§ (9.0.) MR. E. ROBERTSON (Dundee)
I feel that I need all the indulgence of the House when I again bring under consideration one of the most complex and troublesome questions of the Criminal Law—perplexing and tortuous where especially it ought to be clear. In the terms of my Motion I have to move—That the Common Law doctrine of Conspiracy, by which persons are made punishable for combining to do acts which in themselves are not criminal, is unjust in its operation, and ought to be amended.To this the hon. and learned Member for Holborn proposes to move, as an Amendment, that—This House declines to pledge itself to any alteration of the Law of Conspiracy until it has had an opportunity of considering the proposed Amendments in a definite form and embodied in a Bill.Mr. Speaker, I must say my hon. and learned Friend is hard to please. This time last year I brought in a Bill definitely putting my proposals, and my hon. and learned Friend moved and carried the rejection of that Bill; and this year, when, as the hon. Member knows, I cannot bring in a Bill and can bring in a Resolution, he meets that also with a notice of rejection. My hon. and learned Friend does not to-night venture to call in question the principle of my proposal, and it must be taken against him that he admits a remedy is required; and upon him and those who support him in his proposal to reject my Motion rests the responsibility of shutting both gates of the House of Commons against reform. The proposal, now in the form of a Motion, has been considered since last year by that great representative body, the Trades' Union Congress, which met at Newcastle, and they, through their Parliamentary Committee, recommend me to re-introduce 1497 the measure. My hon. Friend the Member for Morpeth (Mr. Burt) was President of that Congress, and his brilliant incumbency will long be remembered as revealing in his person qualities new even to those who have long known and admired him. In virtue of his position on that occasion he will to-night second my Motion, thus giving practical testimony that the people he represents feel the need of reform and are not of the opinion of the Solicitor General who, going to his constituents and having to make an apologia for opposing the Bill, told them that working people do not need the Bill, because they are protected by the Conspiracy Act of 1875. I take it that my hon. Friend (Mr. Burt) now supporting my proposal gives evidence that the workpeople know their own needs, at least, as well as the Solicitor General. Now, the question I want to submit to the House is not a legal question at all. I do not want to bandy law about it. I submit to the House a broad question of legislative policy, on which the opinion of the House to-night is worth more than the learning of all the Judges who ever occupied the judgment seat. But first I must refer to a dull and passionless legal text book. Roscoe mentions cases in which a charge of criminal conspiracy may be maintained, and then says the vagueness of the definitions leaves in the hands of Judges to declare it to be a crime to do almost anything which the Judges regard as a moral wrong or publicly or socially dangerous. Now, the most advanced pronouncement on the Law of Conspiracy is that delivered by Baron Bramwell in the well-known case "Queen v. Drewitt," and this has been commented upon by Mr. Justice Stephen who seemed to think that the law on that occasion was too widely laid down, for as he said, it would include such a case as that of two brothers, who might agree to exclude a sister from their society in order to influence her against a marriage they considered objectionable. The Bramwellian doctrine, thus challenged by Mr. Justice Stephen, is set out at length in that important declaration of Chief Baron Palles in the action of "Blunt v. Byrne," in which the Chief Baron declares that it is by virtue of the Bramwellian doctrine the Plan of Campaign in Ireland is an illegal conspiracy. Then the extreme doctrine of conspiracy 1498 has been re-stated recently in the House of Lords in the judgment in the Mogul shipping case. Baron Bramwell has given reasons for the strange legal paradox that that which is not wrong when done by one man becomes wrong when done by two men. One of these reasons is that a man may encounter the action of a single person, but would not be fairly matched against the action committed by several persons; and the other reason is that, on the principle De minimis non curat lex an individual action may not be punishable, but that action being committed by several acquires such an importance that it may be treated as a crime. So it comes to this: that a piece of oppression practised by a local magnate and master of half a county may be insignificant and beneath the notice of the law; but when a few dock labourers try on the same game, then the Law of Conspiracy may be invoked to provide punishment. This is enough to justify our statement as to the doctrine. I will now mention two instances to show the operation of this doctrine—one for this country and one for Ireland. The Solicitor General affirms that workmen are protected by the Act of 1875; but under that Act only trade disputes as between employers and their workmen are protected. But workmen have disputes among themselves, and in the conduct of these disputes they may combine, and then they subject themselves to the full rancour of the legal doctrine I have referred to. The late Lord Advocate gave me the particulars of a case tried in Glasgow last year. Two men were tried and convicted under the Common Law of Conspiracy of the crime of having combined to deprive a man of his means of livelihood, using threats that if the man were retained in his employment they would withdraw the members of their trade union from that employment. The Sheriff directed the jury that this did not come within the protection of the Act of 1875, and the men were convicted and punished. But, mark, these two men were convicted for conspiracy under Common Law for a similar offence to that which Mr. Bompas at Plymouth tried to make the crime of intimidation and failed. That which Mr. Bompas declared to be intimidation and a crime was declared by the Court above not to be a crime. I do not know that I can give a better instance of the legal 1499 alchemy by which crime is manufactured out of innocent materials than this Glasgow case. I say that in the present state of the law, while in a trade dispute between masters and men the masters are protected, in a dispute between men and men the men are not protected under the Act of 1875. Now I turn to Ireland, and there I find the worst examples of this docrine and these anomalies. There the most conspicuous instances of oppression and tyranny are to be found, and some of the victims are, no doubt, in the House at this moment, and will, I hope, make their voices heard on this question. In the beginning of the Session of 1889, you, Sir, from the Chair, reported to the House that you had received a message from a Resident Magistrate in Ireland relating to Mr. William O'Brien, a Member of this House. He was found guilty of criminal conspiracy, and his offence is found thus recorded on the Journals of this House; his offence is described as havingWith divers other persons, whose names are unknown, taken part in a criminal conspiracy—to wit, a conspiracy to induce certain persons in the said county whose names are unknown, and who then were, or who might afterwards become desirous, to hire or occupy any land or lands in the said county from which any tenant or tenants, occupier or occupiers, had theretofore been or should thereafter be evicted by due process or course of law, not to hire, use, or occupy any such land or lands.Now where is the crime? Puzzle, to find the crime. It is certainly no crime not to take land—rather a virtue, perhaps, in these days—and it certainly is not a crime not to take land if a man does not desire to take land. But here is a Member of this House, driven from this House and subjected to the grossest ignominy, because in an alleged combination with people unknown he induced people in this dubious state of mind not to take possibly evicted farms. It is to our shame that we listened with patience while you, Mr. Speaker, read this wicked nonsense from the Chair. It is the law—I do not deny that; but that a Resident Magistrate should be able so to deal with a Member of this House is a shame and a disgrace to us and to this House. Well, the hon. Member was sentenced to four months' imprisonment for that offence. The same day Mr. Speaker read another letter stating that the hon. Member had received another 1500 sentence of six months' imprisonment for a similar offence. Shortly afterwards I find on the Journals the record of Mr. Carew being sentenced for a similar offence. These instances are sufficient for the illustration of my contention that the doctrine of combination cannot be sustained. I think possibly I have said enough to justify my Motion. Three things do I object to in the present state of the law. In the first place, the principle, which, without careful limitation, makes men criminally liable for such an offence as combination, is a monstrous principle, fundamentally unjust—a legal paradox this House has never sanctioned and never will deliberately sanction. In the second place, the law is uncertain, and it is capriciously administered—anybody will admit that. It is most unfortunate that the opinion should prevail in the popular mind that there is one law for the rich and another for the poor; but we must all admit there is ground for the prejudice when we find in Ireland and in Scotland poor and innocent men sent to prison for combination, while real offenders who bring about combinations are left unprosecuted. I do not want to allude to notorious and conspicuous cases; but I may mention that some time ago a number of persons were anxious to commit a criminal offence—a slight offence, a venial crime—and their object was to call attention to an iniquitous law which created the offence. They sought the counsel of a Minister of the Crown, and he advised the commission of the offence. I do not blame him for his advice. He agreed—shall I say conspired?