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 Cornell UNtvERsixv Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1S93 
 IN nenoRY of 
 juoae DouaLASs boaroman 
 
 J FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 ;;! , V A. Ml. BOARDMAN and ELUJEN D. WILLIAMS 
 
 ifc L^^:- . 
 
CORNELL UNIVERSITY LIBRARY 
 
 3 1924 060 047 325 
 
The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924060047325 
 
^t f afo 
 
 OF 
 
 CRIMIML CONSPIRACIES 
 
 AND 
 
 AGREEMENTS. 
 
 .r 
 
 R. S WRIGHT, 
 
 OF THE INNER TEMPLE, BARBISTBB AT LAW, 
 FELLOW OF OKIEL COLL., OXFORD. 
 
 " Kather to . . . than . . hj unprofitable subtlety, which corrupteth 
 the sense of law, to reconcile contrarieties." — Lord Bacon's Mementa, Pre/. 
 
 LONDON: 
 BUTTERWOETHS, 7, FLEET STREET, 
 
 ftr ItBJMtg's f afa Inbli^trs. 
 
 HODGES, FOSTER & CO., GRAFTON STREET, DUBLIN. 
 
 CALCUTTA : TRACKER, SPINK & CO. BOMBAY : THACKBR, VINING & CO. 
 
 MELBOURNE : GEORGE ROBERTSON. 
 
 1873. 
 
LONDON : 
 
 PRINTED BT C. EOWOKTH AlfD SONS, 
 
 NEWTON STKBET, W.O. 
 
CONTENTS. 
 
 SECTION I. 
 
 GENERAL HISTORY OF THE LAW OF CRIMINAL COMBINATIONS. 
 
 § 1. General History of the Law of Criminal Combinations . . . . 5 
 ft. SECTION -n. 
 
 THE KINDS "(OE.I^POS0E's) OF CRIMINAL- COMBINATIONS. 
 
 § 2. Arrangement of this Section . . .... . . . . 19 
 
 § 3. Combinations to commit Conspiracy, properly so called, within 
 
 the meaning of the Three Ancient Ordinances of Conspirators 20 
 § i. Other Combinations expressly prohibited by Statutes now in 
 
 force 23 
 
 § 5. The Rule of the Seventeenth Century that Combination for any 
 
 Crime is punishable . . . . , . . . . . . . 26 
 
 § 6. The Question of a wider Rule . . . . . . . . . . 27 
 
 § 7. Examination of Cases on Combination against Government . . 28 
 § 8. Examination of Cases on Combination to pervert or defeat 
 
 Justice . ■ . . . . . . . . . . . . . . 30 
 
 § 9. Examination of Cases on Combination against Public Morals 
 
 and Decency . . . . . . . . . . . . . . 32 
 
 § 10. Examination of Cases on Combination to Defraud . . . . 38 
 
 § 11. Examination of Cases on Combination to injure Individuals 
 
 (otherwise than by Eraud) . . . . . . . . . . 37 
 
 § 12. Examination of Cases on Combinations relating to Trade and 
 
 Labour : — (1.) Restraint of Trade and Disturbance of 
 
 Markets , 43 
 
 § 13. Examination of Cases as to Trade and Labour continued : — 
 
 (2.) Coercion of Individuals .. .. .. .. ..45 
 
 § 14. Summary of this Section. — Lord Denman's Antithesis . . . . 62 
 
 SECTION in. 
 
 THE ACT OF COMBINATION. 
 
 § 15. The Act of Combination — Evidence— Punishment — Exceptions 68 
 
 § 16. Foreign Laws 77 
 
 § 17. Conclusions , 80 
 
 Appendix I. List of Statutes 89 
 
 Appendix n. Leading'Cases . . . . . . • • . . 90 
 
 Appendix ni. Lists of Cases . . ... 101 
 
 b2 
 
djottspirams m& ^^mmtuK 
 
 SECTION I. 
 
 Genebal History of the Law of Ceiminal 
 Combinations. 
 
 Preliminary Notes. 
 
 [1. References to the cases on conspiracy are made in the text by 
 date and name, without the addition of the books in which the cases 
 are reported. A chronological list of cases will be found in -Ap- 
 pendix III. ; and also an alphabetical list with the references. Some 
 important cases are set out in full or in part in Appendix II. 
 
 2. The word " ruled," as applied to a proposition of law for which 
 a case is cited, is used to signify that the proposition was laid down 
 by a judge acting on assize, or under a special commission, or at nisi 
 prius, or at the Central Criminal Court, or at sessions. The word 
 "held" is used to signify that the proposition was laid down by a 
 judge or judges acting in banc or in a court of appeal.] 
 
 § 1. General History of Criminal Combinations, 
 The history of the law of criminal conspiracies and 
 
 combinations may be conveniently divided into three 
 
 periods^ of which the first ends with the sixteenth, and 
 
 the second with the eighteenth century. 
 
 [1200 — 1600.] There appears to be no evidence that, 
 
 during the first of these periods, any other crime of con- 
 
THE LAW OP 
 
 spiracy or combination was known to the common law than 
 that which was authoritatively and "finally" defined in 
 A.D. 130^ by the Ordinance of Conspirators, 33 Edw. 1., 
 as consisting in confederacy or alliance for the false and 
 malicious promotion of indictments and pleas, or for em- 
 bracery or maintenance of various kinds. During the 
 reigns from that of Edward III. to the end of tbat of 
 EKzabeth, various statutes were directed against combina- 
 tions for treasonable purposes or for breaches of the peace, 
 against combinations by merchants to disturb the markets 
 or prices, and against combinations by masons and car- 
 penters, by victuallers to raise prices, and by labourers to 
 raise wages or alter hours; but no mention has been found 
 in any of the writers, reports or abridgments of the period 
 before the 17 th century of any kind of conspiracy, con- 
 federation or combination, as being criminal at common 
 law, except the crime of conspiracy as defined by the 
 ordinance of 1305. The process by which this specific 
 oflFence has been expanded into the comprehensive titie of 
 conspiracy or combination in the modem criminal law is 
 now to be traced. 
 
 [1600 — 1800.] The modem law of conspiracy has 
 grown out of the application to cases of conspiracy, 
 properly so called and as defined by the 33 Edw. 1, of 
 the early doctrine that since the gist of crime was in the 
 intent, a criminal intent manifested by any act done in 
 furtherance of it might be punishable, although the act 
 did not amount in law to an actual attempt. (Cp. by 
 Mr. Greaves, in Cox's C. L. Cons. Acts, p. Ixxxiv.) In 
 accordance with this view it was determined in 1354 
 (Anon.), and again in 1574 (Sydenham), and finally settied 
 on the authority of the former of those cases by the Star 
 Chamber in 1611 (Poulterers' Case), that although the 
 crime of conspiracy, properly so called, was not complete 
 unless in a case of conspiracy for maintenance some suit 
 had ,been actually maintained, or in a case of conspiracy 
 for false and malicious indictment the party against whom 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 7 
 
 the conspiracy was directed had been actually indicted and 
 acquitted, yet the agreement for such a conspiracy was 
 indictable as a substantive offence, since there was a 
 criminal intent manifested by an act done in furtherance 
 of it, viz., by the agreement : and from this time, by an 
 easy transition, the agreement or confederacy itself for the 
 commission of conspiracy came to be regarded as a com- 
 plete act of conspiracy, although traces of the original 
 distinction between a completed conspiracy and the mere 
 agreement or confederacy to commit it long continue to 
 befoimd. (1699. Savile w, Roberts : 1705. Best: 1811. 
 Turner.) Moreover, since in the Poulterers' Case no- 
 thing had been done which amounted to a complete crime 
 under the statute, it followed that the criminality of the 
 agreement must be in some sense a criminality by common 
 law; and Lord Coke's observations on this point in his 
 report of that case soon received an extended application, 
 and grew into a rule that a combination to commit or to 
 procure the commission of any crime was criminal and 
 might be prosecuted as a conspiracy, although the crime 
 might have nothing to do with the crime of conspiracy 
 properly so called. The first indication of this doctrine 
 in a text book is to be found in the insertion in those 
 editions of the " Termes de la Ley "(a), which were 
 published after the report of the Poulterers' Case, of a 
 generalized paraphrase of that case. It is mentioned in 
 1665 (in Starling's Case) that there were precedents for 
 informations in the Exchequer for conspiracies to commit 
 offences relating to the revenue ; and during the reign of 
 Charles II. and the two following reigns the tendency 
 towards the general establishment of the doctrine ap- 
 pears in the practice of insertiag by way of aggravation 
 (see by counsel for the crown in 1697. Thorp) in the 
 inducements of indictments or informations for misde- 
 
 (a) 1629, 1641, &c. The passage does not appear in the edition of 
 1579. In the edition of 1629 it is marked as new matter. 
 
8 THE LAW OF 
 
 meanors, the words " cohspiratione inter eos halitd" or 
 
 "per conspirationem" or " conspirantes" or " conspirans ' 
 
 or " machinantes et aggreg-antes," especially in cases of 
 
 cheats. Instances of this practice will be found ia 1674 
 
 (Thody), 1682 (Lord Grey), and 1697 (Thorp; see the 
 
 argument of the counsel for the crown) ; and in some 
 
 cases (see 1685. Salter: 1704. Orbell) this seems to have 
 
 been done, in conformity with the practice in civil actions 
 
 on the case (1 Wms. S. 229 b, n. 4), even where the whole 
 
 frame of the indictment was confined to a single defendant, 
 
 . The convenience of this mode of procedure in permitting 
 
 the conviction of persons without proof of a complete crime 
 
 had already been proved in indictments for treason (1600. 
 
 Blunt: 1680. Stafford: 1683. Russell), and seems to 
 
 have completely established the practice in the reign of 
 
 George I. 
 
 The principal share in the earlier stages of this process must be 
 ascribed to the Star Chamber. The jurisdiction of that court was, 
 by the 3 Hen. 7, c. 1, specially extended to tlie punishment of 
 " unlawful maintenances, giving of liveries, signs and tokens, and 
 retainers by indentures, promises, oaths, writings, or otherwise 
 embraceries of [the king's] subjects, untrue deraeanings of sheriffs 
 in making of panels, and other untrue returns, by taking of money 
 by juries (6) ; by great riots and unlawful assemblies :" in other 
 words, to the subjects of the ordinances of conspirators and of the 
 statutes of riot ; and not only the Poulterers' Case, which is the 
 source of all the modern law of conspiracy, but all the other reported . 
 cases of conspiracy decided before the abolition of the Star Chamber 
 in 1640 (16 Oh. 1, c. 10), were in that court. 
 
 In the meantime the general criminal law had received 
 great extensions, first at the hands of the Star Chamber (c), 
 
 (S) There is a curious error in the print in Pulton (f. 24 i) of this 
 portion of the act 3 Hen. 7, c. 1. The act runs (as above) " by taking of 
 money hj juries" (i.e. embracery), or in the French of the statutes of the 
 realm — " pruiae dargent par iurrez." This Pulton prints " by taking of 
 money, by iiijurics, &e." Coke, in 4 Inst. 62, in his account of the juris- 
 diction of the Star Chamber, prints the words in the same way as Pulton, 
 and he appends a comment on the " large word" injuries. The 4th Inst, 
 was not published tiU the year after the abolition of the Star Chamber; but 
 Pulton was a great authority,! and Coke long acted as a judge in that court 
 upon this reading of the statute— an error which may have had political as 
 well as legal consequences. 
 
 (e) A case is reported in which this coui't punished the prosecutor as 
 well as the prisoner. (Moore, 761.) " Qitod raro est eicjterience derant," 
 says the reporter. 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. ' 9 
 
 next from the Court of Exchequer, which, by the 33 Hen. 8, 
 0. 39, had authority to punish at its discretion all tres- 
 passes, deceits, negligences, defaults, contempts, offences 
 and other things wherein the king should be only party, 
 and lastly and more permanently from the King's Bench. 
 That court, in 1616 (Bagg's Case), asserted itself as a 
 rival of the Star Chamber by resolving that "to this court 
 belongs authority not only to correct errors in judicial 
 proceedings, but other errors and misdemeanors extra- 
 judicial, tending to the breach of the peace or oppression 
 of the subjects, or to the raising of faction, controversy 
 or debate, or to any manner of misgovei^ament ; so that no 
 wrong or injury either publick or private can be done, but 
 that it sball be reformed or punished in due course of 
 law." "Although," Sir C. Sedley was told in 1664 
 (1 Sid. 168) " there was not now a Star Chamber, stUl 
 they would have him know that this court is custos morum 
 of all the subjects of the king." " Whatever" said Lord 
 Mansfield, in 1773 (Jones v. EandaU, Loffifc. 383), "is 
 contra bonos mores et decorum, the principles of our law 
 prohibit, and the king's court, as the general censor and 
 guardian of the public manners, is bound to restrain and 
 punish." The procedure by indictment for conspiracy 
 was during the 18th century applied to combinations for 
 a great variety of purposes made crimiual by these prin- 
 ciples. It is next to be seen how, in certain cases after 
 the ordinary criminal law receded from a portion of the 
 wide area over which it had thus claimed jurisdiction 
 during the 17 th century, the law of conspiracy con- 
 tinued to be applied to combinations for purposes which 
 had ceased to be criminal by the ordinary law. 
 
 Throughout the 17th century the question most fre- 
 quently agitated was, whether as between the mere combi- 
 nation for criminal acts on the one hand, and the execution 
 of the proposed acts on the other hand, the gist of the 
 crime lay in such a combination or included the execution 
 of the acts proposed. This was material for determining 
 
10 THE LAW OF 
 
 how far the proposed acts must be fiiUy and correctly set 
 out in the indictment, how far the combination must be 
 proved to have been carried towards execution, and 
 whether a court which would not have had jurisdiction to 
 punish the acts themselves might punish the combination, 
 and whether, in cases in which the proposed acts were 
 prohibited by statute, the ofiFence must be laid to be contra 
 formam statuti. In the course of the 17th century it be- 
 came settled law that as between the combination to do 
 the criminal acts and the acts themselves, tiie gist was in 
 the agreement or combination, for aU the above-mentioned 
 purposes; and that even where the proposed acts were 
 statutory offences, the conspiracy to do them might be laid 
 and punished as a substantive crime at common law ; and 
 it became the current phrase that the conspiracy was the 
 "gist of the indictment." (1663. Timberley: 1678. Arm- 
 strong: 1705. Best: 1719. Kinnersley.) This phrase, 
 which at first expressed scarcely more than a rule of 
 pleading, evidence, or jurisdiction, soon began to be 
 quoted for a different object. During the 17th and the 
 earlier part of the 18th centuries the law of cheats was 
 still unsettled, and numerous cases are to be found in 
 which cheats not of a pubHc nature and not within the 
 statute of false tokens (33 Hen. 8, c. 1) were held indict- 
 able ; so that Hawkins, writing in 1716, defined the crime 
 of cheating to consist in " deceitfial practices in defiraud- 
 ing or endeavouring to defi-aud another of his known 
 right by means of some artful device contrary to the plain 
 rules of common honesty;" and several cases of such 
 cheats had been prosecuted by way of conspiracy. But in 
 1720 (Wilders, cited in 2 Burr, at 1128) it was held that 
 private un&ir dealings, such as the iraud of a brewer in 
 selling to a publican casks of beer untruly marked as to 
 their measure, were not indictable; and the same view was 
 taken by the King's Bench in 1730 (Bryan) in the case of 
 a false pretence ; and finally settied in 1761 (Wheatley). 
 The same cases however which determined that such 
 
CRIMINAL CONSPIKACIES AND AGREEMENTS. 1 1 
 
 cheats were not indictable in an individual, reserved their 
 criminality in cases of conspiracy. DiiFerent grounds are 
 stated for this reservation. The judges are made to put 
 it in some cases on the ground that the combination makes 
 the cheat public; in others (1761. Wheatley), on the 
 grotmd that common prudence cannot guard against com- 
 bination to defraud. Whatever may be the true ground 
 of the doctrine, it has been found too beneficial to be 
 questioned; and it has long been established law that a 
 combination to defraud may be criminal, although the 
 proposed deceit is not such as would be criminal apart 
 from the combination. 
 
 Next a suggestion of a general doctrine that a combina- 
 tion may be criminal, although that which it proposes 
 would not be criminal apart from combiaation, begins to 
 appear in the argmnents of counsel towards the close of 
 the 17th century. In 1665 (Starling) it had been held 
 that a conviction for a combination to " depauperate" the 
 farmers of excise was good, because the indictment set 
 forth that the excise was settled on the king as a part of 
 his revenue, and the depauperation of the farmers of excise 
 would prevent them from rendering him that revenue. In 
 the argument in Thorp's Case (1697) as reported in 
 Keble, Starling's Case seems to have been cited by counsel 
 as an authority for a general doctrine of the kind above 
 stated; but no judgment was given in this case. The 
 doctrine seems to have been repudiated ia 1704 (DanieU) 
 by Lord Holt, who explained the exceptional ground of 
 ■Starling's Case, namely, that there the combination "was 
 directly of a public nature and levelled at the government ;" 
 and it seems not even to have been suggested in argument 
 in Best's Case (1705). But in 1717 Hawkins' Pleas of 
 the Crown was published, and in that work (i. 72, 2) it 
 was stated that " there can be no doubt but that all con- 
 federacies whatsoever wrongftJly to prejudice a third 
 person, are highly criminal at common law;" — a propo- 
 sition to which, unless by "wrongfuUy" he meant by 
 
12 THE LAW OF 
 
 criminal means, the authorities cited by him {d), with the 
 exception of the argument of counsel as reported in Keble, 
 firmish little or no support. But from this time expres- 
 sions of a similar kind begin to appear occasionally in 
 judgments, and by the end of the 18th century an im- 
 pression appears to have grown up amongst lawyers, which 
 can only be described by the double proposition that a 
 combination to do an unlaw&l act is criminal, and that in 
 in this phrase "unlawftd" does not necessarily mean 
 "criminal." The consideration of the meaning, grounds 
 and correctness of this doctrine must be deferred to a 
 future section. 
 
 [1800 — 1872.] The most prominent characteristic of 
 the law of crimiaal combinations in the present century 
 is its extended application to combinations of workmen. 
 Acts had in former times been passed to prohibit combi- 
 nations of workmen for altering wages or hours (2 & 3 
 Edw. 6, c. 15), and during the 18th century several acts 
 had prohibited combinations for controlling masters in 
 particular trades. In 1799, the Act of 39 Geo. 3, c. 81, 
 by sect. 1, provided that all agreements by workmen of 
 any kind for altering hours or lessening quantity of work, 
 or for hindering masters from employing such persons as 
 they should please, or for controlling or in any way 
 affecting a master in the conduct- or management of his 
 business should be " and the same are hereby declared to 
 be illegal, nuH and void" to all intents ; and by subsequent 
 sections it provided that workmen entering into such 
 agreements, or subscribing or collecting money, or attend- 
 ing meetings for the purposes of such agreements, or 
 bribiag, persuading or influencing other workmen not to 
 enter into hirings, or to quit their hirings, or refiising to 
 work with any other workman, &c., should be subject to 
 
 ((?) 1354. Art. of Inq.; 1607. Lord Gray of Groby; 1611. Poulterers' 
 Case; 1663. Timberley; 1665. Starling; 1678. Armsti-ong; 1699. Sarile 
 V. Roberts; 1705. Best. The later editors add— 1719. Cope; 1721. Tailors 
 of Cambridge; 1725. Edwards; 1793. The Prisoners' Case. 
 
CRIMINAL CONSPIKACIES AND AGEEEMENTS. 13 
 
 imprisonment. In the following year this act was repealed 
 and replaced by the 39 & 40 Geo. 3, c. 106, which con- 
 tained provisions substantially similar to those of the Act 
 of 1799, but which required in the case of some of the 
 offences that the acts must be wilfully and maliciously 
 done. In 1824 the Act of 5 Geo. 4, c. 95, repealed all the 
 then existiQg acts relating to combinations of workmen, and 
 provided that workmen should not by reason of combina- 
 tions as to hours, wages or conditions of labour, or for 
 inducing others to refuse work or to depart from work, or 
 for regulating " the mode of carrying on any manufacture, 
 trade or business or the management thereof," be liable to 
 any criminal proceeding or punishment for conspiracy or 
 otherwise under the statute or common law. By another 
 section it extended a similar immunity to combinations of 
 masters. On the other hand it enacted a penalty of two 
 months' imprisonment for violence, threats, intimidation 
 and malicious mischief. It was repealed after a year's 
 trial, and was replaced by the 6 Geo. 4, c. 129, a.d. 1825, 
 which continued in force until 1871. This act again 
 repealed the older statutes, but without mention of common 
 law. It provided summary penalties for the use of violence, 
 threats, intimidation, molestation or obstruction by any 
 person for the purpose of forcing a master to alter his 
 mode of business, or a workman to refuse or leave work, 
 or of forcing any person to belong or subscribe or to 
 conform to the rules of any club or association. It did 
 not expressly penalize any combination or conspiracy, and 
 it exempted from all liability to punishment the mere 
 meeting of masters or workmen for settling the conditions 
 as to wages and hours on which the persons present at the 
 meeting would consent to employ or serve. In 1859 an 
 amending act was passed (22 Vict. c. 34) for declaring 
 that agreements by workmen or others as to the wages or 
 hours of work, whether of the persons present at the 
 meeting or of other workmen, and peaceable and reasonable 
 persuasions by workmen or others to abstain from work in 
 
14 THE LAW OP 
 
 order to secure such wages or hours, should not be deemed 
 "to be molestations or obstructions within the meaning of 
 the Act of 1825 ; but with a proviso that this enactment 
 should not authorize breach of contract by workmen or 
 persuasion of workmen to break their contracts. This act 
 also was repealed in 1871. 
 
