgment for the plaintiff
was refused because he had shewn an escrow to a juror after
he was impanelled, but before he was sworn. It did not matter
that the escrow was to the same effect as the evidence given at
the bar1. This last part of the judgment was shaken as an
authority by an Elizabethan case in which it was decided that
a verdict for the plaintiff should stand, although his solicitor
had delivered to the jury before they left the bar a church book
which had been put in evidence at the trial2. But there is other
evidence of Coke's time, and later, that the law preferred the
more stringent rule which avoided the verdict given for a
litigant who had merely reminded the jury out of Court of
facts which they had already heard in it. Thus, where de-
positions taken in Chancery were delivered to the jury after
they had departed from the bar by a solicitor to one of the
parties, the verdict was quashed, even though they read only
what had been read to them in Court3. And, in 1653, additional
written evidence similarly delivered by the plaintiff's witness
to a jury, who found for the plaintiff, was held to avoid the
verdict, although the jury did not so much as read the evidence.
More, they were held to have committed a misdemeanour in
not having informed the Court earlier of the communication4.
Possibly a modern Court would not go further than a reprimand
of the jury in such circumstances, though there are traces of
severer treatment in earlier times5. That the party himself who' ]
tampers with the jury in this fashion is criminally liable there \
is no doubt6; and much more so is a stranger. It is a plain
case of embracery either way7.

1 GASCOIGNE C.J.K.B. and HULS J. in Mich, n Hen. IV, f. 17.

2 Vicary v. Farthing (37 and 38 Eliz.) Cro. Eliz. 411 (three judges to one).
Moore, 451 (Court evenly divided).

3 Pratt's Case (circ. 21 Jac. I) Roll. Abr. 716, pi. 19 (no further reference).

4 Webb v. Taylor, Roll. Abr. Trial, 714, pi. 6 (no other reference).

5 Fitz. Abr. Examination, 17, citing Hil. 35 Hen. VI, where, after the
jurors had been sworn, it was alleged that they had received a letter from
the defendant, and PRISOT C.J.C.P. said that if this influenced their verdict,
the verdict was null, and the jurors should be fined.

6 Goodson v. Duffill (10 Jac. I) 2 Bulst. at p. 25 (Private instruction of
one of the jurors after he was impanelled held punishable in the Star
Chamber). 7 Anon, (undated) Noy, 102.

1 86 MISCONDUCT OF JURORS

At one time, there seems to have been a tendency to dis-
tinguish between words said to the jury out of Court which
might be regarded as an attempt to put fresh evidence before
them and words which fell short of this. Hence, we are told
that if one of the parties said to the jury after departure, "You
are weak men, it is as clear of my side as the nose in a man's
face," this was new evidence and would quash the verdict1;
but that mere speaking by the plaintiff to jurors did not avoid
the verdict unless it were proved that he gave evidence con-
cerning the matter2. The law now adopts a different line of
cleavage more suited to the altered circumstances in which it
operates. Separation of the jury before summing-up has long
been permissible where the trial is for misdemeanour, and, since
the Juries Detention Act, 1897, in most felonies3. It would
be absurd to ignore the probability of converse by the jurors
during this separation with other persons, even though it be
with reference to the trial. It is not enough to upset the verdict
that the juror spoke to some one, or that the person to whom
he spoke was a witness, although, in the latter case, the matter
needs more careful examination by the Court. The true test is
whether what was said might have prejudiced the accused.
Such is the inference from R. v. Twiss*, where, before the
judge's summing-up and during the luncheon interval, a jury-
man conversed with some of the witnesses for the prosecution.
The judge accepted his explanation that the conversation had
reference solely to the duration of the case and the length of
a previous trial which had been mentioned in the course of the
proceedings. Another juryman had talked with the prisoner's
landlady, who was also a witness for the prosecution, but the
nature of the talk was such that it would tend to remove any
bad impression which the juryman might have formed of the
prisoner. The Court of Criminal Appeal upheld the prisoner's
conviction ; but they added an emphatic opinion that, although

1 Roll. Abr. Trial, 716, pi. 20 (no other reference). Hunt v. Locke
(14 Car. II) i Keble, 300 is perhaps on the same side. Verdict for defendant
set aside because defendant's servant had talked to juror and the jury were
inclined to plaintiff before the speaking. But the report ends, " Adjornantur."

2 Roll. Abr. Trial, 715, pi. 17 citing Mich. 7 Jac. I per Curiam (no further
reference).

3 Ante sect. 24.

* [1918] 2 K.B. 853.

MISCONDUCT OF JURORS 187

jurymen are allowed to go about while the trial is proceeding
and cannot be prevented from doing so, nothing said by the
Court should be taken as encouraging them to discuss the
evidence given at the trial. "They should talk of other topics,
discussing the trial with the other jurymen only until it comes
to a close. " "They had much better keep their own counsel
and not speak to anybody else1."

The principle of this decision is wide enough to justify the
inference that the mere fact that somebody has spoken to a
juror during a separation of the jurors prior to summing-up
does not form a ground for quashing the conviction. It is true
that in 1910 the deputy chairman of the London Sessions dis-
charged a jury because a woman had spoken to one of them
during an adjournment ; but what was alleged to have been said
by the woman might have been construed as an attempt to
influence the juror2.

Unauthorized separation of a juror from his fellows after the
summing-up, with its possibilities of converse with third
persons, is a very different matter. The Court of Criminal
Appeal characterized as wholly irregular the conduct of a clerk
of assize who had had a discussion with the jury after they had
retired. They referred to the plain principle that the trial of
a criminal charge must be in public, not in secret, and they
held the discussion to have been so serious an interference with
the jury as to necessitate a quashing of the conviction3. And
the same Court quashed a conviction where a juror, after the
summing-up, had separated himself from his colleagues for a
quarter of an hour, even though it did not appear that he had
actually conversed with strangers but had been merely in a

1 Ibid, at pp. 859, 860. In Armstrong v. R. (1914) 30 T.L.R. 215, the
Judicial Committee refused special leave to appeal from a conviction of
murder on the ground of alleged misconduct of the jurors in communicating
during the trial with persons not their custodians. The conversations did
not relate to the trial, and were no such violation of the principles of natural
justice as would justify the Judicial Committee's interference.

2 R. v. Shepherd (1910) 74 J.P. (Journal), 605. Not cited in R. v. Twiss.
In the light of the latter case, what the learned deputy chairman said in
reply to an explanation tendered by the foreman of the jury, after the jury
had been discharged, was too wide a statement of the law. In any event,
it was unnecessary to his decision.

3 R. v. Willmont (1914) 30 T.L.R. 499.

1 88 MISCONDUCT OF JURORS

position to do so. It was pointed out, however, that it was
open to the Crown to recommence proceedings1. This case
was distinguished in R. v. Twiss2, as the facts of it shewed an
absolute breach of the whole procedure governing the conduct
of the Court at the time of, and after, the summing-up; for
a bailiff is sworn to keep the jury together and to see that they
do not converse with any one except each other.

The decisions just discussed were in connection with criminal
trials. As to civil cases, it is equally "a cardinal principle of
the jury system that a jury must deliberate in private " ; and an
order was made for the new trial of a County Court action
where the town Serjeant in mistaken zeal remained for 20
minutes in a room in which the jury were considering their
verdict3. Conversations with third parties by the jurors before
summing-up and during an adjournment of the Court seem to
be just as objectionable as in criminal trials.

§ 28. It is possible that a juror may possess knowledge of
a fact not put in evidence at the trial. This was more likely to
occur at a time when jurors were in a sense witnesses as to the
facts in issue than at the present day, when they appraise the
testimony of others. That such individual knowledge might be
taken into account by the jury at large does not appear to have
been doubted. But the method by which it should be sub-
mitted to them has varied.

In an Elizabethan case, it was held not to be assignable as
error that a juror had shewn an escrow in his possession to his
brethren after their departure from the bar, although it had not
been proved in Court. It had been given to him neither by
any party to the proceedings nor by any representative of such
party4.

But as the line between witnesses and jurors became less
blurred, this was probably regarded as an irregular mode of
receiving such evidence. A couple of cases under the Common-
wealth shew a hesitancy in the Courts which perhaps resulted
from the lingering influence of the ancient idea as to a juror's

1 R. v. Ketteridge [1915] i K.B. 467.

z [1918] 2 K.B. 853.

3 Goby v. Wetherill [1915] 2 K.B. 674.

* Graves v. Short (40 and 41 Eliz.) Cro. Eliz. 616.

MISCONDUCT OF JURORS 189

functions. In 1650, it was said by the Court that if either of
the parties to a trial desire a juror to give evidence of something
of his own knowledge, he must be examined on oath openly,
in Court, and not in private by his companions1. Six years
later, a barrister serving on a jury, who had heard evidence in
a case decided 20 years earlier relevant to the case in hand, was
ordered to come into Court and to state what he knew, but he
was not sworn again, his oath as juror being regarded as
enough2. But practice appears to be hardening in the direction
of requiring such evidence to be given on the oath of a witness
as distinct from that of a juror, in a case of Charles IPs reign3.

The rule now is that, while a juror may use his general know-
ledge, he must be sworn on special knowledge, e.g. that of a
particular trade4; and if he suspect that a stamp on a bill of
exchange is forged, he must be sworn, or his suspicion must
be rejected5.

§ 29. The next kind of misconduct may be described as
endeavouring to impose on the Court6. This is exemplified
by improper methods in finding the verdict.

There was very little sympathy in our early history with jurors
who could not make up their minds. Jurors who returned
a verdict which was not unanimous wrere fined and might be
kept in custody till they could agree7. Another way of clearing
their wits was for the judge to carry them about in carts from
town to town on the circuit8. Nor could they take refuge in a
hedging verdict. Where the Court found that a jury had
alternative verdicts ready, it sent back the jury, and fined and

1 Bennet v. Hundred of Hartford, Style, 233.

a Duke v. Ventris (1656) Duncomb, Trials per Pais, c. 12 (no further
reference).

3 Fitz-James v. Moys (15 Car. II) i Siderf. 133. It is worth noting that
the reporter adds that the juror "uncore continue del jury," thus implying
the distinction between juror and witness.

