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“ of this act, appear before some justice of the peace or ma“ gistrate, and declare the same, and the oath or engagement so “ taken, and when and where the same was taken, and in what “ manner, and who shall, at the same time, take before such jus“ tice of the peace or magistrate, the oath of allegiance to his ma“ jesty, shall be and is hereby indemnified against any prosecution “ for any offence under the said recited act or this act; and no “ confession so made by any such person shall be given in evi“ dence against the person making the same in any court, or in “ any case whatever.”-Sect. 3.
“ Persons aiding and assisting at the administering of any such “ oath or engagement as aforesaid, and persons causing any such ~ oath or engagement to be administered, though not present at " the administering thereof, shall be deemed principal offenders, “ and shall be tried as such, and, on conviction thereof by due “ course of law, shall be adjudged guilty of felony, and shall " suffer death as felons, without benefit of clergy, although the “ person or persons who actually administered such oath or en“ gagement, if any such there shall be, shall not have been tried " or convicted.”—Sect. 4.
“ And be it further enacted, that it shall not be necessary in “ any indictment against any person or persons administering or “ causing to be administered or taken, or taking any such oath or " engagement as aforesaid, or aiding or assisting at, or present at “and consenting to the administering or taking thereof, to set “ forth the words of such oath or engagement, and that it shall be “ sufficient to set forth the purport of such oath or engagement, “ or some material part thereof."-Sect. 5.
“ Provided always, that any engagement or obligation what“soever, in the nature of an oath, purporting or intending to “ bind the person taking the same to commit any treason or .“ murder, or any felony punishable by law with death, shall be “ deemed an oath within the intent and meaning of this act, in “ whatever form or manner the same shall be administered or “ taken, and whether the same shall be actually administered by “ any person or persons to any other person or persons, or taken “ by any other person or persons without any administration " thereof by any other person or persons.”-Sect. 6.
“ Provided also, that any offence committed against this act, *« on the high seas, or out of this realm, or within that part of * Great Britain called England, shall and may be prosecuted, " tried, and determined before any court of oyer and terminer " and gaol delivery, for any county, in that part of Great Britain “ called England, in such manner and form as if such offence had “ been therein committed ; and if committed in that part of “ Great Britain called Scotland, shall and may be prosecuted, “ tried and determined, either before the Justiciary Court at “ Edinburgh, or in any of the circuit courts in that part of the “ united kingdom.”—Sect. 7.
“ Provided also, and it is hereby declared, that any person “who shall be tried and acquitted or convicted of any offence “ against this act, shall not be liable to be indicted, prosecuted, GG
or tried again for the same offence or fact, as high treason or "misprision of high treason ; and that nothing in this act con“ tained shall be construed to extend to prohibit any person
guilty of any offence against this act, and who shall not be tried “ for the same as an offence against this act, from being tried for “ the same as high treason or misprision of high treason, in such “ manner as if this act had not been made.”. Sect. 8.
By stat. 57 Geo. 3. c. 19. s. 24. it is recited, “ That whereas “ divers societies or clubs have been instituted in the metropolis “ and in various parts of the kingdom, of a dangerous nature and
tendency, inconsistent with the public tranquillity, and the ex“ istence of the established government, laws, and constitution of “ the kingdom; and the members of many of such societies or “ clubs have taken unlawful oaths and engagements of fidelity “ and secresy, and have taken or subscribed, or assented to,
illegal tests and declarations; and many of the said societies or “ clubs elect, appoint, or employ committees, delegates, repre“sentatives, or missionaries of such societies or clubs to meet, “confer, communicate, or correspond with other societies or “ clubs, or with delegates, representatives, or missionaries of “such other societies or clubs, and to induce and persuade other
persons to become members thereof, and by such means main“ tain an influence over large bodies of men, and delude many “ ignorant and unwary persons into the commission of acts “highly criminal. And whereas certain societies or clubs calling “ themselves Spenceans, or Spencean Philanthropists, hold and “ profess for their object the confiscation and division of land, " and the extinction of the Funded property of the kingdom: And “ whereas it is expedient and necessary that all such societies or “ clubs as aforesaid, should be utterly suppressed and prohibited “ as unlawful combinations and confederacies, highly dangerous " to the peace and tranquillity of this kingdom, and to the consti“tution of the government thereof, as by law established; be it “ enacted, that from and after the passing of this act, all societies
or clubs calling themselves Spenceans, or Spencean Philan
thropists, and all other societies or clubs, by whatever name or “description the same are called upon or known, who hold and