 These statutes were soon enforced, as their predecessors 
 had been enforced, not merely by the summary proceed- 
 ings which they prescribed, but also by the more stringent 
 means of indictments for combinations to infringe their 
 provisions. Moreover, in the discussions which took place 
 upon them, the question was raised and became the sub- 
 ject of some doubt and difference of opinion, whether in 
 any and in what cases combinations for purposes dealt 
 with by the acts, or for other analogous purposes, are 
 criminal " at common law." The effect of the discussions 
 and decisions is too doubtful to be stated here, but is 
 attempted to be ascertained below. 
 
 For the rest, dimng this period the doctrine that com- 
 binations to defraud by means not crimhial in themselves 
 may be crimina!, has been settled and perhaps extended 
 (1872. Warburton) ; and the mode of proceeding by way 
 of conspiracy against persons who combine to commit 
 indictable offences has for the first time been applied to 
 a combination to commit the common law misdemeanor 
 of spreading false public news with intent to disturb the 
 public markets. (1814. De Berenger.) In other respects 
 the tendency of judicial legislation has been in general 
 rather to narrow than to extend the application of the 
 law of criminal combination ; but no intelligible definition 
 of "conspiracy" has yet been established. The object of 
 the following sections is to collect the materials for such 
 a definition. 
 
 Note 1. Search has been made without success for mention before 
 the seventeenth century of any other kind of criminal combination 
 than that mentioned in the first part of the foregoing subsection in 
 Britton, Bracton, Fleta, Glanville, the Mirror, the cases of con- 
 federacy and conspiracy mentioned in the Indices to the Year Books 
 
CRIMINAL CONSPIEACIES AND AGREEMENTS. 15 
 
 and Book of Assizes, the Eegister, Fitzherbert's N. B., Pitzherbert's, 
 Brooke's and RoUe's Abridgments (titles Conspiracy, Confederacy 
 and Corone), Eastal, Staundforde's P. C, Crompton's Justice, Pulton, 
 the cases cited in Ashe's elaborate Index to the Common Law (1614), 
 and in Coke, and in the more modern Text Books. The only eai-ly 
 instance of an attempt to apply the law of conspiracy to other 
 purposes seems to be the case, Anon. 1351, where a suit was brought 
 to set aside judgment on a conviction for conspiracy to imprison a 
 man wrongfully until he should pay a fine ; and the court said that 
 this was not matter of conspiracy, but rather damage and oppression 
 of the people, and reversed the judgment. 
 
 Even the civil writ of conspiracy appears not to have been extended 
 until the 17th century to any matters beyond the purview of the 
 33 Edw. 1. Instances will be found in the 15th and 16th centuries 
 of its application to the making or use of false evidences, which may 
 be traced to the statute, 1413, 1 Hen. 5, c. 3 ; but even this was not 
 allowed in earlier times. See e.g. in 1364, Year Book, 38 Edw. 3, 
 p. 13 b. Writ of conspiracy for cons{)iring to forge and put in evi- 
 dence at a trial a false deed of release. Thorp, J., said, " And do 
 you think you have a writ of conspiracy on ground of an evidence? 
 You shall not have it." 
 
 It may be noted, with respect to two passages in Vin. Abr. Consp. 
 (H.) 6 and 11, that the former passage attributes to Lord Holt the 
 contrary of what he said ; and that the second is merely an assertion 
 of counsel arguendo that a certain matter was indictable which, it 
 appears from a better report, the K. B. after two arguments held was 
 not indictable. See the case, 1725, Edwards, in App. II. infra. 
 
 Prom very early times "conspiracy" and "confederacy" were 
 distinguished as different crimes under the 33 Edw. 1 ; " conspiracy" 
 becoming appropriated to false and malicious indictments, while 
 " confederacy" was especially used to designate combinations for 
 maintenance. See 1354, Anon., and 29 Ass. 45. 
 
 Note 2. It is said by Lord Coke (2 Inst. 561, 562), and other old 
 authorities, that the stat. 33 Edw. 1 is only declaratory of the com- 
 mon law. But the only proof alleged for this proposition is the fact 
 that the " villainous judgment" must be given by the common law 
 because it is not given by any statute. This judgment, however, is 
 only the ordiuary judgment in attaint, and no great stress can be 
 laid on its application to a crime so closely allied to those in which 
 it was ordinarily given. Moreover, the attaint in conspiracy is 
 probably to be traced to the application by judges of assize inquiring 
 iiito conspiracies, champerties and maintenances under 4 Edw. 3, 
 c. 11, of the provisions of 20 Edw. 1 for attainting champertors and 
 maintainors. The following reasons appear to be nearly conclusive 
 that the crime of conspiracy was created by statute, and that no 
 such crime was known to the " common law :" — 
 
 1. No mention of any such crime has been found in any work 
 older than the first Ordinance of Conspirators, a.d. 1292, 
 20 Edw. 1 ; and it is believed that there is no earlier 
 mention even of a civil writ or regular remedy for con- 
 spiracy. The passage in Britton, which is indexed in 
 Nichols' edition as relating to conspiracy (1. 22, 19, p. 95), 
 relates to embracery, and the text uses the word " alliances " 
 and not the word "confederacies," by which it is repre- 
 
16 THE LAW OF 
 
 sented in the translation. Bracton does not mentionany 
 separate crime of conspiracy. He speaks of " conspiration " 
 in conjunction with counselling, abetment, and aid, and 
 says that none of these are punishable in themselves, but 
 that if a crime is committed, then the gililt of the principal 
 offender extends to those who counselled, aided or contrived 
 the crime (f. 128). 
 
 2. It was the business of the toum and leet to inquire of com- . 
 
 mon law crimes, but neither in the Statute of "Wales 
 (attributed to 12 Edw. 1, a.D. 1284), which contains a 
 detailed list of all offences to be inquired into at the toum 
 before the sheriffs, commencing with the highest felonies 
 and descending to offences against the assize of bread, and 
 which gives a curious and apparently complete pictm-e of 
 the criminal law of that time ; nor in the View of Frank- 
 pledge (attributed to reign of Edw. 2) is there mention of 
 any kind of conspiracy, confederacy or combination. 
 
 3. In the 13 Edw. 1, stat. 1, c. 12 (Westm. 2, a.d. 1285), 
 
 detailed provision is made for the punishment of malicious 
 abettors of false appeals of felony ; but, although if con- 
 spiracy, confederation or combination had then been known 
 to the law, mention of them might have been expected 
 here, no reference is made to either of them. 
 
 4. Some cases of complaints to the King against conspirations, 
 
 machinations and favour by officers (i. e. embracery), an- 
 swered by promises of special relief, will be found in the 
 Eot. CI. as early as 18 Edw. 1 (Rot. CI. vol. i., p. 48 a,. 
 No. 32 ; p. 49 a, &c.) ; but the first ordinance for a general 
 writ of conspiracy (20 Edw. 1 ) expresses itself to be founded 
 on a statute which it recites, and it makes no reference to 
 any other ground for the writ. 
 
 5. Nearly all the old forms of writs of conspiracy conclude 
 
 contra formam ordinationis. 
 
 6. The terms of the commission of oyer and terminer are cited 
 
 in several cases, from the Poulterers' Case (1611) down- 
 wards, to show that combinations to commit crimes may be 
 themselves punishable at common law. Thus Coke says 
 (Poulterers' Case) : — 
 " Also the usual commission of oyer and terminer gives 
 power to the commissions to enquire, &c., de omnibus 
 coadunationibus confcederationibus etfalsis alliganciis ; 
 and coadunatio is a uniting of themselves together, 
 confmderatio is a combination amongst them, and/aZsoi 
 alligantia is a false binding each to the other, by bond 
 or promise, to execute some unlawful act. In these 
 cases before the unlawful act executed the law punishes 
 the coadunation, confederacy or false alliance, to the 
 end to prevent the unlawful act, quia quando aliquid 
 prohibetur, prohibetur et id per quod penienitw ad itlud: 
 et affectus punitur licet non sequatur effectus; and in 
 these cases the common law is a law' of mercy, for it 
 prevents the malignant from doing mischief, and the 
 innocent from suffering it :" 
 and in some later cases the words are cited even for the 
 
CEIMINAL CONSPIRACIES AND AGREEMENTS. 17 
 
 purpose of proving that combination is per se criminal at 
 comnion law. It can however be shown almost with cer- 
 tainty, that they have no such meaning, and this by the 
 best proof, namely, proof of what their meaning is, and how 
 they came to be introduced. The words " alliances, con- 
 spiracies, confederacies and champerties " were introduced 
 by the 2 Edw. 3, c. 7, and the 4 Eiw. 3, c. 11, which followed 
 the terms of, and was designed to enforce the 20 Edw. 1, 
 and the 28 Edw. 1, c. 10, and the 33 Edw. 1, by criminal 
 proceedings : and accordingly in the Articles of Inquest of 
 1354, set out in 27 Ass. 44, there appears an article follow- 
 ing nearly the language of 28 Edw. 1. See also the com- 
 mission of oyer and terminer of 1368, in 42 Ass. 5, to the 
 same effect. Next in 1353, by 27 Edw. 3, st. 2, c. 25, it 
 was made felony for merchants to make " conspiracy, con- 
 federacy, coviije, imagination, murmur, or mal-engine " for 
 the disturbance of the staples and of the price of wool, con- 
 trary to the provisions of the 27 Edw. 3, stat. 2, c. 3 ; and 
 accordingly in the Articles of Inquest of the following year, 
 there appears an article " Also of merchants who by covin 
 and alliance between them put a certain price on wools 
 which are for sale in the country, so that no two may buy 
 or pass other in buying wools beyond the certain price 
 which themselves have ordained, to the great impoverish- 
 ment of the people :" and under this article was decided 
 the Lumbard's Case in 1369. The words " congregationes 
 et conventicula illicita " are regularly used in ancient docu- 
 ments (e.g. 1 Eot. CI. 371 ; 3 Eot. CI. 105a), to describe 
 riotous and seditious assemblies made proditorie or in 
 breach of the peace ; but their introduction into the com- 
 mission is probably to be traced to the 42 Edw. 3, c. 6, 
 which directed commissions to be issued to justices of oyer 
 and terminer to enforce the Statutes of Labourers, of which 
 the 37 Edw. 3, c. 5, had prohibited alliances, covines and 
 congregations of masons and carpenters. The commission in 
 Coke's time, 2 Inst. 161, further included " coadjutationibus," 
 which means abetment, especially in disseisin by force (see 
 Co. Litt. 1806). The result is that the words in the com- 
 mission which relate to combinations do not of themselves 
 furnish sufficient ground for the inference which has been 
 sometimes drawn from them, that there existed in ancient 
 times a general common law crime of conspiracy ; and that 
 on the contrary their histoiy appears to show that these words, 
 as they are used in the commission, refer to particular 
 crimes of combination within the 21 Edw. 3, or created by 
 later statutes. It may be observed that the expression 
 " falsis alligantiis " is mistranslated " false allegations " in 
 modern commissions. 
 7. The origin of the crime of conspiracy seems to have been as 
 follows : — According to Bracton (143) there were two modes 
 of commencing prosecutions for felonies. The first was by 
 way of appeal, which was guarded against abuse by the 
 personal and pecuniary liabilities of the appellor, of which 
 details will be found in Bracton. The other mode was, that 
 
18 THE LAW OF 
 
 the grand jurors who were charged with the dutj- of making 
 presentments or .of finding indictments should inquh-e into 
 suggestions of felony which might reach them '•^perfamam 
 patrice" or, in other words, either of their common know- 
 ledge or by several persons coming to inform them, without 
 any formalities, that A. or B. had commitJ;ed a crime. 
 Thereupon the grand jurors were sworn to inquire as to the 
 truth of the information, and if the informers proved trust- 
 worthy, the grand jm-ors found an indictment. Three in- 
 conveniences were discovered in the time of Edward I. in 
 these forms of procedm-e. The first to be discovered was 
 that appeals were brought by persons who had not money 
 to pay damages. The second was that children under 
 twelve, who could not be outlawed (Bract. 125), and against 
 whom no damages could be recovered, were incited to oring 
 appeals. The third was that there was no remedy against 
 the persons who conveyed to the grand jurors a false fama 
 patrice. The first of these difficulties was dealt with by 
 13 Edw. 1, st. 1, c. 12. The third was partially dealt with 
 by the first Ordinance of Conspu-ators (20 Edw. 1); and 
 again by the second Ordinance of Conspirators (28 Edw. 1, 
 c. 10), and again by the third Ordinance of Conspirators 
 (33 Edw. 1), which also dealt with the second difficulty. 
 But these statutes only provided a remedy by writ, the 
 20 Edw. 1 by writ out of chancery, on which however im- 
 prisonment might be awarded, the 28 Edw. 1 by inquest 
 without writ. The 4 Edw. 3, c. 11, made conspiracy 
 eifectively criminal, by directing the justices of either 
 bench or of assize in sessions to hear and determine con- 
 spiracies and maintenances. See East. Entr. Consp. 5, for 
 a case in which it is expressly averred that the conspiracy 
 was to cause a person to be indicted by " communis vox et 
 fama." A further confirmation is to be found in the nu- 
 merous ancient cases in which it was held that it was a 
 good answer to a writ or indictment for conspiracy that the 
 defendant was a grand juror (or " indictor") bound to find 
 the indictment, or that he was summoned by the jurors and 
 compelled to inform them upon oath, or that he was bound 
 o inform them as being a justice. In short the remedy 
 of conspiracy was i-equired only in those cases in which 
 there was no other remedy or security for truth, and in 
 which the defendants had volunteered their information, 
 and in these cases it was applied and extended by successive 
 statutes as experience proved its necessity. 
 
CEIMINAL CONSPIRACIES AND AGREEMENTS. 19 
 
 SECTION 11. 
 
 The Kinds or Pcrposes of Criminal Combinations. 
 
 § 2. Arrangement of this Section. 
 It is proposed in this section to consider the cases on 
 criminal combinations in the order of certain heads or 
 kinds of subject-matter under which they appear to have 
 arranged themselves as they occurred ; as follow :■'— 
 
 § 3. Combinations to commit conspiracy, properly so 
 
 calledj within the meaning of the three ancient 
 
 ordinances of conspirators. 
 § 4. Other combinations' expressly prohibited by 
 
 statutes now in force. 
 § 5. The rule of the 17th century that combination 
 
 for any crime is punishable. 
 § 6. The question of a wider rule. 
 § 7. Examination of cases on combination against 
 
 government. 
 § 8, Examination of cases on combination to pervert 
 
 or defeat justice. 
 § 9. Examination of cases on combination against 
 
 pubhc morals and decency. 
 § 10. Examination of cases on combination to defraud. 
 § 11. Examination of cases on combination to injure 
 
 individuals (otherwise than by fraud). 
 § 12. Examination of cases on combinations relating 
 
 to trade and labour: — (1) Restraint of trade 
 
 and disturbance of markets. 
 § 13. Examination of cases as to trade and labour 
 
 continued: — (2) Coercion of individuals. 
 § 14. Summary of this section. — Lord Denman's 
 
 antithesis. 
 
 c2 
 
20 THE LAW OF 
 
 § 3. Combinations for Conspiracy, properly so called. 
 
 The ancient ordinances ' of conspirators, namely, 20 
 Edw. 1, 28 Edw. 1, and 33 Edw. 1, which are still in 
 force, extend only to combinations for the false and 
 malicious promotion of indictments or suits, for embracery, 
 or for maintenance of various kinds. Embracery and 
 maintenance are independent crimes, and they need not 
 here be considered in detail. (See Pulton, and 1 E.uss. 
 by Gr. 254, 264). The word " conspiracy " was from an 
 early date specially appropriated to false and malicious 
 promotion of indictments for felony, and it was not com- 
 plete unless by the procurement of the conspirators an 
 indictment was actually foimd, and the person indicted 
 was tried and acquitted. Accordingly conspiracy is 
 defined by Coke (3 Inst. 142-3) as "a consultation and 
 agreement between two or more to appeale or indict an 
 innocent falsely and maliciously of felony, whom accord- 
 ingly they cause to be indicted and appealed ; and after- 
 ward the party is lawfully acquitted by the verdict of 
 twelve men." The ancient judgment for this crime was 
 the " villainous judgment " usual in attaints for crimes of 
 falsity in relation to justice, and was as follows : — 
 1372. 46 Ass. 11 (p. 307). 
 
 " A man was attainted of conspiracy at the king's suit by indict- 
 ment, -wherefore it was awarded that he lose frank-law, and that he 
 must not be put henceforth on juries, nor on assize, nor on testimony 
 of truth, and if he had business in the king's court he must make an 
 attorney to sue for him, and that he approach not within twelve 
 leagues of where the king's court is, and that his goods be seized 
 into the king's hand, and his houses wasted, and his wife and his 
 children ousted, and his trees cut down, and his body taken and 
 imprisoned. But if he were attainted at suit of the party, he would 
 have but simple judgment that the plaintiff receive his damages, and 
 that he be imprisoned, &e." (See s. p. 27 Ass. 59, p. 1415. Coke 
 3 Inst. 143, adds some further circumstances of aggravation.) 
 
 Even before Coke's time it had been held (1574. 
 Sydenham) that an indictment might lie for such a com- 
 bination, although the indictment preferred by the con- 
 spirators had not been found by the grand inquest ; and it 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 21 
 
 was finally settled by the Poulterers' Case in 1611 that the 
 mere act of combination to commit the crime of conspiracy 
 was punishable. During the 17th century it became 
 further established that combinations to accuse of offences 
 not amounting to felony might be criminal ; and it 
 remains to trace the extension which in this respect the 
 crime of combination to commit conspiracy has received 
 in modern times. 
 
 In 1663 (Timberley) it was held that a combination 
 falsely to charge a man with the merely spiritual crime of 
 fornication, with intent to extort money fi-om him, was 
 indictable, stress being laid on the intent to injure by 
 extortion as giving jurisdiction to the temporal court; 
 and according to Keble, Windham, J., said it would have 
 been the same if the combination had been to charge with 
 heresy or to defame or disgrace him. This case was 
 followed in 1678 (Armstrong), and in Best's Case (1705), 
 where the intent was laid to be to obtain money and to 
 defame; and the K. B. (Holt, C. J.) held that "a con- 
 federacy falsely to charge a man with a thing that is a 
 crime by any law is indictable." In 1719 (Kinnersley) 
 the court seem to have thought it essential that the 
 charge should be of a crime of ^ome kind. But in 1762 
 (Rispal) Lord Mansfield held it sufficient that there was 
 a combination to obtain money fi:om a man by charging 
 him with " a false fact," — " whether it be to charge a man 
 with criminal acts or such as only may affect his repu- 
 tation." In 1809 (Teal) the combination was to obtain 
 an afiiliation order by perjury; a case which may fall 
 either under this head or under the head of combinations 
 to pervert justice. It was anciently always held essential 
 that the accusation should be to be made falso as well as 
 malitiose. But in 1825 (Hollingberry) the K. B. held 
 that if the purpose was to extort money by indictment, it 
 was immaterial whether the charge was true or false ; and 
 this case was followed in 1845 (Jacobs) by the Eecorder 
 of London, with the modification that the question of 
 
22 THE LAW OF 
 
 truth or falsity might be material for determining the 
 question of intent. (Cp. as to indictments under the 
 statutes for threats to accuse of crimes with intent to extort : 
 —1843. Hamilton, 1 C. & K. 212 ; 1862. Menage, 3 F. 
 & F. 310 ; 1866. CrackneU, 10 Cox, 408 ; 1868. Kichards, 
 11 Cox, 43.) These authorities further establish that a 
 purpose actually to prefer a charge in a competent court 
 or in any court is not essential. In fact in most of them 
 the purpose was to obtain money for not preferring a 
 charge. But it would seem to be of the essence of this 
 crime that there should be a purpose to charge publicly, 
 and if there is any case of conspiracy to charge a man 
 privately, that must be regarded as a case of combination 
 to extort or to cheat. (Cp. Yates, 1853.) In the absence 
 of intent to extort, the purpose must still be to charge 
 falsely or without belief of reasonable grounds. " People 
 may lawfully meet and contrive and agree to charge a 
 guilty person," but "it is a crime for several people to 
 join and agree together to prosecute a man right or 
 wrong." (1629. Tailor; Lord Holt. 1705. Best; S. P. 
 1823. Murray.) 
 
 Under this head fall the cases of combination : — 
 1356' Anon' \ ^ commit maintenance. 
 1574. Sydenham v. Keilaway : to indict falsely. 
 1599. Amerideth : to commit maintenance. 
 
