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persons may consult to prosecute a

of the 33 Edw. 1, stat. 2, unless it be both false and malicious. (w) And several persons may lawfully meet together and consult to guilty person. prosecute a guilty person, or one against whom there is probable cause of suspicion; but not to prosecute one that is innocent, right or wrong. (a) And associations to prosecute felons, and even to put the laws in force against political offenders, are lawful. (y)

Conspiracy to pervert the course of

justice, by producing a

false certificate

of a highway being in repair.

Argument of the counsel

for the prose

cution.

It has been held that a certificate by justices of the peace that an indicted highway is in repair, is a legal instrument, recognized by the courts of law, and admissible in evidence after conviction, when the court is about to impose a fine; and that, consequently, it is illegal to conspire to pervert the course of justice by producing a false certificate in evidence to influence the judgment of the court. The indictment stated that a highway was indicted as being out of repair, and a plea of not guilty, but that it was intended to apply to withdraw the plea and plead guilty; that two justices of the county, and two other persons, conspired to pervert the course of justice and impose on the court by producing a false certificate from the two defendants, who were justices, that the road was in repair, and that they did so. There was a verdict against the two justices, and a rule was obtained to arrest the judgment. Upon showing cause against this rule the counsel for the prosecution went at large into a discussion of the doctrine and nature of conspiracies. He said that it follows from the very nature of the offence of conspiracy that there is no charge of any specific crime, but it consists wholly in the unlawful combination; and this will appear fully by adverting to the several sorts of conspiracy to be found in the Books. 1. Where the subject-matter is neither malum prohibitum, nor malum in se, as referred to the individual; but the criminality in law arises wholly from the conspiracy. Such as an agreement to maintain each other, right or wrong; (2) or a combination amongst labourers or mechanics to raise their wages. (a) So where several conspired to hiss at the Birmingham Theatre, Lord Mansfield held it indictable, although each might have done so separately. (b) So a combination between officers in the service of the East India Company to resign their commissions was held an illegal act; and consequently a resignation tendered under those circumstances was held not to be a determination of the service. (c) 2. Where the subject-matter is not malum prohibitum, as referred to the individual, though malum in se; but the criminality in law arises from the conspiracy, such as a malicious combination against a trader to ruin him in his trade. (d) So the taking up dead bodies, even though for the purpose of science in dissecting them, is now held an indictable offence per se; (e) yet formerly it was not so considered, but even then it was held that an indictment lay for conspiracy to do so. (f) A false indictment

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(c) 4 Burr. 2472.

Rex v.

(d) 1 Stra. 144. 1 Lev. 125. Eccles, 1 Leach, 274, post, p. 124. Reg. v. Rowlands, 17 Q. B. 671, post, p. 171. (e) Rex v. Lynn, 2 T. R. 733.

(f) Rex v. Young, cited in 2 T. R. 733. This was an indictment for a conspiracy to prevent the burial of a corpse. And see a precedent for such a conspiracy, 2 Chit. Crim. L. 36.