—with these persons to publish a letter in the newspapers inciting persons to the commission of the offence. I do not say that was a criminal conspiracy, but I do say it looks uncommonly like what would be construed into criminal conspiracy under almost any other circumstances. I do not say any great harm was done; but when the Minister who arrogates to himself the right to tamper with the law of England in this fashion is a Member of a Government which allows the Law of Conspiracy to punish political opponents, and, as far as they could, have tried to bring degradation upon Members of this House, and when this Minister is also a strenuous opponent of this reform, then, I say, I do not recognise his claim to consistency. I do not 1501 know that it is necessary for me to let the "cat out of the bag," or, rather, the Solicitor General out of the bag. I am sure I do not want to press the point unfairly—it was put with undeniable force the other day by the hon. and gallant Member opposite (Admiral Field). Here is the criticism from his own supporters. The Standard said—It is certainly necessary to remind the Solicitor General that this doctrine of active protest is capable of indefinite expansion, and would unquestionably cover the case of many of the Irish lawbreakers whose proceedings he has never hesitated to denounce.I think that is a fair and reasonable criticism, only it is unjust to the Irish law-breakers, so-called, who have broken no law but this law of combination. The practice of the Solicitor General is, however, capable of a much further extension than that. This law is one that certainly is unfitted for administration by inferior Magistrates. It may be right to trust it to the administration and explanation of a legal genius like Lord Bramwell; but I say it cannot be right that Sheriffs' Substitutes in Scotland and Resident Magistrates in Ireland should be able to deal with the liberties of our citizens under a law so vague, so uncertain1, and undeterminate. That is all I have to say by way of criticism. Now, Sir, I am invited to state my remedy. I tried it by way of a Bill last year, and I will put the case shortly. What we propose is this: (1) to put the Law of Conspiracy on a definite statutory basis; (2) to get rid of the Common Law doctrine, and put this general principle in its place: that no agreement or combination is to be considered criminal unless it is to do an act which is or would be a crime if committed by one person; and (3), if there are any exceptional cases—though I doubt if there are any which ought to be treated as criminal in combination, though the acts themselves would not be a crime if committed by one man—then let these cases be defined and put in the Statute. Sir, these are the remedies we propose, and they were suggested by the right hon. Gentleman the Member for Midlothian a few months ago to a meeting of delegates in London. I well remember the criticism passed on his speech the next day by the Conservative Press. The Standard said that Mr. Gladstone's proposals were too monstrous 1502 to be considered, whilst the Globe, which is a rival as well as a colleague of the Standard, said that Mr. Gladstone's proposals were so obviously reasonable that it was a wonder he took the trouble to enunciate them. Now, Sir, my hon. Friends would doubtless ask for a precedent, and on that point I will mention first of all the legislation of the Tory Party in 1875. In 1875 they carried through a Bill—of course, the legislation was not theirs; many of my hon. Friends were engaged in bringing it about—but in 1875 they carried a Bill which enacted this: that an agreement or a combination to do any act is not to be a crime if the act committed by one man would not be a crime. It is true that Act was limited to certain classes of trade disputes, but the principle is there; and if it is good and just and sound as applied to trade disputes, why should it not be made a rule of law? There is another precedent. Following upon the partial legislation of 1875, there were the wider proposals of the Commission which sat in 1879. That was as powerful a Legal Commission as ever, sat and it reported a model Legal Code proposing to do what in point of fact this Bill proposed to do—namely, to abolish all prosecutions for conspiracy at Common Law, and to provide that no man should be prosecuted for conspiracy unless he conspired to commit a crime or was guilty of a conspiracy which had been specifically made a crime. That is virtually what we are proposing now. There is a further step that we propose. In the year 1880 the Tory Party was in power, and Sir John Holker, who was then Attorney General, with the support of Mr. Cross, the then Home Secretary, laid upon the Table a Criminal Code Bill which was the same substantially as the Bill reported by the Criminal Code Commissioners. Therefore, Sir, twelve years ago a Tory Government, more enlightened than the present, proposed a Bill virtually the same as that which we now place before the House. Our opponents for the last five or six years have been labouring and striving—I think without much success—to convince the people of England that the Liberal Party is sacrificing the interests of England to a policy of Home Rule. Later they have changed their tack, and without greater prospect of success they are trying to convince the Irish people, or a 1503 section of them, that they, in their turn are going to be sacrificed to British interests. In the name of the Union they are for ever striving to sow a policy of disunion, of jealousy, and of distrust. There is one question, at all events, to which this policy of severance will be applied in vain, because upon it the interests of both people are the same because the interests of labour in every form ate the same; and that is the question which, humbly thanking both sides of the House for their indulgence I now beg to submit for their impartial consideration.
§ MR. BURT (Morpeth)
I have great pleasure in seconding the Motion of my hon. and learned Friend—he has covered the ground with such fulness and ability that I need say but little. The right of combination on the part of workmen has been fought almost inch by inch during nearly the whole of the present century; and I think that if in the Act of 1875, to which my hon. Friend has alluded, there had been embodied the Amendments suggested from the Front Opposition Bench, very little, if anything, would have been left to be desired so far as the full right of combination by the workman is concerned. At the beginning of the century Trades' Unions were illegal conspiracies; they were afterwards tolerated, but still, left outside the law, they had no protection for their funds. In the Acts of 1867, of 1871, and of 1875, the claims of the workmen to a considerable extent were fairly recognised. When the Act of 1875 left this House, there was an attempt—perhaps not altogether satisfactory—to define intimidation as something done in such a manner as would justify a Justice of the Peace in binding over the persons threatening or intimidating to keep the peace. Now, Sir, most of the cases that have come before the Justices as affecting the workmen may be classified; under two heads—one relating to the interference and pressure put upon non-unionists, and the other relating to the question of picketing. For myself, I must say that, so far as I had any influence, I have always used it in the direction of persuading rather than forcing workmen directly or indirectly to join combinations. I think the trades' organisations are sufficiently strong to be able to be just, and to rely on their merits to attract 1504 workmen into them. But with regard to threats, most of them have been by workmen, or perhaps secretaries of Trades Unions, intimating to employers that if a non-unionist were not dismissed the Union workmen would cease to work. Well, Sir, that is not a policy that I should myself advocate; but I contend that such advice is not criminal, nor should it be actionable at law. On the other hand, while I would advise the workmen not to adopt these methods of influencing their fellow-men, I would equally condemn—and I trust the House would join me in condemning—employers who resort to something analogous in issuing a black list and telling their fellow-employers not to employ the persons whose names are there given. That such cases occur, and occur frequently, there cannot be the shadow of a doubt. My hon. Friend the Member for the Wansbeck Division of Northumberland (Mr. Fenwick) has called my attention to a case tried in Sheffield a short time ago, where the employers sent round a list intimating that the men whom they named should not be employed. The Trades Unions brought against these employers a charge of conspiracy. The case was tried, the facts were admitted, and the Judge declared that, although these facts were perfectly clear, there was no malice on the part of the employers, and he dismissed the case. I feel inclined to say that if there is not at the present time one law for the poor and another for the rich, there is certainly but too often one method of administering the law for the rich and another for the poor. Now, Sir, what is needed in connection with this question is a clearer definition of what constitutes; intimidation. There have been numerous cases tried since that of "Treleaven v. Curran" showing the need of a definition of conspiracy. That case was tried before a full Bench of Magistrates, and the sentence of £20 fine or six weeks' imprisonment which they passed was upheld by the Recorder of Plymouth on appeal. The same thing occurred in the prosecutions that took place at Newcastle-on-Tyne; but when these cases came before a Bench of Judges, with the Lord Chief Justice at their head; they were proved to be illegal, and the practical result of the decision was that intimidation must be a threat such as, if Carried into effect, would be a 1505 criminal offence. Well now, Sir, there are many cases, as I have said, arising out of picketing. Picketing was conceded 17 or 18 years ago. It is carried on in a time of war; passions are aroused, and there is a tendency to go to extremes. At the present time some employers of labour are suggesting the abolition of picketing. It is too late in the day to talk of that. If 17 or 18 years ago peaceful picketing was sanctioned by the House of Commons, the workmen, now that they have much more political power, and now that their Trade Unions are much more influential, will not abandon picketing; and whatever may be the solution, picketing without violence will have to be allowed by law. The employers complain that the existing law is not strong enough, and they complain of the difficulty of getting evidence; but I must say that many employers put obstacles in the way of workmen obtaining evidence on their own behalf. The hon. Member for Wansbeck has put into my hands a letter relating to a case tried at Bolton, where nine men on strike were charged with assault and intimidation, and being all included in one summons were debarred from giving evidence the one in favour of the other. Instances such as this, and those quoted by my hon. and learned Friend (Mr. E. Robertson), show that there is necessity for considerable amendment of the law as affecting Trade Unions, and I have therefore much pleasure in seconding the Motion.
Motion made, and Question proposed,
That the Common Law doctrine of Conspiracy, by which persons are made punishable for combining to do acts which in themselves are not criminal, is unjust in its operation, and ought to be amended."—(Mr. Edmund Robertson.)
