Lecture bigamy.1 V. In 1841 Lord Cardigan, when on trial before the peers in respect of a duel, might, it was thought, if he had been found guilty, have escaped punishment by pleading his privilege.2 The existence of these fictions, survivals, and abuses, during a period of legal stagnation, is hardly more noteworthy than the fact that many of them were not abolished till well after the commencement 4 of the era of Benthamite reform. Benefit of clergy remained in force till 1827.3 Entails were barred by fictitious actions up to 1833. Privilege of Peerage was not abolished till 1841.5 John Doe and Richard Roe, with all the fictions which used to give an antiquarian interest to the action of ejectment, haunted our courts till 1852, that is, till well within the memory of lawyers now living. Slow, indeed, even in the days of legislative activity, was the effective movement of opinion in favour of reform. (C) Why considerable changes took place during the Period of Quiescence How did it happen that the period of quiescence is nevertheless marked by several far-reaching changes in the law? The answer in general terms is this: These innovations are of two different classes and due to two different causes; some of them are reactionary laws, the fruit of and congenial to the panic-stricken toryism 2 See Stephen, Hist. i. p. 462. 4 3 & 4 Will. IV. c. 74. 1 20 State Trials, 379. 5 4 & 5 Vict. c. 22. 6 Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76. V. which had cast into the background the Blackstonian Lecture optimism of an earlier date; others are reforms either necessitated (as was to all appearance the Act of Union with Ireland) by the irresistible requirements of the day, or else demanded by, and a concession to, the humanitarianism which from 1800 onwards exerted an ever increasing influence. Reactionary Laws.-Of such legislation let us take two examples. The first is the Combination Act of 1800, which derives special importance from its intimate connection with the subsequent development of the combination law-a branch of the law which has been affected in a very marked degree by changes in public opinion. The second is the body of laws known as the Six Acts. The Combination Act, 1800, 40 Geo. III., c. 106,2 which must be read in connection with the law of conspiracy as then interpreted by the judges, aimed in reality at one object, namely, the suppression of all combinations of workmen, whether transitory or permanent, of which the object was to obtain an advance of wages or otherwise fix the terms of employment; it was an Act for the suppression of strikes and of trade unions. The severity of the statute can be realised only by a minute examination, which would be alien to my present purpose, of its different provisions. Two illustrations may suffice. Under the Act it is made an offence (if we put the matter shortly) to assist in maintaining men 1 See Lects. VI. and VIII. post. 2 It re-enacts in substance the Combination Act of 1799, 39 Geo. III, c. 81. See generally as to the Combination Act, 1800, Stephen, Hist. iii. 306; Wright, 12. V. Lecture on strike:1 persons guilty of this or any other offence under the Act are made liable to conviction on summary procedure before justices of the peace." One feature of the great Combination Act is sometimes (because of its small practical importance) overlooked. The statute imposes a penalty upon combinations among masters for the reduction of wages or for an increase in the hours or the quantity of work. To an historian of opinion this provision is of importance. It shows that in 1800 Parliament was in theory opposed to every kind of trade combination. Behind the Combination Act and this is a matter of primary importance-there stood the law of conspiracy. As to the exact nature of this law, as then understood, it would be rash to express one's self with dogmatic assurance. There are one or two features, however, of the combination law, as it stood in 1800, of which it may be allowable to speak with a certain degree of confidence. 3 1 Stephen, Hist. iii. 208. 2 The maintenance of this summary jurisdiction is a feature of subsequent Combination Acts (5 Geo. IV., c. 95, s. 7; 6 Geo. IV., c. 129, s. 6; Conspiracy and Protection of Property Act, 1875, & 10). Under the last Act, however, the accused has the option of trial on indictment before a jury (see, for the reasons in favour of this summary jurisdiction, Report of Committee on Combination Laws, 1875, pp. 10, 11). The desirability of obtaining a ready method for the punishment of trade offences, which could only be effected by Act of Parliament, should be noted. It invalidates the argument that conduct made an offence under e.g. the Combination Act, 1800, could not be an offence at common law, since if punishable at common law it would not have been made an offence by statute. 3 Sir William Erle, Sir Robert S. Wright, Sir J. F. Stephen, all eminent judges, have each published on this subject books of authority, A study of their writings leaves on my mind the impression that these distinguished authors have each arrived at somewhat different conclusions. V. The law of conspiracy had by the end of the Lecture eighteenth century received under judicial decisions a very wide extension.1 A conspiracy, it is submitted, included in 1800 a combination for any of the following purposes; that is to say: (1) For the purpose of committing a crime.2 3 (2) For the purpose of violating a private right in which the public has a sufficient interest, or, or, in other words, for the purpose of committing any tort or breach of contract which materially affects the interest of the public.* (3) For any purpose clearly opposed to received morality or to public policy." 1 Wright's Law of Criminal Conspiracies-published before, but not republished after he was raised to the bench-contains elaborate arguments to show that this extension was illegitimate, and was not really supported by the authorities on which it is supposed to rest. From a merely historical point of view these arguments have great force, but from a legal point of view their effect is diminished by the reflection that similar arguments if employed by a lawyer of as wide historical information and of as keen logical acumen as Sir R. S. Wright, would shake almost every accepted principle of English law, in so far as it does not depend upon statute. In any case Wright's arguments are for my present purpose irrelevant; my object is to state, as far as may be, not what the law of conspiracy ought to have been, but what it was in 1800. 2 "It is undisputed law that a combination for the purpose of "committing a crime is a crime" (Erle, Trade Unions, 31), and this whether the crime is known to the common law or is created by statute. 3 Erle, 32. 4 It is arguable in spite of Turner's case, 13 East, 228, that a combination to commit any tort, or for the breach of any contract, with a view to damage any person, is a conspiracy, but it is not necessary for our purpose to state the law as widely as this. Kenny, Outlines of Criminal Law, 288-290. 5 Erle, 33, 34. See The agreements which at the present day may be held to constitute a conspiracy have been thus summarised : (1) Agreements to commit a substantive crime (R. v. Davitt, 11 H Lecture V. Since a combination to commit a crime is ipso facto a conspiracy, it follows that a combination for any purpose made or declared criminal by the Combination Act, 1800, e.g. a combination to collect money for the support of men on strike, was in 1800 an undoubted conspiracy. If we bear these features of the law of conspiracy in mind and recollect that the Combination Act was not intended to render unlawful any bargaining, e.g. as to the rate of wages, between an employer and an individual workman, the combined result of the Combination Act, 1800, and the law of conspiracy, or, in other words, of the combination law as it stood at the beginning of the nineteenth century, may be thus broadly summed up: Any artisan who organised a strike or joined a trade union was a criminal and liable on conviction to imprisonment; the strike was a crime, the trade union was an unlawful association. The whole idea on which the law rested was this: Cox, 676; R. v. Whitechurch, 24 Q.B.D., 420), e.g. a conspiracy to steal or to incite one to steal. (2) Agreements to commit any tort that is malicious. (3) Agreements to commit a breach of contract under circumstances which are peculiarly injurious to the public. (4) Agreements to do certain other acts which, unlike those hitherto mentioned, are not breaches of law at all, but which nevertheless are outrageously immoral, or else in some way extremely injurious to the public. See Kenny, 288-290. The definition attributed to Lord Denman of a conspiracy as a "combination for accomplishing an unlawful end, or a lawful end by "unlawful means" (see Wright, 63) is, it is submitted, sound, though too vague to be of much use. Its importance lies in the emphasis it lays on the object or purpose-a very different thing from the motive -of a combination as a test of its criminal character, and in the light which it throws on the wide extension given by the law to the idea of conspiracy. |