is no crime as referred to the individual, (g) but a conspiracy for that purpose subjects the offenders to the villanous judgment. (h) The private slander of another by an individual is not indictable; but conspiring to charge another with slanderous matter is so, (i) though no legal charge be actually preferred. (j) And in this latter case it was held that the Quarter Sessions had jurisdiction over conspirators. It is the same with private immorality, which is only indictable when coupled with a conspiracy. (k) So two or more joining to do legal acts with a corrupt intent may be indicted. (1) And private deceits, coupled with a conspiracy, are indictable on that account. (m) 3. The third head of conspiracy is where the subject-matter is malum prohibitum, as referred to the individual, and the criminality in law is thereby aggravated if executed. Of this nature is the bare attempt to subvert religion, (n) or public justice; and the latter will apply to both descriptions of counts in the indictment. Such also is the endeavour to dissuade witnesses from giving evidence, (o) or the preparation of witnesses, (p) or the tampering with jurors. (q) Such are public frauds in trade, () or public cheats, (8) or deceit or collusion in the King's courts, or any consent thereto. (t) 4. Where there is a bare conspiracy unexecuted, (u) or where the conspiracy by the execution merges in a higher offence. (v) And he then argued that the offence charged against the defendants fell within the principles of the above cases. In giving his judgment in this case, Ashhurst, J., said, 'The prin- Opinions of cipal question is, whether a conspiracy to pervert the course of the judges. justice by producing in evidence a false certificate be or be not a crime? It seems to me that a greater offence can hardly be stated than that of obstructing or perverting the course of justice, on which the lives and properties of all the subjects depend.' And Grose, J., said, 'It is laid down in some of the cases that an attempt to persuade another not to give evidence in a court of justice is indictable; then it cannot be doubted but that an attempt to mislead the court by misrepresentation is equally criminal. The course of justice is perverted if the certificate of the justices be false. If they agree to certify that a road is in repair for the purpose of perverting the course of justice it is a crime and indictable; and it is not necessary that they should know at the time of such agreement that the road is out of repair; it is sufficient that they did not know that the fact which they certified to be true was true.' And Lawrence, J., said, 'The question is, whether a conspiracy to do an act from which the public may receive any damage be or be not

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904. And see Rex v. Steventon, 2 East,
R. 362.

(p) Hob. 271. 3 Inst. 106. 2 Show. 1.
(q) 1 Saund. 300. 1 Lord Raym. 148.

1 Burr. 510. Rex v. Jolliffe, 4 T. R. 285.
Co. Lit. 157.

(r) 1 Sess. Cas. 217. Comb. 16. 1
Sid. 409. 1 Ventr. 13.

(s) 5 St. Tr. 486. 1 Latch. 202. 1
Roll. Rep. 2. 2 Lord Raym. 865. 1
Barnard. 330.

(t) 3 Edw. 1, c. 29. 2 Inst. 212, 217.
(u) 1 Lev. 62, 125. 1 Vent. 304. 3
Burr. 1320. 1 Lord Raym. 379. 1 Salk.
1 Stra. 193. T. Raym. 417.
(v) 1 Lord Raym, 711.

174.

VOL. III.

I

A conspiracy

to defeat an information.

A conspiracy

to cause a person, who had been

bound over to
prosecute, not

to do so.
If the neces-
sary effect of
a conspiracy
be to defcat
the ends of

be taken that that was the object of the conspiracy.

indictable? At first I thought this a very doubtful case, because it struck me that this was an act by which the public would not suffer, as the court of the assizes were not bound to receive the certificate of the defendants, it not being on oath. But on examination it appears that the practice of receiving the certificates of magistrates respecting the state of roads, has existed as far as the memory of living persons extends, and the Books carry it still further back. I have not been able to discover how or when the practice of receiving these certificates arose; but a practice that has been adopted in the courts at least as long back as the reign of Charles the First, goes a great way to show what the law is upon the subject. And this is not the only instance of receiving certificates in evidence; certificates of bishops with respect to marriages are received; the customs of London are certified by the recorder; so formerly were certificates received from the captain of Calais; and in Cro. Eliz. 502, this court said that they would give credit to the certificates of the judges in Wales respecting the practice of their court, and that the custom of the court is a law in that court.' (w)

Where one brother had executed a conveyance of land to another for the avowed object of giving the latter a colourable qualification to kill game, and to get rid of an information then pending against him, it seems to have been considered as quite clear that they were both guilty of an indictable conspiracy. (x)

