SECTION II. THE KINDS OR PURPOSES OF CRIMINAL COMBINATIONS. § 2. Arrangement of this Section. Ir is proposed in this section to consider the cases on criminal combinations in the order of certain heads or kinds of subjectmatter under which they appear to have arranged themselves as they occurred; as follows: § 3. Combinations to commit conspiracy, properly so called, within the meaning of the three ancient ordinances of conspirators. § 4. Other combinations expressly prohibited by statutes now in force. § 5. The rule of the 17th century that combination for any crime is punishable. cascos 6. The question of a wider rule. 7. Examination of cases on combination against govern ment. § 8. Examination of cases on combination to pervert or defeat justice. § 9. Examination of cases on combination against public morals and decency. 10. Examination of cases on combination to defraud. 11. Examination of cases on combination to injure individuals (otherwise than by fraud). § 12. Examination of cases on combinations relating to trade and labour: (1) Restraint of trade and disturbance of markets. § 13. Examination of cases as to trade and labour continued: (2) Coercion of individuals. § 14. Summary of this section:-Lord Denman's antithesis. §3. Combinations for Conspiracy, properly so called. Em The ancient ordinances of conspirators, namely 20 Edw. 1, 28 Edw. 1, and 33 Edw. 1, which are still in force, extend only to combinations for the false and malicious promotion of indictments or suits, for embracery, or for maintenance of various kinds. bracery and maintenance are independent crimes, and they need not here be considered in detail. ( (See Pulton, and 1 Russ. by Gr. 254, 264). The word "conspiracy" was from an early date specially appropriated to false and malicious promotion of indictments for 2 LAW OF CRIM. CON. (4699) 66 felony, and it was not complete unless by the procurement of the conspirators an indictment was actually found, and the person indicted was tried and acquitted. Accordingly conspiracy is defined by Coke (3 Inst. 142-3) as a consultation and agreement between two or more to appeale or indict an innocent falsely and maliciously of felony, whom accordingly they cause to be indicted and appealed; and afterward the party is lawfully acquitted by the verdict of twelve men." The ancient judgment for this crime was the “villainous judgment" usual in attaints for crimes of falsity in relation to justice, and was as follows: 46 Ass. 11 (p. 307.) 1372. "A man was attainted of conspiracy at the king's suit by indictment, wherefore it was awarded that he lose frank-law, and that he must not be put henceforth on juries, nor on assize, nor on testimony of truth, and if he had business in the king's court he must make an attorney to sue for him, and that he approach not within twelve leagues of where the king's court is, and that his goods be seized into the king's hand, and his houses wasted, and his wife and his children ousted, and his trees cut down, and his body taken and imprisoned. But if he were attainted at suit of the party, he would have but simple judgment that the plaintiff receive his damages, and that he be imprisoned, &c." See s. p. 27 Ass. 59, p. 141b. Coke, 3 Inst. 143, adds some further circumstances of aggravation.) Even before Coke's time it had been held (1574. Sydenham) that an indictment might lie for such a combination, although the indictment preferred by the conspirators had not been found by the grand inquest; and it was finally settled by the Poulterers' Case in 1611 that the mere act of combination to commit the crime of conspiracy was punishable. During the 17th century it became further established that combinations to accuse of offences not amounting to felony might be criminal; and it remains to trace the extension which in this respect the crime of combination to commit conspiracy has received in modern times. In 1663 (Timberley) it was held that a combination falsely to charge a man with the merely spiritual crime of fornication, with intent to extort money from him, was indictable, stress being laid on the intent to injure by extortion as giving jurisdiction to the temporal court; and according to Keble, Windham, J., said it would have been the same if the combination had been to charge with heresy or to defame or disgrace him. This case was followed in 1677 (Armstrong), and in Best's Case (1705), where the intent was laid to be to obtain money and to defame; and the K. B. (Holt, C. J.) held that "a confederacy falsely to charge a man with a thing that is a crime by any law is indictable." In 1719 (Kinnersley) the court seem to have thought it essential that the charge should be of a crime of some kind. But in 1762 (Rispal) Lord Mansfield held it sufficient that there was a combination to obtain money from a man by charging him with " a false fact," "whether it be to charge a man with criminal acts or such as only may affect his reputation." In 1809 (Teal) the combination was to obtain an affiliation order by perjury; a case which may fall either under this head or under the head of combinations to pervert justice. It was anciently always held essential that the accusation should be to be made falso as well as malitiosè. But in 1825 (Hollingberry) the K. B. held that if the purpose was to extort money by indictment, it was immaterial whether the charge was true or false; and this case was followed in 1845 (Jacobs) by the Recorder of London, with the modification that the question of truth or falsity might be material for determining the question of intent. (Cp. as to indictments under the statutes for threats to accuse of crimes with intent to extort:-1843. Hamilton, 1 C. & K. 212; 1862. Menage, 3 F. & F. 310; 1866. Cracknell, 10 Cox, 408; 1868. Richards, 11 Cox, 43.) These authorities further establish that a purpose actually to prefer a charge in a competent court or in any court is not essential. In fact in most of them the purpose was to obtain money for not preferring a charge. But it would seem to be of the essence of this crime that there should be a purpose to charge publicly, and if there is any case of conspiracy to charge a man privately, that must be regarded as a case of combination to extort or to cheat. (Cp. Yates, 1853.) In the absence of intent to extort, the purpose must still be to charge falsely or without belief of reasonable grounds. "People may lawfully meet and contrive and agree to charge a guilty person," but "it is a crime for several people to join and agree together to prosecute a man man right or wrong." (1629. Tailor; Lord Holt. 1705. Best; S. P. 1823. Murray.) 