The Rearrangement of the Law of Conspiracy

AutorVíctor Saucedo
Páginas277-337

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The Rearrangement of the Law of Conspiracy

1 Conspiracy in the Court of Star Chamber

The development of this new form of action was not only the result of the common law litigation. The Court of Star Chamber also played an essential role as it opened its own forum to the same kind of complaints that were reaching the common law courts, offering its own remedy against failed prosecutions. When it came to framing these cases, the same analogies were mapped against these complaints, and the same kinds of arguments were raised to defeat or bolster them.

However, before even engaging in these issues, actions had to overcome the threshold of the Court, and for that some watchwords were necessary. Determining the Star Chamber’s jurisdiction over these cases was peremptory. And this was not a minor issue that lawyers had to raise in court, for there was a long tradition of dealing with prosecutors in the common law courts through the writ and the indictment of conspiracy. There were two approaches as to how the Star Chamber could offer a remedy for failed prosecutions. It could, for instance, assume that it had cognizance of ordinary cases of conspiracy, and then go on to extend this jurisdiction to new cases such as failed or individual prosecutions. This path would lead to frame these new facts either as a special case of the writ of conspiracy or as leading to an action for consequential damages to an innocent’s reputation.1However, it could also frame these cases so that their facts amounted to offenses known to be within the purview of the Star Chamber, such as subornation of perjury, forgery, or inchoative crimes. The result of this second alternative would mean a profound change in the structure of conspiracy, as one of its peripheral forms would end up structuring the whole category.

1.1 Analogy with the Writ of Conspiracy

As mentioned above, it seems that, at least for some authors, the Court of Star Chamber assumed that the jurisdiction over cases of what would

1 In turn, this blended space would consolidate as a new form of action.

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amount to an action on the case derived from its jurisdiction over cases of conspiracy. From that point of view, the misdemeanor the court punished was modelled in purely formal terms as a special case of conspiracy, distinguished from the form of conspiracy in the variation of certain requirements. There is no better example of this opinion than Hudson’s description of the court’s jurisdiction over “conspiracy and false accusation.” Indeed, the use of these two expressions seems to designate the classical view of conspiracy as encoded in the writ of conspiracy, and the variations of the action of the case.

Regarding the issue of jurisdiction, Hudson notes that in Rochester v Solm (1600), Coke believed “after his acquittal he was to prefer his indictment at the common law, where conspirators were to have their villaines judged.”2He thus implied that no suit could be brought to the Star Chamber for conspira-cy. However, Egerton afirmed the jurisdiction of the Star Chamber over cas-es of conspiracy “manifesting that notwithstanding the party might have his indictment, yet that excludeth not the court of jurisdiction.”3And, although Egerton’s opinion was expressed in a relatively recent case, Hudson argued that this jurisdiction was exercised as early as the reign of Henry VIII, with several cases to prove it.4He then added that, though “this court hath jurisdiction in all cases of conspiracy where the common law hath any… [it also has jurisdiction] in divers cases further than the common law.”5These were cases in “which there appears no indictment or acquittal,” and where “one man falsely accuse [sic] another.”6That is, they are the same type of cases that would develop the frame of the action on the case of conspiracy as an action devised to overcome the acquittal and plurality requirement.

I will turn now to those elements of the blended space that are the result of the mapping of the form of action of the writ onto the facts. It should be recalled that, as this blended space tended to include facts that not only did not match the writ, but were inconsistent with it, in time, courts began to think of this blend not as within the periphery of the writ of conspiracy but as a cate-2 Hudson TSC, 204.
3 Hudson TSC, 104.
4 Hudson TSC 106. See also the Tudor cases cited in 9 Co Rep 57a, 73 ER 815; and in Moore (KB) 817, 77 ER 924. Since the punishment of the criminal conspiracy involved forfeiture of land, one may wonder whether extending the jurisdiction of the Star Chamber to this offence did not violate its jurisdictional limitations to misdemeanors, HLC 564.

5 Hudson TSC 106.

6 Ib.

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gory of actions itself, an action on the case. Some of the facts of the base space will be projected onto the blend and then mapped onto different frames.7I will show next how the facts of the cases that came before the Star Chamber were mapped onto the frame of the writ of conspiracy, and how the blended space resulting from these projections allowed lawyers to draw inferences as to the cases they were arguing about.