§ (9.55.) MR. GAINSFORD BRUCE (Finsbury, Holborn)
I beg to move the Amendment which I have placed upon the Paper. Before addressing myself to it or to the speech of the Mover of the Resolution, I wish to say a word or two in reference to the observations of the hon. Member for Morpeth (Mr. Burt). I listened with great attention to them, in order to ascertain whether there was any grievance of which workmen had any right to complain, but I cannot find that any grievance is even alleged. There has been a great desire in all parts of this House since 1875 to deal 1506 fairly by workmen engaged in trade disputes; and I have always been under the impression that the Act of 1875, until the decision of the Recorder of Plymouth last year, had given universal satisfaction. When the Bill of my hon. Friend was under discussion in this House some time ago I cited the opinions of those who represent the working classes and showed that they had expressed themselves to that effect. I quite agree with the hon. Member for Morpeth that if the decisions of the Recorder of Plymouth and the Recorder of Newcastle had not been reversed on Appeal there would have been a grievance. But those decisions have been reversed, and the grievance which was supposed to exist has been dispelled. When the Act of 1875 was before the House of Lords they considered that it was not necessary to define "intimidation," and the decision of the Queen's Bench has proved that the Lords were right. The hon. Member for Morpeth said cases frequently occurred where criminal charges were made and a large number of persons were included in one summons or indictment, so that all the persons charged had their mouths shut. I admit that cases of that kind sometimes arise; but they are not peculiar to the Law of Conspiracy—they arise in every branch of the Criminal Law. The proper way to remedy that hardship would be to amend the general procedure in criminal cases, so that accused persons might give evidence on their own behalf. I agree with the hon. Member that there should be the same law for the rich and the poor, and I do not understand how any difficulty can arise in applying the law in the same way. If employers combine against their workmen to do anything unlawful, they are liable under the Law of Conspiracy just in the same way as workmen are. The hon. Member referred to the Sheffield case, but I am not fully aware of the circumstances.
§ MR. BURT
I cited a case mentioned by the hon. Member for the Wansbeck Division. The facts are, as I understand, that a list was sent out by the employers to their fellow-employers giving the names of persons they were not to employ, and the Trades Unionists summoned the employers for having conspired to prevent the workmen from getting employment. Of course, it is for 1507 the House to consider whether that is conspiracy or not, but I think it is.
§ MR. GAINSFORD BRUCE
Well, there seems to have been no evidence of intimidation, and I suppose the masters are entitled to the same immunity as the men. At all events this is a case of yesterday; and it is a remarkable thing, when we consider the long period which has elapsed since 1875, and the vast number of strikes which have taken place in England alone, without speaking of Ireland or Scotland, that there is no case with reference to which any complaint can be alleged except this one which has only just arisen, and of which we have but an imperfect account. I will now address myself to the Motion of the hon. and learned Gentleman; but I do not propose to follow him into the various topics with which he entertained the House. He asserts in his Motion that the Law of Conspiracy is unjust and that it should be amended. If he means that the Law of Conspiracy is not perfect, and that it is not in accordance with the aspirations of philosophical jurists, perhaps he might say the same of many other branches of our law. If the House wishes to consider this as a practical question, I think it will, before it throws overboard the law which now protects the subject against conspiracy, or makes any alteration in so intricate and difficult branch of the law, ask to be informed of the conditions by which the proposed alteration is to be accompanied. It is a very easy thing to find fault, but no one can have given attention to this subject without knowing that there is a large class of cases only punishable under the Law of Conspiracy which in no civilised country would be allowed to go unpunished. What do hon. Gentlemen say to conspiracies to bring false accusations, to pervert justice, to defile women, to defraud, or to destroy the liberties of men by exposing them to the fear of starvation? But, if you repeal the Common Law of Conspiracy, what is the kind of protection you are going to give to the subject who is now, in many of these cases, protected by it alone? If persons are to be punished for combining to do any act, unless such act is of such a nature as to constitute a crime when committed by 1508 one person, you must face this alternative—either you must allow many conspiracies most dangerous to the public to be unpunished, or you must; make the law much more stringent and oppressive than it now is as regards acts done by one person alone and add a number of new crimes to the Statute Book. I want to know whether those hon. Members who are in favour of repealing this law are prepared to do that? Are they prepared to frame a new Criminal Code? That is what the hon. and learned Gentleman who moved the Resolution suggested should be done, but his Resolution is discreetly silent on the subject. I do not say that it is impossible to define in the mechanical manner inevitable in a Code offences against the Criminal Law, but it is a task of extreme difficulty. The academical definition of criminal offences so as to embody them in the exact language of a Code has been found to be a matter of the greatest complexity; and only the other day in this House, with reference to the codification of the law of murder, we were told that the matter was one of such difficulty that it had baffled the ablest and most learned men in this country. Conspiracy is one of the most difficult and complex matters, and yet we are asked to repeal the Common Law, and then trust to some fortuitous or miraculous circumstance which will provide us with a Code to take its place. My hon. and learned Friend mentioned that Lord Bramwell had attempted a definition with reference to conspiracy, which Sir James Fitzjames Stephen had pointed out was too wide. The hon. and learned Gentleman asked what I should say to that. Well, I should say that it is an instance of the difficulty of accurately defining an offence. The principles which regulate the law may be perfectly well known, the nature of an offence may be fully expounded in books of authority, and yet a definition may be a task almost beyond the skill of the jurist. All definitions that have been attempted have been found to be either too wide or too narrow, and they have only served to prove how intensely difficult it is to codify or define crimes. I would refer here to a book on the Law of Criminal Conspiracies, written by a high authority, Mr. Justice Wright, who says in a passage well deserving of attention— 1509There may be cases in which acts done by several persons in agreement ought to be punished, although the same acts ought not to be punished if done without agreement. But these ought to be specified and carefully defined.All our authorities agree that there may be, and ought to be, offences which when committed by one person do not bring him within the Criminal Law, but which when committed by many persons bring them, and ought to bring them, within that law. If my hon. and learned Friend admits that, then his only complaint must be that the offences are not specified and defined. I want to know who is prepared to specify and define such cases? Do not let us throw away the Common Law, which at present grants us protection, until we see our way to some definition of the new law. I am not prepared to admit that the present law is in any way unreasonable. Let me for one moment ask the House to consider what is the distinction between a wrong and a crime. A wrong is a matter of civil action, but a crime is cognisable by the Criminal Law. The only line we can draw is that a wrong becomes a crime with reference to the importance of a public right violated. When a wrong affects the lives and liberties of the subject it becomes of such public importance that it is a crime. So when you do an act which affects property in such a way as to be dangerous to the public interest it becomes a crime. If a man obtains goods by fraud he is not amenable to the Criminal Law, unless the fraud is committed in such a way as to constitute a false pretence or to amount to larceny. But if several conspire together to obtain goods by fraud, although not amounting to a false pretence or larceny, then the act belongs to a different category, because it is dangerous to the public well-being. It is the conspiracy that gives a new character to the offence. If you abolish the Common Law of Conspiracy, you must add a long list of new crimes to the Criminal Law. You will find in foreign countries where conspiracy is not criminal, except in cases where the persons conspire to do an act which would constitute a crime if done by one alone, that there is much less liberty than we enjoy, because in those countries it has been found necessary 1510 to adopt the principle of making a vast number of acts crimes when done by one person alone. In Italy, for instance, you have a long list of offences which we should never think of treating as crimes in this country, because they are of such a nature as to constitute no danger to the public interest when done by one person alone. Unless you preserve your Law of Conspiracy, you will be obliged to make the law much more severe than it is with reference to individual acts. My hon. and learned Friend (Mr. Robertson), in dealing with this subject, said why did a Conservative Government in 1875 introduce a special law dealing with trade disputes? I think I can give him a very good answer to that question. Trade disputes are, for the most part, carried on by Trade Unionists. They are men under the authority generally of Trade Unions; they are, commonly speaking, peaceable citizens, and they commonly carry on these disputes without any infringement of the law. And, in 1875, the Conservative Government thought it would be right and safe to make an exception of the Law of Conspiracy as affecting Trades Unions. The result has proved that they were wise in making that exception. My hon. and learned Friend said or suggested that the Criminal Code Commissioners many years ago had endeavoured to provide a Criminal Code, and that they did in that Criminal Code introduce many offences and sought to abolish the Common Law. It is quite true that the learned Commissioners devoted eight months of their time to compiling with great haste—because eight years would not have been too much for the under taking—a Criminal Code. But I would remind hon. Members opposite of the way in which that Code was met on their side when it was introduced in this House. The hon. and learned Gentleman now the Member for Brigg (Mr. Samuel Banks Waddy) described that Bill not as an amendment, but as a revolution of the law. And after it had been introduced to this House it was criticised on all hands, and it was found, although the work had been done by men of great ability, yet it had been done in such haste that it was not a Code which this House could adopt. The most conclusive 1511 argument against that Code was the fact that the Lord Chief Justice of England, Sir Alexander Cockburn, a man of great and remarkable ability, wrote a Memorandum, which was laid on the Table of this House, and was devoted to the consideration of the first part of the Code. The Lord Chief Justice showed that of that portion of the Code with which he dealt in his Memorandum there was hardly a single section that was not so imperfect or so ambiguous as to give rise to grave doubt and uncertainty. From that time to this no one has ever thought of reviving that Bill; it has been allowed to lie unnoticed in the Library of the House. Governments have come and Governments have gone, but no one has taken the responsibility of re-introducing that Bill. Yet it is this old and long-neglected performance that my hon. and learned Friend now seeks to call to his aid. I will only say that last Session, when the hon. and learned Gentleman introduced a Bill upon the subject of conspiracy, he was very careful not to adopt the definitions of the Code he now professes to admire so much. I ask the House to uphold the Rules of our Common Law. From time to time they have been sanctioned and confirmed by the common sense, of the English people, and they have been tried by experience. I trust we shall not throw away the protection which the law confers upon the peaceful and industrious until we know what are the new safeguards to be provided. I beg, Sir, to move the Amendment which stands in my name.