 1607. Lord Gray, of Groby: to commit maintenance. 
 
 1608. Floyd v. Barker : to indict falsely. 
 
 1611. Poulterers : to indict falsely. 
 
 1612. Ashley : to indict falsely. 
 
 1629. Tailor and Towlin : to indict falsely. 
 
 1663. Timberley : to charge with a bastard, with intent to extort. 
 
 1671. Opie : to commit embracery. 
 
 1678. Armstrong : to charge with a bastard, with intent to 
 extort. 
 
 1680. Blood : to indict falsely. 
 
 1706. Best : to charge with a bastard, with intent to extort. 
 
 1719. Kinnersley : to accuse of misdemeanor, with intent to 
 extort. 
 
 1756. M'Daniel : to procure a man to commit what he sup- 
 posed to be a robbery, with intent falsely to indict 
 him and obtain a reward for his conviction. 
 
 1760. Spragg : to indict falsely. 
 
CBIMINAL CONSPIEACIES AND AGEEEMENTS. 23 
 
 1762. Eispal: to charge with matter not criminal but de- 
 
 famatory, with intent to extort. 
 
 1763. Parsons : to accuse of murder. 
 
 1809. Teal : to obtain an affiliation order by perjury. 
 
 1809. Stratton : to indict falsely. 
 
 1814. Askew: to indict falsely. 
 
 1825. Hollingberry : to indict, with intent to extort. 
 
 1833. Ford and Aldridge, to accuse of forgery, with intent tb 
 
 extort. 
 
 1834. Biers : to inform falsely, with intent to extort. 
 1845. Jacobs : to indict, with intent to extort. 
 
 A great number of cases of complete conspiracies, in the ancient 
 sense, will be found in. the Year Books and old Abridgments. They 
 are now obsolete, and they are accordingly omitted both from this 
 list and also from the Appendix. 
 
 § 4. Other Combinations expressly prohibited by Statute. 
 
 Besides the ancient ordinances of conspirators, statutes 
 relating to criminality of combiaation (other than trade 
 combinations), have been of the following kinds. 
 
 In the reign of George 3 several acts (1797, 37 Geo, 
 3, c. 123; 1799, 39 Geo. 3, c. 79; 1817, 57 Geo. 3, 
 c. 19), were passed, which in their main scope were 
 directed against treasonable or seditious societies, but 
 which contaia sections of the most comprehensive and 
 stringent character. The Act of 1797 makes it felony to 
 take or administer imlawM oaths or engagements for 
 various purposes, including the concealment of " any un- 
 lawful combination or confederacy." The Act of 1799 
 enacts that every person shall be deemed guilty of an 
 unlawful combination and confederacy who belongs or 
 contributes to or directly or indirectly maintains corre- 
 spondence or intercourse with any society (or any branch 
 committee, officer, or member thereof as such), which 
 requires its members to take any oath or engagement 
 within the Act of 1797, or any imauthorized oath ; or the 
 members of which take, subscribe or assent to any test or 
 declaration not required by law and not authorized by 
 approval of two justices confirmed by quarter sessions ; or 
 which has any committee, or members, or officer whose 
 names are kept secret fi'om the society at large, or are not 
 
24 THE LAW OF 
 
 entered in a book open to the inspection of every member ; 
 or wbich is composed of different divisions or branches, 
 or of different parts acting in any manner separately or 
 distinct jfrom each other ; or of which any part has any 
 separate or distinct officer ; and it provides that offenders 
 shall be liable either to summary punishment, or, upon 
 conviction or indictment, to transportation (now penal 
 servitude) for seven years. The Act of 1817 further pro- 
 vides that every society or club which elects, appoints, 
 nominates or employs any committee, delegate or delegates, 
 representative or representatives, missionary or mission- 
 aries, to meet, confer, or communicate with any other 
 society or club, or with any committee, representative, &c. 
 of such other society or club, or to induce or persuade any 
 person to become a member, shall be an "unlawfiil combi- 
 nation and confederacy " -within the Act of 1799, and that 
 persons joining or directly or indirectly maintaining corre- 
 spondence or intercourse with any such society or with its 
 officers, &c., as in the Act of 1799, shall be pimishable 
 as provided by that act. These acts contain some excep- 
 tions in favour of jfreemasons, quakers, and charities ; and 
 the 18 & 19 Vict. c. 63, s. 12, exempts friendly societies 
 and their meetings, at which "no business whatever is 
 transacted other than that which directly and immediately 
 relates to the objects of the society as declared in the 
 rules thereof, and set forth in the certified copy thereof;" 
 and probably similar particular exemptions are con- 
 tained in some other acts. Further, the Act of 1817, 
 s. 37, provides that the Attorney-General may in any case 
 stay proceedings, and that a Secretary of State may remit 
 punishments in cases under that act or the Act of 1799 ; 
 and the 9 & 10 Vict. c. 33 (1846), provides that proceed- 
 ings for fines or forfeitures under the Acts of 1799 and 
 1817 must be commenced in the name of the Attorney- 
 General. But even these safeguards seem not to extend 
 to the Act of 1797. 
 
 It is impossible to form any certain conclusion as to the 
 extent to which the generality of the enacting words in 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 25 
 
 these statutes may be limited by their preambles. The 
 inclination of the judges in the few reported cases upon 
 their construction (1802. Marks; 1816. Brodribb; 1834. 
 Ball; 1834. Lovelass; 1834. Dixon) seems to have been 
 to thiak that they are not so limited; and this view is 
 supported by the fact that it was thought necessary ex- 
 pressly to save bodies so obviously harmless as meetings 
 of quakers and of charitable societies. In any case their 
 indirect elFect in rendering many societies at least techni- 
 cally illegal, must be important; and in any conclusion 
 which is formed aS to the criminality or illegality of a 
 society, there must be an implied reservation of the pos- 
 sible effect of these statutes. The Trades Union Act, and 
 Criminal Law Amendment Act of 1871 (34 & 35 Vict. 
 c. 31 andc. 32), appear not to contain anything to exclude 
 their operation. But it has been ruled (1834. BaU) that a 
 combination with reference to wages is not necessarily 
 illegal for the purposes of the statutes of George 3. 
 
 The statutes next in order of general importance are 
 those which relate to treason and to treason-felony; but 
 these belong to the law of treason, and they do not affect 
 the general law of conspiracy, except by applying it to 
 treasonable purposes. (See Mulcahy v. Keg. 1868, L. E.., 
 3 E. & I. App. 306.) 
 
 Conspiracies to murder any subject or alien either within 
 or without the Queen's dominions are by the 24 & 25 Vict. 
 c. 100, s. 4, punishable as misdemeanors, with penal ser- 
 vitude not exceeding ten, or imprisonment not exceeding 
 two years. 
 
 The statutes relating to trade combinations are reserved 
 for foture subsections — §§ 12, 13. 
 
 Under this head fall the cases of treasonable combinations, and 
 the cases of — 
 
 1802. Marks : trades union using unlawful oath. 
 1816. Brodribb : assembly using unlawful oath. 
 1834. Ball ! trades union using unlawful oath. 
 1834. Lovelass : trades union using unlawful oath. 
 1834. Dixon : trades union using unlawful oath. 
 1852. Ahearne : conspiracy to murder. 
 
26 THE LAW OF 
 
 § 5. Rule of 17 th Century that Combination for any 
 Crime is punishaile. 
 
 It has already been seen {sup. Sect. I. § 1) how in the 
 course of the 17th century the rule established in the 
 Poulterers' Case, that a combination to commit conspiracy 
 was punishable, although the conspiracy had not been 
 executed, was extended into a rule that a combination to 
 commit any crime was punishable, although the crime 
 had not been executed. A great number of cases are 
 reported in which this rule has been applied. Most of 
 them will conveniently be considered in the following 
 paragraphs relating to particular criminal purposes, but 
 some which do not fall within any of those groups may 
 here be mentioned. 
 
 1682. Lord Grey : to commit abduction and procure adultery. 
 (This case appears not to have been prosecuted as a 
 case of conspiracy; but, assuming that it was so 
 prosecuted, it was prosecuted as a combination to 
 commit the offences mentioned. See inf. p. 106.) 
 
 1809. Pollman: to commit the misdemeanor of obtaining 
 money for procuring an office of public trust. 
 
 1820. King: to poison horses (9 Geo. 1, c. 22). 
 
 1820. Hunt : to form an unlawful assembly. 
 
 1827. Wakefield: for abduction of an heiress. 
 
 1830. Maudsley : to poison. 
 
 1848. Brittain : to commit forgery. 
 
 1848. Button : by workmen to dye gbods for their own profit 
 with the master's dyes. 
 
 1851. Thompson: by removing customable goods without 
 payment of duty (3 & 4 Will. 4, c. 120). 
 
 1864. Kohn : to commit barratry with intent to defi'aud under- 
 writers (24 & 25 Vict. c. 97, ss. 42—4). 
 
 1868. Desmond : to commit prison breach. 
 
 1871. Boulton : to commit unnatural crime. 
 
 1871. Taylor : to steal (see the case and gucsre). 
 
 With respect to these. cases, it need only be observed, 
 that since the establishment of the doctrine that a com- 
 bination to commit any crime is indictable as a criminal 
 confederacy or combination, notwithstanding that the 
 proposed acts may have been criminal only by virtue of 
 some statute, the criminal combination has always been 
 described as a common law crime, in the sense that it 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS, 27 
 
 need not conclude contra for mam statuti (1721. Journey- 
 men Tailors of Cambridge, and all the later cases), and 
 that it is punishable as a misdemeanor at common law 
 and not in the manner in which the proposed crime would 
 be punishable ; and it was held in 1851 (Thompson), that 
 the repeal of the statute before the trial of the indictment 
 for the combination to infringe its provisions was no bar 
 to the trial. Lord Campbell observed, that this rule might 
 have the effect of indirectly avoiding a limitation of time 
 prescribed by a statute for the prosecution of offenders 
 against its provisions ; and the case before the court 
 afforded an instance of that result. 
 
 The expression, that a conspiracy or combihation to 
 commit a crime is criminal at common law, is applied 
 wiUiout regard to whether the proposed crime is or is not 
 statutory ; whence it follows, that when a combination is 
 said to be criminal at common law, it is not necessarily 
 implied that the criminality of the combination does not 
 depend on the fact that the combination is for violation of 
 a statute. 
 
 It will be seen below (§ 13), that ia numerous cases 
 violations of statutes relating to labour have been punished 
 by way of indictment for conspiracy ; but it does not 
 appear, that in any other case, except perhaps in cases 
 under the Revenue Acts, persons have been indicted for 
 combining to violate provisions of a statute for the breach 
 of which the statute prescribes only a summary penalty or 
 punishment. 
 
 § 6. The Question of a wider* Rule. 
 It has already been seen, that during the 18th cen- 
 tury, an impression obtained currency that a combina- 
 tion might in many cases be criminal, although the acts 
 proposed would not be criminal in the absence of combi- 
 nation. The most convenient mode of dealing with this 
 subject seems to be firstly to examine the decisions and 
 dicta under each of the several groups in which the cases 
 
28 THE LAW OF 
 
 bearing on the question have arranged themselves (§§ 7 — 
 13) 5 and, secondly, to examine (§ 14) certain more general 
 expressions which do not purport, or which are cited as 
 not purporting, to be confined to any or all of these special 
 groups. 
 
 § 7. Examination of Cases on Comhinations against 
 the Government. 
 
 Cases which have a bearing on the question, whether in 
 matters of a directly public nature, combinations may be 
 criminal which are for acts not criminal apart from com- 
 bination, are the following : — 
 
 1665. Starling : combination to lessen the king's revenue. 
 1769. Vertue v. Lord Clive : combination by officers to threw 
 
 up their commissions in time of danger. 
 1814. De Berenger : combination to disturb the funds by false 
 
 rumours. 
 
 1840' Shellard ■ C Combination to excite disaffection or in- 
 1844! O'Conneli J surrection. 
 
 The origin of the doctrine that a combination may be 
 criminal which is directed against the public as a whole 
 or against the government is to be found in the case of the 
 Brewers of London (1665, Starling), where the indictment 
 set out that the excise had been settled by parliament on 
 the king as part of his revenue, and that the defendants 
 conspired to depauperate the farmers of the excise. The 
 K. B. after several debates gave judgment for the crown 
 on the ground that the effect of depauperating the farmers 
 of the excise must necessarily be to make them incapable 
 of rendering the king his revenue, and so the offence (as 
 Lord Holt says of it in 1704. Daniell) was " directly of a 
 publick nature and levelled at the government, and the 
 gist of the offence was its influence on the publick." On 
 the same ground in the cases of Vincent (1839), Shellard 
 (1840), and O'Connell (1844), combinations to excite 
 insurrection or disaffection have been held indictable. It« 
 is worthy of observation that the purposes imputed by the 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 29 
 
 cour,t to the defendants in Starling's Case in 1665 seem, 
 according to the doctrines of those times as shown in the 
 " Case of Currants" (1707. Bates ; Lane, 22), to have been 
 regarded as punishable independently of combination (Cp. 
 the Exchequer Act, 33 Hen. 8, c, 39, sup. Sect. I. § 1); 
 and that according to authorities of the 17th century the 
 use of seditious language, as in the cases of Vincent, 
 SheUard and O'ConneU, would also have been indictable 
 without combination. (1662. Field, 1 Sid. 69; 1679. 
 Harrington, 1 Ventr. 324.) In Vertue's Case (1769) the 
 whole of the officers of the East India Company's service 
 in command of Sepoys, with the exception of the field 
 officers, combined to throw up their commissions at once 
 at a time of pubKc danger, and before the expiration of 
 the period for which they had received advanced pay, on 
 the ground of a grievance with respect to allowances. 
 The question came before the K. B. whether such resig- 
 nations were operative to release the officers from their 
 • duty to obey orders. Lord Mansfield, C. J., and Aston 
 and WiUes, JJ., held, that under the Indian Mutiny Act 
 then in force the officers were not at liberty to resign 
 under aU circumstances ; and that the circumstances of 
 public danger and of general combination to resign made 
 such resignations inoperative. Yates, J. went fiirther, and 
 said that this combination was crirainal. De Berenger's 
 Case (1814) is mentioned here because some of the obser- 
 vations made in it refer to the injury which the public 
 may receive from disturbance of the funds by false news. 
 But according to a series of cases firom the 14th century 
 downwards, the circulation of false news, especially if the 
 purpose is to disturb markets or prices, is indictable irre- 
 spectively of combination ; and so this case appears to fall 
 within the rule of the criminality of combinations to 
 commit crimes. (See 1369. Lumbard's Case ; 1620. Mad- 
 dock, 2 Eol. Rep. 107 ; Jenk. 1 Cent. 93 ; 1680. Harris, 
 1. St. Tr. 999, by all the judges; 7 & 8 Vict. c. 24, §, 4 ; 
 Cp. 1800. Waddington, 1 East, Eep. 154). 
 
30 THE LAW OF 
 
 These cases appear not perhaps to establish but still to 
 tend strongly to establish a rule that combinations directed 
 against the government or public safety may be criminal, 
 although the acts. proposed might not be criminal in the 
 absence of combination : but they furnish no indication of 
 the limits of the rule, supposing it to exist. 
 
 § 8. Examination of Cases on Combination to pervert or 
 defeat Justice. 
 The next group consists of cases on combinations to 
 pervert or defeat the administration of justice ; — a kind of 
 combination which is in pari materia with those against 
 which the original, ordinances of conspirators were 
 directed. 
 
 To this group belong the eases of combination. 
 
 1796. Mawbey : by justices, to influence the King's Bench by 
 
 false certificates of the repair of a road. 
 1802. Steventon : to obstruct justice by persuading a witness 
 
 . for the crown in an information not to appear. 
 
 1804. Locker : to procure a ward in chancery to marry one 
 
 of the defendants. 
 1807. Claridge v. Hoare : to prevent a prosecution. (Diet. 
 
 by Lord Eldon.) 
 1814. Wade v. Broughton : stealing a ward in chancery for 
 
 the sake of her fortune. (JDict by Lord Eldon.) 
 
 1818. Kroehl : " to procure the discharge of the defendant K. 
 
 from custody on mesne process, without giving 
 notice to the plaintiff's attorney." 
 
 1819. Roberts v. Roberts : to get rid of an excise information 
 
 by creating a fictitious qualification to kill game. 
 {Diet, by Best, J.) 
 
 1820. The Queen's Case : to suborn witnesses to commit 
 
 perjury. 
 
 1824. Thomas : to produce false witnesses at a trial. 
 
 1826. Bushell v. Barrett : to buy off witnesses on an informa- 
 tion for penalties before justices. 
 
 1837. Murphy : to prevent levy of a church rate by libelling 
 the collector and inciting persons to resist him. 
 
 1852. Hamp : to obstruct justice by paying a witness to for- 
 feit his recognizances for appearance at a criminal 
 trial. 
 
 In the cases of Mawbey, Steventon, The Queen, 
 Thomas, BusheU and Hamp, it seems clear that the 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 31 
 
 acts proposed were indictable at common law apart from 
 the combination. (See Vin. Abr. Ind. (E.) 4; 1726. 
 Dupee, 2 Sess. Ca. 11; Fitzgib. 263; 1807. Omeally v. 
 Newell, 8 Ea,st, 364 ; 1801. Higgias, 2 East, Eep. 5 ; 
 1791. JoUiffe, 4 T. E. 285.) So in the cases of Locker 
 and of "Wade v. Broughton. (See 1738. Pierson, Andr. 
 310, 2 Stra. 1107; 1729. Harris, 2 P. Wms. 560.) In 
 the case of Roberts v. Roberts the false deed must have 
 been proved by perjury before it could have been used as 
 a defence to the information, and even if it had been used 
 so as to deceive the court without actual perjury, its use 
 would seem to be within the principle of OmeaUy v. 
 Newell, cited above, or of Mawbey (1796). The case of 
 Kroehl is too briefly reported for it to be possible to say 
 whether the act proposed was indictable without combina- 
 tion. (See Fawcett, 2 East, P. C. 862.) In Claridge 
 V. Hoare, it must be presumed that Lord Eldon was 
 referring either to composition of felony or to the use of 
 improper means, such as those used in the cases of 
 Steventon and Hamp. Lastly, in Murphy's Case there 
 was not only a libel but also an incitement to riot. On 
 the whole it is conceived that all these are cases in which 
 the acts proposed were, at the times when the cases were 
 decided, punishable on indictment or information, or at 
 least as contempts of court. But it seems possible that, 
 in matters of this nature, the crimiiial courts would not 
 hold themselves strictly bound by these Kmits, and that 
 combinations for such acts on the verge of criminality 
 might be held indictable, although the acts might be not 
 indictable apart from the combination. It is conceived, 
 however, that some kind of falsity or violence or abuse of 
 process of the court would be necessary. And here the 
 difficulty recurs of obtaining any distinct and definable 
 limitation when once the established lines of the ordinary 
 criminal law are overstepped. 
 
32 THE LAAV OF 
 
 § 9. Examination of the Cases on Combination against 
 Public Morals and Decency. 
 Cases of combinations for acts grossly in violation of 
 public morals or decency are the following: — 
 
 1763. Delaval : to make a colorable a|^ignment of a female 
 
 apprentice for purposes of prostitution. 
 1780. Young : by officers of a workhouse to prevent the burial 
 
 of a corpse. 
 1851. Mears : to entice a girl of 15 by false pretences to have 
 
 illicit connection with a man. 
 1864. Howell : to procure an unmarried girl of 17 to become 
 
 a common prostitute. 
 
 It can hardly be doubted that in the three former of 
 these cases the acts proposed were indictable at the dates 
 of those cases, independently of combination, on the 
 principle established in the cases of Sedley (1664. 1 Sid. 
 168; 1616. Bagg), and many other cases, that conduct 
 grossly contrary to public morals or public decency was 
 punishable irrespectively of combination. It can hardly 
 be doubted, for example, that the master of a female 
 apprentice would have been indictable, in 1763, even if he 
 would not now be indictable, if he induced his apprentice 
 to practise prostitution for his profit, and this was in 
 substance the conduct of the principal defendant in 
 Delaval's Case. Lord Mansfield, indeed, there relied 
 on a then recent case, in which a prosecution had been 
 directed of a man who had made an assignment of his 
 ivife to another man. (Cp. fiirther as to this class, 1692. 
 Johnson, Comb. 377; 1788. Lynn, 2 T. K. 734; 1 Leach, 
 497 ; 1820. GiUes, R. & R. 366, n. ; 1840. Stewart, 12 
 A. & E. 773.) So in Howell's Case there were facts 
 abundantly sufficient to h'ave supported a conviction of a 
 sole defendant on similar grounds, if they had been pro- 
 perly laid in the indictment ; but the indictment seems to 
 have failed to show that the girl was not pre-viously of bad 
 character. BramweU, B,, is reported to have ruled that 
 any unlawfulness in the state of things proposed to be 
 brought about would suffice, according to Lord Denman's 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 33 
 
 definition of conspiracy (e), and that, since agreements for 
 prostitution or claims for goods supplied for purposes of 
 prostitution are illegal in the sense that they cannot be 
 enforced, prostitution itself is a sufficiently illegal state 
 of thiags to render indictable a combination to bring it 
 about. It is conceived that the expressions attributed to 
 Bramwell, B., cannot be correctly reported. They would 
 appear to involve the criminality of every assignation with 
 a woman of bad character. ISTo such doctrine is found in 
 any earlier case ; nor is it involved in the early precedents 
 of indictments for adultery in times when adultery was both 
 an ecclesiastical and a temporal offence. {E.g. Tremayne's 
 Free. pp. 209, 213.) An act was passed by the Long Par- 
 liament in 1650 (c. 10, p. 121, of Scobell's Ordinances), 
 ia the sense of the expressions reported in Howell's Case ; 
 but it was not continued by Charles II. 
 