4 R. v. Rosser (1836) 7 C. and P. 648.

6 Manley v. Shaw (1840) Car. and M. 361. Cf. Bushell's Case (1670)
6 St. Tr. 10 1 2 note.

6 2 Hawk. P.C. ch. 22, sect. 17.

7 29 Lib. Ass. pi. 27 ; 40 Lib. Ass. pi. 10 (Br. Abr. Jurors, 28 cites this case,
but makes the verdict one given in a writ of conspiracy. The other report
states that it was given in an indictment for trespass de baterie).

8 41 Lib. Ass. pi. ii.

1 90 MISCONDUCT OF JURORS

imprisoned all of its members except two who were originally
for a verdict of guilty (which was that ultimately returned) and
on whose confession the matter was discovered. They escaped
with a censure1.

Honest inability to agree is, of course, no offence now, and,
as the law recognizes its possibility, juries are much less likely
to resort to means of concealing it. But where they make no
real effort to decide on the fact, a new trial would probably be
ordered in a civil case2.

Casting lots seems to have been a pretty frequent piece of
impropriety committed by jurors who were puzzled by the
facts. In one case, where there was an even division of opinion,
the bailiff picked one of two sixpences out of a hat, and the
verdict was given accordingly. WYNDHAM J. thought that as
the jury were equally divided, this method of reaching their
verdict was as good as any by the strongest body and suitable
to the law of God ; and despite the doubt of TWISDEN J. that
it would be a bad example a new trial was denied3. But later
authority is decidedly the other way, and not only has a verdict
been set aside which was arrived at "on throwing cross and
pile," or by other chance determination, but the jurors em-
ploying such means have been fined4; nor is it material that the
verdict is according to evidence and coincides with the judge's
opinion5.

§ 30. Personal bias on the part of a juror is a ground for
ordering a new trial. But the Courts have scarcely interpreted
bias in the sense which a moralist would attach to it.

A plain enough instance is that of the foreman of a jury who
declared that the plaintiff should never have a verdict whatever

1 Watts v. Brains (42 and 43 Eliz.) Cro. Eliz. 778.

2 Hallv. Poyser (1845) 13 M. and W. 600 (Semble: splitting the difference
between the rival claims of the parties as a compromise of conflicting opinions
among the jurors is a ground for a new trial).

3 Prior v. Powers (16 Car. II) i Keb. 811. But the reporter adds that a
new trial was granted in Sir Philip Acton's Case where the verdict was "on
fillip of counter."

4 R. v. Fitz-Water (27 Car. II) 2 Lev. 139. Foster v. Hawden (29 Car. II)
Ibid. 205. Foy v. Harder (29 Car. II) 3 Keb. 805, and sub nom. Fry v.
Hordy, T. Jones, 83.

6 Hale v. Cove (1725) i Stra. 642.

MISCONDUCT OF JURORS 191

witnesses he produced1. So is that of a juror who said he
would give a verdict for the plaintiff right or wrong2. In both
these cases a new trial was granted. Such too was the decision
in Allum v. Boultbee*, where, before conclusion of the trial,
one juryman was heard to say to another at a public-house that
the defendant would get served out4. But in Onions v. Naish5,
the Court refused a rule to set aside the verdict on the affidavit
of an unsuccessful plaintiff that one of the jury was a relative
of the defendant, was on terms of intimacy and friendship with
him, and had frequently expressed himself strongly in the de-
fendant's favour. No reason was given except that it would be
very dangerous to set aside a verdict on these grounds. In
Ramadge v. Ryan6y the Court conceded that if a juror, before
being sworn, express a determination to give a verdict one way,
this is cause for a new trial ; but it held that the rule had no
application to the facts before it, which consisted in a juror
entertaining a strong opinion on a former verdict ; for that was
not incompatible with his concurrence in a correct verdict on
the case which was to come before him. So too, an anticipatory
statement by a juryman of what he thinks is likely to happen
in a criminal case may be unwise, but unless he says that
whatever the evidence may be he is resolved to come to a certain
result, it cannot be a ground for interfering with the conviction7.

The mere fact that the jury, at the conclusion of the plaintiff's
case, express an opinion in his favour to the Court, without
having heard the defendant's evidence, is not such misconduct
as will justify the defendant's counsel in refusing to go on with
the case and afterwards claiming a new trial8.

Where attempts have been made in a criminal case to canvass
persons on the jury panel list, the indictment may be removed

1 Dent v. Hundred of Hartford (8 W. Ill) Salk. 645.

2 Wynn v. Bishop of Bangor (1728) 2 Comyns, 601.

3 (1854) 9 Exch. 738.

4 The decision, which was that of POLLOCK C.B., PARKE and PLATT BB.
also rested upon the trial judge's dissatisfaction with the verdict. MARTIN B.'s
dissent was partially based on the curious ground that the bias of one juror
against the defendant could be set off against the bias of another in his favour.

* (1819) 7 Price, 203. * (1832) 9 Bing. 333.

7 R. v. Syme (1914) 10 Cr. App. R. at p. 287.

8 Campbell v. Hackney Furnishing Co. (1906) 22 T.L.R. 318.

i92 MISCONDUCT OF JURORS

into the Central Criminal Court under the Central Criminal
Court Act, I8561.

§31. It has long been a settled rule that where there has been
misconduct of jurors either by exhibiting partiality or by ir-
regular methods in arriving at their verdict, the evidence of such
misconduct must not be that of the jurors themselves. Words
spoken which shew prejudice should be proved by those who
heard them, for such expressions are so improper that the juror
ought not to be asked whether he used them2.

An affidavit by one of the jurors that the verdict had been
tossed for has been rejected, for conduct of this kind is also
a serious misdemeanour3 ; and an affidavit that two of the jurors
had confessed to deciding their verdict "by hustling halfpence
a hat " met a like fate4. Much less is evidence admissible where
it consists of an affidavit by an attorney of an admission made
to him by one of the jury, for that is hearsay, and if it were
allowed hardly any verdict would be safe5. In fact, with one
early exception, there appears to be no case in which even
affidavits by persons other than the jurors themselves have
been regarded as sufficient6; and affidavits in support of an
application for a new trial have actually been rejected precisely
because parts of them alleged misconduct on the part of the
foreman of the jury7.

The Court of Criminal Appeal has given some indication of
what kind of evidence will support an appeal on this ground
in a criminal case. It has held that, while evidence of the
jurors as to their having been interfered with after returning
is not admissible, the report of the clerk of assize who had been
guilty of the interference is8. They are also reported as having
allowed witnesses to attend to speak to the alleged prejudice of

1 R. v. Barnett [1919] i K.B. 640.

2 TREBY L.CJ. in R. v. Cook (1696) 13 St. Tr. 338. TINDAL CJ. in
Ramadge v. Ryan (1832) 9 Bing. at p. 339.

3 Vasie v. Delaval (1785) i T.R. u.

4 Parr v. Seames (8 Geo. II) Barnes, 438.

6 Straker v. Graham (1839) 4 M. and W. 721.

6 In Dent v. Hundred of Hartford (8 Will. Ill) Salk. 645, a new trial was
granted on an affidavit that the foreman declared that the plaintiff should
never have a verdict, whatever witnesses he produced.

7 Hartwright v. Badham (1822) n Price, 383.

8 R. v. Willmont (1914) 30 T.L.R. 499.

MISCONDUCT OF JURORS 193

two jurymen, but they did not wish this permission to be taken
as a precedent1. But they have laid it down that evidence of
jurors' misconduct should only be admitted very cautiously,
and that it must be such that, if admitted, it would compel the
Court to quash the conviction. An application for this must be
based on substantial information, and not on something which
is little better than mere gossip2.

Though a juryman's affidavit of what occurred in the jury-box
during the trial cannot be received, yet his affidavit explaining the
circumstances in which he came into the jury-box is admissible3.

§ 32. The personation of a juror will lead to the award of
a venire de novo in a criminal case, for, in effect, the prisoner
has been tried by n jurymen instead of iz4. And the per-
sonator commits a Common Law misdemeanour, though he
has no corrupt motive and has nothing to gain by his conduct.
His intent to deceive is sufficiently proved by the mere fact of
his personation, the necessary consequence of which is to
deceive the Court. He also commits the Common Law mis-
demeanour of taking a false oath as a juror5.

§ 33. If the jury have returned a satisfactory verdict, sub-
sequent misconduct of one of them, even though it be gross,
is no ground for disturbing the verdict where the party to the
action has been guilty of no collusion. Writing a letter to a
successful defendant asking for a sum of money is scandalous
enough, but it would be hard on the defendant to set aside a
verdict in his favour, when he takes no notice of the request
except to bring it before the Court6.

§ 34. Up to this point what we have considered has been
misconduct of jurors in their ministerial rather than their
judicial capacity. It remains to sketch briefly the history of
the law relating to false verdicts.

1 R. v. Hancox (1913) 29 T.L.R. 331. It is not easy to make out from
the report what exactly did happen.

2 R. v. Syme (1914) 10 Cr. App. R. 284.

3 Bailey v. Macaulay (1849) 19 LJ.N.S. 72, 83.

4 R. v. Wakefield [1918] i K.B. 216. R. v. Mellor (1858), Dears, and B.
468, 473, 474.

5 R. v. Clark (1919) 82 J.P. 295. The accused was the personator in
R. v. Wakefield, ubi sup.

6 Sabey v. Stephens (1862) 7 L.T.N.S. 274.

W.H.L.P. 13

194 MISCONDUCT OF JURORS

In Bracton's time, a juror committed perjury if he swore a
false oath, but he was not liable for a foolish one ; for he swore
according to his conscience and might believe facts to exist
which did not1. Where there was a false verdict, it could be
punished — and severely punished — by the process of attaint,
which is discoverable in judicial records as early as 1202, though
not in legislation till I2682. The 12 jurors who were suspected
were accused before 24 jurors and, if they were convicted of
a false oath, their verdict was replaced by that of the 24.