To leave out from the word "That" to the end of the Question, in order to add the words "this House declines to pledge itself to any alteration of the Law of Conspiracy until it has had an opportunity of considering the proposed Amendments in a definite form and embodied in a Bill, so that their effect upon the existing law can be adequately considered in connection with all interests affected thereby,"—(Mr. Gainsford Bruce.)
§ Question proposed, "That the words proposed to be left out Stand part of the Question."
§ (10.19.) MR. LOCKWOOD (York)
If there was one portion of the speech of the hon. and learned Gentleman who has just sat down which interested 1512 me more than another, it was that portion in which he pointed out that so far as the Law of Conspiracy of this country is concerned, that law is in a state of uncertainty. And, I contend, there is no portion of our law which should be placed upon a firmer basis than that portion which involves criminal jurisdiction. When my hon. and learned Friend rose to move his Amendment I expected he would have made some attempt to answer the observations of the Mover and Seconder of the Resolution, and so show that there was some firm and substantial basis on which the Law of Criminal Conspiracy exists at the present time. The hon. and learned Gentleman gave three illustrations—false accusations, attempts to defraud, and attempts to defile women—which he said could be touched by the Common Law doctrine of conspiracy, but are outside Statutory Jurisdiction. I deny that the hon. and learned Gentleman, in making these statements, has established any basis of certainty, on which he places the criminal jurisdiction as affected by the Common Law doctrine of conspiracy in this country. Let us look at these illustrations. False accusations involve charges of perjury.
§ MR. LOCKWOOD
My hon. and learned Friend says that a man who slanders another is only liable to civil process, but that if two men combine to slander another they would come under criminal process. Why should it be criminal for two men to do it if it be not criminal for one man to do it? As to the second illustration, I cannot call to mind a case in which an attempt to defraud could be made the subject of criminal process, but I am inclined to admit that the law of false pretences does not stand on a very satisfactory basis. And what of the third illustration—the question of defiling women? I think the Act passed in 1885—the Criminal Law Amendment Act—is quite sufficient to protect women, and it has had considerable effect in that direction since it was passed. I understand 1513 that the hon. and learned Gentleman contends that the Law of Conspiracy should be maintained on its present basis, inasmuch as it hits offences which are not touched by the Criminal Law at the present time, and I was interested to read a letter in the Times this morning, written by one who sympathises with the hon. and learned Gentleman's views as expressed in this House. This letter was signed "B." We are accustomed to see these letters from time to time in the Times, and we have little doubt that they emanate from the pen and the distinguished brain of a noble Lord, who was at one time one of the Lords Justices of the Queen's Bench Division, formerly Baron of the Court of Exchequer—Lord Bramwell. If I am wrong in attributing this letter to the noble Lord, I shall be glad to take the earliest opportunity of apologising for attributing to him the inaccurate statements contained in the letter. The letter gives two illustrations which the writers say cannot be touched by the Criminal Law, but are effectually attacked by this Common Law doctrine of conspiracy The writer says—The best thing will be to refer to a case that every Member of Parliament must know—that of one of their body who was convicted of a conspiracy with a woman to debauch a girl. What the man did was not in itself the subject of criminal proceedings. It was his conspiracy with the woman that she should help that made his guilt. So of the woman. She did nothing that could be punished but for her doing it in conjunction with the man.It is not necessary to give the name of the defendant in the case, which was painfully notorious in this House; but I took the trouble to look at the indictment to see if the case justified the conclusion that it could not have been touched but for the Common Law doctrine of conspiracy. I found that the first five counts alleged offences under the Criminal Law Amendment Act, and the other four counts included charges of conspiracy. The defendant pleaded guilty to the four counts of conspiracy and to one of the charges under the Criminal Law Amendment Act. In the report of the proceedings in a paper of 6th May, 1891, I found that the prosecuting counsel pointed out that it was on the fourth count under the Criminal Law Amendment Act that the prosecution 1514 sought the conviction of this man. Therefore, the suggestion that the prosecution, to obtain a conviction, had to fall back on the Common Law doctrine of conspiracy, is without any truth whatever. What is the second illustration?—Let me take the plainest case. A man comes to me to buy goods, gives himself a good character wholly false, and refers to a third person. The referee confirms the good character, knowing it to be false. Neither could have been convicted for his separate lie. Is it not reasonable they should be for the joint one? Each has done an unlawful act which the law would treat as unlawful, though not indictable.That, again, is absolutely inaccurate. I understand that by false character the writer means that the man gave himself a false character with regard to his financial position, and so obtained credit or attempted to obtain goods; in either case he commits a misdemeanour. It is absolutely decided that a man who goes to another and makes a false representation as to his financial position, and so obtains goods by false pretences, may be indicted and convicted. These two illustrations are on a par with those of the hon. and learned Gentleman, and do not afford adequate reason for retaining the uncertain state of the law in regard to conspiracy. The introducer of the Motion has very high authority for the contentions he has put before the House. In 1887 the then Sir James Stephen produced a Digest of Criminal Law, and quoted these charges of conspiracy, and they by no means extended so far as to exclude a combination to do an unlawful act or combination to achieve a lawful act by unlawful means. To what ridiculous lengths does this Common Law doctrine lead us? The hon. and learned Gentleman must contend that it is criminal conspiracy to combine to do an unlawful act. Suppose my hon. and learned Friend and myself are out riding, and instead of keeping to the high road prefer to trespass on the adjoining fields, we are combining to do an unlawful act, and are joint trespassers; does the hon. and learned Gentleman contend that we should be indicted for criminal conspiracy for that? The definitions given in that Digest appeared in the Code of 1878, to which the attention of the then Lord Chancellor was directed by the Law 1515 Officers of the Crown, the Attorney General being Sir John Holker. In 1878 Sir John Holker introduced in this House a Bill dealing with criminal conspiracy on the basis on which it had been dealt with by Sir James Stephen in his Digest and Code, in both of which he eliminated this wild and indefinite doctrine for which the hon. and learned Gentleman is contending. That Bill was referred to a Commission composed of Lord Blackburn, Lord Justice Lush, Mr. Justice Barry, and Sir James Stephen. Their Report absolutely eliminated this undefined doctrine of criminal conspiracy. That Report says—There is, perhaps, no distinct authority for the proposition that there are at Common Law any criminal conspiracies other than those referred to.Those referred to were conspiracy to commit crime, and especially to defraud—Some degree of obscurity may arise from the use of this word 'unlawful,' and the Commissioners propose to sweep away the Common Law, and turn all conspiracies which have been recognised as crimes into statutory offences.Therefore I am right in saying that my hon. and learned Friend has high authority for this Resolution. After this was reported on, it was introduced in 1879 and 1880. It was subjected to a scathing criticism by Sir Alexander Cockburn in a letter to Sir John Holker in June, 1879; but in that letter there was not one line of criticism or one word of fault found with the action of the Commissioners, which, in fact, is the action taken by the Mover of the Resolution.