 § 10. Examination of Cases on Combination to defraud. 
 The history of combinations to defraud, and the manner 
 in which, after certain kinds of cheats had ceased to be 
 indictable when committed by one person, they continued 
 to be indictable when done or planned by -persons in com- 
 bination, have already been described ; and it remains to 
 consider briefly what is the nature of the fraud or cheat 
 which will suffice to make criminal the combination to 
 effect such a fraud or cheat. The definitions of fraud and 
 cheat belong to the general law of crimes, and they cannot 
 here be discussed. The essence of a cheat appears to 
 consist in (i) a false representation by the defendant by 
 words, instruments or conduct (active or negative) that a 
 certain state of facts (other than a condition of his own 
 mind) exists or does not exist ; (ii) the fact that a belief 
 
 (e) See as to this, inf. § 14. 
 
 D 
 
34 THE LAW OF 
 
 in the truth of the representation had an effect on the pro- 
 secutor as a material inducement to, or a material condition 
 of, his consenting or not refusing to part with a right or 
 forego a claim or undertake a liability of pecuniary value 
 or consequence ; and (iii) the fact that the false represent- 
 ation was intended by the defendant to have that effect, 
 or, to use Bentham's phrase (1 Morals and Legisl. 141), 
 that the prospect of producing that effect " constituted one 
 of the links in -the chain of causes by which the person was 
 determined" to make the false representation. In other 
 cases the generality of this principle has been guarded by 
 limitations ; but in the crime of combination to defraud 
 only one limitation appears to remain, namely, that the 
 intended fraud must involve something which amounts or 
 would, but for restrictions imposed by statutes made alio 
 intuitu, amount to a wrong for which there is a civil 
 remedy at law or in equity. It has been recently de- 
 termined (1870. Warburton) that a merely equitable wrong 
 will suffice ; and it was ruled in 1858 (Timothy, Channell 
 B.) that a combination to defraud by false verbal repre- 
 sentations of the solvency of a bank was criminal, although 
 by reason of Lord Tenterden's Act (9 Geo. 4, c. 14) the 
 defendants might not have incurred any civil liability. A 
 case (1833. Levi) in which a "knock-out" at an auction 
 was held indictable, may be thought to have gone to the 
 farthest extent which is compatible with the application of 
 any principle. It may be explained on the groimd that, 
 had the auctioneer known of the combination, he would 
 not have knocked down the goods to any of the persons 
 concerned in it ; — ^that his consent to the transfer of pro- 
 perty was obtained by a false appearance of competition. 
 
 It has been uniformly held in modem times that a false 
 pretence may suffice for conspiracy, which would not 
 suffice for the statutory crime of obtaining by false pre- 
 tences, but it may be dotibted whether some of the same 
 limitations which have been applied in the construction of 
 
-CRIMINAL CONSPIRACIES AND AGREEMENTS. 35 
 
 the statute do not apply in conspiracies to defraud. Such 
 are — 
 
 a. The rule, that the prosecutor must have intended to 
 part with his whole right of property in the thing : 
 — e. g. to obtain by false pretences the bailment of 
 a horse, intending never to pay the hire, is not an 
 obtaining of the horse by false pretences ; — 
 h. The rule, that a promise (as distinguished from a 
 representation of ability to pay &c., or of existing 
 foimdations of a ftiture ability to pay &c.) will not 
 suffice; 
 c. The rule, that the pretence must be of a definite and 
 " triable " state of facts, and not merely false and 
 exaggerated praise or dispraise. 
 In general, it would seem that in cases of false pretences 
 under the statute, it is for the court to say whether the 
 proposed deceit amounted to a fraud in law, and for the 
 jiuy or other judge of facts to say whether the thing was 
 obtained by it ; but in a conspiracy to defraud, the only 
 question for the jury seems to be whether the defendants 
 meant to use the fraud for the purpose of obtaining the 
 thing. Here a question arises which goes to the root of 
 the doctrine of conspiracy. Suppose a case in which the 
 purpose to cheat is plain, but the proposed deceit is such 
 that it could not have any effect for deceiving the persons 
 intended to be defrauded. Here, if the essence of the 
 conspiracy is merely in the intent, the agreement for such 
 a purpose must be sufficient, and this view is perhaps sup- 
 ported by some of the ancient cases of treason. On the 
 other hand, to treat such a combination as criminal would 
 be like indicting a man or several men for attempting or 
 conspiring to murder another by conjurations. Such a 
 doctrine appears nevertheless to follow from those cases or 
 dicta in which it has been ruled or suggested that combi- 
 nations to "injure," "prejudice," "intimidate" or "coerce," 
 are criminal irrespectively of the criminality of the means 
 to be used. But if on the other hand the law of conspiracy 
 
 d2 
 
36 THE LAW OP 
 
 is, as its history seems to indicate, merely an extension of 
 the law of attempts to commit crimes, then the result seems 
 to foUow that the proposed means must be such as might 
 probably be effectual for the proposed end. On the other 
 hand, it is not probable that aU the refinements of the law 
 of attempts would be applied to conspiracy. A conspiracy 
 to pick a man's pocket would probably be held criminal, 
 although there was nothing in the pocket. A conspiracy 
 to kill a man by shooting through the partition of a room 
 in which he was supposed to be might possibly be held 
 criminal, although if in fact the man were not in the room, 
 such an act might not be an attempt to murder him. So 
 a combination to defraud by means likely to defraud would 
 probably be held criminal, although there were circum- 
 stances which would prevent the use of the means in the 
 particular case from being punishable as an attempt. 
 (Cp. 1849. Cluderay, 1 Den. 514. But see 1871. Taylor, 
 as to evidence of a conspiracy to attempt a crime.) 
 
 Under this part of this head fall cases of combination to cheat : — 
 1674. Thody: by false dice. 
 1704. Orbell : by a bet on a race in which a runner had been 
 
 bought. 
 1744. Eobiuson : by personation. 
 1782. Hevey : by a sham bill of exchange. 
 1803. Brisac: by officers by defrauding the government by 
 
 false vouchers. 
 1808. Roberts: by passing with tradesmen as persons of 
 
 fortune. 
 1816. Pywell : by pretences of the soundness of a horse. 
 
 1818. Gill : by false pretences. 
 
 1819. Anon. : by means not described. 
 1824. Whitehead : by false pretences. 
 1826. Cooke : by false pretences. 
 
 1826. Serjeant: by peijury and false pretences to procure a 
 
 youth of seventeen to maiTy a woman of ill fame, 
 with intent to defraud him of his property. 
 
 1827. Mott: by fabricating shares. 
 
 1831. Fowle : by means not stated. (Ruled too general.) 
 
 1832. Jones: by putting away the goods of an insolvent 
 
 trader. (Ruled not indictable. But see 1857, Hall 
 infra.') ' 
 
 1833. Bloomfield v. Blake : by pretence of legal process. 
 
 1833. Levi : by knock-out at an auction. 
 
 1834. Richardson : by removing goods pending an order for 
 
 immediate execution. (Ruled not indictable.) 
 
CBIMINAL CONSPIRACIES AND AGREEMENTS. 37 
 
 1836. Hamilton : by false pretences. 
 
 1839. Peek: by obtaining goods without paying for them. 
 (Held too general.) 
 
 1841. Steel: by false pretences. 
 
 1842. Parker: by false pretences. 
 
 1843. Kenrick : by false pretences. 
 
 1844. Ward: by false pretences. 
 
 1844. Blake : by false declarations for the customs. 
 
 1844. King : by false pretences. (Pleading.) 
 
 1846. Grompertz : by false pretences. 
 
 1847. Sydserff: by means not stated. (Held good.) 
 
 1849. Wright: by false affidavits for procuring transfer of 
 
 stock. 
 1852. Whitehouse : by false pretences. 
 1852. Rycroft : by means not stated. 
 
 1852. Kead : by pretences as to soundness of horses. 
 
 1853. Yates : by false pretences and extortion. 
 
 1854. Carlisle : by false representations. 
 
 1856. Bullock : by false pretences. 
 
 1857. Stapylton : by publishing fraudulent accounts of a bank. 
 
 1857. Hall : by removing goods after an act of bankruptcy. 
 
 1858. Timothy: by false representations of profits of a 
 
 business. 
 
 1858. Esdaile (or Brown) : by false representations of the 
 
 solvency of a bank. 
 
 1859. Absolon: by transferring railway tickets which were 
 
 not transferable. 
 
 1860. Hudson : by fraudulent gambling. 
 1864. Latham: by false pretences. 
 
 1864. Knowlden : by means not stated. 
 
 1865. Barry: by falsely pretending to an insurance office that 
 
 certain goods had been burnt. 
 1865. Burch: by publishing a fraudulent balance sheet. 
 1869. Lewis : by a mock auction. 
 
 1869. Gurney : by a fraudulent prospectus of a projected com- 
 
 pany, and by false accounts (24 & 25 Vict. c. 96, 
 s. 94). (Acquitted.) 
 
 1870. Warburton : by false accounts between partners. 
 
 § 11. Examination of the Cases on Combination to injure 
 Individuals (otherwise than by Fraud). 
 The origin of the suggestion, that combinations to 
 injure private persons may be criminal, although the pro- 
 posed means of injury would not be criminal apart from 
 combination, may be traced partly to a misapprehension 
 of the ground of the determination in Starling's Case 
 (1665), partly to an application of the analogy of the 
 
38 THE LAW OF 
 
 law of combinations to defraud, partly to the passage in 
 Hawkins (1, 72, 2; published 1717), in which it was 
 stated, that " there can be no doubt but that all con- 
 federacies whatever wrongfully to prejudice a third person, 
 are highly criminal at common law." Hawkins' autho- 
 rities for this proposition consist of seven cases on maia- 
 tenance and conspiracy (properly so called) within the 
 ordinances of conspirators (1354. Art. of Inq. ; 1607. 
 Lord Gray of Groby; 1611. Poulterers' Case; 1663. 
 Timberley; 1678. Armstrong; 1699. Savile v. Roberts, 
 on the civil writ of conspiracy, and 1705. Best), and ol 
 Starling's Case (1665), which is stated below (/). In 
 none of these cases is there any decision which tends to 
 establish his proposition, but at most some arguments of 
 counsel, and some general expressions attributed to the 
 courts, which wiU be found examined below (§ 14, n.). It 
 is now to be inquired how far this doctrine is confirmed or 
 negatived by decisions ; and for this purpose it is necessary 
 to enter into greater detaU than has been necessary in former 
 subsections. And first with respect to express decisions : — 
 
 1351. Anon. Combination for false imprisonment and extortion 
 held not indictable as a conspiracy ; being only damage and 
 oppression. See the case in App. II. inf. 
 
 1665. Starling. In the Case of the Brewers of London (sup. § 7), 
 the jury convicted the defendants of having confederated to depau- 
 perate the farmers of excise. Dm-ing several debates on motion in 
 arrest of judgment, it was argued for the crown that this was suffi- 
 cient ; but no intimation appears in any report that the court acceded 
 to this view. On the contrary, it was long before they were able to 
 determine that the judgment ought to stand ; and they at length 
 supported it only on the ground that the indictment alleged that the 
 excise had been settled on the king as a part of his revenue, and that 
 to depauperate the farmers must have the effect of disabling them 
 from rendering him his revenue. In Daniell's Case (1704), Lord 
 Holt, after agreeing that it was not criminal to combine not to deal 
 with a tradesman, and denying that it was not criminal to combine 
 to rob or murder, explained the exceptional ground on which the 
 judgment in this case rested (sup. § 7). Starling's Case, being after 
 verdict, appears to amount to a decision that a combination to im- 
 poverish a man (other than the king) by means not criminal in 
 themselves, is not criminal. See the case in App. II. inf. 
 
 (/) His later editors add— 1719. Cope ; 1721. Tailors of Cambridge ; 
 1725. Edwards ; which are also considered below. 
 
CRIMINAL CONSPIEACIES AND AGREEMENTS. 39 
 
 1865. Salter. Here the indictment was quashed on motion, but 
 no inference can be drawn from this case, because there was plainly 
 neither any indictable offence, nor any combination. The words 
 " per conspirationem " were inserted, according to the practice of that 
 date, merely by way of aggravation, or as being equivalent to " con- 
 triving." 
 
 1719. Cope. Here the defendants had bribed a cardmaker's ap- 
 prentice to spoil his master's cards by putting grease into them. It 
 seems clear that at that date such an act was punishable in the 
 apprentice (see 1727. Edmonds, 1 Sess. Ca. 288, p. 357 ; and by 
 Powell a,nd Gould, J. J., in 1704. Daniell ; and cp. 1848. Button ; 
 and 5 Eliz. c. 4, s. 35) ; and if so, then according to the principles 
 explained in R. v. Higgins (1801. 2 East, Rep. 5), the conduct of 
 each of the defendants was criminal independently of the conspiracy. 
 
 1725. Edwards. Here the combination was to charge the inha- 
 bitants of a parish to their prejudice, by bribing a poor man settled 
 there to marry a poor woman with child of a bastard. It was urged 
 by Serj. Comyns for the crown (apparently citing from Hawkins), 
 that " a bare contrivance to act to the prejudice of another is 
 criminal." The case was twice ai'gued ; first on motion to quash the 
 indictment, and again on demurrer. The King's Bench refused to 
 quash the indictment on motion, because it was not the practice to 
 quash indictments on motion in cases of any doubt, if an ill design 
 appeared in the defendants. Lord Raymond, C. J., said, " Indict- 
 ments for conspiracies are not allowed to be quashed, where the 
 thing that is conspired is in its own nature criminal. But where it 
 plainly appears by the indictment that the act which was done to the 
 prejudice of another was a lawful act, the court hath a discretionary 
 power to quash. If it be doubtful whether the act done be_ criminal 
 or not, yet if it be done with an ill intent or design, we' will not 
 quash the indictment. I am of opinion the indictment in this case 
 ought not to be quashed ; but the defendants must be left to demur 
 or plead to it, as they think fit." But on demurrer, " it was held not 
 an indictable offence." In another report the determination reported 
 is, " and on Aemuner judicium pro defendente, because not an offence 
 indictable." 
 
 1752. Chetwynd v. Lindon. Here Lord Hardwicke thought that a 
 combination to set up a supposititious child as a legitimate one, so 
 as to impede the com-se of descent in law, and defeat the heir-at-law, 
 might perhaps be indictable ; but that where the combination was to 
 set up a child as the illigitimate child of a man who desired to have 
 a child by the woman whom he kept, the object was a merely private 
 grievance, and the combination was therefore not criminal. 
 
 1775. Leigh. Here the combination was by hissing and riot to 
 prevent the actor Macklin from playing. The defendants were con- 
 victed, but the matter being settled, no judgment was, passed ; and 
 therefore, as the learned reporters of Manning & Grainger's Reports 
 (6 M. & G. 217, n.) observe, " the defendants' had no opportunity, if 
 they had been so advised, of questioning the sufficiency of the indict- 
 ment by a motion in arrest of judgment." Moreover it is doubtful 
 whether the indictment (which is set out in 4 Wentw. PI. 443) in 
 this case was for a conspiracy. The charge laid in each count is riot 
 and obstruction of the play. Words of conspiracy do not appeal- in 
 any count but the first, and there only in the inducements. So the 
 
40 THE LAW OF 
 
 reporters in 1 C. & K. (28, n.) observe that, " although this case is 
 commonly cited as one of indictment for conspiracy, there was no 
 count in which a conspiracy is charged as the corpus delicti" and 
 that " the first count is the only one in which anything at all touch- 
 ing on conspiracy occurs." In a civil action of assault in 1809 
 (Clifford V. Brandon), Sir J. Mansfield is reported to have said, that 
 " if any body of men were to go to the theatre with the settled in- 
 tention of hissing an actor, or even of damning a piece, there can be 
 no doubt that such a deliberate and preconcerted scheme would 
 amount to a conspiracy :" but it is not unreasonableto suppose that 
 this opinion (which was not necessaiy for the decision of the case) 
 was founded on some statements (by counsel arguendo in Mawbey, 
 1796) as to the effect of this case, which were anterior to the publi- 
 cation of any report of it. In Gregoi-y v. The Duke of Brunswick 
 (1843), the action was for damages for a combination to hiss an actor _; 
 and nothing appears to have been suggested by the court at nisi 
 prius or in banc as to the criminality of such a combination. 
 
 1783. Eccles. See this case below, § 13, cases on trade. 
 
 1783. Compton. The expression of opinion in this case was in- 
 consistent with the decision in Edwards' Case (sup.), and must be 
 taken to be overruled by the cases of Fowler (1788) and Seward 
 1834), inf. 
 
 1788. Fowler. Here the combination was to burden a parish by 
 bribing a poor man there, who had got a poor woman of another 
 parish with child, to marry the woman. Buller, J., ruled that it was 
 essential that there should have been " some violence, threat or con- 
 trivance," or " some sinister means," and further that the marriage 
 should have been forced on the parties against their will :— a rule 
 which clearly brings the case within the decisions that it is indict- 
 able, independently of combination, to make persons many by force 
 or threats or firaud. (1670. Pai-ris, 1 Sid. 431; 1732. Parkins, 1 
 Sess. Ca. 176, p. 213.) 
 
 1792. Parkhouse. It was ruled that upon an indictment for com- 
 bination to chai'ge a parish by forcing paupers to marry by threats 
 and menaces against the peace, although it need not be averred that 
 the marriage was against theu- will, this must be proved. 
 
 1811. Turner. Here the combination was to trespass with arms 
 by night in pursuit of hares. This case occurred before the passing 
 of the first Night Poaching Act (1817, 67 Geo. 3, c. 90), and the 
 K. B. (Lord Ellenborough, C. J., Le Blanc, Bayley and Grose, JJ.) 
 held that this combination was not indictable, inasmuch as it was 
 merely for a civil trespass. (See the case in App. II.) The decision 
 was wrong, because the combination was for acts amounting in law 
 to the crime of unlawful assembly with intent to resist apprehension, 
 and in terrorem (1816. Brodribb) ; but the principle of the decision 
 has been approved (1834. Seward, by Taunton, J. ; 1843. Kenrick, 
 by Lord Denman, C. J., pro cur.) even by the judges who questioned 
 the particular application of it, and the disapproval expressed by 
 Lord Campbell in Rowland's Case (1851) was expressly put on the 
 ground that the combination was for an indictable offence. 
 
 1826. Cooke. This case is here mentioned because the indictment 
 contained averments of an intent to disquiet and disturb a person in 
 the possession of his estates. But it also averred an intent to obtain 
 money by false pretences. The case is reported only for a point of 
 
CRIMINAL CONSPIUACIES AND AGREEMENTS. 41 
 
 procedure, and no observations were made upon the nature of the 
 offence. 
 
 1834. Seward. Here the combination was to burden a parish by- 
 bribing a poor man settled there to marry a poor woman with child. 
 The K. B. arrested judgment and affirmed the ruling in Fowler's 
 Case. Lord Campbell, C. J., said,, " An indictment for a conspiracy 
 ought to show, either that it was for an unlawful purpose, or to effect 
 a lawful purpose by unlawful means : that is not done here . . . 
 When it is said that such a proceeding is a conspiracy, because it is 
 to be earned into effect by unlawful means, we must see in the 
 means stated something which amounts to an offence." Taunton, J. : 
 " Merely persuading an unmarried man and woman in poor circum- 
 stances to contract matrimony is not an offence. If indeed it were 
 done by unfair and undue means, it might be unlawful ; but that is 
 not stated. There is no averment that the parties were unwilling, or 
 that the marriage was brought about by any fraud, stratagem, or 
 concealment, or by duress or threat. No unlawful means are stated, 
 and the thing in itself is not an offence." (See mp. in 1788. Fowler,) 
 
 These authorities on the whole strongly favour the view 
 that a combiaation to injure a private person (otherwise 
 than by fraud) is not as a general rule criminal unless 
 criminal means are to be used. At the same time expres- 
 sions are to be found in some cases which imply a doubt 
 as to the universality of the rule. 
 