profess, or who shall hold and profess the same objects and “ doctrines, shall be, and the same are hereby utterly suppressed “ and prohibited, as being unlawful combinations and confe“ deracies against the government of our Sovereign Lord the “ King, and against the peace and security of his majesty's liege
“From and after the passing of this act, all and every the said “ societies or clubs, and also all and every other society or club now “established or hereafter to be established, the members whereof “shall be required or admitted to take any oath or engagement “ which shall be an unlawful engagement, within the meaning of
an act passed in the Thirty-seventh year of his Majesty's reign,
(37 Geo. 3. c. 123.) or within the meaning of an act passed in “ the Fifty-second year of his present Majesty's reign, (59 Geo. " 3. c. 104.) or to take any oath not required or authorized by “ law; and every society or club, the members whereof, or any of
“them, shall take or in any manner bind themselves by such oath
or engagement, on becoming, or in order to become, or in con
sequence of being a member or members of such society or “ club, and every society or club, the members or any member “ whereof shall be required or admitted to take, subscribe, or “ assent to, or shall take, subscribe, or assent to any test or “ declaration not required or authorized by law, in whatever man
ner or form such taking or assenting shall be performed, whether " by words, signs, or otherwise, either on becoming or in order to “ become, or in consequence of being a member or members of “ any such society or.club; and every society or club that shall “elect, appoint, nominate, or employ any committee, delegate “ or delegates, representative or representatives, missionary or “ missionaries, to meet, confer, or communicate with any other “society or club, or with any committee, delegate or delegates, “ representative or representatives, missionary or missionaries, of “ such other society or club, or to induce or persuade any person “ or persons to become members thereof, shall be deemed and “ taken to be unlawful combinations and confederacies, within the
meaning of an act passed in the Thirty-ninth year of the reign “ of his present Majesty, (39 Geo. 3. c. 79.) and shall and may be See this act ur.
prosecuted, proceeded against, and punished, according to the der title, “un
provision of the said act; and every person who, from and after lawful Assem“ the passing of this act, shall become a member of any
ciety or club, or who, after the passing of such act, shall act as “ a member thereof, and every person who, from and after the
passing of this act, shall directly or indirectly maintain correspondence or intercourse with any such society or club, or with any committee or delegate, representative or missionary, or with any officer or member thereof, as such, or shall by contribution
money or otherwise, aid, abet, or support such society or “ club, or any members or officers thereof as such, shall be “ deemed guilty of an unlawful combination and confederacy “ within the intent and meaning of the said act, passed in the “ Thirty-ninth year of his majesty's reign, (39 Geo. 3. c. 79.) and " shall and may be proceeded against, prosecuted, and punished,
according to the provision of the said act with regard to the prosecution and punishment of unlawful combinations and confederacies.”-Sect. 25.
Indictment. The indictment for a conspiracy, after stating that the parties confederated combined and conspired, and the purpose of the conspiracy, usually goes on to state that, “ In pursuance of such conspiracy they did”-and then states the overt acts. But this form is not necessary, it is sufficient to state merely the conspiracy and for what purpose. In the King v Eccles (Willes's Rep. 58. n. a) the indictment was for conspiring by indirect means to prevent one H. B. from following the trade of a Tailor. It was moved in arrest of judgment, that the means were not stated, and it was likened to the case of false tokens, under the st. H. 8. where it had been held that the false tokens used must be stated in the indictment. By Lord Mansfield “the conspiracy is stated and its object; it is not necessary that the means should
be stated.” Buller, J.“ If there be any objection it is that the indictment states too much, it would have been good certainly if it had not added by indirect means, and that will not make it bad.”
The venue must be laid where the conspiracy was, not where it was put in execution. (1 Salk. 174.)-But where a conspiracy is laid in one county, and acts of force of some of the conspirators proved there; acts done by other conspirators in another county may be given in evidence. (4 E. R. 171.)
6. Of Maintenance. Co. Lit. 268. 2.
Maintenance is commonly taken in an ill sense, and, in geInst. 208. 212. neral, seemeth to signify an unlawful taking in hand, or uphold563.
ing of quarrels or sides, to the disturbance or hinderance of common right.
Maintenance is said to be twofold. Co. Lit. 36. Sect. 2. First, Ruralis, or in the country; as where one 2 Inst. 213. assists another in his pretensions to certain lands, by taking or 1 Ric. 1. c. 4. holding the possession of them for him by force or subtilty; 2 Ric. 215.
where one stirs up quarrels and suits in the country, in relation to matters wherein he is no way concerned: and this kind of maintenance is punishable at the king's suit by fine and im prisonment, whether the matter in dispute any way depended in
plea or not, but is said not to be actionable. Pult. 25.