But a distinction was drawn between the assisa and the jurata.
The former was the outcome of ordinance, while the latter, in
theory, depended on the consent of the parties. Therefore,
while the assisa was liable to an attaint, the jurata was not ; for
it would have been unreasonable to allow those, who had pledged
themselves in advance to abide by the verdict, to reprobate it
merely because it dissatisfied either or both of them. But it
became plain that the consent of the parties to the jurata was
only nominal3. And the attaint is said to have been extended
by 3 Ed. I (St. West. I) c. 38 to all juries in real actions. Even
then the people cried for a broader application of the remedy.
It was cramped because it did not cover the expanding forms
of action, and by piecemeal legislation of the i4th century this
was amended. That it proved to be very inadequate in the
1 5th century almost goes without saying. Every known remedy
for abuse of legal procedure broke down in that period, and the
attaint was no exception to the general rule. And owing to the
unwieldy number of the jurors concerned in it, and its clumsy
machinery, it was better fitted for delay and fraud than were
other writs. Moreover, the attaint jury did not relish their
duties. They feared the prospect of being hoist with their own
petard, for if they could attaint one jury, they could be attainted
by another ; and they disliked the brutality of the punishment.
The attainted juror forfeited his movables to the King, was
imprisoned for a year at least, lost his lex terrae, and became

1 Bracton, 288 b. Fleta, lib. v. ch. 22, sect. 9 repeats this with the qualifica-
tion that if there be lack of skill or gross ignorance, the jurors should not be
heavily punished. Cf. P. and M. 11. 541-542, 623, 665.

2 52 Hen. Ill c. 14. Thayer, Evidence, Pt. I. 141.

3 Thayer, 146.

MISCONDUCT OF JURORS 195

infamous. The severity of these penalties became more dis-
proportionate as a change took place in the functions of the
juror. He ceased to be a mere witness of what he had seen
and heard. He had to listen to other witnesses and to weigh
what they said. And it seemed hard to punish a mistaken
inference as if it were a lie. In 1495, the punishment was
mitigated. During the next century, attaints fell into disuse,
and in 1665 were thought by HYDE C.J. to be so fruitless that
he was strongly of opinion that jurors should be fined. Lord
Mansfield, in 1757, regarded the writ of attaint as "a mere
sound in every case." In 1825, it was abolished1.

As to the attaint in criminal cases, it was said by Bracton,
and four centuries later, by Hale, that the King may have an
attaint if the case go against him. But there is a lack of reported
cases on the point2. Besides, in criminal cases, the dice were
already cogged in the King's favour, and he had little need of
the attaint. A man accused of treason or felony could have no
counsel, and, later, while the King could call witnesses, he could
not. On the other hand, the rule that he should not be in jeopardy
twice for the same offence would work in his favour against the
idea that the jury which acquitted him should be attainted.

§ 35. It is not clear whether, apart from attaint, there existed
at Common Law any other method of punishing a jury for an
unacceptable verdict. VAUGHAN C.J. in BusheWs Case (1670)
was positive that they could not be fined.

That the Court could not fine a jury at the Common Law, where
attaint did not lie (for where it did, is agreed he (sic) could not)
I think to be the clearest position that ever I considered, either for
authority or reason of law 3.

But this must be taken as ignoring the practice of the Star
Chamber4, and even then there is some show of the contrary

1 6 Geo. IV c. 50, sect. 6.

2 The possibility of attaint by the second jury of 24 seems to be recog-
nized by BEREWYK (an itinerant justice) in Y.B. 30 and 31 Ed. I, 522 (Rolls
Series). For a different view of this opinion, see Thayer, 162, and, for the
history of attaint generally, Thayer, ch. iv. See also St. H.C.L. I. 306-307.
Hudson (sect, vii) thought that no attaint lay for acquittal of a felon or
murderer. 3 6 St. Tr. 1010.

4 VAUGHAN C.J. was of opinion that there had been no punishment there
merely for rinding against evidence. 6 St. Tr. at p. 1020. But Throckmorton's
Case, to mention no other, is contrary to this.

13—2

196 MISCONDUCT OF JURORS

practice in the Common Law Courts, and still more as to
imprisonment of jurors. The authority is admittedly slender,
but some of the efforts to explain it away seem to be strained1.
In Edward I IPs reign, a juror who delayed his companions
a day and a night without reason was sent to the Fleet2; and
where n jurors agreed that the defendant in trespass was not
guilty, and the twelfth juror differed from them, HERLE C.J.C.P.
took the verdict of the n and adjudged all 12 to prison3.

On the other hand, a juror in an assize, who was sent to

prison by the justices on assize, because he said that he would

sooner die than agree with his fellows after two days' difference,

had his committal set aside by the Common Bench4. And, in

Richard IPs reign, though TRESILIAN C.J.K.B., on the acquittal

of one who had been indicted, told the inquest that the accused

was known as a common thief and that they should be bound

for his good behaviour from that time onwards, the reporter

queries by what law5. The fact that a statute passed in

Henry VIIFs reign requiring jurors in Wales who gave an

untrue verdict against the King upon the trial of any traverse,

recognizance or forfeiture contrary to good and pregnant

evidence to be bound to appear before the Council of the

Marches for fine or ransom is evidence of a sort that no power

pof fining existed at Common Law6. And in 3 and 4 Philip

/ and Mary, it was agreed that the justices of assize had no power

1 to fine jurors for a false oath before them, but the justices might

appoint a day for their appearance either before themselves or

the King's Council. The inference seems to be that if they could

- hot be fined, they were punishable in some way or other7.

1 2 Hawk. P.C. ch. 22, sect. 20 sqq.

2 8 Lib. Ass. pi. 35.

3 Fitz. Abr. Verdit 40 citing 3 Ed. Ill, It. North. The proceeding seems
unintelligible, but perhaps the report is too much abridged. In 41 Lib. Ass.
pi. u, the Court strongly reprobated the practice of taking a verdict of n,
and refused to affirm it.

4 41 Lib. Ass. pi. n. It was said that the jury should have been taken
from town to town on the circuit till they agreed.

5 Fitz. Abr. Corone, 108 citing Trin. 7 Rich. II (no further reference).
2 Hawk. P.C. ch. 22, sect. 20. Tresilian's evil reputation as a judge makes
it more likely that the ruling was a hasty one.

0 26 Hen. VIII c. 4, sect. 2. VAUGHAN C.J. in Bushell's Case (1670)
6 St. Tr. at p. 1019. 7 2 Hawk. P.C. ch. 22, sect. 20.

MISCONDUCT OF JURORS 197

According to Whar ton's Case (44 and 45 Eliz.)1, upon a
verdict of not guilty, the judges were very angry, and all the
jurors were committed and fined and bound to their good
behaviour ; but a collateral report shews that some of the jurors
were suspected of being friends of the prisoner, and the case
is then reducible to one of misconduct2.

Sir Thomas Smith, Elizabeth's famous Secretary of State,
remarks that jurors who returned perverse verdicts might be
rebuked by the judges, who might also threaten punishment;
but their bark was seemingly worse than their bite, provided
the jurors protested their good faith with sufficient humility3.
Whatever uncertainty appears in the Common Law practice,
there was none in that of the Court of Star Chamber. In the
reigns of Henry VII, Henry VIII, Mary, and in the beginning
of Elizabeth's reign, scarcely a term passed without some grand
inquest or jury being fined in the Star Chamber for acquitting
felons or murderers4. A well-known example occurred in 1554
when Sir Nicholas Throckmorton was acquitted of high
treason5. The Court was displeased with the verdict, and
committed the jurors to prison. Eight who refused to submit
were heavily fined by the Council in the Star Chamber6.

Many of these cases may be regarded as a mere warping of f jjj^f
the law for political purposes, and what was done in Throck-
morton's Case was extreme even for that period of our history7.
After the Star Chamber fell, there was still some judicial vacilla-
tion as to punishing jurors. Grand jurors were occasionally
fined for not returning true bills8. Petty jurors also were fined
in R. v. Wagstaffe for returning a verdict against the judge's
direction9, but it was agreed by all the judges of England, except

1 Yelv. 23. 2 Noy, 48.

3 De Republica Anglorum (ed. Alston), Bk. m. c. i.

4 Hudson, sect. vii. Coke refers to the Star Chamber practice in Floyd v.
Barker (5 Jac. I) 12 Rep. 23.

5 i St. Tr. 869. 6 Thayer, 162-163.

7 One of the charges against Empson was that he had imprisoned a jury
and fined each member £8 for refusing to convict a person of larceny on
sufficient evidence. Yet he did this with the consent of the King's Council.
2 Hawk. P.C. ch. 22, sect. 20.

8 R. v. Brown (16 Car. II) i Siderf. 229. R. v. Windham (19 Car. II)
2 Keb. 1 80.

9 (17 Car. II) i Siderf. 282. T. Raym. 138. i Keb. 934, 938.

198 MISCONDUCT OF JURORS

one, that this fine was illegal1. In R. v. Selby ( 1664)2, tne Court
ordered an information against petty jurors for a verdict con-
trary to clear evidence. And we are told that KELYNG C.J.K.B.
was obliged to answer a complaint in Parliament that he had
fined jurors, and that it was only the mediation of his friends
that prevented an angry House of Commons from bringing
him to trial3.

To sum up, no decided conclusions as to the law on this
A* I point down to 1670 can be stated. Juries were often punished
in the Star Chamber for verdicts distasteful to the trial judges.
Apart from this, the practice of the Common Law Courts
wavered, but with an inclination against the punishment of
jurors. There was no positive recognition that it was legal.
Hale's conclusion is that although long use may possibly have
given the King's Bench a jurisdiction of fining jurors in criminal
cases, yet this did not extend to other Courts of sessions, of
gaol delivery, oyer and terminer, or of the peace or other
inferior jurisdiction4.

So stood the matter when BushelVs Case came before the
Courts in 1670. Bushell was one of a jury which had acquitted

' prisoners of unlawful assembly against full and manifest evi-
dence and against the direction of the Court in a matter of law.
The justices of oyer and terminer fined him 40 marks and
committed him to the Old Bailey. He sued out habeas corpus.
The return, which alleged the above facts, was held to be in-
complete on technical grounds, and Bushell was discharged.

rBut the Court went further, and resolved that petty jurors are
in no case finable for a verdict against evidence delivered in
Court, whether they be liable to attaint or not, because the

jury are by law judges of fact and therefore ought to be free,
<M^j and it is not possible that the judge should know certainly that
the verdict is corrupt5. With the decay of the attaint and the

1 2 Hale P.C. 313. 2 i Keb. 769.