 In Stratton's Case (1809), where the indictment was for a com- 
 bination for false and malicious prosecution, the indictment also 
 alleged an intent to deprive the pi-osecutor of his office. In Kenriok's 
 Case in 1843, Lord Denman said, " If in the case of E. v. Turner, the 
 meditated injury, instead of ending with the trespass, had been planned 
 for the purpose of seizing the landowner, or driving him from the 
 country, we have no reason to think that the learned judge would 
 have condemned an indictment for a conspiracy to effect tliat object." 
 In Rowlands' Case (1851), during the argument it was asked whether 
 a combination to entice away workmen was indictable. Lord Camp- 
 bell said, " Would it not be indictable, if it were done for the pur- 
 pose of ruining a tradesman ?" In Duffield's Case (1851), Erie, J., 
 is represented to have said during the argument, with reference to 
 Turner's Case, "A conspiracy to injure a man in his private property; 
 a conspiracy to prevent all customers coming to his shop — what is 
 that but a civil injury ? A conspiracy to injure — two men combining 
 to interfere with a man's civil right — is indictable." In Rowlands' 
 Case (1851), the same judge, after stating that it was lawful for per- 
 sons to combine for their own benefit, added, " But I consider the 
 law to" be clear so far only as while the purpose of the combination is 
 to obtain a benefit for the parties who combine, a benefit which by 
 law they can claim. I make that remark, because a combination for 
 the purpose of injuring another is a combination of a different nature, 
 directed personally against the party to be injured ; and the law 
 allowing them to combine for the purpose of obtaining a lawful 
 benefit to themselves, gives no sanction to combinations which have 
 
42 THE LAW OF 
 
 for their immediate purpose the hurt of another." Lastly, in Lumley 
 V. Gye (1853), where the question was, whether an action lay for 
 maliciously inducing a singer to break her contract, Crompton, J., 
 said : " Suppose a trader, with a malicious intent to ruin a rival tradei-, 
 goes to a banker or other party who owes money to his rival, and 
 begs him not to pay the money which he owes him, and by that 
 means ruins or greatly prejudices the party, I am by no means pre- 
 pared to say that an action could not be maintained, and that damages 
 beyond the amount of the debt, if the injury were great, or much 
 less than such amount if the injuiy were less serious, might not be 
 recovered. Where two or more parties were concerned in inflicting 
 such an injury, an indictment or a writ of conspiracy at common law 
 might perhaps be maintained." 
 
 In Wentworth's Precedents (vol. 4, p. 105), there is a precedent of 
 an indictment (a.d. 1788-9) for a combination to impoverish E. Meux, 
 and to ruin him in his trade of a common brewer, by persuading his 
 customers to leave him. In the same book (vol. 6, p. 439) there is 
 an indictment for a combination to ruin a gun-manufacturer by raising 
 riots, and by seducing away his workmen, and by violence to his 
 servants. The latter indictment is clearly good on the grounds of 
 the riot and violence, though probably not so on the ground of seduc- 
 tion of workmen (see 1704. Best ; 1851. Rowlands). The former 
 precedent may well be questioned. Had a case of so much import- 
 ance been tried, it would probably have been reported ; and the old 
 books of precedents include many indictments which modern de- 
 cisions have deprived of such authority as they may once have had. 
 
 It is conceived that these expressions — for the most part 
 amounting only to a question or a doubt — are not suffi- 
 cient to establish exceptions to the principles involved in 
 the decisions set out in the earlier part of this subsection. 
 Exceptions may perhaps be established by ftiture decisions, 
 but ia the meantime it seems impossible to discover any 
 elear rule by which it can be known beforehand what the 
 nature of those exceptions may be. This difficulty presses 
 on the law of conspiracy wherever it goes beyond the plain 
 lines of the ordinary criminal law, and would perhaps be 
 greatest in the case of any such extension at this point. 
 
 The late Seijeant Talfourd, in his edition of Dick. Q. S., at p. 335, 
 makes the following observations on this subject : — " It is not easy 
 to understand on what principle conspiracies have been holden in- 
 dictable, where neither the end nor the means are in themselves re- 
 garded by the law as criminal, however reprehensible in point of 
 morals. Mere concert is not in itself a crime ; for associations to 
 prosecute felons, and even to put the law in force against political 
 offenders, have been holden legal (1823. Murray, at Guildhall, Abbott 
 C. J.). If then there be no indictable offence in the object, no in- 
 dictable offence in the means, and no indictable offence in the con- 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 43 
 
 cert, in what part of the conduct of the conspirators is the offence to 
 be found ? Can several circumstances, each perfectly lawful, make 
 up an unlawful act ? And yet such is the general language held on 
 this subject, that at one time the immorality of the object is relied 
 on ; at anolher the evidence of the means ; while at all times, the 
 concert is stated to be the essence of the charge ; and yet that con- 
 cert, independent of an illegal object or illegal means, is admitted to 
 be blameless. 
 
 " The utmost limit of the modern doctrine of conspiracy seems to be 
 reached in the decisions respecting concerted disapprobation of a 
 performer or a piece at a theatre." [He then cites Sir J. Mansfield's 
 observation in Clifford w. Brandon, and continues: — ] "In this case 
 the act is lawful ; the means are lawful ; the motive may be even 
 laudable; as if a notoriously immoral piece were announced, and the 
 parties determined to oppose it ; and yet the concert alone makes the 
 crime. It is extremely difficult to understand this, unless concert be 
 a crime ; and still more difficult to reconcile it, or many other of the 
 cases, to the decision of the King's Bench in 1811 (Turner)." 
 
 See as to combinations to break contracts, inf. § 13. 
 
 § 12. Examination of Cases on Combination relating to 
 Trade and Labour. — (I) Restraint of Trade and 
 Disturbance of Markets. 
 
 Some traces may be found in the ancient books of a 
 doctrine that it may be criminal, independently of com- 
 bination, for one man to oblige another (by bond or other- 
 wise) to abstain from the exercise of his proper craft or 
 employment ( Yearb. 2 Hen. 5, 5 h, 22, set out in 11 
 Rep. p. 53 b, and in 1 Sm. L. C, Mitchell v. Reynolds ; 
 Anon. 2 Leon. 210, on the authority of the former case) ; 
 and if this was the law it would foUow that a combination 
 for the like purpose might be criminal. A more general 
 doctrine was several times suggested by Crompton, J. (e. g. 
 1856. Hilton v. Eckersley), that all " agreements tending 
 directly to impede and interfere with the free course of 
 trade and manufacture " were not only illegal in the sense 
 that they could not be enforced, but criminal combina- 
 tions. It does not appear that this doctrine ever received 
 the assent of other judges. Lord Campbell, C. J. and 
 . Erie, J. in the case cited disapproved it. The Exchequer 
 
44 THE LAW OF 
 
 Chamber in the same case, and the Q. B, in Hornby v. 
 Close (1867) declined to express an opinion upon it; in 
 the numerous cases of indictments of workmen for combi- 
 nations of various prohibited kinds, no suggestion appears 
 ever to have been made that it could be applied ; and it 
 has been usual to admit the right of workmen to strike 
 and of employers to lock out in combination. The question 
 is now concluded by the 34 & 35 Vict. cc. 31, 32, as to 
 combinations of employers and workmen, and it is not 
 likely to occur in any other case. Should it become 
 necessary to determine the question, it is conceived that it 
 must be held that up to the present time the doctrine has 
 not been established by any binding authority. Moreover 
 the civil courts have in modem times gone very far in 
 holding that agreements between individuals in restraint 
 of the trade of one of them may be not only not criminal 
 but legal and enforceable ; and a rule which is so vague 
 and subject to such wide and undefined exceptions does 
 not appear to be properly the matter of criminal law. 
 
 Disturbances of the public markets, of prices of goods 
 and of labour, have in like manner been sometimes regarded 
 as criminal independently of combination, and of the 
 numerous statutes for prohibilSng them (Cp. 1369. Lum- 
 bard's Case ; 1636. Mid-svinter, where nothing seems to 
 have been said of the combination; 1818. Hilbers ; Cp. 
 1800. Waddington, 1 East, Rep. 143 ; 18 14. De Berenger) ; 
 and there are some cases of indictments for combinations 
 expressly prohibited by statutes as combinations for these 
 purposes. (1698. Anon.; 1758. Norris). AU the ancient 
 acts have now been repealed ; but the 7 & 8 Vict. c. 24, 
 which repealed the statutes relating to forestalling, en- 
 grossing and regrating, and also extinguished their crimi- 
 nality at common law, enacted by sect. 4, that nothing in 
 its provisions should " apply to the offence of knowingly 
 and fraudulently spreading or conspiring to spread any 
 false rumour with intent to enhance or decoy the price of 
 any goods or merchandize, or to the offence of preventing 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 45 
 
 or endeavouring to prevent by force or threats any goods, 
 wares or merchandize being brought to any fair or market, 
 but that every such offence may be inquired of, tried and 
 punished as if this act had not been passed." (See 1800. 
 Waddington, 1 East, Eep. 143 ; 1814. De Berenger.) 
 
 There is a case of some importance (1783. Eccles), 
 which seems to have proceeded partly on the groimd sug- 
 gested by the ancient cases on restraint of trade, partly 
 on the ground of disturbance of the markets or prices. 
 
 Several defendants (apparently master tailors) were indicted for 
 combining to impoverish and prevent the prosecutor (apparently a 
 rival master tailor) from trading. The indictment did not set out 
 the proposed means ; and the question was, whether it was sufficient. 
 The K. B. held that it was sufficient ; but on what ground, does not 
 cleai'ly appear. Lord Mansfield is reported to have said, " The 
 illegal combination is the git of the offence. Persons in possession 
 of any articles of trade may sell them at such prices as they indi- 
 vidually may please, but if they confederate and agree not to sell 
 them under certain prices, it is conspiracy ; so every man may work 
 at what price he pleases, but a combination not to work under certain 
 prices is an indictable offence." Lord Ellenborough, in Turner's 
 Case (1811), said that this case seemed to have been determined on 
 the ground of restraint of trade. It may, however, be doubted 
 whether the language of the court does not show that it proceeded 
 on the ground of an assumed combination to disturb prices. If it 
 proceeded on the ground of the intent to " impoverish," it is opposed 
 to Starling's Case (1665), and apparently also to Rowlands' Case 
 (1851), and since the last case the decision on the sufficiency of the 
 declaration seems questionable. 
 
 § 13. Examination of Cases as to Trade and Lahour 
 continued. — (2) Coercion of Individuals. 
 
 The last special group consists of the cases on combi- 
 nations by workmen to regulate the conditions of their 
 labour. These cases, with few (if any) exceptions, have 
 been instances either of combinations for purposes the 
 combiaing for which was expressly prohibited by statutes 
 now repealed, or of combinations to do what it was 
 punishable for one man to do without combination. In 
 
46 THE LAW OP 
 
 SO far as the cases in this group fall within either of these 
 descriptions, they are merely examples of indictments for 
 combination to break statutes or otherwise to commit 
 offences — either offences the gist of which was defined by 
 the statute creating them as depending on the combi- 
 nation, or acts punishable when done by an individual, as 
 the case may be. In either kind the combination was 
 criminal at common law in the sense already described — 
 the sense in which any combination to commit any offence 
 is said to be criminal at common law, although the offence 
 was created by statute ; namely, that the indictment need 
 not conclude contra formam statuti, and that the design 
 need not have been completely executed, and that the 
 punishment does not depend on the statute. 
 
 But there are cases in which it is suggested that some 
 combinations of the kind in question are indictable at 
 common law in another sense, neither as agreements for 
 a combination expressly prohibited by a statute, nor as 
 combinations to do what would be punishable if done by 
 one man, but as being substantive crimes at common law, 
 in the same sense in which thefts always were crimes at 
 common law, or in which it has become established that- 
 combiuations to defraud may be crimes at common law 
 although the proposed fraud is not such as would be 
 punishable in an individual. It seems at one period of 
 the present century to have been doubted by some judges 
 whether all combinations of workmen for altering the con- 
 ditions of labour were not criminal at common law in this 
 sense. But this doubt appears to have been based on the 
 doctrine of restraint of trade, and it may probably now be 
 disregarded. Again, in cases of the present century some 
 authority wiU be found for the view that combinations 
 for the purpose of coercing a workman in respect of his 
 fi'eedom of industry, or a master in respect of the manage- 
 ment of his business, may be criminal at common law in 
 the same sense, although the coercion was to be of that 
 negative kind which consists in the mere combined absten- 
 
CKIMINAL CONSPIRACIES AND AGEEEMENTS. 47 
 
 tion from work without breach of contract and without 
 any express, threat or intimation of the purpose by word 
 or positive act to the workman or master. The only 
 decision of a superior court which appears at all to favour 
 this view is the decision of the K. B. in the case of "Walsby 
 V. Anley (1861), where the question was whether a threat of 
 a strike against non-unionists could be a " threat" within 
 the meaning of the now repealed act 6 Geo. 4, c. 120. ■ 
 The court seem to have thought that " threat" must mean 
 a threat of something " illegal," and that a strike (not in 
 breach of contract) for the purpose of compelling the dis 
 charge of the non-unionists would be sufficiently " illegal" 
 to bring the threat of it within the statute. Crompton, J., 
 who appears to have thought that aU strikes were criminal, 
 said that such a strike would be criminal at common law, 
 and Hill, J., seems to have adopted the same view. Cock- 
 bum, C. J., seems to have guarded himself in this case 
 (as he did in a subsequent case — Wood v. Bowron, 1866) 
 from saying that they would be criminal. The decision 
 in Walsby v. Anley, that a threat of a strike might be a 
 sufficient "threat" within the meaning of the statute, 
 whether it proceeded on the ground of restraint of trade 
 or on some other ground, was followed in several subse- 
 quent cases ; but in none of them does it appear to have 
 been supposed that that case established the criminality of 
 such a combination at common law. On the contrary, 
 the K. B., in 1866 (Wood v. Bowron), said that this was 
 stiU a question; in Druitt's Case (1867) BramweU, B., 
 said that strikes to raise, or lockouts to lower wages were 
 lawful; and, in 1868 (Sheridan), Lush, J., is reported to 
 have ruled that there was nothing criminal in a combina- 
 tion to enforce by strike, without intimidation, &c., the 
 compliance by a master with arbitrary rules of a trades 
 union. So, in an earlier case (1847. Selsby), Eolfe, B., 
 had ruled that there was nothing criminal in a combi- 
 nation to strike for higher wages or against apprentices 
 and non-unionists, in the absence of " intimidation," " mo- 
 
48 THE LAW OF 
 
 lestation," &c. It appears, indeed, to be plain that there 
 could not haye been any occasion in Walsby v. Anley 
 to hold that such a strike would be criminal; for not 
 only had a threat, obviously not of anything criminal, 
 been held sufficient in Perham's Case (1859), but if that 
 had been necessary for holding a threat of a strike to be a 
 " threat" within the meaning of the statute, it would have 
 followed that an " intimidation," or " molestation," or " ob- 
 struction," in order to be within the statute, must be an 
 intimidation, or molestation, or obstruction, by threat or 
 execution of a criminal act — a construction which was 
 never suggested, and which would have made the statute 
 inoperative. On the whole, it is conceived that the pre- 
 ponderence of authority is strongly against the general 
 view which has now been considered. 
 
 Lastly, there are some cases which appear to favour 
 a view that a combination is criminal at common law in 
 the sense now in question, if it is for something which 
 may perhaps be designated as active coercion of a man's 
 freedom of industry or occupation, but which may best be 
 indicated in the words of the cases — 
 
 1832. Bykerdike. Workmen combined imder oaths to send a 
 letter to an employer, to the effect that all his men would strike in 
 fourteen days unless certain workmen were dischai-ged. Patteson, J., 
 is said to have told the jury that the statute 6 Geo. 4, c. 129, " never 
 meant to empower workmen to meet and combine for the purpose of 
 dictating to the master whom he should employ ; and that this com- 
 pulsion was clearly illegal." 
 
 [The report of this case is brief and ambiguous. It cannot be 
 clearly determined whether any reference to common law was meant.. 
 The first count seems to have been intended to be framed on the 
 statute ; but since Eowlands' Case (1851), both counts are question- 
 able. The case seems to be reported only for a point of pleading.] 
 
 1867. Druitt. Workmen on strike for higher wages combined to 
 prevent other men from going to work, by picketing the works and 
 by molestations. Bramwell, B., is reported to have ruled, that, even 
 independently of the statute 6 Geo, 4, c. 129 (on which fifteen 
 counts of the indictment were framed), that "if any set of men 
 agreed among themselves to coerce that liberty of mind and thought 
 [sc. " the liberty of a man's liberty of mind and will to say how he 
 should bestow himself and his means, his talents and his industry"] 
 by compulsion and restraint, they would be guilty of a criminal 
 offence, namely, that of conspiring against the liberty of mind and 
 
CRIMINAL CONSPIRACIKS AND AGREEMENTS. 49 
 
 freedom of will of those towards whom they so conducted themselves. 
 He was referring to coercion or compulsion — something that was 
 unpleasant and annoying to the mind operated upon ; and he laid it 
 , down as clear and undoubted law, that if two' or more persons agreed 
 that they would by such means co-operate ^ together against that, 
 liberty, they would be guilty of an indictable offence. The public^ 
 had an interest in the way in which a man disposed of his industry 
 and capital ; and if two or more persons conspired by threats, inti- 
 midation or molestation to deter or influence hiin in the way in' 
 which he should employ his industry or his talents or his capital, 
 tliey would be guilty of a criminal offence. That was the common 
 law of the land, and it had been, in his opinion, re-enacted by an act 
 of parliament" (6 Geo. 4, c. 129). The learned judge added, that in 
 his opinion it was " impossible to have an effectual system of picket- 
 ing without being guilty of that alarm and intimidation and obstruc- 
 tion which is a breach of the law." 
 
 1872. Bunn. This case occurred after the passing of the 34 & 35 
 Vict. c. 32, which repealed the 6 Geo. 4, c. 129 and substituted new 
 provisions respecting violence, threats, molestation and obstruction. 
 Here the combination appears to l^ave been to' compel a master, by 
 means qf a strike, to take back a discharged workman. The strike 
 was on the part of the defendants, and of some of the other men who 
 struck, a breach of written contracts. The case appears not yet to 
 have been reported in any of the law reports. According to such 
 reports as have been published, it appears that no facts amounting to 
 any offence within the 34 & 35 Vict. c. 32, were established ; but that 
 the circumstances of the case in respect of the master's known en- 
 gagements, and of the inconvenience which must result to the public 
 from the interruption of his business (the manufacture of gas for the 
 service of a part of the metropolis), were such that a strike, or threat 
 of a strike in breach of contract, must have an extraordinarily coercive 
 effect upon him. The learned judge is stated to have told the jui-y, 
 in substance, that the indictment charged a criminal combination in 
 two forms. The first was a combination to force' " the company to 
 conduct the business of the company contrary to their will by an 
 improper threat or molestation. There would be improper moles- 
 tation if there was anything done to cause annoyance or in the way 
 of unjustifiable interference, which in the judgment of the jury would 
 have the effect of annoying or interfering with the minds of ordinary 
 persons carrying on such a business as that of a gas company. It 
 was enough if they thought there was molestation intended and 
 agreed upon with an improper intent, which, in their judgment, would 
 be an annoyance and an unjustifiable interference with the business 
 and have a deterring effect on the minds of Mr. Trewby and the com- 
 pany." The second was a combination to hinder or prevent the 
 company, by simultaneous breach of contract, from carrying on their 
 business. The jury acquitted the defendants on the counts for com- 
 bination of the former kind, but convicted thera on the counts for 
 combination of the second kind. 
 
 Against these two rulings (<7) (or three, if Bykerdike's 
 
 ((/) There are expressions somewhat similar in 1851. Hewitt. 
 
 E 
 
50 THE LAW' OF 
 
 Case is to be so understood) are to be set Selsby's Case in 
 1847, in whicli Eolfe, B. (Lord Cranworth) seems to bave 
 ruled that there was no common law on the subject, and 
 that a strike for higher wages or against apprentices and 
 non-unionists was lawful, unless violence, threats, molesta- 
 tions, &c. within the meaning of the statute were used ; — 
 Sheridan's Case in 1868, in which Lush, J. is said (in 
 a newspaper report) to have ruled that there was nothing 
 unlawful either in a strike for compelling a master to 
 comply with certain regulations, or in informing him of 
 the object of vthe strike or in picketing his premises, so 
 long as there was no violence or intimidation, &c'. (A) ; — 
 and Shepherd's Case in 1869, in which the same judge 
 ruled that a combination to strike for wages and to picket 
 premises was not criminal, and distiaguished Druitt's 
 Case on the ground that there the defendants " abused 
 their fellow workmen, shouted and hooted at them, and 
 were otherwise violent in their conduct." 
 
 It is to be regretted that neither in Druitt's Case nor 
 in Bunn's Case was there any apparent opportunity of 
 obtaining a confirmation or explanation of the rules laid 
 down for the guidance of the jury by appeal on a case 
 reserved for the Court of Criminal Appeal. In Druitt's 
 Case all the defendants, except one who had committed an 
 assault, were discharged on their own recognizances, and 
 they therefore had no motive to appeal. In Bunn's Case 
 the same result followed from the acquittal on the charges 
 to which the reported ruling, in so far as it is now in 
 question, applied. It therefore becomes necessary frirther 
 to consider the doctrine, that a combination to coerce a 
 man's freedom in respect of the bestowal of his industry or 
 capital, by means which would not be punishable apart 
 
 (7t) This ruling is not inconsistent with the cases of Rowlands and of 
 Duffield in 1851, in which it was ruled, that striking, or procuring men to 
 strike "i» hreaoh of contract, was a '-molestation" within the statute. 
 There the hreach of contract was a breach of a penal act (4 Geo. 4, c. 34)! 
 
