§ 5. Rule of 17th Century that Combination for any Crime is punishable. It has already been seen (sup. Sect. I. § 1) how in the course of the 17th century the rule established in the Poulterers' Case, that a combination to commit conspiracy was punishable, although the conspiracy had not been executed, was extended into a rule that a combination to commit any crime was punishable, although the crime had not been executed. A great number of cases are reported in which this rule has been applied. Most of them will conveniently be considered in the following paragraphs relating to particular criminal purposes, but some which do not fall within any of those groups may here be mentioned: 1682. Lord Grey: to commit abduction and procure adultery. (This case appears not to have been prosecuted as a case of conspiracy; but, assuming that it was so prosecuted, it was prosecuted as a combination to commit the offences mentioned. See inf. p. 106.) 1809. Pollman: to commit the misdemeanor of obtaining money for 1820. King: to poison horses (9 Geo. 1, c. 22). 1830. Maudsley: to poison. 1848. Brittain: to commit forgery. 1848. Button: by workmen to dye goods for their own profit with the master's dyes. 1851. Thompson: by removing customable goods without payment of duty (3 & 4 Will. 4, c. 120). 1864. Kohn: to commit barratry with intent to defraud underwriters (24 & 25 Vict. c. 97, ss. 42-4). 1868. Desmond: to commit prison breach. 1871. Boulton: to commit unnatural crime. 1871. Taylor: to steal (see the case and quære). With respect to these cases, it need only be observed, that since the establishment of the doctrine that a combination to commit any crime is indictable as a criminal confederacy or combination, notwithstanding that the proposed acts may have been criminal only by virtue of some statute, the criminal combination has always been described as a common law crime, in the sense that it need not conclude contra formam statuti (1721. Journeymen Tailors of Cambridge, and all the later cases), and that it is punishable as a misdemeanor at common law and not in the manner in which the proposed crime would be punishable; and it was held in 1851 (Thompson), that the repeal of the statute before the trial of the indictment for the combination to infringe its provisions was no bar to the trial. Lord Campbell observed, that this rule might have the effect of indirectly avoiding a limitation of time prescribed by a statute for the prosecution of offenders against its provisions; and the case before the court afforded an instance of that result. crime is The expression, that a conspiracy or combination to commit a whether the proposed crime is or is not statutory; whence it follows, that when a combination is said to be criminal at common law, it is not necessarily implied that the criminality of the combination does not depend on the fact that the combination is for violation of a statute. criminal at common law, is applied without regard to It will be seen below (§ 13), that in numerous cases violations of statutes relating to labour have been punished by way of indictment for conspiracy; but it does not appear, that in any other case, except perhaps in cases under the Revenue Acts, persons have been indicted for combining to violate provisions of a statute for the breach of which the statute prescribes only a summary penalty or punishment. § 6. The Question of a wider Rule. It has already been seen, that during the 18th century, an impression obtained currency that a combination might in many cases be criminal, although the acts proposed would not be criminal in the absence of combination. The most convenient mode of dealing with this subject seems to be firstly to examine the decisions and dicta under each of the several groups in which the cases bearing on the question have arranged themselves (§§ 7-13); and, secondly, to examine (§ 14) certain more general expressions which do not purport, or which are cited as not purporting, to be confined to any or all of these special groups. §7. Examination of Cases on Combinations against the Cases which have a bearing on the question, whether in matters of a directly public nature, combinations may be criminal which are for acts not criminal apart from combination, are the following: 1665. Starling: combination to lessen the king's revenue. 1769. Vertue v. Lord Clive: combination by officers to throw up their commissions in time of danger. 1814. De Berenger: combination to disturb the funds by false rumours. 1839. Vincent: 1840. Shellard. Combination to excite disaffection or insurrection. 1844. O'Connell: The origin of the doctrine that a combination may be criminal which is directed against the public as a whole or against the gov ernment is to be found in the case of the Brewers of London (1665. Starling), where the indictment set out that the excise had been settled by parliament on the king as part of his revenue, and that the defendants conspired to depauperate the farmers of the excise. The K. B. after several debates gave judgment for the crown on the ground that the effect of depauperating the farmers of the excise must necessarily be to make them incapable of rendering the king his revenue, and so the offence (as Lord Holt says of it in 1704. Daniell) was "directly as a publick nature and levelled at the government, and the gist of the offence was its influence on the publick." On the same ground in the cases of Vincent (1839), Shel lard (1840), and O'Connell (1844), combinations to excite insurrection or disaffection have been held indictable. It is worthy of observation that the purposes imputed by the court to the defendants in Starling's Case in 1665 seem, according to the doctrines of those times as shown in the "Case of Currants" (1707. Bates; Lane, 22), to have been regarded as punishable independ ently of combination (Cp. the Exchequer Act, 33 Hen. 8, c. 39, sup. Sect. I. § 1); and that according to authorities of the 17th century the use of seditious language, as in the cases of Vincent, Shellard and O'Connell, would also have been indictable without combination. (1662. Field, 1 Sid. 69; 1679. Harrington, 1 Ventr 324.) In Vertue's Case (1769) the whole of the officers of the East India Company's service in command of Sepoys, with the exception of the