The previous agreement of the formula of the writ appears among the facts declared in several cases before the Star Chamber. In Remington & Al. v Allen & al. Pasc. (1625), the defendants “by Conspiracy met together, and procur’d an Indictment of Barratry against the Plaintiffs.”8In Bacon v Boulton & al (1631), the defendants “by like Conspiracy and Agreement… preferred… an Indictment.”9However, the previous agreement does not seem to imply the doctrine developed by the courts that there had to be at least two defendants for the action to stand. As has been mentioned in passing, paralleling the contemporary development of the action on the case in the nature of conspiracy, Hudson says that at the Star Chamber suits could be brought against a sole defendant. Indeed, there are several cases brought against a sole defendant, but they never raised the issue as to the plurality requirement.10

As in the action on the case, wrongful prosecution mostly meant complaining before a JP and being detained and bound to appear before court as a consequence of it. In the Poulterers’ Case (1610), the defendant complained of having been “apprehended, examined, and bound to appear at the assises in Essex.”11In Monk v Blackburn & al., the defendants fabricated evidence that led to a warrant, the examination and the imprisonment of the plaintiff.12The wrongful prosecution was framed as procured. It should be recalled that the term procurement could be used to evoke several different frames in-7 See later.
8 SCR 1-4.
9 SCR 28-34.
10 See the cases cited in Hudson TSC 104-106, Moore (KB) 816, 817, 77 ER 924 and
9 Co Rep 55b, 57a; 73 ER 813, 815 another case against a sole defendant is Floyd v Barker (1608) 12 Co Rep 23, 77 ER 1305. Interestingly enough, Robert Scarlet’s Case (1612) 12 Co Rep 98, 77 ER 1373 resembled the early writs of conspiracy’s allegations of corruption as there was a sole defendant who was said to have been “by confederacy betwixt him and the clerk, procured himself to be sworn of the said grand inquest.”

11 9 Co Rep. 55b, 73 ER 813. 12 SCR 28-34.

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heriting from the meaning to cause someone to do something. Indeed, these frames appear sometimes evoked by the term procurement, sometimes by other terms. The main consequence thus is that the wrongful prosecution is always presented as something that the defendants procure or cause to be by their agreement. This way of framing the wrongful prosecution also appears in the actions brought before the Star Chamber. In the Poulterers’ Case (1611), it appears as misleading or deceiving a public oficer or a jury into do-ing something unlawful by crafting a false accusation, so the defendants were said to have intended “to procure him to be indicted, arraigned, adjudged, and hanged,” and they “procured divers warrants of justices of peace.”13In

Remington & Al. v Allen & al. (1625), the defendants were alleged to have “procur’d and Indictment of Barratry against the Plaintiffs.”14In Tyler v Towlin & al., the defendants “procured a Warrant for him from a Justice of Peace,” and after the accuser retracted, again “they procured another Warrant against him, and got him bound over to answer it at the Assizes, where they procured a Bill of Indictment to be preferred against him.”15

Procurement could also mean corruption or abetment of another person. The subornation of witnesses not only was an analogy with the writ of conspiracy but also brought the case within the jurisdiction of the Star Chamber as this court was responsible for the punishment of the subornation of witnesses. In Anthony Ashley’s Case (1611), the defendants were said to have been suborned by another defendant to accuse the plaintiff of murder “and that he should procure witnesses to convict the plaintiff of murder.” In Phips Cler. v Eyres & al.16(1631), the defendants were said to have, “by Persuasions, Promises of Reward, and Solicitations, … procured… [the defendants] to consent, to accuse the Plaintiff of a Rape.”17In Lord Wentworth, Lord Deputy of Ireland, against the Lord Mountnorris, Sir Pierce Crosby and others (1639), the defendant was said to have “stirred up… [one of the defendants] to prosecute [the plaintiff]” and offered her money to maintain the suit.18Corruption is not explicitly mentioned but implied in Robert Scarlet’s Case (1612), where the defendant was said to have “procured himself to be sworn of the… grand

13 9 Co Rep 55b, 73 ER 813.
14 SCR 1-4.
15 SCR 15-20.
16 12 Co Rep 90, 91, 77 ER 1366, 1367. 17 SCR 20-28.
18 HC 885-946.

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inquest.”19In Monk v Blackburn & al. (1632), there rather was abetment, as one of the defendants was said to have “procured the other Defendants to insert...

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