CKIMINAL CONSPIKACIES AND AGREEMENTS. 51 
 
 from combination, is a criminal conspiracy '^at common 
 law" (t). 
 
 [1200—1600.] Firstly, with respect to the period from 
 the commencement of our legal history down to 1600, there 
 appears to be no evidence of the existence of this doctrine; 
 and it seems even to be demonstrable that the doctrine 
 cannot have then existed, for it was only in the Poulterers' 
 Case (1611), or in the glosses afterwards , put upon that 
 case, that the general principle was discovered that a com- 
 bination to commit even a crime was criminal ; and the 
 conclusion, that a combination for acts' not criniinal was 
 not' indictable as a combination by the old common law, 
 not only seems to foUow from that fact, but appears to be 
 directly proved by the case in 1351 (Anon,). Moreover, 
 the ancient acts relating to combinations of workmen 
 (1360, 34 Edw. 3, c. 9 ; 1423, 3 Hen. 6, c. 1 ; 1548, 2 & 3 
 Edw. 6, c. 15) contain no indication that they are decla- 
 ratory ; nor do they appear ever to have been so regarded, 
 even by Lord Coke (see e.ff. 3 Inst. 99). Nor does any 
 of them contain any provision against coercion of masters 
 or workmen : and their purview appears to be limited to 
 the prevention of increase of wages, whether by nominal 
 increase or by reduction of hours. Lastly, in none of the 
 books before 1600 does there appear to be any title or 
 mention of combinations or confederacies relating to work- 
 men or to trade except references to these statutes. Ashe's 
 Index to the Common Law (1614) contains the head 
 " How Conspiracies and Confederacies used and made 
 between Artificers or, &c., to sell their "Wares or Mer- 
 chandize, &c., shall be punished. See tit. Statutes, 606, 
 and Bakers, 2," — ^both which references are to the 2 & 3 
 Edw. 6, c. 15. His title " Labourers" consists of thirteen 
 columns of references arranged under various heads, none 
 
 (i) The question hero is, whether ^nd in what sense the doctrine now 
 forms a part of the existing law; and not whether it ought to form a part 
 of the criminal law. 
 
 E 2 
 
52 THE LAW OF 
 
 of which have any bearing on this question. Lastly, 
 Pnlton, writing in 1610, dilates at length on threats and 
 oppressions, but all his observations on threats refer to 
 menaces of breach of the peace, and none of his " oppres- 
 sions" have reference to any kind of combination, except- 
 ing riot. 
 
 [1600—1700.] Secondly, with respect to the 17th 
 century, it may be said, that notwithstanding the great 
 extension of the criminal law in that period, firstly by the 
 Star Chamber and afterwards by the courts of common law, 
 there is no evidence of the existence then of the doctrine 
 in question. The only precedents of that century of a pro- 
 ceeding by way of indictnient for conspiracy for offences 
 relating to trade or labour relate to prices (West's Symb. 
 2, 98, A.D. 1641; Anon. 1698); and of these the former 
 concludes contra for mam statutorum ; sc. 25 Hen. 8, c. 2 ; 
 2 & 3 Edw. 6, c. 15. 
 
 [1700 — 1824.J In a third period may conveniently be 
 comprehended the interval between 1700 and 1^24 — the 
 year in which the Combination Acts were first repealed. 
 The sources to be consulted for this period consist of 
 (i) cases, (ii) precedents, (iii) text books, and (iv) the 
 statutes, (i) The cases before the act 39 & 40 Geo. 3, 
 c. 109, with the exception of Eccles' Case, consist exclu- 
 sively of cases of indictments for or expressions relating to 
 combinations to raise wages — combinations which were 
 then doubly criminal, firstly, as being in violation of the 
 general statute 2 & 3 Edw. 6, c. 15, against combinations 
 for raising wages ; and, secondly, as being in violation of. 
 the statutes, such as 1 Jac. 1, c. 6, for the regulation of 
 wages by justices; and sometimes further criminal by 
 special laws to the same effect for governing particular 
 trades. The cases are as follow : — 
 
 1721. Journeymen Tailors of Cambridge. The tailors were in- 
 dicted for combining to raise their wages. It was objected that the 
 indictment ought to have concluded contra forinam statuti, since it 
 depended on 7 Geo. 3, e. 13, which provided for the punishment of 
 tailors for making agreements to advance their wages. It appears 
 
^ CEIMINAL CONSPIRACIES AND AGREEMENTS. 53 
 
 to have been admitted by the counsel for the crown that the offence 
 consisted in combining to demand wages in excess of those allowed 
 by the act ( — " 'tis true, it doth not appear by the record, that the 
 wages demanded were excessive, but that is not material, because it 
 may be given in evidence ") ; but they contended that the gist was in 
 the conspiracy, and so the crime charged was a crime at common 
 law ; a contention which was in accordance with the Poulterers' Case 
 (1611) and with Best's Case (1705), and which did not involve tluit 
 the combination would have been criminal if it had not been for a 
 pnrpose criminal apart from combination. The court held, in accord- 
 ance with the former authorities, that the indictment need not conclude 
 contra formam statuti; and they are made to add that " a conspiracy 
 of any kind is illegal, tho' the matter about which they conspired 
 might have been lawful for them or any of them to do, if they 
 had not conspii-ed to do it ; and this appeared in the case of the tub- 
 women against the brewers of London." This general expression 
 was in no way necessary for the decision ; it is not supported by its 
 reference (1665. Starling, see sup. § 7); and it amounts to the pro- 
 position, which is negatived by every previous and subsequent 
 authority, that combination is per se criminal, independently of its 
 purposes. Moreover, that the report is untrustworthy appears from 
 the fact that the reporter makes the arguments as to a case at 
 Cambridge turn on the 7 Geo. 1, e. 13, which did not apply to Cam- 
 bridge, but only to the metropolis. 
 
 1783. Eccles. This case has already been considered above, § 12 ; 
 and it appears not to bear on the present question. 
 
 1796. Mawbey. The indictment was against justices for attempt- 
 ing to pervert justice and influence the Court of King's Bench by 
 false cex-tificates. Grose, J., said, " In many cases an agreement to 
 do a certain thing has been considered as the subject of an indictment 
 for a conspiracy, though the same act, if done separately by each 
 individual without any agreement among themselves, would not have 
 been illegal. As in the case of journeymen conspiring to raise their 
 wages : each may insist on raising his wages, if he can ; but if 
 several meet for the same purpose, it is illegal, and the parties may 
 be Ihdicted for a conspiracy." 
 
 [These expressions were not necessary for a decision upon an 
 indictment for a combination to pervert justice. Crompton, J., 
 several times cited them with approval. Lord Campbell, C. J., in 
 1856, Hilton v. Eckersley, ranked them with other "loose expressions" 
 which he disapproved. Sir W. Erie, in his Memorandum on Trades 
 Unions, Eep. App. Ixxvi, says, that so far as the dictum related to 
 wages, " it was relevant only for the purpose of establishing that the 
 guilt of conspiracy is complete by the agreement ;" and with refer- 
 ence to the more general part of this dictum, and to the dictum jn 
 the Tailors of Cambridge Case, he says, " The dicta in the two last 
 cases, that acts lawful for one may become indictable if more than 
 one combine to commit them, were not pertinent to" the adjudication 
 then being made. The judges do not refer to examples, and although 
 the proposition may be true of cases where simultaneity is the essence 
 of the criminality^ of the act, I cannot discover any other cases in 
 which it would be "true."] 
 
 1799. Hammond. Journeymen shoemakers were convicted of a 
 combination to raise wages ; and Lord Kenyon said, that not only 
 
54 ^ THE LAW or 
 
 was such a combination by the men indictable, but it would be 
 indictable in the masters to agree to raise wages. It seems impos- 
 sible but that such an observation must have referred to the statutory 
 prohibitions (5 Eliz. c. 4 ; 8 Geo. 3, c. 17, &c.) of the payment by 
 masters of higher wages than those fixed by the justices — prohibi- 
 tions which were not repealed until 1813. 
 
 1804. Salter. Indictment framed on 39 & 40 Geo. 3, c. 106, for 
 conspii-ing to compel a master to discharge a workman by striking 
 in breach of contract. Nothing appears as to common law. 
 
 1819. Ferguson. Indictment framed on 39 & 40 Geo. 3, c. 106, 
 for conspiring to strike against employment of apprentices. , Nothing 
 appears as to common law. 
 
 The doctrine in question does not appear to be asserted 
 or involved in any of these cases, unless in so far as it may 
 be included in the general dicta attributed to thejudges 
 in the Tailors' Case and in Mawbey's Case, [fiext (ii) are 
 the precedents. In "Wentworth's Pleadings, published in 
 1797, the precedents bearing on this question, with one 
 exception, can be traced to and foUow the language of 
 statutes ; and that one appears to follow the language of 
 some statute which has not been found. 
 
 1760. 4 Wentw. p. 103 : combination by journeymen tailors in 
 London to raise wages and lessen hours contraiy to 
 the orders of the justices. (7 Geo. 1, c. 13.) 
 
 1782. lb. p. 100: by journeymen leather dressers agaitist 
 apprentices. (22 Geo. 2, c. 27, s. 12 ; 12 Geo. 1, c. 34.) 
 
 1787. lb. p. 113 : by smiths to lessen hours. (22 Geo. 2, c. 27, 
 s. 12 ; 12 Geo. 1, c. 34.) 
 
 1792. lb. p. 120 : by curriers to raise wages. (22 Geo. 2, c. 27, 
 
 s. 12; 12 Geo. 1, c. 34.) 
 
 1793. 6 Wentw. p. 375 : by journeymen lamplighters to raise 
 
 wages. (This precedent appears.to follow the language 
 of some statute, though the statute has not been found. 
 The general Acts, 1 Jac. 1, c. 6, or 2 & 3 Edw. 6, c. 15, 
 may have been relied on.) 
 
 Other similar precedents Avhich can equally be traced 
 to statutes which they foUow, but do not mention, will be 
 found in other later collections. (Dickenson, Q. S. ; 
 Chitty, Cr. L. ; Cro. Circ. C.) There are two to which 
 no statute seems to apply, viz., an indictment against 
 master-shoemakers for conspiring not to employ journey- 
 men who had left their last masters mthout their consent 
 (Dick. Q. S. 283 or 341); and an indictment (3 Chit. 
 
CRIMINAL CONSPII^ACIES AND AGREEMENTS. 55 
 
 Cr. L. 1169) against master-ropemakers for the like 
 offence. ( The dates of these two precedents are not given ; 
 but since they are not included in Wentworth, they are 
 probably of a later date than 1797. The latter is said to 
 be " from the MS. of a gentleman at the bar.") The 
 editors of some of these collections prefix the description 
 "at common law" to most of the precedents, apparently 
 in the sense that they understand the combinations to be 
 indictable irrespectively of the statutes; but this can hardly 
 countervail the fact that, with few exceptions, the pre- 
 cedents are confined to cases met by statutes, and follow 
 the language of statutes ; and it is easy to understand how 
 the established practice that indictments for conspiracy do 
 not conclude contra formam statuti even when they are 
 founded on statutes may have led to the impression that 
 the criminality was independent of the statutes. No case 
 or precedent of an indictment for controlling a master 
 appears until 1780, i.e. until statutes expressly directed 
 against combinations for this purpose had been in force for 
 fifty-five years (l2 Geo. 1, c. .34, &c.) 
 
 The text books (iii) down to at least 1800 appear to be 
 silent as to the existence of any doctrine of the criminality 
 at common law of combinations of masters or workmen. 
 Neither in the earlier editions of Hawkins nor in East 
 does the doctrine in question appear to be stated. So in 
 the edition of Bum's Justice of 1810, it is not mentioned 
 imder the title " Conspiracy ; " and under the title " Ser- 
 vants," there are several statements of the statutes against 
 combination, but there is no reference to common law. 
 Lastly (iv) the various acts against combinations for con- 
 trolling masters or workmen which were passed in the 
 18th century (1725. 12 Geo. 1, c. 34, extended by 1729. 
 22 Geo. 2, c. 27, s. 12; 1799. 39 Geo. 3, c. 81 ; 1800. 
 39 & 40 Geo. 3, c. 106, &c.) commence by declaring or 
 enacting agreements for such purposes theretofore made to 
 be " illegal, null and void ; " which would not have been 
 necessary if they had been thought to be criminal at 
 
56 THE LAW OF 
 
 common law; and they then proceed by independent 
 enactments to make it punishable for the fiiture to engage 
 in them. 
 
 The result of the whole appears to be that there is not 
 sufficient authority for concluding that before the close of 
 the 18th century there was supposed to be any rule of 
 common law that combinations for controlling masters or 
 workmen were criminal, except where the combination 
 was for some purpose punishable under a statute expressly 
 directed against such combinations, or was for conduct 
 pimishable independently of combination. If such a rule 
 is established by the cases decided since the passing in 
 1825 of the 6 Geo. 4, c. 129, which have been above con- 
 sidered, this would seem to be a modem instance of the 
 growth of a crime at common law by reflection from statutes, 
 and of its survival after the- repeal of those statutes, some- 
 what in the same manner in which combinations for certain 
 kinds of frauds continued to be criminal after those frauds 
 had ceased to be punishable apart from combination. 
 
 The Select Committee of the House of Commons in 1824, on the 
 Bill for the Act 6 Geo. 4, c. 95, appear to have thought that combi- 
 nations of workmen were generally criminal at common law ; and 
 they embodied their opinion in provisions repealing the supposed 
 common law. They further repealed, amongst other acts, thg 33 
 Edw. 1, so far as it related to combinations or conspiracies of work- 
 men or other persons to obtain an advance of, or to fix, the rate of 
 wages, &c. — a subject to which that ordinance does not appear to 
 have had, or to have been previously supposed to have had, any 
 relation. The Act of 1824 was repealed by the Act of 1825, 6 Geo. 4, 
 c. 129, which repeats the repeal of 33 Edw. 1, as above. 
 
 It seems not impossible that the opinion of the Select Committee 
 may have^been founded partly on some decisions in the Scotch 
 Courts on the Common Law of Scotland, which are printed in the 
 Report of the Select Committee (H. C.) of 1824 on Artisans and 
 Machinery (see as to these decisions, and the principle of Scotch law 
 on which they rest, inf. Sect. III. § 16) ; partly, perhaps, on the facts 
 that the precedents do not conclude contra formam statuti, and on the 
 general rule that a criminal conspiracy is always described as a crime 
 at common law : >. rule which, as has been seen, has nothing to do 
 with the question whether the gi-ound of criminality is a statute or is 
 the common law, and which merety means that assuming the pui-pose 
 to be sufficiently criminal, whether by statute or by common law, 
 the combination for it may be charged, tried and punished without 
 reference to the statute or law which constitutes the gi-ound of the 
 criminality of the combination. 
 
ClilMINAL CONSPIKACIES AND AGREEMENTS. 57 
 
 In the consideration of the criminality of such com- 
 binations as those which have lastly been discussed, it 
 must be remembered that there is no intrinsic efficacy 
 in the word " conspiracy," or in the word " confederacy," 
 or in the word " combiaation." " Conspire " [Lord 
 Campbell said in Hamp's Case, 1852] " is nothing ; agree- 
 ment is the thing." Again, in all the more recent cases, 
 it has been uniformly recognized that a lockrout or a 
 ' strike, whether for higher wages or against an obnoxious 
 workman, or against refusal to conform to regulations, is 
 not per se any offence. (1866. Shelbourne v. Oliver; 
 1866. Wood w. Bowron ; 1867. Druitt and Bailey ; 1868. 
 Sheridan; 1869. Shepherd; 1869. Farrer w. Close.) Yet 
 the very meaning of a strike is a combination to cause a 
 master or workman to act in his business or employment 
 in a manner in which he does not wish to act ; that is, to 
 coerce him. At what point, then, does the illegality 
 arise? Since the aboKtion in 1871 of restraint of trade 
 as a possible ground of criminality, the object is not im- 
 lawtul in any sense, apart from the means to be used, for 
 it is not otherwise unlawful in itself to persuade a master 
 to conform to rules or not to employ apprentices. Next, 
 as to the means. " Coercion " in itself imports nothing ob- 
 jectionable, for, as has been held with respect to " intimida- 
 tion," "molestation," and "obstruction" (1844. O'Connell 
 in D. P.; 1846. Frost v. Lloyd, 9 Q. B, 130; 1851. 
 Rowlands, in arff. in Q. B.), such words are not terms of 
 art, and they are consistent with either legaHty or illegality 
 in the conduct to which they refer. A strike is admitted 
 not to be in itself criminal ; nor in the absencfe of breach 
 of contract is it a civil wrong. If therefore the agreement 
 to strike is the unlawiul element, it would seem that it 
 must be so in the sense in which agreements in restraint 
 of trade were unlawful: but by the Act of 1871 that 
 ground is taken away. The only other ground on which 
 a strike has been suggested to be unlawful in this sense is 
 that it is used for coercion in trade or labour : but coercion 
 
58 THE LAW OF 
 
 itself is a neutral word, and imports nothing objectionable 
 apart from the particular means by which it is to be 
 exercised; and it therefore cannot be brought in aid of 
 the unlawfulness of these means. An agreement therefore 
 of the kind here suggested seems not to satisfy that pre- 
 liminary condition of unlawfulness either in the end or in 
 the means proposed (A), which, according to the authorities 
 on cases of combinations to defraud must be satisfied, at 
 least in matters not directly of a public nature, before any 
 question of criminality arises. 
 
 The same reasoning applies to an agreement for the 
 mere intimation of an intended strike, and this indeed 
 seems to have been several times admitted to be lawful: 
 and even if it is to be made in a dictatory or minatory 
 manner, it is difficult to see how this, apart from the 
 repealed statute, and from the doctrine of restraint of 
 trade, can make any diiference ; for if the matter threatened 
 is not unlawful, and the object is not unlawful, to hold the 
 threat of it imlawful would be opposed to those cases in 
 which it has been held that there must be not only a 
 minatory manner but also unlawful matter. Nor, if neither 
 the object nor the manner, nor the form of the threat, is 
 unlawful, does it seem that it can be made unlawful by 
 reason of the magnitude of the interests involved and the 
 consequent efficacy of the threat. The same principles 
 appear to apply to mere disagreeable names, black looks 
 or other mere annoyances (Z). There is no intelligible 
 sense in which these things can be called unlaw&l in 
 themselves apart from statutes, and to say that they are 
 unlawful because they are used for coercion, seems to 
 amount to saying that the means receive a character of 
 imlawfulness from that which depends for its own unlaw- 
 fulness on them. 
 
 It is conceived that the provisions of the Act of 1871 
 confirm the view here suggested. The legislature must 
 
 (/«) See inf, § 14. {I) See sup. 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 59 
 
 be supposed to have been aware that the law of criminal 
 agreements relating to trade had at least commonly followed 
 the statutes against trade molestations, and it seems rea- 
 sonable to infer that the list of trade offences which is 
 included in the statute 34 & 35 Vict. c. 32, was intended 
 to embody all the matters which it was thought proper to 
 make the subjects of a special criminal law relating to the 
 disposal of capital and industry, and for which provision 
 was not made in other acts relating to employers and 
 workmen. 
 
 Where however the agreement is for conduct involving 
 a breach of contract by workmen, different considerations 
 occur. Acts have been for many years in force for punish- 
 ing breaches of contract by workmen of most kinds, and 
 an agreement to break those acts, or to procure a breach 
 of them, may be criminal on the general priaciple estab- 
 lished in the ,l7th century. A difficulty may indeed occur 
 at the present time from the fact that " The Master and 
 Servant Act, 1867," appears to suspend the provisions of 
 most of the former acts for punishing breaches of contract, 
 and to substitute the discretion of a magistrate as to 
 whether the wrong ought to be regarded as criminal pr as 
 merely civil, so that a breach of contract may be thought 
 to be of an indeterminate character, both -wien it is pro- 
 posed and when it is executed ; nor does there seem to be 
 any case in which the effect of this condition of the law 
 has been considered in its relation to combinations. Either 
 view of its effect is attended with difficulty. On the one 
 hand the provisions of the 19th section, which expressly 
 preserves the procedure by indictment in cases of malicious 
 injury to person or property, may perhaps raise some pre- 
 sumption that procedure by indictment was intended to be 
 excluded in the case of other kinds of misconduct within 
 the purview of the statutes whose penal clauses are sus- 
 pended. On the other hand it seems unlikely that the 
 legislature should have intended to relieve without express 
 words from the criminality which has long attached to 
 
60 THE LAW OF 
 
 agreements for breaches of contract where those breaches 
 were in violation of penal acts. 
 
 Agreements for breaches of contracts of service in cases 
 to which no penal act applies seem never to have been 
 determined to be criminal. In Rowlands' and Duffield's 
 Cases (1851), and apparently in aU the other cases, the con- 
 tracts, the, breaking or the procuring the breach of which 
 was ruled or held to be a " molestation" within the statute 
 6 Geo. 4, c. 129, were within the purview of penal acts; 
 and in Rowlands' Case the Q. B., without pronouncing a 
 final opinion, thought the following counts for conspiracy 
 " too vague" : — 
 
 16th. Unlawfully to intimidate, prejudice and oppress one R. P. 
 and one Gr. P. in their trade and occupation as manufacturers of, &c., 
 aud to prevent the workmen of E. P. and Gr. P. from continuing to 
 work for R. P. aud Gr. P. in their said trade and occupation. 
 