A count alleged that C. Staden, J. James, and J. Broome had been committed for trial for having, by cheating and false pretences, obtained from W. Hamp 3007., and that W. Hamp had been bound by recognizances to prosecute them; and that W. Hamp, W. Watkins, and W. Probert, intending to defeat the due course of law, did agree amongst themselves and with the wife of the said J. Broome that W. Hamp should not attend to prosecute or give evidence, and should receive, in consideration thereof, 400l. from the said wife of J. Broome; and then alleged that W. Hamp did justice, it must receive the 4007. The three following counts alleged the object to be to defeat and obstruct the due course of law. The prefatory averments were proved, and the wife of J. Broome proved that, prior to the trial for cheating Hamp, she met the now defendants at a tavern; they said that they were sorry to carry on the prosecution; and if she would give them 500l. they would not do so; and after some conversation it was arranged that a cheque for 4007. should be given, and it was given, and W. Hamp thereupon told her that they would not further prosecute her husband. W. Hamp had been bound by recognizances in 500l. to prosecute. For the defendants it was alleged that J. Broome had such influence over W. Hamp that the latter had made an affidavit exculpating J. Broome from any participation in the fraud, and that he was thus placed in the dilemma that, if he did not prosecute, he forfeited his recognizances, and, if he did prosecute, he might be indicted for perjury; and that Probert, who was his guardian, in order to extricate his ward from this position, had been a party to the compromise, but without any intention to do wrong, or to obstruct

(w) Rex v. Mawbey, 6 T. R. 619 to 638.

(x) Doe dem. Roberts v. Roberts, 2 B. & A. 367.

the course of justice. But Lord Campbell, C. J., held that, if the necessary effect of the agreement was to defeat the ends of justice, that must be taken to be the object; and the jury were directed to say, on the first and second counts, whether the defendants did agree not to prosecute as therein alleged; and on the third and fourth counts whether they conspired to obstruct and defeat the ends of justice. If they did so agree and conspire, whatever might be their private reasons, it was the duty of the jury to convict the defendants. (y)

others to

obtain security from the defendant.

Where the plaintiff had been arrested for 387. at the suit of Conspiracy by Cohen, and Blake had become bail for her, and some proceedings a bail and had been taken against him as bail, and Blake, Cohen, Swaysland, and Solomon went to the plaintiff's lodgings, and Blake said he must have his money or the plaintiff must go to gaol, and stated that Swaysland and Solomon were officers, which was not the fact; and the plaintiff being frightened, delivered to Blake a watch and other articles, and Swaysland and Solomon wrote two papers, which were signed by the plaintiff and Blake, and which papers stated that the articles were deposited with Blake as a security, and that he should be at liberty to sell them within forty-two days unless he was paid in the meantime; Lord Lyndhurst, C. B., held that, as the defendants all acted in concert, they were guilty of a conspiracy, for which they might all have been indicted. (z)

funds on a

It has been held to be an indictable offence to conspire on a Conspiracy to particular day by false rumours to raise the price of the public raise the price government funds, with intent to injure the subjects who should of the public purchase on that day, and that the indictment was well enough particular day without specifying the particular persons who purchased as the by false rupersons intended to be injured, and that the public government mours. funds of this kingdom might mean either British or Irish funds, which since the Union were each a part of the United Kingdom. After argument in arrest of judgment, Lord Ellenborough, C. J., said, 'I am perfectly clear that there is not any ground for the motion in arrest of judgment. A public mischief is stated as the object of this conspiracy; the conspiracy is by false rumours to raise the price of the public funds and securities, and the crime lies in the act of conspiracy and combination to effect that purpose, and would have been complete, although it had not been pursued to its consequences, or the parties had not been able to carry it into effect. The purpose itself is mischievous; it strikes at the price of a vendible commodity in the market, and if it gives a fictitious price by means of false rumours, it is a fraud levelled against all the public, for it is against all such as may possibly have anything to do with the funds on that particular day. Bayley, J., 'It is not necessary to constitute this an offence that it should be prejudicial to the public in its aggregate capacity, or to all the King's subjects, but it is enough if it be prejudicial to a class of the subjects. Here then is a conspiracy to effect an illegal end, and not only so,

(y) Reg. v. Hamp, 6 Cox, C. C. 167. Lord Campbell, C. J., held that the facts did not support counts charging a conspiracy to obtain money from the wife of J. Broome, with intent to cheat him of it. The first count had only the word 'agree'

and not conspire, and on its being said
that this count did not charge a con-
spiracy, Lord Campbell said, Nothing
turns on that. Conspire is nothing:
agreement is the thing."