1574. Sydenham v. Keilaway; to indict falsely. 1599. Amerideth to commit maintenance. 1607. Lord Gray, of Groby: to commit maintenance. 1608. Floyd v. Barker: to indict falsely. 1611. Poulterers: to indict falsely. 1612. Ashley: to indict falsely. 1629. Tailor and Towlin: to indict falsely. 1663. Timberley to charge with a bastard, with intent to extort. 1678. Armstrong: to charge with a bastard, with intent to extort. 1705. Best to charge with a bastard, with intent to extort. 1719. Kinnersley to accuse of misdemeanor, with intent to extort. 1760. Spragg: to indict falsely. 1762. Rispal: to charge with matter not criminal but defamatory, with intent to extort. 1763. Parsons: to accuse of murder. 1809. Teal to obtain an affiliation order by perjury. 1809. Stratton : to indict falsely. 1814. Askew to indict falsely. 1825. Hollingberry: to indict, with intent to extort. 1833. Ford and Aldridge, to accuse of forgery, with intent to extort. 1845. Jacobs: to indict, with intent to extort. A great number of cases of complete conspiracies, in the ancient sense, will be found in the Year Books and old Abridgments. They are now obsolete, and they are accordingly omitted both from this list and also from the Appendix. § 4. Other Combinations expressly prohibited by Statute. Besides the ancient ordinances of conspirators, statutes relatting to criminality of combination (other than trade combinations), have been of the following kinds. In the reign of George 3 several acts (1797, 37 Geo. 3, c. 123; 1799, 39 Geo. 3, c. 79; 1817, 57 Geo. 3, c. 19), were passed, which in their main scope were directed against treasonable or seditious societies, but which contain sections of the most comprehensive and stringent character. The Act of 1797 makes it felony to take or administer unlawful oaths or engagements for various purposes, including the concealment of "any unlawful combination or confederacy." The Act of 1799 enacts that every person shall be deemed guilty of an unlawful combination and confederacy who belongs or contributes to or directly or indirectly maintains correspondence or intercourse with any society (or any branch committee, officer, or member thereof as such), which requires its members to take any oath or engagement within the Act of 1797, or any unauthorized oath; or the members of which take, subscribe or assent to any test or declaration not required by law and not authorized by approval of two justices confirmed by quarter sessions; or which has any committee, or members, or officer whose names are kept secret from the society at large, or are not entered in a book open to the inspection of every member; or which is composed of different divisions or branches, or of different parts acting in any manner separately or distinct from each other; or of which any part has any separate or distinct officer; and it provides that offenders shall be liable either to summary punishment, or, upon conviction or indictment, to transportation (now penal servitude) for seven years. The Act of 1817 further provides that every society or club which elects, appoints, nominates or employs 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, representative, &c. of such other society or club, or to induce or persuade any person to become a member, shall be an unlawful combination and confederacy" within the Act of 1799, and that persons joining or directly or indirectly maintaining correspondence or intercourse with any such society or with its officers, &c., as in the Act of 1799, shall be punishable as provided by that act. 66 These acts contain some exceptions in favour of freemasons, quakers, and charities; and the 18 & 19 Vict. c. 63, s. 12, exempts friendly societies and their meetings, at which "no business whatever is transacted other than that which directly and immediately relates to the objects of the society as declared in the rules thereof, and set forth in the certified copy thereof;" and probably similar particular exemptions are contained in some other acts. Further, the Act of 1817, s. 37, provides that the Attorney-General may in any case stay proceedings, and that a Secretary of State may remit punishments in cases under that act or the Act of 1799; and the 9 & 10 Vict. c. 33 (1846), provides that proceedings for fines or forfeitures under the Acts of 1799 and 1817 must be commenced in the name of the Attorney-General. But even these safeguards seem not to extend to the Act of 1797. It is impossible to form any certain conclusion as to the extent to which the generality of the enacting words in these statutes may be limited by their preambles. The inclination of the judges in the few reported cases upon their construction (1802. Marks; 1816. Brodribb; 1834. Ball; 1834. Lovelass; 1834. Dixon) seems to have been to think that they are not so limited; and this view is supported by the fact that it was thought necessary expressly to save bodies so obviously harmless as meetings of quakers and of charitable societies. In any case their indirect effect in rendering many societies at least technically illegal, must be important; and in any conclusion which is formed as to the criminality or illegality of a society, there must be an implied reservation of the possible effect of these statutes. The Trades Union Act, and Criminal Law Amendment Act of 1871 (34 & 35 Vict. c. 31 and c. 32), appear not to contain anything to exclude their operation. But it has been ruled (1834. Ball) that a combination with reference to wages is not necessarily illegal for the purposes of the statutes of George 3. The statutes next in order of general importance are those which relate to treason and to treason-felony; but these belong to the law of treason, and they do not affect the general law of conspiracy, except by applying it to treasonable purposes. (See Mulcahy v. Reg. 1868, L. R., 3 E. & I. App. 306.) Conspiracies to murder any subject or alien either within or without the Queen's dominions are by the 24 & 25 Vict. c. 100, s. 4, punishable as misdemeanors, with penal servitude not exceeding ten, or imprisonment not exceeding two years. The statutes relating to trade combinations are reserved for future subsections-§§ 12, 13. Under this head fall the cases of treasonable combinations, and the cases of— 1802. Marks: trades union using unlawful oath. 1816. Brodribb: assembly using unlawful oath. 1834. Ball: trades union using unlawful oath. 1834. Lovelass: trades union using unlawful oath. 1834. Dixon: trades union using unlawful oath. 1852. Ahearne. conspiracy to murder. |