§ (11.35.) SIR W. HARCOURT (Derby)
The whole of the arguments on this occasion have been placed before the House so clearly by my hon. and learned Friend the Member for Dundee (Mr. E. Robertson), that I do not propose to go at any length into the legal aspect of the question. But I may say something on the object which I understand the hon. and learned Gentleman has in view in his Motion. There is no man who has considered this question at all who will not admit that there is no branch of English law in which there is 1516 so much uncertainty as in the Law of Conspiracy. My hon. and learned Friend read one extract from a text book describing that law; here is another which I think is very accurate. It is in so common a book as Burn's Justice of the Peace. I think the author was Mr. Justice Talfourd—The offence of conspiracy is more difficult to define than any other for which indictment lies, and is, indeed, rather to be considered as governed by positive decisions than by any consistent and intelligent principles of law. It consists, according to all the authorities, not in the accomplishment of any unlawful or injurious purpose, nor in any one act moving towards that purpose, but in the actual concert or agreement of two or more persons to effect something which, being so concerted and agreed, the law would regard as the object of indictable conspiracy.Then it proceeds—But it is not easy to understand on what principle conspiracies have been held indictable, when neither the end nor the means are in themselves regarded by the law as criminal. Mere concert in itself is not a crime. If, then, there be no indictable offence in the object, no indictable offence in the means, and no indictable offence in the concert, in what part of the conduct of the conspirators is the offence to be found? Can several circumstances, all perfectly legal, make up an illegal act?This description of conspiracy indicates a most dangerous condition of the law. It is obvious that it leaves each Judge, before whom the case comes, to give the definition which presents itself to his own mind and opinion in each particular case. Now, this doctrine of conspiracy is not an old doctrine in English law; it is comparatively a recent doctrine. In its application it may be said to have begun to be largely applied towards the end of the last century and the beginning of the present century. Then the Judges began to apply the Law of Conspiracy to all things which they imagined were politically or socially dangerous. That was the origin of such decisions as that of Lord Mansfield in 1783, when he said—The illegal combination is the gist of the offence. Persons in possession of any article of trade may sell them at such prices as they please; but if they Confederate and agree not to sell them under certain prices, it is conspiracy.So that any man may work at what price he pleases, but combination not to work under certain prices is an indictable 1517 offence. And so things went on, and Judges began, each according to own idea, to apply the doctrine of conspiracy according to what they called the "principle of public policy." There was an old Judge who said that "public policy" was an unruly and dangerous horse to ride. Certain contracts have been held to be bad in law on the ground of public policy, a branch of the law which should not certainly be left to the Judges, for we are also told—The Judges are more to be trusted as interpreters of the law than as expounders of what is called public policy.And whenever I see a letter signed with a big "B" I am reminded of that sentiment. Our charge against this law of conspiracy is that it is a vague law, a law which rests in the breast of the individual Judge who comes to try the case. According to the hon. and learned Member for Holborn it is plain that different Judges hold different opinions as to what is indictable for conspiracy. But why need speculate upon that which has happened? I will begin with the Recorders, and I find that Mr. Bompas came to a decision which every one except the Solicitor General regarded as bad law. That decision came under discussion last year. I thought it was bad law, and the Solicitor General, with that courtesy which I always acknowledge, said: "If the judgment of the learned Recorder be upset, no doubt the right hon. Gentleman the Member for Derby would be entitled to be congratulated on the unexpected accuracy of his law." A year has expired, and I claim the congratulations of the Solicitor General. I have long been waiting the opportunity to offer him my congratulations, but the moment has not yet arrived. I am glad that this Plymouth law has been declared to be bad law, though it is laid down by the Recorder and supported by the representative of that constituency.
§ THE SOLICITOR GENERAL (Sir E. CLARKE,) Plymouth
I am sure the right hon. Gentleman will give way while I say that I expressed no opinion whatever as to the accuracy of the law laid down by the learned Recorder. Several months before that Debate I had written to the Recorder telling him that 1518 I thought his decision was wrong, but, as Solicitor General, I was bound to abstain from discussing the decision whilst it was under appeal.
§ SIR W. HARCOURT
Then I do not quite understand the "unexpected accuracy of the Member for Derby." That seems to have been an act, therefore, of gratuitous courtesy. I am afraid I cannot relieve the Solicitor General altogether, because I find that he did a very unsafe thing. He went further and attempted to lay down what was the Law of Conspiracy. He said—If there was an intention to do an injury to a person, and combined action for the purpose of carrying that intention into effect, in whatever form and for whatever purpose the injury was intended to be inflicted, he thought that would constitute a criminal offence, and be punishable as such.That is the very thing which, in the passage read by my hon. Friend in moving this Motion, was condemned by Sir Fitzjames Stephen as bad law.
§ SIR E. CLARKE
The right hon. Gentleman will, I am sure, excuse me again. He has made a mistake in one word of the quotation. It was not a statement of law. The word, instead of being "would" constitute a criminal offence, was, I think, "should" constitute a criminal offence, &c.
§ SIR W. HARCOURT
I quote this from the Times report which I had by me. I suppose the Solicitor General is reading from a corrected interpretation. When the Solicitor General is on the Bench he will be able to make that the law. He says it should be the law, and I have no doubt that when he comes to administer the law he will declare that, to be the law which he thinks ought to be the law. That is the way in which English law is made, and I venture to say of this particular decision that if it was not bad law it ought to be, and it is exactly this decision which has been condemned by Sir Fitzjames Stephen. This is bad law in the sense that the Bramwellian law is bad law. The decision in the case of the Queen v. Drewitt was such bad law that this House interfered and passed the Act of 1875 in order to do away with a great injustice 1519 to the operative classes of this country; and if the Solicitor General should have the opportunity of creating such bad law as is expressed in that sentence, no doubt Parliament will find it necessary immediately to interfere as it did in the case of the bad law of the Judge on a former occasion. The idea is, that if two persons combine to do any injury to another person, that is a criminal offence, quite apart from the question of malice if injury is created. It is exactly of that view that Sir James Stephen said—If this be correctly reported, and is good law, it would follow that if two brothers had a sister who was about to contract a marriage they disliked, and agreed together to exclude her from their society in order by the threat to prevent the marriage, they would be guilty of an indictable conspiracy.So, in the same way, some people are of opinion that if there is a combination to break a contract there is something very shocking in it. There is nothing shocking in it at all. If a man agrees to marry a woman whom the relatives of the man thought it was undesirable he should marry, and they used their influence to prevent the marriage, are they guilty of an indictable conspiracy. According to the principle laid down by the Solicitor General it would be so.