(z) Bloomfield v. Blake, 6 C. & P. 75.

Conspiracy to impoverish the farmers of the excise.

To raise the price of oil.

Conspiracy to obtain money by procuring from the lords of the treasury the appoint

ment of a per-
son to an
office in the
customs.

Conspiracies

to commit riots.

but to effect it by illegal means, because to raise the funds by false rumours is by illegal means. And the end is illegal, for it is to create a temporary rise in the funds without any foundation, the necessary consequence of which must be to prejudice all those who become purchasers during the period of that fluctuation.' Dampier, J., 'I own I cannot raise a doubt, but that this is a complete crime of conspiracy according to any definition of it. The means used are wrong, they were false rumours; the object is wrong, it was to give a false value to a commodity in the public market, which was injurious to those who had to purchase.' (a)

In the argument upon the foregoing case an authority was cited where the defendants being acquitted of all but conspiring to impoverish the farmers of the excise, it was objected that there was no offence; but the Court held it well, because the information showed that the excise was parcel of the revenue of the crown, and so the impoverishment of the farmers of excise tended to prejudice the revenue of the crown. (b)

It seems that parties may be guilty of a conspiracy to raise the price of oil by making fictitious sales. (c)

A conspiracy to obtain money by procuring from the lords of the treasury the appointment of a person to an office in the customs is a misdemeanor at common law. The counsel for the defendant proposed to argue that the indictment was bad on the face of it, as it was not a misdemeanor at common law to sell or to purchase an office like that of a coast waiter, and that, however reprehensible such a practice might be, it could only be made an indictable offence by Act of Parliament. But Lord Ellenborough, C. J., said, If that be a question it must be debated on a motion in arrest of judgment, or on a writ of error. But after reading the case of Rex v. Vaughan, (d) it will be very difficult to argue that the offence charged in the indictment is not a misdemeanor.' And Grose, J., in passing sentence, likewise observed that there could be no doubt that the indictment was sufficient, and that the offence charged was clearly a misdemeanor at common law. (e)

Precedents are to be met with in the Books of indictments for conspiracies to commit riots. (f) And in one case, it was said by a learned judge, with respect to premeditated and systematic tumults at a theatre, that the audience have certainly a right to express by applause or hisses the sensations which naturally present themselves at the moment; and nobody has ever hindered, or would ever question, the exercise of that right. But if any body of men were to go to the theatre with the settled intention of hissing an actor or even of damning a piece, there can be no doubt that such a deliberate and preconcerted scheme would amount to a conspiracy, and that the persons concerned in it might be brought to punishment.' (g)

(a) Rex v. De Berenger, 3 M. & S. 67. R. v. Gurney, 11 Cox, C. C. 414.

(b) Rex v. Starling, 1 Sid. 174.

(c) Rex v. Hilbers, 2 Chitty Rep. 163. This was a motion for a criminal information for a conspiracy to raise the price of oil by making fictitious sales, and the court held that it must appear that two combined together, as it was no offence

for an individual separately to endeavour.
(d) 4 Burr. 2494. Vol. 1, p. 309.
(e) Rex v. Pollman, 2 Campb. 229.
(f) 2 Chit. Crim. L. 506, note (a).
See Rex v. Vincent, 9 C. & P. 91.

(g) By Mansfield, C. J., in Clifford v.
Brandon, 2 Camp. 369. Gregory v. The
Duke of Brunswick, 6 M. & G. 953.
C. B. 481. 1 C. & K. 24.

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