3 i Siderf. 338 note. Foss sub tit. " Kelyng." Kelyng notes in his Reports
(p. 50) a case in which he fined a jury £5 apiece for returning a verdict of
manslaughter instead of murder (18 Car. II).

4 2 P.C. 313. Hale died in 1676. The first publication of P.C. was in
1739-

0 VAUGHAN C.J. in 6 St. Tr. 999, 1021.

MISCONDUCT OF JURORS 199

impossibility of punishing jurors for a perverse verdict after
BushelVs Case, the law had no control over a verdict except by
the grant of a new trial. There were also exceptional cases to
which BushelPs Case did not apply.

(i) It might perhaps be an offence if an inquest of office
refused to find an office for the King against clear
proof; for such inquests were not subject to attaint,
and determined no man's rights1.

(ii) It was said that if a jury find the facts and then refuse,
against the judge's direction, to find an inference of
law from those facts, they are fineable2.

1 VAUGHAN C.J. in 6 St. Tr. at p. 1021. Lamnois' Case, Moore, 730.
See 2 Hawk. P.C. ch. 22, sect. 23 for a criticism of the principle.

2 VAUGHAN C.J. (6 St. Tr. at pp. 1008-1009) recognized such an excep-
tion, but thought it only possible in theory. Cf. 2 Hawk. P.C. ch. 22, sect. 21.

CHAPTER VIII
COMMON BARRATRY AND FRIVOLOUS ARRESTS

§ i. The legal definition of Common Barratry is no older
than the time of Elizabeth, though the terms "barrator" and
" barret" — especially the former — were known to our law
centuries earlier with a meaning so vague as to be wellnigh
unascertainable. Nor does the Elizabethan definition carry us
much further. It occurs in the Case of Barretry reported by
Coke1, who states that it was held by the Court that a common
barrator is a common mover or stirrer up, or maintainer of
suits, quarrels, or parties, either in Courts or in the country:
in Courts of record, and in the county, hundred, and other
inferior Courts : in the country in three manners :
(i) In disturbance of the peace.

(ii) In taking or detaining of the possession of houses,
lands or goods, etc., which are in question or con-
troversy, not only by force, but also by subtilty and
deceit, and for the most part in suppression of truth
and right.

(iii) By false invention, and sowing of calumny, rumours
and reports, whereby discord and disquiet arise be-
tween neighbours.

The report is of a type not uncommon in Coke. No facts
are given, and how much of it is Coke and how much what the
Court said, is not easy to determine. Its general diffuseness,
scraps of Latin, and citation of the Pentateuch indicate the
reporter rather than the bench. The definition in it is repeated
in Coke upon Littleton as part of the comment on a passage
in which Littleton says that if .Fenfeoff certain barrators and
extortioners in the country, to have maintenance from them of
the house by a deed of feoffment with warranty, by force
whereof A (the lawful tenant) dare not abide in the house,
the warranty commences by disseisin2.

So far as the definition given in the Case of Barretry refers
1 (30 Eliz.) 8 Rep. 36. 2 Co. Lift. 368.

COMMON BARRATRY 201

to stirring up litigation in Courts, so far is it intelligible. But
when it goes on to describe barratry "in the country," it seems
to poach upon other preserves of the law to an astonishing
extent. It would include the common brawler, the land-
grabber, the forger, the slanderer, the sedition-monger, the
lying journalist. Of course, no judicial decisions have gone to
such lengths as these, and common barratry has fallen into
such oblivion that no Court is likely to have a chance of trimming
the Elizabethan definition. There have been few enough de-
cisions on common barratry at any time, and most of them fell
in the period of indifferent law reporting. In none of them
except the Case of Barretry does an analysis of the term appear
to have been attempted.

Whether the Court in that case gave the loose description
reported, or whether Coke edited what they did say into some-
thing very different, is not of much aioment. What is important
is that Coke probably reproduced a current legal idea or
something like it, and that the history of the term "barrator"
fully excused considerable vagueness in expressing its meaning.
And to that history we now turn.

§ 2. Before confining ourselves to barratry in the only sense
here relevant, we must note that it has several other legal
meanings. In Scots law, it has been used to signify the purchase
or sale of ecclesiastical preferment or of offices of state ; and also
acceptance of bribes by a judge. In English maritime law,
certain forms of fraud and misconduct by masters and mariners
are designated barratry.

The origin of "barrat" from which these meanings, and that
of stirring up suits, spring, is doubtful. According to one view,
the original sense in Romanic is "traffic, commerce, dealing";
another connects it with Tr^arretz/; a third with the Welsh
"brad" (betrayal or treachery); and the Old Norse "baratta"
(fight, contest, strife) appears to have influenced the word in
the sense of "strife." Be this as it may, in the commonest
meaning of the word — which is also its legal one — the idea of
cheating seems to be combined with that of fighting, the latter
predominating1.

1 N.E.D. "Barrat," "Barratry." Cf. Coke in 8 Rep. 37 a.

202 COMMON BARRATRY AND

§ 3. Early statutes take the meaning for granted. The
Statute West. I (3 Ed. I) c. 33 provides that no sheriff shall
suffer any barrator [or maintainers of quarrels]1 in their shires2,
nor stewards of great lords nor others, who are not attornies
for their lords, to give judgments in the counties, unless they
be specially prayed so to do by all the suitors and attornies of
the suitors at the Court. For disobedience, both the sheriff
and the offender are to be punished grievously by the King.

This statute, which is now repealed3, is said to have been
the result of abuses which sprang up from the Statute of Merton
(20 Hen. Ill) c. io4. This allowed every free suitor of the
county and other Courts to appoint an attorney to act for him
there. Two mischievous consequences ensued. Barrators and
maintainers were encouraged by the sheriff to become attornies,
to give judgments among the other suitors and occasionally
perhaps to take the lead in giving such judgments. And stewards
of great lords and others who had no letters of attorney as
required by the statute would do the like. It was to check this
perversion of agency in litigation that 3 Ed. I c. 33 passed5.

Another chapter of the same Statute of Westminster6 struck
at misconduct of the sheriffs in another direction. It appeared
that when the justices in eyre had amerced the whole county
for false judgments or other trespass, sheriffs and barrators
had assessed the amount of the penal sum at a much higher
rate than was just, presumably pocketing the difference. This
was stopped by requiring that the sum should be assessed in
the presence of the justices in eyre, and before their departure,
by the oath of the knights and other honest men7.

The Statute called Rageman, which has been dated 4 Ed. I,
instructs the justices of assize as to the object of their inquiries,
and enjoins them that no complainant or defendant is to be

"To maintain" is the variant in St. of the Realm, I. 35.
As "conte" is the word in the text, Dalton (Sheriffs, p. 31) seems right
in suggesting this to be a mistranslation for " county courts."
S.L.R. Act, 1863 (England). S.L. (I) R. Act, 1872 (Ireland).
St of the Realm, 1.4.

Coke, 2 Inst. 225. Reeves, H.E.L. n. 128.
3 Ed. I c. 18. St. of the Realm, i. 31.
7 Repealed S.L.R. Act, 1863 (England). S.L. (I) R. Act, 1872 (Ireland).

FRIVOLOUS ARRESTS 203

surprised or troubled by "hoketours1 ou barettours," whereby
the truth may not be found out, and offenders remain un-
punished till the next Parliament.

We have seen that sheriffs and barrators were coupled to-
gether in statutes in a way that did not flatter the probity of
the former. From Magna Carta onwards, the duty of the
sheriff in his tourn or circuit through the hundreds of the
county was to take indictments against prisoners, and not to
try them. He abused his power by falsely charging persons
with having been indicted in his tourn. A series of complaints
redressed by remedies more or less effectual culminated, in
1327, in the King's justices being ordered to take cognizance
of false indictments, and in the establishment of the county
magistracy from which maintainers of evil and barrators were
to be excluded2, and which reduced the sheriff's influence and
gave him a subordinate part in the administration of justice3.

34 Ed. Ill c. i, in defining the powers of those assigned to
keep the peace, enables them to restrain offenders, rioters, and
all other barrators, and to pursue, arrest, take, and chastise them
according to their trespass or offence, and to cause them to be
imprisoned and duly punished according to the laws and customs
of the realm, and to what they think best in their discretion4.

Soon after Richard IFs accession, certain lords and others
were commissioned in every county with power to arrest, among
others, barrators, and to imprison them without bail till the
coming of the justices5. But this statute speedily illustrated the
axiom that it matters little whether the law ignores or threatens
a rogue so long as its administration is in his hands. Peaceful
people were more frequently arrested and imprisoned by the
commissioners than were evil-doers, partly because some of
the commissioners themselves were corrupt, partly because
false accusations were made before them. The Commons re-
quested and obtained the repeal of the statute.

1 According to Coke, an ancient French word for a knight of the post
(worthy to be knit to a post), a decayed man, a basket-carrier. 3 Inst. 175.
So too N.E.D. " Hockettor."

2 i Ed. Ill st. 2, c. 16. St. of the Realm, i. 258. It was in reply to a
prayer of the Commons. Rot. Parl. n. u a. It is still in force.

3 Select Cases before the King's Council, S. S. vol. xxxiv. pp. Ixxxiv-lxxxv.

4 Unrepealed. 5 2 Rich. II st. 2, c. 2. Cf. Rot. Parl. in. 65 a.

204 COMMON BARRATRY AND

§ 4. Such are the early statutes which relate to, or mention,
barrators1. One thing that is clear is that they attach no
technical meaning to "barrator." A barrator perhaps signified
to the lawyer, generally but not invariably, a rascal in litigation,
though he could not be ear-marked as a maintainer, champertor,
conspirator, or embracer. What in modern law the bully is to
the man who commits an assault, the scamp to the man who
steals, the swindler to the fraudulent company promoter, that
in ancient law was the barrator to the man who committed
champerty or embracery. And just as modern law does not
embark on futile attempts to punish all bullies, scamps and
swindlers, so the early law has very little to say about the
punishment of barrators. When the justices were empowered
by 34 Ed. Ill c. i to arrest and punish "rioters and all other
barrators," probably the legislator understood barrators to be
brawlers of some sort, perhaps brawlers connected with litiga-
tion. The age was not one in which there was any craze for
exact legal definition, as we have seen in the case of conspiracy.
In popular speech, a barrator might be a hired bully or quarrel-
some person2, and in legal texts we get similar variations. When
we are told that barrators and embracers each took 2os. from
the defendant in an action, we are left in the dark as to what
the barrators did for their pay3 ; but we have no doubt that it
was some sort of perversion of legal process. Elsewhere, they
appear as persons who disturb the collection of an aid4, as those
who by false suggestion in the King's Courts delay the King's
servants in rendering their accounts5, as those who are agents
of great men for the purpose of threatening physically such as
wish to recover lands of which the great men have been enfeoffed
for maintenance6. As late as the iyth and i8th centuries,
judicial decisions were needed to settle that "common barrator "

1 Ordinatio de Conspiratoribus, 33 Ed. I (St. of the Realm, I. 145; Rot.
Parl. I. 183 V) includes, in its definition of conspirators, stewards and bailiffs
of great men who undertake to maintain or sustain pleas or " baretz " for
parties. Ante p. i.

