that the fair annual value of the property was about 2001. a year, but another witness stated that it was badly let, and believed it was worth more than 300l. a year, and that he told the defendant so, and that he did not think that the defendant had any reason to believe that the qualification, in point of value, was not sufficient. It was held, that the jury must be satisfied, beyond all doubt, that the property was not of the value of 300l. a year, and that at the time the defendant made the statement, he knew that it was not of that value. (s) sons. The The first count of the indictment, founded upon the 5 & 6 Wm. 4, c. 62, s. 13, charged that the defendant, being a justice of the peace, did unlawfully administer to and receive from J. Huxtable a certain voluntary oath touching certain matters and things whereof the defendant had not jurisdiction or cognizance by any statute. The second and third counts were slightly varied, and the fourth count negatived the proviso in sec. 13. There were other counts charging the defendant with administering oaths to two other perThe defendant had made a complaint to the bishop against two clergymen, who officiated in his parish, that one had played at thimble-rig, and that both had neglected the duties of the parish. The bishop intimated that, before he could call on the clergymen to answer the complaint, the defendant must either bring before him the persons who proved the charges, or obtain statements in writing of the facts. The defendant obtained statements from the three persons mentioned in the indictment, and swore them before himself, as a justice of the peace, to the truth of the statements. bishop had before appointed a day for hearing the charges, and had summoned the clergymen to attend; but on finding that the depositions had been thus sworn, he declined to look at them; he went, however, into the charges on other evidence. It appeared, that the defendant was ignorant of the statute rendering the administering voluntary oaths illegal. It was contended, that the enacting part of the statute must be construed with reference to the preamble; that the enacting clause, which prohibits "any justice of the peace, or other person," from administering oaths, other than in matters over which jurisdiction was given by statute, if taken by itself, would render unlawful the taking of many oaths which could be administered by the common law, that the enactment construed together with the proviso, was still too stringent, and that the enactment and proviso must be governed by the preamble. Coleridge, J., in summing up, said, he was of opinion, that the enacting part of the statute was not governed by the preamble; that he considered the enacting part of the section and the proviso preserved to justices of the peace all the jurisdiction they had, as well at the common law as by statute, to administer oaths; and that the inquiry before the bishop was clearly a matter in respect of which the defendant had no jurisdiction, either at common law, or by statute. He directed the jury, that, if they were satisfied the defendant did administer the oaths, they should find him guilty. The jury found the defendant "guilty of inadvertently administering an oath or oaths;" and Coleridge, J., held that that was a verdict of guilty. (t) (t) Reg. r. Nott. 1 C. & Mars. 298. See the section, ante, p. 617. Indictment against a magistrate for administering an oath contrary to the & 6 Wm. 4, c. 62, s. 13. CHAPTER THE SECOND. conspiracy. OF CONSPIRACY. Descriptions of THE conspiring to obstruct, prevent, or defeat the course of public justice; (a) to injure the public health, as by selling unwholesome provisions; (b) or to effect any public mischief, as by raising the price of the public funds by illegal means; (c) are offences punishable by indictment. And it appears that an indictment lies, not only wherever a conspiracy is entered into for a corrupt or illegal purpose, but also where the conspiracy is to the effect a legal purpose by the use of unlawful means: and this, although such purposes be not effected. (d) And it is laid down in a book of great authority that all confederacies whatsoever "wrongfully' to 'prejudice" a third person are highly criminal at common law; as where divers persons confederate together by indirect means to impoverish a third person, or falsely and maliciously to charge a man with being the reputed father of a bastard child, or to maintain one another in any matter, whether it be true or false. (e) The conspiracy The conspiracy or unlawful agreement, though nothing be done in prosecution of it, is the gist of the offence. (f) The nature of conspiracy, therefore, requires that more than one person should be concerned in it. In many cases an agreement to do a certain thing has been considered as the subject of an indictment for a conspiracy, though the same act, if done separately by each individual without any agreement amongst themselves, would not have been illegal; as in the case of journeymen conspiring to raise their wages, each may insist on raising his wages if he can, but if several meet for the same purpose it is illegal, and the parties may be indicted for a conspiracy. (g) It has been (a) Rex v. Mawbey and others, 6 T. R. (b) Reg. v. Mackarty and Fordenbourgh, (c) Rex v. De Berenger and others, 3 M. & S. 67. (d) Rex v. Journeymen Tailors of Cambridge, 8 Mod. 11. Reg. v. Best, 2 Lord Raym. 1167, 6 Mod. 185. 