The Historiography of the Law of Conspiracy
| Autor | Víctor Saucedo |
| Páginas | 30-76 |
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The historiography of the law of conspiracy took off as a consequence of the mid-Victorian trade unions issue and the movement for the codiication of the criminal law of England that the Indian Penal Code had reignited. Other than from Early Modern sources, most of what we know about the medi-eval conspiracy was irst cobbled together by authors who saw in the labor issue an opportunity to gain allies and advance the codiication of criminal law. Theirs was to be an exercise in the internal doctrinal history of the law of conspiracy to provide a rational basis for the codiication of criminal law. History was the handmaid of codiication, to paraphrase Maitland. It was in-evitable that they would bring their codifying ideals and ideas to bear on their historical inquiry as well as the concerns of organized labor. Thus, in using the historical method, they put the cart before the horse, beginning irst with the concept of conspiracy they needed, and only later working out its histor-ical development as they saw it. This approach was to be consequential, as they laid the ground for the development of a historiographical tradition that revisited and cultivated the issues that they raised.
The vexed question of the status of trade unions and their practices in nineteenth century-Britain reached its climax by 1871. After the age of the Combination Acts in which Trade Unions and their practices had been banned altogether under penalties that ranged from a few months to a year of imprisonment, the Act to Repeal the Laws Relating to the Combination of Workmen 1825 (6 Geo 4 c 129) laid the framework for the next decades in which trade unions, strikes, and boycotts were decriminalized within certain boundaries. The law was vague and open to interpretation, particularly as to the extent to which the common law of conspiracy applied to trade unions. This invited different and contrasting interpretations that ranged from the view that the law had negatively created a right to unionize and strike, to those who thought
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that trade unions and their practices remained essentially illegal with some exceptions carved out by that law. By the 1850s, it was becoming clear that the courts held the second view and that they would narrow those exceptions to limit the ability of the trade unions to strike. This involved not only the interpretation of the penal clauses of the Act of 1825 but also the construction of the common law of conspiracy.
This Tory settlement came to an end with the enfranchisement of part of the working classes and the arrival of a new Liberal government in 1868 that was eager to deliver to this constituency by trying to ix the labor issue. As a result, two laws were passed which replaced the Act of 1825: the Trade Union Act 1871 (34 & 35 Vict c 31),1and the Criminal Law Amendment Act 1871 (34 & 35 Vict c 32). Though the common law of conspiracy was not abrogated, the second provision of the Trade Union Act carved out a wide immunity for the members of trade unions: “The purposes of any trade union shall not, by reason merely that they are in restraint of trade, be deemed to be unlawful so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise.”2This was complemented with the penal clause of the Criminal Law Amendment Act which—in the most convoluted way possible—allowed for the application of the common law conspiracy to acts unlawful under this Act:
Nothing in this section shall prevent any person from being liable under any other Act, or otherwise, to any other or higher punishment than is provided for any offense by this section, so that no person be punished twice for the same offence. Provided that no person shall be liable to any punishment for doing or conspiring to do any act on the ground that such act restrains or tends to restrain the free course of trade, unless such act is one of the acts herein-before speciied in this section, and is done with the object of coercing as herein-before mentioned.3The new law was tested almost immediately. In December 1872, the gas stokers of London decided to go on a strike demanding that workers who had
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been victimized by the gas industry for their involvement in a recent successful campaign to raise their wages and end Sunday work were reinstated. As their demands were not met, they walked out putting London at the risk of total darkness. The companies managed to keep a limited supply of gas light-ing by bringing in unskilled workers, and though the strike izzled out, they showed no mercy afterward.4Prosecutions were brought against the leaders of the strike for “conspiring to interfere with the free will of the gas company in the management of its business by the use of improper threats and molestation,” and for “conspiring to commit an offence under the Master and Servant Act by breaking their contracts.”5The defense counsel warned that should the strikers be convicted on the irst count virtually “any combination to induce an employer to do something he might not otherwise want to do could constitute a criminal conspiracy.” Brett J6dismissed this contention and instructed the jury that “if there was an agreement among the defendant by improper molestation to control the will of the employers, then I tell you that would be an illegal conspiracy at common law, and that such an offence is not abrogated by the Criminal Law Amendment Act.” The gas stokers were convicted on the second count of conspiring to break their contracts. Though the maximum sentence provided for such offence under the Master and Servant Act 1867 (30 & 31 Vict c 141) was of three months, Brett applied the common law of conspiracy extending it to twelve months of imprisonment because of their “disregard of public safety.”7Though the government remitted eight months the sentences—keeping the principle that the punishment of a conspiracy to commit a statutory offense might be more severe than the offense’s one—this did not stop criticism of the sentence to mount up in the press as an example of judicial activism and class bias. As Brett’s principle was ready to be used by the courts in sub-sequent cases if they saw it it, risking turning the new legislation on the law of strikes into a dead letter, the Home Ofice thought it convenient to query government law oficers whether the new law should be amended to avoid
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the application of the common law of conspiracy, and whether it should be “retained, amended or abolished.”8The case also ignited a public debate as to the application of the common law conspiracy to conducts that were lawful when done individually, as well as to whether punishment should be harsher when unlawful conducts were committed individually. James Fitzjames Stephen and Robert Samuel Wright, two Benthamites who would become champions of the codiication of the criminal law of England, seized the opportunity to bring the newly en-franchised labor to the cause of the codiication of criminal law by framing the labor issue as one that could be cured by bringing certainty and afirming the principle of legality in criminal law. In 1870, Wright had been asked to draft a criminal code for Jamaica by the Colonial Ofice, which he concluded in 1874. Stephen was responsible for the revision of the draft, and it is possible that the decision to draft his own penal code was formed while working on this revision.9The attitudes of both men towards organized labor seemed to differ nevertheless. Since 1872, Wright drafted legislation on behalf of the Trade Unions Congress, a version of the act that would replace the Criminal Law Amendment Act which was later abandoned, and some of the crucial provisions of the Conspiracy and Protection of Property Act of 1875. It was said in a meeting of the Trade Unions Congress that “there was no man in England to whom they were more indebted for the improved labour laws under which they lived.”10By contrast, Stephen, who would rally the working classes behind his project of codiication in a meeting of the Trade Unions Congress, saw them oppose his Draft Criminal Code when they realized that “it did not repeal the law of conspiracy… [nor] secure the right of public meeting.”11
However, it is dificult to say, from their technical writings, whether Ste-phen had made a tactic alliance with, and whether Wright was a friend of, labor. Reading what they wrote regarding the common law of conspiracy, one has the impression that they were as concerned with the right of workers to organize and strike, as with not alienating the judiciary or the conservative forces in Parliament. Stephen, for instance, would initially denounce Brett’s rule as an instance of how judges took advantage of the obscurity and vague-
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ness of the common law to punish whatever conduct they disapproved of without giving the workers the chance to know whether they were committing any offense. He further added that this creative ruling took the attention away from the actual offense, which was the breaking of contracts in situations that might affect public safety.12Later though, he would admit that Brett was onto something when he laid down his doctrine, but that it was perhaps not worth keeping it if it meant taking away the...
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