§ SIR W. HARCOURT
I will read the words again. Is there no injury if a man is prevented from marrying a woman. There is not the smallest doubt that it is an injury to the woman. That is precisely the point that all these cases have proceeded upon. In all these cases there has been an intention to injure the employer by raising the wages, and all the Trade Union cases proceeded on that doctrine, but in 1875 Parliament interfered and did away with that Judge-made law which proceeded on that principle altogether. We complain, first of all, of the uncertainty of the law, and then we complain of the inequality of the law. Because this uncertain law was inflicting injustice upon the Trades Unions you repealed it in respect of Trades Unions, but you left it in full operation against every other class of the community, and that is an enormous evil and a great injustice. You have by 1520 the Act of 1875 protected a particular class from the operation of this Judge-made law of conspiracy: why should you not protect all the other classes. If this Judge-made law was unjust as between employers and employed in trade disputes, so it may be unjust to other classes not within this definition. I am doubtful whether the agricultural labourer could come under that Act of 1875, and there certainly are many other classes who would not. It may be said: Is there any danger in this matter? That seems to me to be the sort of argument that is employed. I have never been more impressed with the danger of the thing than by a decision which was given the other day in the House of Lords in the great shipping case which is known as the Mogul case. To show the uncertainty of the present law the House of Lords was unanimous in the case. It was only a case of competition between two shipping companies, and certainly could not come under the Law of Conspiracy. But there is this remarkable circumstance: that although the House of Lords was unanimous about it, there was so great a Judge as the Master of the Rolls—of whom I desire to speak with the greatest respect—who thought it was an indictable offence. How dangerous it is that you should have a law that can be so misinterpreted. Here you have the Recorder of Plymouth, the Recorder of Newcastle, and the Master of the Rolls, declaring that certain things are indictable under the Law of Conspiracy, and they all turn out to be wrong. What a state of the law this is that exposes the community to the judgment of a Court of First Instance, and it may be to a Court of Second Instance, and to the pains and penalties of this Law of Conspiracy which depends upon the single opinion of the particular Judge. What we want is that this should no longer be the case. Take a single sentence from the Lord Chancellor upon this subject. He says:—I do not deny that there are many acts which may be lawful if done by one individual, which when done by a number of persons become unlawful.We should like to know what these many acts are, and the people of this Country have a right to know what acts become unlawful when done by two men, and how are they to know what a Judge 1521 would think unless there is some declaration on the subjects. You have no light to expose the people of this country to the uncertainty created by the Law of Conspiracy. What does the Commission say upon this subject. It says:An agreement to do an unlawful act has been said to be a conspiracy, but as no definition has been found of what constitutes unlawfulness it occurs to us unsatisfactory that there should be any indictable offence of which the elements should be left in uncertainty and doubt.That is exactly the Resolution of my hon. Friend. That is what we want to see affirmed. How is it met? And here I come to the question of what the Government are going to say on the subject. Do they say that the Law of Conspiracy as it stands at present is satisfactory? If so, they assert that the Commission on the Code, consisting of great Judges, supported by their eminent Attorney General, Sir John Holker, were wrong. Sir John Holker and the Judges who drew up this Code have declared in the most definite way that the Law of Conspiracy is wholly unsatisfactory, and ought no longer to be left as a Common Law offence. Are the Government going to take that view? I do not believe there is any man who will say that the Law of Conspiracy in its present vague and undefined condition is a safe or a just law. If it be so, and if the Judges are to be trusted to define conspiracy, why was the Act of 1875 passed? It was passed because it was found that the Judges could not be trusted in these semi-social, semi-political, questions to lay down a safe and a just law. They laid down a law which was unsafe and unjust, and the right hon. Gentleman the Member for Bury (Sir Henry James) and myself endeavoured year after year to bring the injustice of that law under the control of Parliament. These eminent Judges who formed the Commission desired that the Act of 1875 should be applied to the whole Common Law of Conspiracy, and that it should be codified as it had been codified with reference to Trades Unions. But the Member for Holborn says it is impossible that that can be done. Why not? If you could do it in 1875 with reference to Trades Unions, why not now with, reference to other sections of the community? Did these eminent Judges consider there was anything in the difficulty which has 1522 been raised by the hon. Member for Holborn? Not at all; they set to work and did the thing; and when it is said, "We will not pass this Resolution because you do not place before us a Bill, you do not show us how it is practicable by legislation to do this thing," we do show it you. We show it you in the Code in the decision of these eminent lawyers; we show you that the thing can be done with perfect safety. These eminent men did not think there was any danger in repealing the Common Law, and I should like to know what Member in the House of Commons has authority so great as these Judges, who sat to declare whether it is safe or unsafe to do away with the Common Law of Conspiracy. I should like to know whether the Home Secretary is going to say that it is unsafe, and that Lord Blackburn, Mr. Justice Barry, Mr. Justice Lush, and Mr. Justice Stephen have recommended a thing that is unsafe? You say we cannot draw up a Bill. Why here it is, drawn up in this Code by a Commission of the highest authority. If hon. Gentlemen opposite say there are things that are wicked in this Bill which these ignorant men whose names I have just given have recommended, let them in their wisdom undertake the matter. If you do not trust this Commission, and you think they were not fair Judges, add what you please; but, at all events, accept the principle that the thing ought to be defined in order to secure the liberty of the subject. Conspiracies to pervert Judges, to defile women, to murder and to defraud were considered indictable offences, and so was to prevent by force the collection of taxes. What does this show? It shows that these eminent Judges thought it was perfectly possible to specify and define these things, and that it was much safer to deal with them than to leave them in the breasts of the Judges, each of whom might form a different opinion upon them. I do not desire to detain the House, for I feel that the authorities we have to rely upon are sufficiently strong. We say, first, that the law is uncertain; that cannot be denied. We say that at present it is left entirely in the breasts of the Judges to determine what shall be conspiracy and what shall not; and it is no exaggeration to say that the Law of Conspiracy 1523 is dependent upon the opinion of a Judge as to what are social and political rights. But that is not a state of the law which ought to exist, and we say that the consequent danger is a thing which Parliament ought to take notice of, as it took notice of it in 1875. The hon. Member for Holborn said that the Code drawn up was a discredited Code. I am sorry the hon. Member should speak in that way of a Bill introduced by Sir John Holker. On the contrary, I say that the Code shows that this thing has been carefully considered by great and reliable authorities, and that they have seen no danger in repealing the Common Law of Conspiracy. That being so, what we affirm is that, having such a basis as this to go upon, we ought to make a declaration in the House of Commons that this is a matter of urgent importance and that it ought to be dealt with. And we propose in the Resolution of my hon. and learned Friend the Member for Dundee to affirm that the Law of Conspiracy is a vague law, a dangerous law, and an unjust law, and that the people of this country are entitled to have clearly and precisely declared and defined a law which affects their liberties and their dearest interests.
§ (11.12.) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Mr. MATTHEWS,) Birmingham, E.
The speech of the right hon. Gentleman, if he will forgive me for saying so, was not directed to the Resolution before the House. The Resolution before the House substitutes for the present definition of the offence of conspiracy a much narrower definition, and in that degree unquestionably a simpler and easier definition. The speech of the right hon. Gentleman has been directed to a new series of articles in a Code or in a Statute Book by which the different kinds of conspiracy which he thinks ought to be dealt with in the Criminal Law are to be separately laid down and separately defined. The greater part of his argument was directed to giving examples of what he alleges were the absurdities of the existing Common Law of Conspiracy. Unhappily, the examples of the right hon. Gentleman were all beside the mark. He began by reading from I know not 1524 what text book the case of two brothers combining to induce their sister to abstain from a certain marriage, and he said they might have been indicted for criminal conspiracy.
§ SIR W. HARCOURT
The quotation was a commentary by Mr. Justice Stephen upon the theory of Lord Bramwell's ruling in the case of the "Queen v. Drewitt."
§ MR. MATTHEWS
Neither Lord Bramwell nor any other Judge ever laid down a proposition so monstrous and absurd as that two brothers, combining for the benefit and advantage of their sister, to prevent her from entering into a marriage of which they disapproved, were thereby guilty of criminal conspiracy. Instead of citing these stray remarks from text books, it would, I think, have been more to the point if the right hon. Gentleman had cited a single decided case in any one of the law books in which a result so ridiculous had ever been arrived at. He did, indeed, cite one case—and that was the decision of the Recorder of Plymouth. Mr. Bompas—as an exhibition of the ridiculous results of the Law of Conspiracy. But will it be believed that the decision of Mr. Bompas turned entirely upon an endeavour to interpret a Statute introduced by the right hon. Gentleman himself? for his magnum opus is an attempt at defining conspiracies in the case of trade disputes in the Statute of 1875, and it was the language of that Statute as to the meaning of intimidation that was the whole subject-matter of Mr. Bompas's decision.
§ SIR W. HARCOURT
The Act of 1875 was not my Statute. I will not even throw the responsibility of it on the Government, because the clause which led Mr. Bompas astray was an Amendment introduced in the House of Lords.
§ MR. MATTHEWS
I fail to see the pertinence of that interruption. If I have wrongly attributed the authorship of that Statute the right hon. Gentleman must really forgive me, because I have read so many speeches of the right hon. Gentleman's own and of his supporters, in which he and his Party claimed the 1525 credit of having at last done justice to the working man, that for the moment I thought he was the author of the Statute. And this very night the hon. and learned Gentleman who introduced the Resolution claimed credit to his Party for the authorship of the Statute of 1875. I will not pause to notice the speech of the hon. and learned Member for York, the greater part of which was devoted to a criticism of an anonymous letter in the Times. If he will forgive me for saying so, the hon. and learned Member only made his criticism effective at all by entirely misrepresenting, or not reproducing accurately, the meaning and effect of the two illustrations. The two illustrations given me in the letter were both easily capable of a meaning in which the acts which were guilty if done by several would certainly not be criminal if done by one alone. The act by which a young person was decoyed abroad could not have been reached by any process of Criminal Law except by a charge of conspiracy. I agree it may well be open to argument to what extent the Criminal Law should visit and punish injury inflicted upon one individual by a combination of several others conspiring together in order to bring about that injury. Such a subject is well worth consideration and discussion. I agree also with the right hon. Gentleman that uncertainty in the law is an evil, and that there should be the clearest possible definition and exposition of what the law is, especially in matters of Criminal Law; yet I think it is a greater evil if acts mischievous to society and injurious to individuals are to escape altogether out of the purview of the Criminal Law, because there might sometimes be a difficulty in framing a definition applicable to the infinitely varied facts which human ingenuity, human fraud, and human wickedness present. It is not so much the uncertainty of the definition as the application of it to the ever-varying circumstances presented by human ingenuity or human fraud that makes the difficulty. I will give some instances of them before I sit down—I mean of conspiracies which are perfectly new, which nobody dreamed of before the Act of 1875. Boycotting for instance? Yes; that is a new conspiracy, a new form of pernicious combination 1526 for malicious injury not though of in the year 1875 when that exemption was passed about which we heard so much. Now, let me go back for a moment to the Resolution before the House. The Resolution proposes to the House this rule: Let no combination be the subject-matter of an indictment on a charge of conspiracy unless it is a combination to do an act which, if done by a single individual, would be punishable by the Criminal Law, either by indictment or by summary trial.