 17th. By divers subtle means and devices and wicked arts and 
 practices, to injure and oppress R. P. and Gr. P. in their trade, busi- 
 ness and occupation of manufacturers of, &c., and to induce the work- 
 men of R. P. and Gr. P. to depart from their hiring, employment and 
 work with R. P. and Gr. P. before the period of their agreement with 
 R. P. and G. P. was completed. 
 
 19th. Unlawfully to intimidate, prejudice and oppress R. P. and 
 G. P. in their trade and occupation of manufacturers of, &c., and to 
 entice and seduce away the workmen of R. P. and G. P. from the 
 employment of R. P. and G. P., and thereby to injure and oppress 
 R. P. and G. P. in their said trade and occupation. 
 
 After consideration. Lord Campbell, C. J., p7-o cur., said, " With 
 respect to the indictment, we all agree in thinking that the 16th, 
 17th and 19th counts are open to objection as being too vague. We 
 give no final opinion ; but on these counts there will be a rule nisi 
 to arrest judgment, unless a nolle prosequi be entered." The other 
 counts were directly framed either on the 4 Geo. 4, c. 34, or on the 
 6 Geo. 4, e. 129. 
 
 And the opinion of the court seems to have been partly 
 foimded on the rule for which the cases of Daniel (1704) 
 and CaUingwood (1705) are commonly cited, that indict- 
 ment does not lie against one for enticing away a servant 
 or apprentice. (Cp. 1853, Lumley v. Gye. There is a 
 precedent in West, 2, 269, of an indictment against one 
 for being a common procurer of servants to depart from 
 their services.) 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 61 
 
 The following are cases on the subjects of this and of 
 the preceding subsection : — 
 
 1354. Art. of Inq. : recital of a statute against combination by 
 
 merchants. 27 Edw. 3, stat. 2, c. 3. 
 1369; The Lumbard: indictment of one (not by way of con- 
 spiracy) for disturbing prices. 3 Edw. 3, stat. 2, c. 3 ; 
 
 37 Edw. 3, c. 5. 
 1597. Anon. : Combination for forestalling. 37 Edw. 3, c. 5 ; 
 
 25 Hen. 8, c. 2. 
 1636. Midwinter : Distm-bance of markets. 37 Edw. 3, c. 5, &c. 
 1698. Anon. : Combination by manufactm-ers to raise prices. 
 
 37 Edw. 3, c. 5. 
 1721, Journeymen Tailors of Cambridge : to raise wages. 2 & 
 
 3 Edw. 6, c. 15 ; 1 Jac. 1, c. 6 ; Qu. 7 Geo. 1, c. 13. 
 1758. Norris : to raise prices of salt. 37 Edw. 3, c. 6 ; 25 Hen. 
 
 8, c. 2 ; 2 & 3 Edw. 6, c. 15. 
 1783. Eceles: to prevent a tailor from carrying on his trade. 
 
 (Qu.) 
 1796. Mawbey : Diet, of Grose, J. 
 1799. Hammond : to raise wages. 2 & 3 Edw. 6, c. 15 ; 5 Eliz. 
 
 c. 4; 8Geo. 3, c. 17. 
 1802. Marks : unlawful oath by trades unionists. 37 Geo. 3, 
 
 c. 123; 2 & 3 Edw. 6, c. 16. 
 
 1804. Salter: combination to prevent master from employing a 
 
 workman. 39 & 40 Geo. 3, e. 106. 
 
 1805. Nield : summary conviction. 39 & 40 Geo. 3, c. 106. 
 
 1818. Hilbers : combination to engross, raise prices, &c. . 25 
 
 Edw. 3, stat. 3 ; 37 Edw. 3, c. 5. 
 
 1819. Perguson : to strike in breach of contract against appren- 
 
 tices. 39 & 40 Geo. 3, c. 106. 
 1822. Eidgway : summary conviction. 39 & 40 Geo. 3, c. 106. 
 1832. Bykerdike : combination to compel discharge of work- 
 men by threat of strike. {Qu. on 6 Geo. 4, c. 129.) 
 1834. Ball: unlawM oath by trades unionists. 37 Geo. 3, 
 
 c. 123 ; 39 Geo. 3, c. 79. 
 1834. Lovelass : unlawful oath by trades unionists. 37 Geo. 3, 
 
 c. 123 ; 39 Geo. 3, c. 79; 57 Geo. 3, c. 19. 
 1834. Dixon: S. P. 
 
 1842. Harris: charge of Tindal, C.J. 6- Geo. 4, c. 129. 
 1847. Selsby: combination against apprentices and non-unionists 
 
 and for picketing. 6 Geo. 4, c. 129. 
 1851. Hewitt : strike against a workman. 6 Geo. 4, c. 129. 
 1851. Rowlands : ) strike in breach of contract to raise wages. 
 1861. Duffield : J 4 Geo. 4, c. 34 ; 6 Geo. 4, c. 129. 
 1856. Hilton «. Eckersley : bond in restraint of trade. 
 1869. Perham : summary conviction for threat. G Geo. 4, c. 129. 
 1861. Walsby u. Anley : summary conviction for threat of strike. 
 
 6 Geo. 4, c. 129. 
 1863. O'Neill v. Longman: summary conviction for threat. 
 
 6 Geo. 4, c. 129. 
 1863. O'Neill v. Kruger: summary conviction for threat. 6 
 
 Geo. 4, c. 129. 
 
62 THE LAW OF 
 
 1866. Shelbourae w. Oliver: summary conviction for threat. 
 6 Geo. 4, c. 129. 
 
 1866. Wood 0. Bowron: summary conviction for threat. 6 
 
 Geo. 4, e. 129. 
 
 1867. Skinner: summary conviction for threat. 6 Geo. 4, c. 129. 
 1867. Druitt: \ combination to molest workmen. 6 Geo. 4, 
 1867. Bailey: \ c. 129. (See as to common law.) 
 
 1867. Hornby ». Close : restraint of trade. 
 
 1868. Springhead Co. v. Riley: injunction. Malins, V.C. 6 
 
 Geo. 4, c. 129. 
 
 1868. Sheridan : combination to enforce rules. 6 Geo. 4, c. 129. 
 
 1869. Shepherd: combination to molest workman. 6 Geo. 4, 
 
 c. 129. 
 1869. Farrpr w. Close: restraint of trade. 
 1872. Bunn : combination to coerce a master in his business. 
 
 § 14. Summary of this Section — Lord Denman^s 
 Antithesis. 
 It is conceived that on a review of all the decisions there 
 is a great preponderance of authority in favour of the pro- 
 position that, as a rule, an agreement or combination is 
 not criminal unless it be for acts or omissions (whether as 
 " ends " or as " means ") which would be criminal apart 
 from agreement (see esp. 1725. Edwards ; 1788. Fowler ; 
 1811. Turner; 1834. Seward); and that the modern law 
 of conspiracy is in truth merely an extension of the law of 
 attempts, the act of agreement for, the criminal purpose 
 being substituted for an actual attempt as the overt act. 
 It has been seen by what steps a beneficial exception has 
 established itself in the case of agreements to defi:aud, and 
 how the ancient crime of conspiracy, properly so called, 
 has been extended to charges of any Idnd of crime made 
 for purposes of extortion. Probably also in the case of 
 agreements "directly of a public nature and levelled at 
 the government," and perhaps in the case of agreements 
 to pervert or defeat justice, the law of criminal combina- 
 tions has gone somewhat beyond the bounds of the ordi- 
 nary criminal law. In the case of agreements to injure 
 private persons, the balance of decisions seems to incline 
 against any such extension, though expressions of opinion 
 
CBIMINAL CONSPIKACIES AND AGKEEMENTS. 63 
 
 occur in favour of the possibility of such an extension in 
 cases , still to be defined. In the case of agreements to 
 coerce a master or workman in the conduct of his busi- 
 ness or in the disposal of his industry, there seems to be 
 recent authority in favour of such an extension, but it has 
 not yet been placed beyond doubt by number of cases or 
 by the authority of a court of appeal ; and it has been 
 seen that there is much difficulty in finding authority for 
 such an extension in the common law before the present 
 century. ^ 
 
 Expressions of great apparent generality, as to the 
 criminality of combinations in cases not within any of 
 these particular lines of extension, occur in some of the 
 reports ; but they wiU be found nearly always to have 
 been used with reference either to cheats or to the per- 
 petually recurring question, what is the gist of a con- 
 spiracy for purposes of pleading, and to have had for the 
 most part a totally different meaning fi.'om that which 
 they seem to import when they are cited apart from their 
 context. Especially is this true of the so-caUed definition 
 of conspiracy, that it consists in the combination for ac- 
 complishing an luilawiul end, or a lawful end by unlawful 
 means. That antithesis was invented by Lord Denman, 
 in Jones' Case (1832) (m), to express the very opposite of 
 that for which it is sometimes cited. The indictment was 
 for a combination to cheat by removing the goods of a 
 person against whom a commission of bankrupt had 
 issued; but it did not show that the commission was 
 valid. It was contended for the crown that the mere 
 purpose to defraud sufficed ; but the K. B. held that even 
 in the case of a combination to defi-aud, in which it is 
 admitted to be unnecessary to show a purpose to effect an 
 object or to use means which would be criminal apart 
 from combination, it was yet necessary that there should 
 
 (to) Some earlier traces of a similar mode of expression may he found, 
 e.ff. in 1814. De Berenger, and 1 East, P. C. 462 (where East's observations 
 must be separated from the case to which they are appended). 
 
64 THE LAW OF 
 
 have been an intention to do some act amounting to at 
 least a civil wrong : — " the indictment ought to charge a 
 conspiracy either to do an unlawful act or a lawful act by 
 unlawM means. Here the indictment charges a con- 
 spiracy to remove and conceal the goods of Jones ; but if 
 the commission was bad, Jones had a right to remove 
 them." So in Richardson's Case (1834), where the same 
 question occurred, with the substitution of an order for 
 immediate execution instead of the commission of bank- 
 rupt, the same point was ruled in the same sense by 
 the same judge. The antithesis is next used in Seward's 
 Case (1834) by the same judge in the K. B. for the same 
 purpose, and in this instance "unlawful" seems to be used 
 in the sense of " criminal." In 1839 (Peck), when Lord 
 Denman's owa phrase was attempted to be used before 
 him in a more general sense, as containing not a limita- 
 tion but a definition of what combinations are criminal, 
 he said, "I do not think the antithesis very correct;" and 
 again in 1844 (King), where the attempt was repeated, he 
 clearly explained the meaning of the phrase as being a 
 limitation and not a definition, by the observation, " the 
 words 'at least' should accompany that." In 1839 
 (Vincent, Alderson, B.) and in O'ConneU's Case (1844. 
 by Tindal, C. J., in D. P.) the phrase was used with 
 reference to a combination to effect changes in the govern- 
 ment by means of physical force, and to excite disaffec- 
 tion. Where the phrase is not used as a limitation, it is 
 commonly used vrith the emphasis on the word " combina- 
 tion," for the purpose merely of enforcing the established 
 doctrine that the gist of a conspiracy, considered as an 
 act, is neither in the mere formation of a criminal purpose 
 nor in its execution, but in the agreement for its execu- 
 tion. An excellent example is to be found in the ex- 
 pression used by Willes, J., in delivering the opinion ot 
 the judges in the House of Lords in 1868 (Mulcahy), 
 that " A conspiracy consists not merely in the intention 
 of two or more to do an unlawful act, or to do a lawful act 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 65 
 
 by tmlawfiil means. So long as such a design rests in 
 intention only, it is not indictable. Wlien two agree to 
 carry it into effect, the very plot is an act in itself * * * 
 punishable, if for a criminal object or for the use of 
 criminal means:" — an example which, in its use of both 
 " unlawful" and " criminal," shows that the antithesis has 
 not, in the most modern times and in the highest court, 
 been understood to involve the doctrine for which the 
 antithesis has been sometimes cited. Nor is it difficiilt to 
 show that the antithesis cannot be and cannot have been 
 intended to be a complete definition of criminal combina- 
 tion. In order that a phrase may be such a definition, its 
 own terms must be used in a definite sense with reference 
 to the purpose for which the definition is to be used. 
 Therefore, if this phrase is a definition for legal purposes, 
 the word " unlawftd" or " illegal" (these words are used 
 -interchangeably throughout the cases) must be used in a 
 definite legal sense. But there seem to be only three 
 definite legal senses of the word "unlawfiJ." It may 
 mean criminal, i. e. prohibited by way of a criminal sanc- 
 tion or penalty ; or it may mean wrongful, i. e. prohibited 
 by way of a civil sanction or remedy; or it may be used ia 
 that peculiar sense in which it is applied to certain con- 
 tracts, such as some contracts in restraint of trade and 
 contracts in fiirtherance of immorality, which the ■ law 
 refuses to enforce. Moreover, in whichever of these senses 
 the word " unlawfid" is used, it must, if it is to be the 
 defining word in the definition of criminal combination, 
 mean unlawful with reference to the conduct of an indi- 
 vidual ; for if it meant unlawful with reference to com- 
 bination, it would do nothing for defining the meaning of 
 " unlawful" as applied to combinations, and it would be 
 merely a re-statement and not a definition. Now it is 
 plain that, if the phrase in question is the complete defini- 
 tion of a criminal combination, the word " unlawful" does 
 not now denote what would be criminal in an individual ; 
 for it is well established that, in the case of cheats and 
 
66 THE LAW OF 
 
 perhaps in some other cases, it may be criminal to com- 
 bine to do what it is not criminal for one man to do. Nor 
 does it mean whatever would be wrongftd in an individual, 
 so as to subject him to a liability to a civil remedy, for 
 not only is there the express authority of Turner's Case 
 (1811), which has never been questioned on this point, to 
 the contrary effect; but it would be against common sense 
 to hold criminal an agreement between two persons to 
 walk in a park without leave, or to dishonour a bill. Nor 
 does it mean unlawful in the third or neutral sense, for 
 this would exclude combinations to commit crimes, and 
 would include many agreements which may be innocent or 
 even laudable apart from public policy. Nor, since the word 
 when applied to criminal combinations is narrower than 
 it is when used in either of the two latter senses, can it 
 mean " unlawM" in a sense coextensive with an aggre- 
 gate composed of all three or any two of these senses. 
 The truth is that the word " unlawful," when it is used as 
 coextensive with criminal combination, now includes all 
 criminal purposes and some purposes wrongful but not 
 criminal apart from combination ; and it has been made a 
 question whether it does not include some purposes of the 
 third or neutral kind. An expression cannot be the de- 
 finition of conspiracy, the defining part of which is itself 
 s© devoid of definiteness for the purposes for which a 
 definition is required. 
 
 Nevertheless, there is much value in the phrase for the 
 purposes to which it has commonly been applied by the 
 judges, viz. to indicate — 
 
 a. On the one hand, that mere combination is not in 
 
 itself criminal, but must, if it is to be regarded as 
 criminal, at least be for purposes (as " ends" or as 
 " means ") which are in themselves in some sense 
 unlawful independently of combination ; 
 
 b. On the other hand, that, assuming purposes suffi- 
 
 ciently " unlawful " in themselves, the gist of the 
 crime of criminal combination consists in the 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 67 
 
 agreement for sucli purposes, and not in their 
 execution. 
 
 Down to the end of the 17th century there appears to be no reason 
 to suppose that, apart from the determination in Starling's Case 
 (1665) — a determination which was recognized by Lord Holt in 1704 
 (Best) as exceptional— the word " unlawful " or " illegal," as used to 
 describe the purposes, a combination for which is an indictable 
 offence, was ever used by the Courts in any other sense than that of 
 " criminal," or at most " punishable." This is plainly the sense of 
 the phrase ^'■defmdu en, la ley," used in the Anonymous Case in 1354, 
 which referred to the prohibition contained in 33 Edw. 1. It is also 
 plainly the sense in which Coke uses the expressions " unlawful " and 
 " defendu en la ley " (" prohibited by the law " in the translations) in 
 the Poulterers' Case (1611), as appears both from his reference to 
 the case in 1354 and from his recommendation of the rule for punish- 
 ment of the combination without any act completed, as being a 
 doctrine of mercy to the intending offender. So in Timberley's Case 
 (1663), the " illegal thing " proposed was the commission of a crime 
 of conspiracy, properly so called. So in Thorp's Case (1697) (if 
 that can be regarded a case of conspiracy), the question made by the 
 court was whether any act indictable in itself had been done. (Cp. as 
 to the sense in which '-' unlawful purpose " and " unlawful act " were 
 used in the older law of murder — 1701. Plummer, Kel. 109 : 1696. 
 Keite, 1 Ld. Raym. 138 (correcting Coke, 3 Inst. 56, 57): 1727. Oneby, 
 2 Ld. Raym. 1485 : Post. P. C. 258, 259.) It is believed that the 
 only early authority for a more extended doctrine is the expression 
 in the Termes de la Ley, tit. Confederacy, where it is said that " con- 
 federacy est quant deux ou plusors luy mesmes confederent de faire 
 ascxme male ou damage al auter, ou de faire ascune chose illoyal." 
 But that this passage has no authority, in so far as it goes beyond 
 the Poulterers' Case, appears from the fact that every other expres- 
 sion in the title is taken directly from the Poulterers' Case. See the 
 note at foot of p. 7, § 1, sup.., as to the earlier editions of the book. 
 
 See, in modem times, 1856, Hilton v. Eckersley, by Lord Camp- 
 bell, C. J., and Sir W. Erie's Memorandum on the Law of Trades 
 Unions : Rep. of Comm., App. p. ixxvi., for disapproval of the 
 general expressions used in some of the cases since the 17th 
 century. Some dicta of almost equal generality will be found in 
 later cases ; e.g. by Crompton, J., in 1861, Walsby v. Anley ; but 
 most of them will be found, as has been already stated, to have been 
 used, as in Kenrick's Case (1843), with reference to questions of 
 pleading, especially in cases of cheats. Nor perhaps does the law 
 depend on the balancing of expressions of this kind. 
 
 f3 
 
68 THE LAW OF 
 
 SECTION III. 
 The Act of Combination. 
 
 § 15. The Act of Combination. 
 Every crime consists of a state of intentionality — some 
 form of intention or of carelessness — and an overt act or 
 an omission to perform a duty. The kinds of intention, a 
 combination for whicli may be criminal, bave now been 
 discussed, and it remains to consider what overt act will 
 suffice. 
 
 In the earlier periods of the history of English law it 
 was thought essential for conspiracy (properly so called) 
 that the purposes of the combination should have been so 
 far executed as that the person against whom the con- 
 spiracy was directed should have been actually indicted 
 and put in peril. But it was held in 1354 (Anon.) in a 
 case of combination for maintenance, that it was not 
 essential that any suit should have been actually main- 
 taiaed; and in 1574 (Sydenham), in a case of conspiracy 
 proper, that indictment would Ue, although the grand jury 
 had ignored the bill against the prosecutor; and the 
 Poulterers' Case established or gave rise to the doctrine 
 that the combination for any crime was punishable, 
 although the purpose had not been commenced to be put 
 in execution otherwise than by the act of agreement 
 itself; and although this rule was at first occasionally 
 doubted (e.^. Daniell, 1704: Spragg, 1760), it has long 
 been established that no overt act is in general necessary 
 in conspiracy beyond the agreement itself. This doctrine 
 was applied to treason-felony in Mulcahy's Case (1868), 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 69 
 
 which contains a history of the growth of the rule in its 
 application to treason. 
 
 Little is to be found in the books with respect to what 
 conduct win amount to an act of agreement for the pur- 
 poses of the law of conspiracy. It is clear that, generally 
 speaking, there need not be any actual meeting or con- 
 sultation, and that the agreement is to be inferred from 
 acts furnishing a presumption of a common design. In 
 Cope's Case (1719) it was ruled that an agreement 
 between members of a cardmaker's family to procure a 
 rival's apprentice to spoil his master's cards might be 
 inferred from proof that each had separately given money 
 to the apprentice in order to bribe him to spoil the cards ; 
 but stress seems to have been laid on the fact of the de- 
 fendants "being all of a family and concerned in the making 
 of cards." In Parsons' Case (1763) it was held that " there 
 was no occasion to prove the actual fact of conspiring, but 
 that it might be collected from collateral circumstances." 
 In Leigh's Case (1775) it was ruled that an agreement 
 to hiss an actor (or rather, perhaps, to raise a riot in a 
 theatre) might be inferred from the acts done at one time 
 and place, and that it was not necessary that the defendants 
 should have come together for that purpose or have pre- 
 viously consulted together. So in a case of prison-breach 
 (1793), it was ruled that concurrence in doing the act 
 sufficed without previous acquaintance. So in Brisac's 
 Case (1803), it was held that "conspiracy is a matter of 
 inference, deduced from certain criminal acts of the parties 
 accused, done in pursuance of an apparent criminal pur- 
 pose in common between them." In PoUman's Case 
 (1809), it was ruled that a banker with whom money was 
 deposited, for a criminal purpose of which he was aware, 
 might be implicated. In Murphy's Case (1837), Cole- 
 ridge, J., told the jury — 
 
 " If you find that these two persons pursued by their acts the same 
 object, often by the same means, one performing one 'part of an act 
 and the other another part of the same act, so as to complete it, with 
 a view to the attainment of the object which they were pursuing, you 
 
70 THE LAM' OF 
 
 will be at liberty to draw the conclusion that they have been engaged 
 in a conspiracy to effect that object. The question you have to ask 
 yourselves is : Had they this common design, and did they purpose 
 it by these common means ? .... It is not necessary that it 
 should be proved that these defendants met to concoct this scheme, 
 nor is it necessary that they should have originated it. If a con- 
 spiracy be already formed, and a person join^ in it afterwards, he is 
 equally guilty. ... If you are satisfied that there was concert 
 between them, I am bound to say that, being convinced' of the con- 
 spiracy, it is not necessary that you should find both M. and D. doing 
 each particular act, as after the fact of a conspiracy is once established 
 in your minds, whatever is either said or done by either of the de- 
 fendants in pursuance of the common design is, both in law and in 
 common sense, to be considered as the act of both." 
 