2 N.E.D. 3 Trin. 40 Ed. Ill, f. 33.
4 Rot. Parl. n. 117 b (A.D. 1340). 6 Ibid. 167 a (A.D. 1347).

6 Ibid. HI. 21 a (A.D. 1377). In 11. 165 a (A.D. 1347), an ordinance is asked
for by the Commons against great men maintaining inter altos barrators,
maintainers of quarrels and " baretz," embracers, conspirators, confederators,
and champertors.

FRIVOLOUS ARRESTS 205

was a technical term which had no such equivalent as " common
oppressor of his neighbours "*, " common and turbulent brawler,
and sower of discord among her neighbours"2, " calumniator
and turbulent disturber of the peace, and mover and inciter of
actions, brawls and fights "3.

§ 5. The question whether common barratry is a Common
Law or statutory offence has been answered in a curious way.
No one who drew an indictment for it had the courage to omit
contra formam statuti*. No opponent succeeded with the argu-
ment that the offence was one at Common Law, and that
therefore the draftsman's conclusion was wrong. No Court
would give a positive decision that the offence was a statutory
one, and only a statutory one. The result was a number of
cases in which a familiar path came to be trodden. What appears
to be one of the earliest may be taken as a specimen. A man was
indicted as a common barrator contra formam statuti. Coke
(then counsel) took exception that there was no statute making
this an offence, but that it was at Common Law, and that
34 Ed. Ill c. i 5 did not make it an offence, but merely appointed
the punishment. But the indictment was held good, and it was
said that there were many precedents to that effect6. While
however the Courts had no doubt that it was a statutory offence,
they would not pin themselves to any particular statute. They
passed an indictment contra formam diversorum statutorum
because common barratry, they said, was an offence against
the statutes of maintenance and the like7, and they even
swallowed a barbarism like contra formam statuti de Good-
behaviour as being the constant form of such indictments8. But
the mere fact that the draftsman resorted to such a desperate
expedient, and that the Court adopted it without denying that
common barratry was a Common Law offence, shews on the

1 R.v.Hardwicke (18 Car. II) i Siderf. 282. R.v. Ledginham (20 Car. II)

1 Mod. 288. * R. v. Cooper (19 Geo. II) Stra. 1246.

3 R. v. Taylor (3 Geo. II) Stra. 849.

4 The last instance is exceptional. Arch. (ed. 22) 1027 (indictment in
R. v. Bellgrave (1889), Guildford Assizes). 6 Ante sect. 3.

8 Burtons Case (31 and 32 Eliz.) Cro. Eliz. 148. Bowser's Case (15 Jac. I)

2 Roll. Abr. 79, pi. 3 is to the same effect.

7 Chapman's Case (9 Car. I) Cro. Car. 340.

8 R. v. Clayton (20 Car. II) 2 Keb. 409.

206 COMMON BARRATRY AND

one hand that there was no statute which created the offence
as such, and, on the other hand, that if common barratry were
a Common Law crime, it became such only comparatively late
in our history. In fact, the term began life with no technical
meaning, and, as has been shewn, acquired none till the Tudor
period. We find scarcely a word about barratry in the Year
Books. Perhaps this is because the barrator could be laid by
the heels as a maintainer or conspirator. There was law enough
in theory to deal with these. How miserably it failed in practice
has been shewn ad nauseam elsewhere.

Later judicial opinion is that while common barratry is a
Common Law offence, yet it is right to conclude contra formam
statuti1, and in the last instance of it the experiment was tried—
whether successfully or not, we are not told — of dropping this
conclusion2. The older commentators in general have views
similar to the judicial opinion3. Since the rules appended to the
Indictments Act, 1915, make the technical conclusion needless
in any indictment, the point is of no practical importance4.

§ 6. The offence in modern times. The definition which
has been quoted from the Case of Barretry5 is reproduced in
a condensed form by Blackstone as "the offence of frequently
exciting and stirring up suits and quarrels between his majesty's
subjects, either at law or otherwise"6. Text-books of the
present day repeat this7, or adhere to the full definition in the
Case of Barretry8. Any definition can be little more than a
museum label, for the law on this topic is in an almost fossil
condition. The last recorded case occurred a generation ago9,
and no other case appears to have been reported during the
1 9th century. The abolition of the offence was recommended

1 R. v. Bracy (8 Will. Ill) 12 Mod. 99. Obiter per curiam.

2 Arch. (ed. 22) 1026-7, citing R. v. Bellgrave (1889) and indictment
therein.

3 2 Hale P.C. 191. i Hawk. P.C. ch. 81, sect. 10. 2 Chitty, Cr. Law,
232 note.

4 5 and 6 Geo. V c. 90.

6 Ante sect. i. ' iv. 133.

7 St. Dig. Cr. Law Art. 156. He criticizes the definition as "so vague as
to be quite absurd." Ibid. App. Note III. Arch. (ed. 1918) 1146.

8 Russ. (ed. 1909) i. 585.

9 R. v. Bellgrave (1889) Arch. (ed. 22) 1026. A prosecution for stirring
up a series of fraudulent actions against a railway company.

FRIVOLOUS ARRESTS 207

in the Fifth Report of the Criminal Law Commissioners. The
details given in the following sections must be regarded as
relating to an offence which is practically obsolete.

§ 7. The definition implies that the offender must be de-
scribed as a "common" barrator. A man cannot be a barrator
in respect of one act only1. Nor, as has been indicated, can
similar terms be used for " common barrator " in an indictment 2,
for that is the only description which the law recognizes and
understands3. The crime is a well-recognized exception to the
rule that the description of a person accused in an indictment
as being a " common" offender without specifying particular
examples makes the indictment too general4. When this became
the settled rule is not clear5, but it was recognized in Charles IPs
reign6. Nor does the accused suffer any injustice from this;
for by a practice equally well established, the prosecutor must
supply him with a note of the particulars of the charge, otherwise
the trial will not proceed7. The accused can, it seems, move
for a rule to have such particulars delivered to him, and the
prosecutor cannot give evidence of any particular not included
in the notice8, except possibly to aggravate the punishment9.

§ 8. It has been said that, if a man prosecute an infinite
number of suits which are his own, he is not a barrator; for,
if they are false, the defendants get their costs against him, and
the contrary rule would include amongst barrators those who
have some cause for suing10. But this rule has been doubted11,

1 Case of Barretry (30 Eliz.) 8 Rep. 36. i Hawk. P.C. ch. 81, sect. 5.

2 Ante sect. 4, sub fin. and cases there cited. See too Cornwall's Case
(33 and 34 Eliz.) Moore, 302.

8 R. v. Ledginham (20 Car. II) i Mod. 288. The case is reported under
three different names in three other reports (2 Keb. 697; i Lev. 299;
T. Raym. 193, 205).

4 Per HOLT CJ. and six other judges in R. v. Baynes (5 Anne) 2 Salk. 68 1 .

5 BULLER J. mJ'Anson v. Stuart (1787) i T.R. at p. 754.

6 R. v. Ledginham (ubi sup.).

7 R. v. Grove (6 W. and M.) 5 Mod. 18. HEATH J. in R. v. Wylie (1804)
i B. and P. (N.R.) at p. 95. Recognized as an exceptional practice by the
Lord Chancellor in Clark v. Periam (1742) 2 Atk. at p. 340.

8 Obiter by all the Court in Goddard v. Smith (3 Anne) 6 Mod. 261. In
R. v. Ward (13 Will. Ill) 12 Mod. 516, notice of the particulars was adjudged
ill, because it was left with the accused's servant.

9 Iveson v. Moore (n Will. Ill) i Ld. Raym. at p. 490.

10 i Roll. Abr. 355. " i Hawk. P.C. ch. 81, sect. 3.

208 COMMON BARRATRY AND

and it proceeds upon the double fallacy that a defendant is
sufficiently compensated for vexatious litigation by getting his
costs, and that the law would ever classify as a barrator a
plaintiff who has any reasonable ground for litigation. However,
the rule, if it exist, need trouble no defendant at the present
day. If the proceedings instituted against him are criminal or
in general of the kind redressible by an action for malicious
prosecution, he has that remedy, and if they amount to a criminal
conspiracy, he can indict for that offence. As to civil pro-
ceedings, the Vexatious Actions Act, 1896, provides that if any
person has habitually and persistently instituted vexatious legal
proceedings without reasonable ground, in any Court, against
the same person or different persons, the High Court may, on
the Attorney-General's application, order that no legal pro-
ceedings shall be instituted by that person in any Court, unless
he obtain the leave of a judge of the High Court, and satisfy
him that such legal proceeding is not an abuse of process1.

§ 9. It has also been said that an attorney is in no danger of
being judged guilty of barratry for maintaining another in a
groundless action to the commencement of which he was in no
way privy. In the case cited for this, the defendant, a barrister ,,
was indicted for barratry. One, G, had been arrested at C's suit
in an action for £4000, and was brought before a judge to give
bail to the action. The defendant was then present, and solicited
the suit, when in fact C was indebted to G in £200, and G
owed C nothing. The Chief Justice was first of opinion that
this might be maintenance, but not barratry, unless it appeared
that the defendant knew that C had no cause of action after it
was brought. If a man's design in making an arrest be not
to recover his own right, but only to ruin and oppress his
neighbour, that is barratry ; so is the loan of money to promote
suits. Here the defendant had entertained C in his house and
brought several actions in his name where nothing was due, and
he had therefore committed barratry. But if an action be first
brought,and then prosecuted byanother,it is not barratry, though
there is no cause of action. The defendant was found guilty2.