§ MR. MATTHEWS
Oh, the other is,That the Common Law doctrine of Conspiracy, by which persons are made punishable for combining to do acts which in them selves are not criminal, is unjust in its operation—
§ MR. MATTHEWS
Pardon me, I did not interrupt the hon. Member; but I would say to him that vagueness and uncertainty in Resolutions are almost as bad as vagueness and uncertainty in law. And if I may presume to pin the hon. Member to a definite meaning, I would interpret his Resolution by his speech, and assume that when he talks about "acts which are not in themselves criminal" he means acts which would not be the subject-matter of the Criminal Law if done by one person. That is an absolutely novel proposition, which has never been asserted by any authority on Criminal Law, and, to be in with, I say it is not asserted by the Act of 1875. It is almost too late for me to discuss the Act of 1875 as it deserves to be discussed. The Act of 1875 is the outcome of an extremely long course of legislation and judicial decisions which go back quite to the early periods of our history. Yes; the right hon. Gentleman the Member for Derby (Sir W. Harcourt) 1527 may shake his head, but I venture to assert that it is so—that it is the outcome, in the first place, of the whole of that long series of Statutes which I may describe roughly as the Statutes of labourers; and, in the second place, it is the outcome of the Statutes of combinations, Statutes which I may say go back to the early times of our law. Two or three Royal Commissions at least have sat to investigate and inquire into the whole of these series of Statutes. I hold in my hand the Report of the last Royal Commission, which was composed of extremely learned men. Sir Alexander Cockburn was at the head of that Commission, and the other names would command the respect of anyone. That was the Commission of 1875, which preceded the legislation of that year. It examined elaborately into the whole of the decisions which constituted the law of labourers and of combination up to that time in England. It inquired into this particular subject of making combinations offences under the law when their aim is to do acts which are not criminal in the single person, and the Commission elaborately and at length, in their Report, negatived the view brought forward by the Mover of this Resolution, and held that the public safety and the public expediency demand that you should treat acts which are done by many in combination not to benefit others, according to the illustration of the Member for Derby, but acts done in combination in order to injure others with a malicious purpose—that such acts ought to be made the subject of Criminal Law, because the general principle upon which the whole Criminal Law proceeds—the principle upon which certain things are treated as crimes—is that the importance of the case is sufficient to justify that mode of treatment. Of course, we all know that the line between torts or civil wrongs and crimes is an artificial arbitrary line. There are many things just as morally blamable—which are moral crimes and only civil torts—as those which are beyond the line. I do not pretend to say that even in our Criminal Law the distinction is always clearly drawn. One familiar example would be the case of adultery. Among most European peoples adultery is treated as a crime. It is not so treated with us. Of course, that is a question which may 1528 be argued; but all I wish to say is that the line between civil torts and crimes always is an arbitrary line, and it is a question of argument and of expediency what acts you should put on one side of the line and what on the other. Well, the Commission of 1875 declared in favour of putting combinations to do acts which are not criminal, if done by one person, on the criminal side of the line and in the category of crime; and the Statute of 1875 carries that out, because it is singular that those who are always referring to that Statute should give us so imperfect an account of it. It is perfectly true that the 2nd section of the Statute of 1875 says that acts done in furtherance of a trade dispute shall not be indictable as conspiracy if such acts committed by one person could not be punishable as crime. But the hon. Gentleman forgot to quote Section 7 of the same Statute. Has Section 7 not got anything to do with conspiracy? It is the complement of Section 2 because Section 7 goes on to make crimes, if done by one, of a number of things that never were crimes before, and which were all those unlawful means which were habitually used and practised in trade combinations and combinations in furtherance of trade disputes. For instance, picketting—and I call the attention of the hon. Member for Morpeth—persistently following a person from place to place, hiding his tools, watching his house, following him—when there are two or more persons—in the streets. All these things are made offences. Consequently, by this Act, taken altogether, a combination to do any of these things becomes a criminal conspiracy. What a ludicrous misrepresentation of the effect of the Statute, then, it is to say that it lays down the broad principle that nothing shall be punishable as a conspiracy except a combination to do a thing which would be a crime if done by one individual person, when the very same Statute goes on to make crimes in one individual of things which had never been crimes before! Does the hon. Member suggest for a moment that it would formerly at the Common Law have been an offence to follow a person from place to place in the street, or to watch his house? Of course not.
§ MR. HOWELL (Bethnal Green, N.E.)
Numerous decisions have been given, and this is simply an exposition of the law.
§ MR. MATTHEWS
This was an attempt to embody the Law of Conspiracy as it applied to Trades Unions; and any hon. Member who will take the trouble to read the Report of those learned Commissioners, upon which this Statute is founded, will find that this is the precise advice they gave. They said, We would rather not deal with the Law of Conspiracy as a whole; it embraces too many matter's; it has too many ramifications; it is too wide and too multifarious in its application. We will not deal with it as a whole; we will deal with it in its specific application to trade conspiracies. The Statute, I admit, is not very skilfully drafted; the arrangement of it is a little awkward; but it picks out those things which were unlawful means—any means recognised as unlawful in previous decisions of the Courts, in order to constitute a criminal conspiracy—and makes them offences under the Act, and then says, "You will be guilty of criminal conspiracy only when you have done one of these acts which we make crimes, or any other act which is a crime by any Statute or the Common Law." Therefore, I say the Statute of 1875 does not support the proposition that the hon. and learned Member for Dundee attempts to derive from it. He also quotes the Code of 1880, and thereupon the right hon. Gentleman the Member for Derby was enthusiastic almost. He rose into lyric flights in his praise of the Code. But the Code does not affirm the proposition advanced in this Resolution. The Code is distinctly in opposition to the proposition that nothing is to be a conspiracy except a combination to do an act which would be criminal if done by a single person.
§ MR. MATTHEWS
Well, the Resolution says so. Tue right hon. Gentleman made a speech which was in reality a speech against the Resolution, a speech in favour of the Bill of last year, and also 1530 a speech against the Solicitor General (Sir Edward Clarke). These seem to be the three objects of the speech of the right hon. Gentleman. It was not a speech in favour of the Resolution, but I am dealing with the Resolution. The hon. and learned Member who brought it forward claimed the Report and the Code of the Commissioners of 1880 as being in his favour. I say they are against him, and I will tell him why. We heard, for instance, something about combinations—
§ SIR W. HARCOURT
Would the right hon. Gentleman allow me to interrupt him for a moment? I think he has misunderstood both what I said and what my hon. and learned Friend said. The Resolution does not say that there ought not to be anything punishable that is done by two people which is not punishable when done by one, but would only be punishable by Common Law; it says that the Common Law should be amended so that, if punishable at all, it should be by Statute and not by Common Law. That is what the Resolution is.
§ MR. MATTHEWS
That is what the Amendment says. The Resolution condemns the Common Law of Conspiracy, and urges that no act should be punishable as a conspiracy except combination to do an act which is criminal in itself.
§ MR. E. ROBERTSON
What I said was that the general proposition should be that a combination is not to be criminal unless the act would be criminal if done by one individual, or unless the combination is declared by Statute to be illegal.