1 East, P. C. c. 11, s. 11, p. 462. But an action will not lie for a conspiracy unless it be put in execution, 9 Co. 57. W. Jones, 93. Savile v. Roberts, 1 Lord Raym. 378. And see 8 Mod. 320, that conspiring to do a lawful act, if for an unlawful end is indictable. Sec post, note (j). (e) Hawk. P. C. c. 72, s. 2. It is not necessary in an indictment for conspiring to charge a man with being the father of a bastard child, to state that the charge was false, Reg. v. Best, post, p. 683. (f) Reg. v. Best. 2 Lord Raym, 1167. Rex v. Spragg, 2 Burr. 993. Rex r. Rispal, 3 Burr. 1320. (g) By Grose, J., in Rex v. Mawbey and others, 6 T. R. 636. And see Rex v. The Journeymen Tailors of Cambridge, 8 Mod. 11. If one man alone be guilty of an offence, which, if practised by two, would be the subject of an indictment for a conspiracy, he is civilly liable in an action for reparation of damages at the suit of the person injured. By Buller, J., in Pasley v. Freeman, 3 T. R. 58. said that perhaps few things are left so doubtful in the criminal law, as the point at which a combination of several persons, in a common object, becomes illegal. (h) It appears, however, to have been holden that if such persons illegally concur in doing an act they may be guilty of conspiracy, though they were not previously acquainted with each other. (i) It has been laid down by a very learned Judge that conspiracy is "a crime which consists either in a combination and agreement by persons to do some illegal act, or a combination and agreement to effect a legal purpose by illegal means." (j) Amongst the most flagrant instances of conspiracies against Conspiracies the public justice of the kingdom, may be mentioned a case in which against the the defendants were charged with a conspiracy, in causing a man to of the kingdom public justice be executed for a robbery, which they knew he was innocent of, by agreeing with intent to get into their possession the reward offered by act of to make false Parliament. (k) And it would have been equally a conspiracy, accusations. charges and though the defendants had failed in their infamous design, and the man had been acquitted. Indeed one of the more ancient descriptions of conspiracy is " a consultation and agreement between two or more to appeal, or indict an innocent person falsely and maliciously of felony, whom, accordingly, they cause to be indicted or appealed; and afterwards the party is lawfully acquitted by the verdict of twelve men." (?) But of this description it is observed, that the lawful acquittal of the party grieved does not appear to be required in order to make the offenders guilty of conspiracy. (m) The description of conspirators in the old statute, 33 Edw. 1, st. 2, (sometimes cited as 21 Edw. 1,) is "that conspirators be they that do confeder or bind themselves by oath, covenant, or other alliance, that every of them shall aid and bear the other falsely and maliciously to indict, or cause to indict, or falsely to move and maintain pleas; and also such as cause children within age to appeal men of felony, whereby they are imprisoned and sore grieved; and such as retain men in the country with liveries or fees for to maintain their malicious enterprizes; and this extendeth as well to the takers as to the givers, and to stewards and bailiffs of great lords, who by their seigniority, office, or power, undertake to bear or maintain quarrels, pleas, or debates, that concern other parties than such as touch the estate of their lords or themselves." From which definition of con (h) 3 Chit. Crim. L. 1139. (i) By Lord Mansfield in the case of the prisoners in the King's Bench, Hil. T. 26 Geo. 3. 1 Hawk. P. C. c. 72, s. 2, in the notes. See post, p. 699. (i) Per Alderson, B. Reg. v. Vincent, 9 C. & P. 91, and in Rex v. Seward, I A. & E. 713, Lord Denman, C. J., said, “An indictment for conspiracy ought to show either that it was for an unlawful purpose. or to effect a lawful purpose by unlawful means;" but in Reg. v. Peck, 9 A. & E. 686, the very learned Chief Justice, upon this dictum being cited, said, "I do not think the antithesis very correct." In Rex v. Jones, 4 B. & Ad. 345. IN & M. 78, however, several learned Judges gave a similar definition of the crime of conspiracy. And see ante, note (d). C. S. G. (A) Rex v. Macdaniel and others, 1 Leach, 45. And see Fost. 130. See also (1) 3 Inst, 143. 4 Black. Com. 136. (m) 1 Hawk. P. C. c. 72, s. 2. In the case of Rex v. Spragg, 2 Burr. 998, Serj. Davy said, "There is a distinction between a writ of conspiracy and an indictment for conspiracy. In an action the damage is the gist of the action; and therefore the writ and declaration must charge that he was indicted and sustained damage;' but that is not necessary in an indictment; which is for an offence against the public. And this distinction explains Lord Coke's meaning in 3 Inst. 143," The false charge need not be prosecuted. The confe deracy to make false charges, &c., will be equally crimi. spirators it is said that it seems clearly to follow that not only those who actually cause an innocent man to be indicted, and also to be tried upon the indictment, whereupon he is lawfully acquitted, are properly conspirators, but that those also are guilty of this offence, who barely conspire to indict a man falsely and maliciously, whether they do any act in prosecution of such conspiracy or not; for the words of the statute seem expressly to include all such confederacies under the notion of conspiracy, whether there be any prosecution or