Sect. 3. SECONDLY, Curialis, or in a court of justice; where 2 Inst. 212.563, one officiously intermeddles in a suit depending in any such court 2. R. Abr. 115. which no way belongs to him, by assisting either party with
money, or otherwise, in the prosecution or defence of any such suit.
Of this second kind of maintenance there seem to be three
species : Co. Lit. 368. FIRST, Where one maintains another without any contract to
have part of the thing in suit, which generally goes under the common name of Maintenance.
SECONDLY, Where one maintains one side, to have part of the thing in suit, which is called Champerty.
THIRDLY, Where one laboureth a jury, which is called Embracery.
For the better understanding of the First of the abovementioned species, I shall examine,
1. What shall be said to amount to an act of maintenance. 2. In what respects some such acts may be justified.
3. How far offences of this kind are restrained by the common law.
4. How far by statute.
As to the First Point, viz. What shall be said to amount to an act of maintenance.
Sect. 4. It seemeth clear, that whosoever assists another with money to carry on his cause, as by retaining one to be of counsel for him, or otherwise bearing him out in the whole or part of the expense of the suit, may properly be said to be guilty of an act of maintenance, as it seems to be taken for granted in
(a) 28 H. 6.7. the (a) books cited in the margin. 34 H. 6. 25. 26. 9 E. 4. 32. 21 H. 7. 40. 6 E. 4. 5. 19 E. 4. 3. 31 H. 6. 9. B. Maint. 7. 14 17. 20. 24. 43. 44.52. 2 R. Abr. 118. 6 Mo. D. 2 Rol. 77.
Sect. 5. Also it is said, that not only he who lays out his money to assist another in his cause, but also that he who by his friendship or interest saves him that expense which he might (b) 28 H. 6.7. otherwise be put to, or but endeavours so to do, is also guilty 23 of maintenance; as where (6) one persuades, or but endeavours 9 E. 3. 32. to persuade, a man to be of counsel for another gratis.
Main. 6. 7. 20. Sect. 6. Also it is said, that all such persons may properly be called maintainers, who give, or but endeavour to give, any other kind of assistance to either of the parties in the management of the suit depending between them: as (c) by opening (c) 22 H. 6. 5. .
Ariouslu Main. 14. the evidence to the jury; or by (d) giving evidence officiously M
Y c. Eliz. 735. without being called upon to do it; or by speaking in the cause id) 28.4.6. 6. (e) as one of the counsel with the party; or by (f) retaining an 11 H. 6.41. attorney for him ; or (g) perhaps by barely going along with
Main. 10. him to inquire for a person learned in the law.
2 R. Abr. 118. (2) Het. 78. 79. (f) 1 R. Abr. 593. (8) 19 E. 4. 3. 12 E. 4. 14. Het. 79. Sect. 7. Also it hath been said, that those shall come under the like notion, who give any public countenance to another in relation to any such suit; as where one of great power and interest says (h) publicly, that he will spend twenty pounds on
Main. 14. one side, or that he will give twenty pounds, to labour the jury, Main. 8. whether in truth he spend one penny or not; or where such a (i) 22 H. 6.6. person (i) comes to the bar with one of the parties, and stands 10
18 19 E. 4. 3. by him while his cause is tried, whether he say any thing or not; Main. 51. for such kinds of practices do not only tend to discourage the other party from going on in his cause, but also to intimidate juries from doing their duty.
Sect. 8. But it seems that a bare (k) promise to maintain (k) 9 H. 7. 18. another is not in itself maintenance, unless it be either in re- B. Champ. 9. spect of the public manner in which, or the power of the person by whom, it is made. mit is made.
. Sect. 9. Also it is said to be as much maintenance for a (?) (1) B. Main. 40
18 E. 4. 1. 2. juror, as for any other person, to solicit a judge to give judg- 1 ment according to the verdict, because after a juror has given B. Main. 39. his verdict he has nothing more to do.
Sect. 10. But it is said to be no maintenance for a juror to exhort his companions to join with him in giving such a verdict as seems to him to be right. Sect. 11. However it seems clear, (m) that a man is in no (m) 12 E. 4. 14.
maintenance for 19 E. 4. S. danger of being judged guilty of an act of maintenance for
H. 6. 5.
E. 4. 5.