§ MR. MATTHEWS
I am sorry I omitted to add that latter qualification. But really that is not relevant to the point upon which I am arguing. I am arguing against the contention of the hon. and learned Member, which was that the Act of 1875 was in his favour, that the Code 1531 of 1880 was in his favour; and I am endeavouring to show that neither of them is in his favour upon that point, but, on the contrary, they both negative his proposition. Take the Code; I will give only one example: Conspiracy to defraud is one of the things which the Code determines to keep alive, and it makes a person guilty of an indictable offence who conspires by deceit or falsehood, or other fraudulent means, to defraud the public, or to affect the market price of Stocks or merchandise, or anything publicly sold, or to defraud any person ascertained or unascertained—persons known or unknown—whether such deceit or falsehood or other fraudulent means would or would not amount to a false pretence. I agree that the Code does not preserve all the Common Law cases; it preserves as many of them as the ingenuity of the draftsman could put into it. Then do not let it be quoted in favour of the universal and sweeping proposition affirmed in the Resolution. The Code is against it distinctly. I will give another instance. The Code contains a clause which clearly makes conspiracy to defile women an offence—and that is a combination to do that which is not an offence when done by a single person. So it is with a conspiracy to prevent Justice or to bring false accusations, to which I hope the hon. and learned Member for York will devote a little more careful study. The hon. and learned Gentleman seems to think that one could not conspire to bring a false accusation without committing perjury. But there may be half-a-dozen persons who keep in the background and put forward others as witnesses to bring a false accusation, whilst they themselves; abstain from coming to the Court of Justice. I regret that there are many things omitted from the Code which might have been contained in it. I will take for example the case of boycotting. There is rid section in the Code which deals with the question of boycotting.
§ MR. MATTHEWS
I suppose the hon. Gentleman the Member for Dundee sympathises with boycotting. Let it be noted that this is a Resolution in favdur of boycotting and the Plan of Campaign. 1532 No actual case has been quoted in the course of this Debate, except the case of boycotting, for which this Resolution is at all wanted. As you know, the supporters of the Resolution have been challenged to produce a single case since 1875, and they have not done so. I can understand that hon. Members should sympathise with boycotting as applied to persons they dislike, such as landlords and persons who have the audacity to take evicted farms; but let me point out that there may be a case of boycotting for the purpose of depriving a person of the means of life; a whole neighbourhood may combine not to let a person have meat, fire, or any of the necessaries of life. That is what they euphemistically call "exclusive dealing." This may be done, not because the person has offended against their idea of what the land laws should be, but purely out of simple hatred and malice. Is that to be punishable by the Criminal Law or not? No man can be punished by the Criminal Law who singly refuses to sell any necessary of life to another, but if a large and powerful combination pursues such a policy for a malicious purpose, is that to be a criminal act or not? I challenge denial to the assertion that a case of boycotting such as I have described, not only ought to be a crime, but should deserve very severe punishment. The Plan of Campaign has been held to be a conspiracy within the Common Law doctrine, and it is equally certain that under the terms of the Resolution it would cease to bear that character. It would escape if the Resolution were adopted, for it is not a criminal offence for one man to refuse to pay his rent, to hand it over to others, or to arrange that the money due to the landlord should be spent in contesting his right. I am not suggesting that it ought to be; but I do think that when we see the wide-spread misery, injury, and social mischief which has been produced by combinations to do these very things, it would be a wise policy and a wise law that would enable such combinations to be dealt with by a Criminal tribunal, I should be very glad if any hon. Member could frame clauses which would be so definite as to embrace all possible combinations the object of which was to do injury to others. The difficulty of making definitions 1533 is not due, I believe, to defects in the law, but to the nature of things and to the varying characters that malevolence and human ingenuity can assume. Therefore, I think that the sweeping Resolution of the hon. and learned Member for Dundee would leave the law in a state much less satisfactory than it now is.
§ (11.45.) SIR C. RUSSELL (Hackney, S.)
I cannot recollect any instance in which a Member of the House has displayed so complete a misapprehension of the character and object of a Resolution as that which has been displayed by the right hon. Gentleman who has just sat down. In the very few moments that remain to me I can hardly do more than re-state the proposition without being able to argue it at length. The proposition is that the Law of Conspiracy should be so amended that it should be no longer possible that at Common Law persons should be found guilty of crime for doing together that which would not be a crime if done by one person. The reason why that Amendment is insisted upon is because the law, as has been universally admitted, depends not upon definitions, which can be brought to the test, but upon the varying decisions of particular Judges. It is no exaggeration to say that Criminal Law of Conspiracy depends upon the view which a particular Judge may take of what constitutes political, or social, or even moral wrong-doing. But because we contend for definition of crime by Statute, does that justify the right hon. Gentleman in saying that we, on this side of the House, object to have brought within the range of the Criminal Law that which ought to be dealt with as matters of criminal conspiracy? No, Mr. Speaker, it does not. What we say is, "Define your crime. Let it be a creation of the Legislature by Act of Parliament, and not depend upon the varying or it may be capricious opinions of Judges." When the light hon. Gentleman refers to the Statute of 1875 as no justification for the position taken up by my hon. and learned Friend, he certainly cannot have examined the Statute very closely. That Statute, as regards the question of trade disputes, affirms the general proposition that no 1534 thing done in combination in furtherance of a trade dispute shall be a crime which would not be a crime when done by one person. The right hon. Gentleman, although knowing that that is contained in the 3rd Section, seems to think he makes a point in his own favour by referring to the 7th Section. Why, the 7th Section does, in the case of trade disputes, the very thing we are insisting should be done in all cases of criminal conspiracy — namely, it defines certain matters, some of which were criminal before, and some of which were not criminal before, which are to be exceptions to the general principle laid down in the 3rd Section. That is what we desire to be done in the present case; we desire that principle to be extended. The position of the right hon. Gentleman is the more extraordinary when one recollects the history of the Bill brought in in 1878 and afterwards in 1880. He has denounced that Bill, and he has denounced the views of the very able and learned Commissioners, whose recommendation was as follows:—We have taken the responsibility of recommending that crimes should no longer be indictable at Common Law, but only under the provisions of the Draft Code or some other Act in force for the time being … Section 5 will have the effect of preventing indictments at Common Laic for conspiracy."Therefore, this Commission and the then Attorney General, Sir John Holker, Lord Halsbury, then Solicitor General, Lord Cross, and Lord Cairns, then Lord Chancellor, gave their assent, by the introduction of the Criminal Code Bill, to the principle which the right hon. Gentleman the Home Secretary now denounces. ("No, no.") Yes, yes. Hon. Gentlemen may say "no, no." I repeat "yes, yes." The right hon. Gentleman has made one remark with which I agree, and only one. He has said that the Criminal Law requires expansion from time to time. I agree; but the Legislature can from time to time deal with such instances, and it has shown its ability to deal with them; and whenever the necessity arises the Legislature may be trusted to deal effectually with them. Now, some reference has teen made to the Act of 1875, and it is said that no case of hardship can be alleged under it; but my right hon. Friend the Member for Derby has already pointed out that even that Act is wholly inefficient 1535 and ineffective, because it leaves unprotected all classes of disputes except trade disputes, and those only are protected which arise as between employers and employed. It does not touch disputes as between employés, nor does it touch disputes in other branches of industry than those of trade. If it is true that the law is vague, and therefore dangerous because vague, in cases where we have questions of conspiracy happily decided still in England by a Judge of the Superior Court and with the assistance of a jury, how much more dangerous is it in cases with which the right hon. Gentleman the First Lord of the Treasury is familiar, where there are delicate, vague, undefined questions of conspiracy dealt with by Removable Magistrates whose legal capacity is, forsooth! certified by the Lord Lieutenant, and especially when that authority is called upon to deal with a provision which enables the Removable Magistrates to inquire into cases of criminal conspiracy "to compel or induce persons not to fulfil their legal obligations?" The right hon. Gentleman has asked whether we are defending boycotting, and whether it should be within the Criminal Law. My answer is this. There are cases of boycotting, and there are cases of boycotting. Some I would reprehend as strongly as any man in this House, and put down firmly as against the best interests of society; but knowing the record of proceedings in Irish Courts as I do, and the use to which the provision of the Act of 1887 has been applied in Ireland, I say that if we wish to have a clear example of the absolute necessity of a close and accurate definition of the subject matters of criminal conspiracy we must look to the administration of the law as it has taken place in Ireland. I say that my hon. and learned Friend, in the admirable speech he made to the House, has justified his position by reference to the Act of 1875, to the action of the Commission, and to the Bill introduced on high Conservative authority in this House. He is also justified by the general considerations applicable to the case, and I think we must all admit that it is a source of danger to the country, and one which ought to be removed, that there should be the loose vagueness, which it 1536 is admitted exists, in such an important branch of our Criminal Law.
§ (12.0.) Question put.
§ The House divided:—Ayes 180; Noes 226.—(Div. List, No. 50.)
§ Words added.
Main Question, as amended, put.
Resolved, That this House declines to pledge itself to any alteration of the Law of Conspiracy until it hag had an opportunity of considering the proposed Amendments in a definite form and embodied in a Bill, so that their effect upon the existing law can be adequately considered in connection with all interests affected thereby.