1 59 and 60 Viet. c. 51, sect. i.

2 R. v. (i and 2 Jac. II) 3 Mod. 97.

FRIVOLOUS ARRESTS 209

Misconduct of this kind could now be remedied more ex-
peditiously in the case of an attorney by making him pay the
defendant's costs1, or by taking disciplinary proceedings under
the Solicitors Acts to strike him off the Rolls. And similarly
steps could be taken to get a barrister disbarred.

It has been held that an agreement between A, a certificated
conveyancer, and B an attorney, that in case A should introduce
to B any professional business for which B would have a claim
for costs, B would pay A a commission, is not such an agree-
ment as would subject the parties to the penalties of common
barratry2.

§ 10. According to a meagre report, an indictment of a
feme covert as a common barrator was quashed3. The decision
has been criticized 4 and seems unintelligible unless it were one
in which the presumption of marital coercion was raised.

§ ii. Upon the whole, it appears that it is unnecessary to
allege in the indictment that the offence was committed at any
particular place. An exception to an indictment on this ground
was rejected in R. v. Clayton5, and the Court seems to have
ignored an opinion to the contrary in Man's Case6. Modern
writers on criminal law favour the view that the place need not
be specified. Its justification is that barratry consists in the
repetition of several acts which may well have happened in
several places7.

§ 12. One or two other points as to the indictment have,
since the Indictments Act, 1915, become of purely historical
interest. An indictment was held insufficient for concluding
"against the peace of our lord the king, or against the form of
the statute"8, and one was quashed which did not conclude

1 R.S.C. 1883, Order LXV. r. i.

Scott v. Miller (1859) 28 LJ. (N.S.) Ch. 584.

Anon. (16 Jac. I) 2 Roll. 39.

i Hawk. P.C. ch. 81, sect. 5. Russ. i. 585. Chitty, Cr. Law, 2320.

(20 Car. II) 2 Keb. 409.

(3 Car. I) Godbolt, 383. 2 Hale P.C. 180 approves Man's Case, without
rejecting the practice of naming no vill. In R. v. Wells (13 Jac. I) i Roll.
295, COKE C.J.K.B. implies that the place should be stated.

7 i Hawk. P.C. ch. 81, sect. n. Russ. i. 586. In 2 Chitty, Cr. Law, 232,
no reference to place is made in the form of indictment there given. Cf.
Arch. (ed. 22) 1027.

8 Palfrey's Case (17 Jac. I) Cro. Jac. 527.

W.H.L.P. 14

210 COMMON BARRATRY AND

" against the peace" though "against the form of the statute"
preceded this1. More modern indictments concluded "to the
common nuisance of the liege subjects of our lord the King"2.

It may be added here that there is some doubt as to whether
procendedo applies to an indictment for barratry3.

§ 13. Common barratry is a misdemeanour punishable by
fine, imprisonment, and binding over to good behaviour4. A
distinction has been drawn between ordinary persons who incur
no further penalties, and those of any profession relating to the
law, who, it is said, ought to suffer the additional punishment
of being disabled from practice for the future5. And in Alwin's
Case6, an attorney, proved to have been guilty of false practice
and barratry, was ordered to be put out of the roll of attornies,
to be fined £50, to be turned over the bar, and to stand com-
mitted. And turned over the West end of the bar he accordingly
was. But something worse than this awaits, in theory at least,
attornies or solicitors who, after being convicted of common
barratry, act in their professional capacity in any Court of law
or equity. A statute empowers the judge of the Court, where
the action is brought, to examine the matter in a summary way
in open Court, and to sentence the offender to seven years
transportation (now penal servitude)7. This law, says Stephen,

would be utterly intolerable if it had not been long forgotten. I
should suppose that there is no other enactment in the whole statute
book which authorises any judge to sentence a man to seven years
penal servitude after a summary inquiry conducted by himself in
his own way8.

The statute is unrepealed, but the jurisdiction of the Law
Society over its members is a better safeguard against the mal-
practices of solicitors than the savage punishment of a statute
passed at a time when abuses of the kind were not uncommon.

1 Periam's Case (6 Car. I) 2 Roll. Abr. 82, pi. 5. R. v. Urlyn (17 Car. II)
Saund. 308, exemplifies a verdict held good in spite of surplusage in the
conclusion.

2 Chitty, Cr. Law, 232. Arch. (ed. 22) 1027.

Upham's Case (14 and 15 Car. II) i Lev. 93.

i Hawk. P.C. ch. 81, sect. 14. Bl. iv. 133 omits the binding over to good
behaviour.

i Hawk. P.C. ubi sup. 6 (1655) Style, 483.

12 Geo. I c. 29, sect. 4. 8 Dig. Cr. Law. App. Note III.

FRIVOLOUS ARRESTS 211

§ 14. In spite of 34 Ed. Ill c. i, which is still in force and
which enables those assigned to keep the peace to punish
barrators, doubts have arisen as to whether common barratry
is triable at Quarter Sessions. The judges of Henry VI Fs reign
had no hesitation in saying that the Statute empowered Justices
of the Peace to arrest and imprison every common barrator till
he found surety for his good behaviour1. And from Barnes v.
Constantine2 it may be inferred that Justices of the Peace have
not only authority to restrain barrators, but that they can do
so without any special commission of oyer and terminer, for
all the judges except one acceded to the defendant's demand
for oyer of the record, though it made no reference to any such
special commission3. On the other hand, it was held in an
anonymous case of James Fs reign that barratry is an offence
of a mixed nature of which the Justices at Sessions of the Peace
have no cognizance by virtue of their commission of the peace4;
and in R. v. Nurse a verdict of guilty was reversed for the
reason, among others, that it was tried by the Justices of oyer
and terminer instead of those of gaol delivery5. Since 5 and 6
Viet. c. 38, sect, i, there should be little doubt that the offence
is triable at Quarter Sessions. That statute enumerates the
crimes which are not triable at Quarter Sessions, and common
barratry is not included in the list.

§ 15. In the same category as common barratry Blackstone
puts "an 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 who is ignorant of the suit." This offence,
he says, if committed in any of the King's superior Courts, is
punishable as a high contempt at their discretion ; in Courts of
a lower degree, the punishment is fixed by 8 Eliz. c. 26. Sect. 4
of this statute provides that if any person shall maliciously
cause any other person to be arrested or attached to answer in

1 Anon. (13 Hen. VII) Keilwey, 41.

2 (2 Jac. I) Cro. Jac. 32; Yelv. 46.

3 R. v. Clayton (20 Car. II) 2 Keb. 409, is indirect evidence that it is
triable at Quarter Sessions, but by what commission is not stated.

4 (17 Jac. I) 2 Roll. 151.

6 (19 Car. II) Siderf. 348. 2 Keb. 292. i Hawk. P.C. ch. 81, sect. 8 and
Russ. i. 586 reflect the doubt. Arch. (ed. 1918) 1146 states that Quarter
Sessions have jurisdiction. * rv. 134.

212 FRIVOLOUS ARRESTS

the Courts named in the Act, at the suit or in the name of a
person where none such is known, the person causing the arrest
or attachment shall be imprisoned for six months, pay treble
the costs and damages of the person arrested, and shall also
forfeit £10 to the person in whose name the arrest or attachment
was procured. Sect. 5 gives an action for the recovery of these
penalties, costs and damages. These provisions are still in force,
except that as to treble costs which was repealed by 5 and 6
Viet. c. 971.

It does not clearly appear that 8 Eliz. c. 2, sect. 4 is, as
Blackstone states, limited to inferior Courts; but the whole
statute is such a specimen of diffuse and slovenly drafting that
it is patient of that construction2.

The offence is also maintenance, and an action upon the case
has been held to lie for it3 ; and it would usually involve perjury4.

1 Sect. 2. The Public Authorities Protection Act, 1893 (56 and 57 Viet.
c. 61), sect. 2 repeals this sect, as to any proceeding »to which the Public
Authorities Protection Act applies.

2 Of course, the superior Courts have, at Common Law, the power of
punishing a contempt of this kind. Waterhouse v. Saltmarsh (17 Jac. I)
Hob. 263 ; and in the very year in which 8 Eliz. c. 2 passed, one of them fined
a man for such a contempt. Worlay v. Harrison (8 Eliz.) Dyer, 249 a.
Inferior Courts can commit only for contempt perpetrated in facie curiae.
Oswald, Contempts (ed. 1910), n.

9 Thurston v. Ummons (15 Car. I) March, 147.

4 Russ. I. 586. There it is treated under the head, " Frivolous Arrests."

INDEX

Abetment

of false appeal, 6, 12, 13, 39, 41-42,

46
Acquittal

accessory and principal, 86-87

benefit of clergy, 86

in appeals, 6 sqq.

of plaintiff in conspiracy, 83-87

pardon, 85, 87

Action, fictitious, 211-212. See Case
Actions, vexatious, 206-207
Advice, defence to conspiracy, 80-81
Advowson, champerty for, 144-145
Alliance, 97 n.
Alliaunce*s, 93, 94
Alligantia, 98 n.
Ambidexter, 103, 105, 164
Amercement, 14, 15
Appeal

civil proceeding, 136

conspiracy, writ of, 39-51

de odio, writ, 17

false, 4, 5, 6, 39-51, 62, 87, 106-107

gravity of, 46-47

how begun, 47 n.

unpopularity, 17-18
Apprentices, 22, 146
Arraignment, 44-45
Arrests, frivolous, 212 n.
Articles of Eyre, 93, 95, 144
Ashe's Promptuary, 52n.
Assisa, 99, 194
Assize, perjury of, 99
Attaint, 107, 194-199

criminal cases, 195

disuse, 195, 198

inadequate, 194

punishment, 194-195

unpopular, 194-195
Attorney, 22

barratry, 144, 202, 208-209, 210

embracery, 168

maintenance, 137, 146, 208

treating jury, 183
Autrefois acquit, 50-51

Bailiff

conspiracy, 80, 103, 118w.

maintenance, 60

offences, 146
Baretz, 204 n.