field officers, combined to throw up their commissions at once at a time of public danger, and before the expiration of the period for which they had received advanced pay, on the ground of a griev ance with respect to allowances. The question came before the K. B. whether such resignations were operative to release the officers from their duty to obey orders. Lord Mansfield, C. J., and Aston and Willes, JJ., held, that under the Indian Mutiny Act then in force the officers were not at liberty to resign under all circumstances; and that the circumstances of public danger and of general combination to resign made such resignations inoperative. Yates, J. went further, and said that this combination was criminal. De Berenger's Case (1814) is mentioned here because some of the observations made in it refer to the injury which the public may receive from disturbance of the funds by false news. But according to a series of cases from the 14th century downwards, the circulation of false news, especially if the purpose is to disturb markets or prices, is indictable irrespectively of combination; and so this case appears to fall within the rule of the criminality of combinations to commit crimes. (See 1369. Lumbard's Case; 1620. Maddock, 2 Rol. Rep. 107; Jenk. 1 Cent. 93; 1680. Harris, 7 St. Tr. 999, by all the judges; 7 & 8 Vict. c. 24, s. 4; Cp. 1800. Waddington, 1 East, Rep. 154). These cases appear not perhaps to establish but still to tend strongly to establish a rule that combinations directed against the government or public safety may be criminal, although the acts proposed might not be criminal in the absence of combination : but they furnish no indication of the limits of the rule, supposing it to exist. § 8. Examination of Cases on Combination to pervert or defeat Justice. The next group consists of cases on combinations to pervert or defeat the administration of justice ;--a kind of combination which is in pari materiû with those against which the original ordinances of conspirators were directed. To this group belong the cases of combination. 1796. Mawbey: by justices, to influence the King's Bench by false certificates of the repair of a road. 1802. Steventon: to obstruct justice by persuading a witness for the crown in an information not to appear. 1804. Locker: to procure a ward in chancery to marry one of the defendants. 1807. Claridge v. Hoare: to prevent a prosecution. Eldon.) (Dict. by Lord 1814. Wade v. Broughton: stealing a ward in chancery for the sake of her fortune. (Dict. by Lord Eldon.) 1818. Kroehl "to procure the discharge of the defendant K. from 1819. Roberts v. Roberts: to get rid of an excise information by creating 1826. Bushell v. Barrett: to buy off witnesses on an information for 1837. Murphy: to prevent levy of a church rate by libelling the collector and inciting persons to resist him. 1852. Hamp: to obstruct justice by paying a witness to forfeit his recognizances for appearance at a criminal trial. In the cases of Mawbey, Steventon, The Queen, Thomas, Bushell and Hamp, it seems clear that the acts proposed were indictable at common law apart from the combination. (See Vin. Abr. Ind. (E.) 4; 1726. Dupee, 2 Sess. Ca. 11; Fitzgib 263; 1807. Omeally v. Newell, 8 East, 364; 1801. Higgins, 2 East, Rep. 5; 1791. Jolliffe, 4 T. R. 285.) So in the cases of Locker and of Wade v. Broughten. (See 1738. (See 1728. Pierson, Andr. 310, 2 Stra. 1107; 1729. Harris, 2 P. Wms. 560.) In the case of Roberts v. Roberts the false deed must have been proved by perjury before it could have been used as a defence to the information, and even if it had been used so as to deceive the court without actual perjury, its use would seem to be within the principle of Omeally v. Newell, cited above, or of Mawbey (1796). The case of Kroehl is too briefly reported for it to be possible to say whether the act proposed was indictable without combination. (See Fawcett, 2 East, P. C. 862.) In Claridge v. Hoare, it must be presumed that Lord Eldon was referring either to composition of felony or to the use of improper means, such as those used in the cases of Steventon and Hamp. Lastly, in Murphy's Case there was not only a libel but also an incitement to riot. On the whole it is conceived that all these are cases in which the acts proposed were, at the times when the cases were decided, punishable on indictment or information, or at least as contempts of court. But it seems possible that, in matters of this nature, the criminal courts would not hold themselves strictly bound by these limits, and that combinations for such acts on the verge of criminality might be held indictable, although the acts might be not indictable apart from the combination. It is conceived, however, that some kind of falsity or violence or abuse of process of the court would be necessary. And here the difficulty recurs of obtaining any distinct and definable limitation when once the established lines of the ordinary criminal law are overstepped. § 9. Examination of the Cases on Combination against Public Morals and Decency. Cases of combination for acts grossly in violation of public morals or decency are the following: 1763. Delaval: to make a colorable assignment of a female apprentice for 1780. Young: by officers of a workhouse to prevent the burial of a corpse. 1864. Howell: to procure an unmarried girl of 17 to become a common It can hardly be doubted that in the three former of these cases the acts proposed were indictable at the dates of those cases, independently of combination, on the principle established in the cases of Sedley (1664. 1. Sid, 168; 1616. Bagg), and many other cases, that conduct grossly contrary to public morals or public decency was punishable irrespectively of combination. It can hardly be doubted, for example, that the master of a female apprentice would have been indictable, in 1763, even if he would not now be indictable, if he induced his apprentice to practise prostitution for his profit, and this was in substance the conduct of the principal defendant in Delaval's Case. Lord Mansfield, indeed, there relied on a then recent case, in which a prosecution had been directed of a man who had made an assignment of his wife to another man. (Cp. further as to this class, 1692. Johnson, Comb. 377; 1788. Lynn, 2 TA |