not. (n) But it is also said that since it does not appear to have been solemnly resolved that persons offending by a false and malicious accusation against another, are indictable upon this statute, it seems to be more safe and advisable to ground an indictment for such offence upon the common law than upon the statute. (o) A conspiracy of this kind appears, therefore, to consist in the unlawful agreement to injure a person by a false charge; though it be in no way prosecuted. And whether the conspiracy be to charge a temporal or an ecclesiastical offence on an innocent person, it is the same thing. (p) A conspiracy to indict a person for the purpose of extorting money from him is a misdemeanor, whether the charge be or be not false. (q) It seems not to be any justification of a confederacy to carry on a false and malicious prosecution, that the indictment or appeal, which was preferred, or intended to be preferred in pursuance of it, was insufficient, or that the court wherein the prosecution was carried on nal, though or designed to be carried on, had no jurisdiction of the cause, or that the proceedthe matter of the indictment did import no manner of scandal, ings intended to be instituted so that the party grieved was, in truth, in no danger of losing either were defective. his life, liberty, or reputation. For notwithstanding the injury intended to the party against whom such a confederacy is formed may perhaps be inconsiderable, yet the association to pervert the law, in order to procure it, seems to be a crime of a very high nature, and justly to deserve the resentment of the law. (r) Therefore, on an indictment for wickedly and unlawfully conspiring to accuse another of taking hair out of a bag, without alleging it to be an unlawful and felonious taking, it was said by Lord Mansfield that the gist of the offence was the unlawful conspiracy to do an injury to another by a false charge, and that whether the conspiracy be to charge a man with criminal acts, or such only as may affect his reputation, it is sufficient. (s) Such confederacy will be equally criminal, though the parties may say that they intended only to give testimony in a legal course of justice. Neither is it any plea for one who is prosecuted for such an unlawful confederacy, that nothing more was intended by him but only to give his testimony in a legal course of justice against the party, to whose prejudice such confederacy is supposed to have been formed; for notwithstanding it may be said that it would be a great discouragement to legal proceedings to make persons liable to a criminal prosecution for barely intending to give their evidence, and it would be a prejudging of a cause to try the truth of the testimony (n) 1 Hawk. P. C. c. 72, s. 2. (p) Reg. ". Best and another, 2 Lord (q) Rex v. Hollingberry, 4 B. & C. 329. 6 D. & R. 345. (r) 1 Hawk. P. C. c. 72, s. 3. (s) Rex v. Rispal, Black. R. 368. Burr. 1320. And see Pippet v. Hearn, 5 B. & A. 634, ante, p. 636, note (o). intended to be given in it before the cause itself is determined, yet the law will rather venture this mischief than suffer so flagrant a villany to go unpunished. However, if there be any probability that the principal cause will ever be tried, it seems proper to apply to the Court to stay the trial of the confederacy until the merits of the principal cause be determined. (t) be false and malicious, and consult to pro secute a guilty person. course of false certificate It is observed that it appears not only from the words of the But the constatute, but also from the plain reason of the thing, that no confede- federacy must racy whatsoever to maintain a suit can come within the words of the 33 Edw. 1, stat. 2, unless it be both false and malicious. (u) And persons may several persons may lawfully meet together and consult to 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. (v) And associations to prosecute felons, and even to put the laws in force against political offenders are lawful. (w) In the following case it was holden that a certificate by justices of Mawbey's case. the peace that an indicted highway is in repair, is a legal instrument, Conspiracy recognised by the Courts of law, and admissible in evidence after con- to pervert the viction, when the Court are about to impose a fine: and that, con- justice, by sequently, it was illegal to conspire to pervert the course of justice producing a by producing a false certificate in evidence to influence the judgment of a highway of the Court. The indictment stated that a highway was indicted being in repair. 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 Argument of showing cause against this rule the counsel for the prosecution went the counsel at large into a discussion of the doctrine and nature of conspiracies. tion. 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; (x) or a combination amongst labourers or mechanics to raise their wages. (y) So where several conspired to hiss at the Birmingham Theatre, Lord Mansfield held it indictable, although each might have done so separately. (2) 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. (a) 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 con (t) 1 Hawk. P. C. c. 72, s. 4. (u) 1 Hawk. P. C. c. 72, s. 7. (v) Reg. v. Best and another, 1 Salk. 174. And see 1 Hawk. P. C. c. 72, s. 7. (w) Rex v. Murray, 1 Chit. Burn's Just. 817. Matth. Dig. 90. Abbott, C. J., Guildhall, 1823. (x) 9 Co. 56. (z) Anon. B. R. 18 or 19 Geo. 3. for the prose |