Barratry, 125, 131, 132, 143, 144, 162,
200-212

abolition recommended, 207

Barratry (contd.)

attorney. See Attorney
common, 207, 200-212
Common Law offence? 205-206
commonest, when, 161
conspiracy, 206
conveyancer, 209
definition, 200
derivation, 201
indictment, 205-207
maintenance, 200, 204, 206
maritime law, 201
meanings, 201, 204
modern law of, 206-211
obsolete, 201
origin, 205
particulars, 207
place of, 209
punishment, 210
Quarter Sessions, triable at, 211
Scots law, 201
sheriff, 202-203
statutes, 202-205
stewards, 202
Barret, 200

Barrister. See Counsel
Battle, trial by, 6, 16, 17, 46, 47, 50.

See Appeal
Benefit of clergy, 86
Bill

appeal, 47 n.

conspiracy, 53 n., 61 n., 67n.
meaning, Gin.

Bishop, conspiracy by, 103 n.
Blackstone

conspiracy, 83, 117
fictitious action, 211-212
writ de odio, 19
Boroughs

false appeals in, 13
Bracton
appeals, 47
appeals, false, 5
champerty, 140, 141
conspiracy, 30, 93
jurors, 194
lex et consuetude, 33n.
maintenance, 140
perjury, 194

presentments, false, 14-15
writ de odio, 19
writs, original and judicial, 39
Britton

alliaunces, 93-94

14—3

INDEX

Britton (contd.)

maintenance, 140

writ de odio, 19
Brooke's Abridgement

like reports, 62 n.

MSS. of, 53n.

Cambipartia, 131
Capias, 41
Case

action upon, 63

action upon case in nature of con-
spiracy, 60, 63n., 81 n., 84,
118-130

difference from conspiracy, 124

malice, 124

rationale of, 124-130

trespass, charge of, 126-8

unpopularity, 130

Champerty, 22, 23, 24, 26, 52, 65 n.
advowson, 144
apprentices. See Apprentices
Chancellor. See Chancellor
Chancery clerk, 144
civil remedy, 151
clerks of King, 144-145
Common Law origin? 141-150
commonest, when, 161
complaint of, 165
confederacy, 97
conspiracy, 24, 26, 146
Council. See Council
criminal, 141
definition of, 150
derivation, 140w.
ejectio firmae, 159
embracery, 162
farm, 145
general, 147
gift for, 145
history, 131-160
judges. See Judges
kinship. See Kinship
legal advice, 148
lords, 151-152
maintenance, 140
manutenentia curialis, 135
Middlesex, 155
neighbours, 148
Norfolk, 155
officials. See Officials
origin, 141-150
pleaders. See Pleaders
purchase, 145
remedies, 150-154

failure of, 154-157
statutes of, 142 sqq.
steward. See Steward
Suffolk, 155

Champerty (contd.)

trafficking in titles, 158-160

Treasurer. See Treasurer

writ of, 31 n., 34w., 35ra., 144, 146,

147, 148-149

Chancellor, champerty by, 144-5
Chancery, writs issued from, 38-39
Chaucer, 140n., I55n.
Church, champerty for, 144-145
Civil injury, and crime, 92-93
Civil procedure, and criminal, 92-93
Civil proceedings, vexatious, 207
Clergy, benefit of, 86
Clergy, offences of, 154-155
Cnut, Laws of, 4
Coadunation, 97, 98 n., 113
Coke

alligantia, 98 n.

barratry, 200, 201, 205 •

Brooke's Abr., 62??.

champerty, 131, 143, 145, 150,

153

confederacy, 98

conspiracy, 27, 29, 40, 83, 94, 113
embracery, 131, 167, 169, 170
hoketours, 203
jurors, 184
maintenance, 131, 132, 136, 138,

139, 141, 143, 150
Powder Treason, 58-59
Reports, criticized, 70 n.
trafficking in titles, 139
villainous judgment, 101
writ de odio, 19, 22
writs, magistralia, 39 n •.
13 Ed. I c. 12, 7, 9
Colligaciones, 97 n.
Collusion, 110

Combination, in conspiracy, 41, 59-65
Common Pleas, 92
Commons, complaints of, 8, 155-156,

165

Compromise, in conspiracy, 89
Confederacy, 1, 2, 53, 56, 66 n., 96-99,
101 n., 103, 104, 105, 109, 113,
115, 139, 204w.
Conjiirationes, 93
Consilia, 93
Conspiracy

Abuse of procedure
barratry, 206
before 33 Ed. I, 2
case in nature of. See Case
criminal, 79 n., 154-155, 161, 208
bishop, by, 103
Common Law offence? 94-95,

101 n.

excommunication for, 102-103
history, 92-108

INDEX

215

Conspiracy (contd.)
Abuse of procedure (contd.)
criminal (contd.)

mainpernable, not, 102
pardon of, 105
sheriffs. See Sheriff
Star Chamber. See Star Cham-
ber

villainous judgment. See Vil-
lainous judgment
de Conspiratoribus Ordinatio (21
Ed. I), 26, 34, 44ra., 94, 95,
116, 162, 167
definition, 1, 30, 33, 51, 52, 59,

60, 63, 65, 66, 67, 99
Ordinacio de Conspiratoribus (33
Ed. I), 1,2, 24, 27w., 31,33,
34, 40, 44n., 66, 67, 81, 83,
93, 95, 99, 140, 145, 149, 204
Ordinance of, 1311,7
Statute of Conspirators (?2i
Ed. I), 14,22,24,28,30,31,
38,39,40,41,42,51,60, 64,
66, 81, 93, 94-95, 99, 146
Writ of conspiracy, 29-91
appeals, 13

civil proceedings, for, 55-59
classification of, 37-39
Common Law, at? 29-37
compromise, 89
criminal charges, for, 52-54
death of conspirator, 63
death of plaintiff, 88-89
decay of, 118-119
defences to
advice, 51, 80
bailiff, 80
cousin, 73 n., 77
hundredor, 78 n.
indictor, 67-70
judges, 78-80
jurors, 69, 70-71
kinship, 73 TO., 77
officials, 80-81
rumour, 73 n., 77
servant, 73 w., 77
steward, 80
witnesses, 71-78
essentials of liability, 59-87
acquittal, 83-87
combination, 59-65

! falsity, 66-81
malice, 66-81
procurement, 81-83
malicious proceedings generally,

for, 57
origin, 29-37
place of, 65
procedure, 89-91

Conspiracy (contd.)

Abuse of procedure (contd.)
Writ of conspiracy (contd.)
scope, 39-59
Statute of Consp., 38
treason, charge of, 58-59
trespass, writ of, 92
wife, against. See Wife
woman, against, 88
Generally, 37, 53, 93, 109-117
abduct, to, 3
accuse falsely, to, 115
allegiance, against, 111
cheat, to, 114, 115
embracery, for, 114, 115
extort, to, 109, 115
forge, to, 111
government, against, 116
injure, to, 117
justice, against, 172, 175
object, not unlawful, 116
ostracize, to, 109
pervert justice, to, 116
public, against, 115
public morals, against, 116
public safety, against, 116
religion, against, 111
revenue, against, 109, 114
Staples, against, 109
trade, against, 3, 111-112, 113,

114, 115, 116, 117
treason, for, 110
Constables, 103
Consuetudo, 33 n.

Contempt of court, 174-175, 211, 212
counsel, by, 175
juror, by, 176, 177, 182 sqq.
Conveyancer, barratry, 209
Coroners, 103
Council

champerty by, 144-145
corruption of, 165-166
Counsel

contempt by, 175
embracery, 161, 172
juror, as, 189
maintenance, 137, 146
Crime, and tort, 92-93
Criminal procedure, and civil, 92-93
Crown, pleas of, 92

De Ferrers, 155n.

Death of plaintiff in conspiracy, 88-89

Deceit, 33, 35, 53, 54, 57, 58, 63, 105,

119, 122, 200
Deceners, 75, 95 n.
Decies tantum, 131, 164, 165, 167, 168,

170, 172
Deciners, 95 w., 75

2l6

INDEX

Despenser, le, 104, 105

Diffinitio de Conspiratoribus (33
Ed. I). See Conspiracy, sub-
heading "Ordinacio de Con-
spiratoribus "

Doomsman, false, 4

Edgar, Laws of, 4

Edward II, feeble rule of, 102-103, 110
Edward IV, stormy reign of, 156
Embracery, 26, 156, 157, 158, 161-
175, 185, 204w.

acts not, 172

attorney. See Attorney

barons, by, 165-166

Common Law offence? 167-168

complete, when, 170-172

conspiracy, for, 114

definition, 161

derivation, 161 n.

indictment, 170, 174

kinsman, 172

lawyer, 172. See Attorney

maintenance

distinguished, 168
species of, 167, 174

manutenentia curialis, 135

modes of, 169-170

obsolete, 161

punishment, 162 sqq., 174

servant, 172

Star Chamber, 166

statutes as to, 162 sqq. See also Con-
tempt

Empson, 197
Essoin, 6

Evidence, sworn, origin of, 71
Exceptio, 16, 17
Excommunication

conspirators, of, 102-103

maintainers, of, 102-103
Exigent, 41, 103, 106
Eyre, Articles of, 93, 95, 144

Felony, false indictment of, 53
Feme covert. See Wife
Fictitious plaintiff, 211-212
Fitzherbert

Abridgement
MSS. of, 53 n.
reports, like, 62 n.

appeals, 42, 48-51

champerty, 153

conspiracy, 42, 48-51, 83, 119

embracery, 169, 170
Fleta

champerty, 141

writs, judicial, 39

13 Ed. I c. 12,7

Forgery, and conspiracy, 56, 82
Fornication, false charge of, 155
Fortescue, villainous judgment, 99
Frivolous arrests, etc., 211, 212n.

Glanvill

conspiracy, 93

maintenance, 140
Grenville Act, 1770, 133-134

Hale

autrefois acquit, 51 n.

conspiracy, 117

de odio, writ, 21, 22

jurors, 198
Hawkins

confederacy, 98

conspiracy, 40, 84, 117

contempts, 176

de odio, writ, 19

embracery, 171

jurors, 176

trafficking in titles, 159-160

13 Ed. I c. 12, 7, 9
Henry VI, feeble rule of, 107, 156
Hoketours, 203
Hundredor, 68, 78 n., 103

Impeachment, 105
Indictment

appeal, less grave than, 46

false, 4, 13-15, 52, 53, 60
Indictor

defence to conspiracy, 67-70, 81-82,

105 n.
Infant

false appeal by, 52, 60
Inlawry, 30
Inquest

false, 100, 104, 105

of office, 68, 199

John, writ de odio, 19
Judges

abuse of procedure by, 104

champerty by, 144-145

conspiracy by, 154

conspiracy, defence to, 78-80

corruption of, 151-152, 165

maintenance by, 154

offences of, 143, 145
Judicatores, 70
Jurata, 194

Jurors. See also Attaint, Decies tanturr,
Embracery

affidavit, 192-193

attaint. See Attaint

barristers, as, 189

canvassing, 191-192

INDEX

217

Jurors (contd.) ^
challenge, 178 '
conspiracy, 61, 69, 70-71, 108
conspirators excluded, 100
entertainment, 182
evidence to, 184-189
expenses, 172-174
fire, 184
illness, 180, 184
indecision of, 189-190, 196
knowledge, 188-189
maintenance, 137
misrrm jjirt^JTJj-l ffft

ar5^e7ice;i76-177, 178-180, 184,

187

affidavit of, 192-193
bias, 190-193
bribery, 175-176

lots. 189-190. 192

^on^jracy769, 70-71

contempt, a~ 176, 177, 178-180,
• TS2~sqq.

corruption. 7, 14, 15, 107

tJe&i2Cl76-177
"Separture, 178-180, 184, 187

drinking, 181-184

eating, 181-184

entertainment, 182

evidence, as to, 192, 193

evidence, reception of, 184-189
14

Imposing QUJCpurt, 189-190
-"Indecision, 189-190, 196
uriTenance, 137

iiZP

5ersonation of, 193
physic, 184
proof of, 192-193
refreshment, 181-184
refusaL

to be sworn, 177-178
to give verdict, 180-181
separation, 179-180
smoking, 179

.jailuiig with, 179, 186-188
treating, 183-184
verdict, after, 193
false, 193-199

improper, 176, 189-190, 192
perverse, 197-199
punishment for, 195-199
refusal to give, 180-181
personation of, 193
physic, 184
procurers of, 95

punishment for verdict, 195-199
refreshment, 173, 174, 178, 179,
181-184

Jurors (contd.)

separation, 179-180, 184, 187
special, 173
talking with, 186-188
threats against, 174-175
verdict. See Verdict (also " miscon-
duct" supra)

witness, as, 71, 172, 188-189, 195
Jury, trial by

writ de odio, 17 sqq.
Justices of Peace
conspiracy

defence to, 78-80
guilty of, 154
to check, 103

special sessions for livery, etc., 158
unprincipled, 107

Kelyng, 198
Kinship

appeals, in false, 12
defence to

conspiracy, 73 n., 77
embracery, 172
maintenance, 134, 148

Lancashire, false charges in, 106
Lawyers
defence to

champerty, 148

conspiracy, etc. See Advice

embracery, 172

maintenance, 148
retainer allowed, 158
Legal advice. See Advice
Leges Henri ci Primi, 4
Leicester, Earl of, 166
Lex, 33

Lilleshall, Abbot of, 4
Lincolnshire, conspiracies in, 95 n.
Livery, 1, .52, 60, 140, 156-157, 158,

161
London, complaints of citizens of, 27,

Magna Carta, 20

Maintenance, 65w., 90w., lOOw., 103,
104, 131-160

aiding malefactors, 134, 155 n.

apprentice. See Apprentice

attorney. See Attorney

bailiffs, 52, 60

barratry, 200, 202, 204, 206

civil remedy, 151

clergy, 154-155

combination for, 113

Common Law, at? 138-150

commonest, when, 161

Commons, complaint of, 140

218

INDEX

Maintenance (contd.)

complaint of, 165

confederacy, 97

conspiracy, 95, 146

Council, by, 154

counsel. See Counsel

criminal proceedings, of, 136

curtails, 131, 135-136, 167

De Conspiratoribus Ordinatio, 26

definition, 131, 136

election petition, 133-134

embracery, 162, 167, 168, 169, 174

Exchequer officials, 154n.

excommunication for, 102-103

fictitious plaintiff, 212

general, 131, 136-138

heretics, of, 134

history, 131-160

judges. See Judges

jurors. See Jurors

justices. See Justices of Peace

kin, of, 134, 148

King, by, 154

legal advice, 148

livery, 156-157

lords, 151-152

meaning, 135, 140, 144 n.

Middlesex, in, 155

neighbours, 148

Northumberland, in, 155

officials. See Officials

Ordinance of Conspirators, 60

origin, 138-150

pardon of, 105

pending plea, of, 133

pleaders. See Pleaders

rebels, of, 134

remedies

failure of, 154-157

temp. Ed. I, 150

temp. Rich. II, 150-154

ruralis, 131, 132-135, 150

special, 131, 136-138

Statute of Conspirators, 22, 23, 24,
25,40, 51, 52

statutes of, 142 sqq.

stewards. See Stewards

tenants, 134

term of pleading, 135
Malice

in appeals, 9, 10

in conspiracy, 66
Malicious prosecution, 118, 208. See

also Case
Manutenentia, 131

curialis, 135-136, 167 •

ruralis, 132-135, 150
Married woman. See Wife
Ministers. See Officers

Mirrour, The

conspiracy, 29, 30, 94

de odio, writ, 19

false appeals, 7

Misconduct of jurors. See Jurors
Misdemeanour

false indictments of, 53, 54 n.

New trial, 173, 179, 180, 182 sqq.
Norfolk, champerty in, 155
Northumberland

maintenance in, 155
Nul tiel record, 90

Odio et alia, writ de, 15-22

Officials, royal

abuse of procedure, 99
champerty, 24-25, 144-145, 147
conspiracy, defence to, 80-81
maintenance, 24-25, 132, 142-146
offences of, 151-153

Officina brevium, 36, 39

Outlawry, 30, 106

Palgrave, 99w., 104n.

Pardon, of conspirators, etc., 105

Perjury, 212

Perrers, Alice, 155

Place, of conspiracy, 89-90

Pleaders, 22

champerty, 148

maintenance, 146
Pleas

appeals, to, 16

Common, 92

Crown, of the, 92

meaning, 41
Presentment, 13 n., 14
Procedure

civil and criminal, 92-93

conspiracy, in writ of, 89-91
Procurement

conspiracy, in writ of, 81-83
Prosecutions, repeated, 207-208
Provers, 6, 7

" Quarrels," 40, 51, 103, 143, 200, 202
Quia multi per malitiam, Statute, 6
Querelae, 40

Registrum Brevium, 29 w., 34
champerty, 141 n., 141-142, 144
conspiracy, 31 sqq., 66, 81, 82
decies tan turn, 164n.
maintenance, 152-154
organic nature of, 35

Richard II, feeble rule of, 165

Rokell, John, 165 n.

Roman Law, 93, 156

INDEX

219

Romney, complaint of men of, 102
Rothell, 155 n.

Rowbery, Gilbert, 23, 25, 26
Rumour, defence to conspiracy, 73 n.,

Scots law, 201
Servant

defence to

conspiracy, 73 n., 77
embracery, 172

livery of, 158
Sheriffs

abuses by, 143, 144, 154

appeals, false, by, 6

approvers, and, 7

barratry, 202, 203

conspiracy, 79, 80, 103

corruption of, 15

duty of, 104

Smith, Sir Thomas, 197
Solicitor. See Attorney
Stanford

appeals, 7, 9, 10, 47, 50, 51

conspiracy, 40, 41, 42, 50, 51, 60w.,

66, 83
Staples, 98
Star Chamber

champerty, suppressed by, 157-158

conspiracy, 67n., 88-89

punishable in, 59w., 101-102,

107-108
suppressed by, 112-115

embracery, 166, 169, 172

jurors, punished by, 71, 195, 197-
198

maintenance suppressed by, 157—
158

misdeeds in, 157
Stewards

barratry, 202

conspiracy, 80

maintenance, 52, 60, 143

offences of, 144, 146
Subpoena, 118
Suffolk, champerty in, 155

Talesman, 176-177

Thornton, Gilbert de, 23, 25, 146

Tipstaffs, 183

Tort, and crime, 92-93

Trade

conspiracy against, 111-112, 113,
114, 115, 116, 117

dispute, 3
Treason

conspiracy to commit, 58-59, 110
Treasurer

champerty by, 144-145

Trespass

false indictment for, 53

on case, 54

writ of, 36, 53, 58, 92, 119
Tudors

check abuse of procedure, 158

Venire de novo, 193

Verdict. See also Attaint, Jurors

casting lots for, 190, 192

false, 193-199

hedging, 189-190

improper, 189-190, 192

new trial, 173

privy, 183

setting aside, 173, 182, 183, 184,

185, 193

Vexatious litigation, 207-208
Vicar, conspiracy by, 118n.
Viewer, 174, 177
Villainous judgment, 41 n., 99-102

Wat Tyler, 155
Wife

barratry, 209

conspiracy, 64, 88
Witnesses

conspiracy, defence to, 71-78

jurors, how far, 71
Women, conspiracy against, 88
Writs

abetment of appeal, 43

ad audiendunt, 20

audita querela, 33 n.

capias ad respondendum, 106

champerty. See Champerty

classification of, 57-58

conspiracy. See Conspiracy

de imprisonamento, 58 n.

de odio et atia, 15 sqq.

de vita et membris, 21

decies tantum. See Decies tantum

habeas corpus, 16, 20, 198

inlawry, 30

judicial, 38-39, 148

magistralia, 39

original, 38-39, 148

quare impedit, 57

right, of, 146

scire facias, 55, 82

subpoena, 118

trespass. See Trespass
Wymer, 3

Year Books

See Table of Year Book Cases, xxiii
Ashe's Promptuary, 52 n.
Indices, bad, 52 n.

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