 On the other hand, in Pywell's Case (1816), Lord 
 EUenborough ruled (so far as can be gathered from the 
 report), that where one person put a fraud in course of 
 execution, and another, who knew of his design, but who 
 acted without any concert with or assent by the first 
 person, aided the fraud, the two could not be convicted of 
 conspiracy. In Barry's Case (1865) it was ruled to be 
 not enough to affect a defendant that he knew of the fraud 
 after it was done : — " the parties must put their heads 
 together to do it." 
 
 For the rest, there seems to be no reason to suppose that, 
 unless perhaps in some forms of treason, the kind of con- 
 duct necessary for making a man a party to a conspiracy 
 differs in any respect from that which would be necessary 
 for making a man a party to any other sort of criminal 
 design. If he procures, counsels, commands or abets a 
 design of felony, he is involved in the gmlt of the principal 
 felon, though in a lower degree, if the felony is not actually 
 committed. If he procures, counsels, commands or abets 
 a misdemeanor, he is guilty of a misdemeanor at common 
 law. So there can be no doubt but that a person may 
 involve himself in the guilt of a conspiracy by his mere 
 assent to and encouragement of the design, although 
 nothing may have been assigned or intended to be executed 
 by him personally. If he joins a conspiracy already formed, 
 he cannot in general be affected by what has been already 
 done, except in so far as this may, in conjrmction with 
 
CHIMIN AL CONSPIKACIES AND AGREEMENTS, 71 
 
 more Specific proof, indicate the nature of the purpose in 
 which he joined ; though a different rule may apply in 
 treason, and perhaps in a conspiracy in pursuance of 
 which a felony has been committed. If he quits a con- 
 spiracy, there is no reason to suppose that he is in general 
 affected by any act done after he has severed himself from 
 it, except in so far as that act may have been done in 
 execution of the design as it stood when he was a party to 
 it. 
 
 So with respect to evidence. There is no ground to 
 suppose that, unless in cases of treason, there are any 
 special principles of evidence applicable to conspiracy 
 (1820. Hunt); though the application of those principles 
 may be affected by the fact that in ordinary crimes a par- 
 ticipation in an act has to be proved, whereas in conspiracy 
 the question is of participation in a design. What was 
 done before he joined, or what is done or said in his 
 absence by other parties to the design in furtherance of 
 the common object, may, as in the case of any other joint 
 criminal design, be evidence of the general character of 
 the design, subject to proof to be given for affecting him 
 with a participation in it. But acts done or admissions 
 made by other parties after he has ceased to have any con- 
 nection with the design, or for some purpose ultra the 
 common design, may be evidence against them, but will 
 not be evidence as against him, even of the general nature 
 of the design ; unless perhaps where it can be shown that 
 the act was done in pursuance of instructions given or 
 arrangements made while he was a party ; and even so, it 
 is rather the instruction or arrangement which affects him, 
 than the act done in pursuance of it. The facts in issue 
 are, whether there was an agreement for the alleged pur- 
 poses, and whether the defendant was a party to it. Evi- 
 dence in support of either fact may be given first, subject 
 to the conditions laid down in the Queen's Case (1820) for 
 preventing imfair prejudice to a defendant. If evidence 
 
72 THE LAW or 
 
 is allowed to.be first given of the general matter, tliat is 
 only provisionally relevant as against a particular defen- 
 dant, tmtil e^adence of the second kind is given. If evi- 
 dence is first given of the acts of a particular defendant, 
 that is only provisionally relevant as against other defen- 
 dants, until it is shown either firom the manner in which 
 those acts were done or otherwise, that the acts were done 
 in pursuance of a design common to him and them. 
 
 See Rose. Cr. Ev. by Stephen, tit. Consp. ; 3 Russ. by Grr. 161, 295 ; 
 1794. Hardy ; Home Tooke ; 1796. Stone ; 1799. Hammond ; 1803. 
 Brisac ; 1817. Watson ; 1820. The Queen's Case ; 1820. Hunt; 1837. 
 Mm-phy; 1839. Frost; 1840. Shellard; 1844. Blake ; 1848. Laeey; 
 1848. Brittain ; 1851. Duffield. It is not proposed here to set out 
 the illustrations furnished by the cases on conspiracy of the applica- 
 tion to that crime of the general rules of evidence. 
 
 It may be noted that 3 Russ. by Gr., p. 166, is sometimes cited as 
 extracting from Lord Grey's Case (1682) the proposition that " every 
 person concerned in any of the criminal parts of the transaction 
 alleged as a conspiracy may be found guUty, though there be no 
 evidence that such persons joined in concerting the plan, or that they 
 ever met the others, and though it is probable they never did, and 
 though some of them only join in the latter parts of the trans- 
 action, and probably did not know of the matter until some of the 
 prior parts of the transaction were complete." No such passage 
 occurs in Lord Grey's Case, nor does Sir W. Russell cite it as an 
 extract from that case, nor does that case appear to have been pro- 
 secuted as a case of conspiracy. The doctrine is no doubt generally 
 correct, but it is true of conspiracy only as it is true of other joint 
 crimes. See at foot of p. 106, inf. 
 
 It is not part of the present design to consider the sub- 
 jects of pleading and of procedure in conspiracy. They 
 will be found treated in 3 Kuss. by Gr. 159 seq. But in 
 general it may be said that the ordinary rules of criminal 
 pleading apply to conspiracy, with exceptions arisiag fi-om 
 the fact that the design of the conspirators need not have 
 been executed or completely ripened in detail, and that 
 the details consequently not only cannot be stated in all 
 cases, but may commonly be immaterial. Thus there 
 may be a criminal design to defiraud persons of things by 
 means not yet completely determined ; and in such a case 
 these undetermined matters must necessarily be treated as 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 73 
 
 to the jurors unknown, or stated generally ; and this ne- 
 cessity has given, rise to more general rules, such as that 
 in an indictment for a conspiracy to defraud by false pre- 
 tences — ^the false pretences, even where they are known, 
 need not be particularly set out. The averment ia the 
 indictment of the criminal purpose must show clearly that 
 the purpose was one for which it is criminal to agree ; — ^by 
 general words of art, if such exist which are applicable to. 
 the case ; or by details. If the averment of the purpose 
 fails in this, but overt, acts are laid in such a mode as to 
 show matter indictable irrespectively of the combination, 
 the averment of conspiracy may be disregarded, and the 
 parties may be tried for the joint offence so disclosed ; but 
 an insufficient averment of criminal purpose will not be 
 aided by averments of overt acts not shown to be criminal 
 independently of combination (1844. King). 
 
 Questions of great difficulty may occur with respect to 
 jurisdiction in conspiracy. In Brisac's Case (1803) it was 
 held, that although the agreement wa» made at a place out 
 of the jurisdiction of the common law courts, it was yet 
 triable in the ordinary criminal courts in England if an 
 overt act in execution of it was done in England; and 
 that an act done in England by an innocent agent of one 
 of the conspirators was the act of the conspirators for this 
 purpose. In Bernard's Case (1858) a question occurred 
 whether a person could be indicted in England for having 
 counselled in England the murder of an alien in Paris. 
 The defendant was acquitted, and the point was not de- 
 termined; but in 1861 the 24 & 25 Vict. "c. 100, s. 4, 
 provided for conspiracies and other offences of this kind, 
 not however by applying to the offenders the general 
 clauses relating to accessories, but by a special enactment 
 making the offence a misdemeanor. ( See 1 Euss. by Gr. 
 760, 967.) In Kohn's Case (1864) a conspiracy was 
 formed ia England by the defendant and others for casting 
 away a foreign ship in order to prejudice the underwriters. 
 
74 THE LAW OF 
 
 The ship was scuttled when out of the jurisdiction by 
 the defendant and others, who appear all to have been 
 foreigners. WiUes, J., is reported to have told the jury 
 that — 
 
 " The ship was a foreign ship, and she was sunk by foreigners far 
 from the English coast, and so out of the jurisdiction of our courts. 
 But the conspiracy in this countiy to commit the offence is criminal 
 by our law. And this case does not raise the question which arose 
 in R. V. Bernard, as to a conspiracy limited to a criminal offence to 
 be committed abroad. For liere, if the prisoner was party to the 
 conspiracy at all, it was not so limited, for it was clearly contem- 
 plated that the ship might be destroyed, off the bar at Ramsgate, 
 which would be within the jurisdiction. The offence of conspiracy 
 would be committed by any persons conspiring together to commit 
 an unlawful act to the prejudice or injury of others, if the conspiracy 
 was in this country, although the overt acts were abroad. . . . 
 For the principal offence . . . the prisoner could not be indicted 
 in this country, as he is a foreigner, and the ship was foreign and the 
 offence was committed on the high seas." 
 
 (See as to "Wakefield's Case, inf., § 17, p. 81.) 
 
 It appears to be implied in Brisac's Case that a con- 
 spiracy by British subjects abroad to violate an English 
 law is not at common law indictable in this country unless 
 an overt act is committed here. It is not easy to collect 
 the effect of Kohn's case with respect to conspiracies here 
 for acts to be done abroad. If the contemplated act, when 
 done, will not, by reason of the place and of the nation- 
 ality of the actors, be punishable here, there would be 
 much difficulty in holding criminal by our law an agree- 
 ment here for doing that which when done would not be 
 a crime against our laws. Again, suppose that aliens 
 agree abroad to do or to procure to be done here an act 
 which will be in violation of English law, it is clear that 
 their agreement is so far no crime against our law. But 
 suppose further that they procure an innocent agent to do 
 an overt act here ; or that one of them does an overt act 
 here. Can each of them in the former case, or can those 
 who remain abroad in the latter case, be said to have 
 broken our law ? It is conceived that our law of criminal 
 participation or agency could not be applied in such a 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 75 
 
 case. But these and similar questions appear still to await 
 judicial determination. 
 
 The punishment of conspiracies in general is now by 
 fine and imprisonment with or without sureties, as in the 
 case of other common law misdemeanors. By the 14 & 15 
 Vict. c. 100, s. 28, hard labour may be added in the case 
 of any conspiracy to cheat or defraud, or to extort money 
 or goods, or falsely to accuse of any crime, or to obstruct, 
 prevent, pervert or defeat the course of public justice. 
 The misdemeanor of conspiracy to murder may, under the 
 24 & 25 Vict, c, 100, s. 4, be pimished with penal servitude 
 for not more than ten years, or with imprisonment for not 
 more than two years, with or without hard labour. 
 
 The crime of conspiracy to commit a crime or offence 
 does not merge in the crime or offence when the conspiracy 
 is executed. (1844. O'Connell, per Lord Campbell, C.J. : 
 1848, Button.) Nor is the punishment limited to the 
 punishment prescribed by law for the complete offence. 
 (1851. Rowlands.) Nor, as it seems, does the expiration 
 of the time limited by a statute for a prosecution for an 
 offence against its provisions, bar a prosecution for con- 
 spiracy to commit that offence. (1851. Thompson.) 
 
 It seems never to have been considered whether the 
 ancient exception from the law of conspiracy, properly so 
 called, of grand jurors or other persons acting under colour 
 of judicial oiEce or duty (1608. Floyd v. Barker, &c.) 
 applies to the modem form of the crime. 
 
 The ancient writ of conspiracy appears not to have lain 
 against husband and wife alone. It is said to have lain 
 against husband, wife and a third person. (See Yearb. 
 38 Edw. 3, 3a: 40 Edw. 3, 19: 41 Edw. 3, 29: Fitzh. 
 N. B. 116 1: Staundf. 174.) But the effect of the 
 ancient authorities is doubtful ; and it may be questioned 
 whether a husband and wife could not be convicted of 
 conspiracy in any of its modem forms. Proof, however, 
 of coercion by the husband would in such a case have the 
 
76 THE LAW or 
 
 effect of negativing the fact of conspiracy, since the force 
 would avoid the agreement. 
 
 Reports of the Oriminal Law Commissioners of 1834—1848. 
 
 The Criminal Law Commissioners in 1848 (Mr. Starkie, Mr. Kerr, 
 Mr. Amos, 4th Rep. p. 205) reported the following articles as a con- 
 solidation of the law of conspiracy : — 
 
 " 2. The crime of conspiracy consists in an agreement by two 
 persons (not being husband and wife), or more than two persons, to 
 commit any offence, or to defraud or injure the public or any indi- 
 vidual person. 
 
 " 3. It is immaterial to the crime of conspiracy whether the causing 
 such fraud or injuiy be the ultimate object of such agreement, or be 
 merely incidental to that object or to the means of effecting it. 
 
 " 4. Every agreement to defraud or injure the public in respect of 
 any property, or to endanger the public safety or peace, or to annoy 
 or disturb the public in the enjoyment of any civil right, or to subvert 
 or deprave religion or morals, or to prevent, pex-vert or obstruct the 
 administration of justice or any other branch of executive authority, 
 or to hinder or obstruct the due operation of any law for the regu- 
 lation of marriage, the maintenance of the poor, or any other law for 
 the regulation of tlie state or condition of society, or to occasion 
 any other public injury or nuisance, or which directly tends to pro- 
 duce any such injury or nuisance, is an agreement within article 2. 
 
 " 6. Every agreement with intent to injure or prejudice any other 
 in his person, reputation, office, profession, occupation, state, or con- 
 dition in society, or to injure or disturb him in the possession or 
 exercise of any civil right, or to defraud or injure him in respect of 
 his property, is within the meaning of article 2. 
 
 " 6. It is not essential to the crime of conspiracy, as regards any 
 fraud upon or injury to the public, that the agreement should be 
 injurious or hurtful to the public in its aggregate capacity or all her 
 Majesty's subjects ; it is sufficient if it be injurious or hurtful to a 
 class or portion only of those subjects. 
 
 " 7. Whosoever shall commit the crime of conspiracy, shall in case 
 lie shall conspire to commit a felony, or to defraud or injure or annoy 
 the public, incur the penalties of the 11th class " (imprisonment up to 
 three years, with or without fine) ; " and shall, in respect of any other 
 conspiracy, incur the penalties of the 12th class " (imprisonment up 
 to two years, with or without fine). 
 
 These articles are reported without citation of authority and witli- 
 out discussion, except some observations on a case of combination to 
 defraud (1816. Pywell). Substantially similar articles were in like 
 manner reported by former commissioners (Mr. Starkie and Mr. Kerr) 
 in 1843 (7th Rep. p. 89), without authorities or discussion, except 
 some observations on the cases of Turner (1811), and Pywell (1816). 
 It is conceived that the articles contain generalizations from excep- 
 tional cases, and some propositions for which no statutory or judicial 
 authority appears to exist. 
 
 See further 4th Rep. 1848, pp. 81, 91, 112, for articles relating to 
 seditious conspiracy, to combinations prohibited by the acts of G-eo. 3, 
 and to conspiracies falsely to charge with crime. 
 
CRIMINAL CONSPIEACIKS AND AGREEMENTS. ~ 77 
 
 § 16. Foreign Laws. 
 No general title corresponding to that of conspiracy in 
 English law appears in either of the Penal Codes of 
 France, Belgium, North Germany, Bavaria, Austria, 
 Holland, Italy or British India. They contain various 
 general provisions concerning abettors, accomplices and 
 participators in crimes, and special provisions for punishing 
 agreements of a treasonable character, riotous assemblies, 
 and secret associations. The French Code and the codes 
 derived from it ftirther specially pimish combinations by 
 officials for abuse of their official position, and combiaations 
 to disturb prices by fraudulent means, or to engross mer- 
 chandise, and all the above-mentioned codes except those 
 of North Germany and India, contaiu some special pro- 
 visions against coalitions by employers and workmen. The 
 former provisions of the French Code with respect to these 
 coalitions were very comprehensive, but they were modified 
 in 1864 by a law which "consecrating [says Sirey] the 
 system of absolute liberty of coalition whether between 
 employers or between worlcmen, and confining itself to the 
 repression of violence and fraud" repealed the then existiag 
 provisions of the code, and substituted the following pro- 
 visions — (Codes. Koger et Sorel. 187?) : — 
 
 " 414. Sera puni d'un emprisonnement de six jours h, trois ans et 
 d'une amende de 16 francs k 3,000 francs, ou de I'une de ces deux 
 peines seulement, quiconque, ft I'aide de violences, voies de fait, 
 menaces ou manoeuvres frauduleuses, aura amene ou maintenu, tente 
 d'amener ou de maintenir, une cessation concertSe de travail, dans le 
 but de forcer la hausse, ou la baisse des salaires, ou de porter atteinte 
 au libra exereice de I'industrie ou du travail. 
 
 " 415. Lorsque Jes faits punis par I'ai-ticle pr6c6dent auront 6tS 
 comrais par suite d'un plan concerts, les coupables pourront gtre mis, 
 par I'an-gt ou le jugement, sous la surveillance de la haute police 
 pendant deux ans au moins et cinq ans au plus. 
 
 " 416. Seront punis d'un emprisonnement de six jours h, trois mois 
 et d'une amepde de 16 francs k 300 francs, ou de I'une de ces deux 
 
 peines seulement, tous ouvriers, patrons et entrepreneurs d'ouvrage 
 qui, 3, I'aide d'amendes, defenses, proscriptions, interdictions pro- 
 noncfis par suite d'un plan concerts, auront porte atteinte au libre 
 exereice de I'industrie ou du travail." 
 
 The Italian Penal Code (385 — 388), includes concert 
 
78 THE LAW OF 
 
 by employers to compel their workmen to accept payment 
 in kind, and makes the absence of " reasonable cause" or 
 "just motive" the test of the criminality of combinations 
 to strike or to prevent work or to raise wages. Feuer- 
 bach's original Bavarian Code punished such combinations 
 when the workmen of more than one master engaged in 
 them, but by the later forms of that code, combinations, 
 whether of employers or of workmen, appear to be punish- 
 able only when their purpose is to resist or obstruct the 
 enforcement of public regulations relating to works. (Art. 
 141.) AU the continental codes and the Indian Code (503), 
 contain comprehensive provisions of general application 
 against intimidation and insult. (See, for a discussion by 
 Belgian jurists of the principles on which legislation against 
 combinations by workmen ought to be based, the Report of 
 the Commission for the revision of the Belgian Penal Code, 
 Book II. Tits. 5, 6 ; Brussels, 1861, pp. 32—42.) 
 
 Livingston's draft Penal Code (1828, p. 140), proposed 
 to punish as conspiracies — (i) conspiracy to commit aii 
 offence ; (ii) conspiracy " falsely to accuse and prosecute 
 another of committing an offence ;" (iii) agreements not 
 to buy labour or goods at more, or not to sell labour or 
 goods at less, than an agreed price, or to enhance the price 
 of victuals, or maliciously " to injure any individual or 
 description of persons in their reputation or profession or 
 trade or property, by agreeing not to employ them, or by 
 other means that would not otherwise amount to an offence." 
 An exception from the third head is proposed in the case 
 of partners, unless the partnership is " specially entered into 
 for the purpose of making such conspiracy." 
 
 The draft Penal Code for the State of New York (1865), 
 proposes the following provisions : — 
 
 Criminal Conspiracies defined. 
 
 § 224. If two or more persons conspire, either : 
 
 1. To commit any crime ; or, 
 
 2. Falsely and maliciously to indict another for any crime ; or 
 
 to procm-e another to be charged or arrested for any 
 
CRIMINAL CONSPIRACIES AND AGBEEMENTS. 79 
 
 3. Falsely to move or maintain any suit, action or proceed- 
 
 ing ; or, 
 
 4. To cheat and defraud any person of any property by any 
 
 mean^ which are in themselves criminal, or by any means 
 which, if executed, would amount to a cheat, or to obtain- 
 ing money or property by false pretences ; or, 
 6. To commit any act injurious to the public health, to public 
 morals, or to trade or commerce, or for the perversion or 
 obstruction of justice, or the due administration of the 
 laws, 
 they are guilty of a misdemeanor. 
 
 Conspiracy against the Peace of the State. 
 § 225. If two or more persons, being out of this state, conspire to 
 commit any act against the peace of this state, the commission or 
 attempted commission of which, within this state, would be treason 
 against the state, they are punishable by imprisonment in a state 
 prison not exceeding ten years. 
 
 Overt Act when necessary. 
 
 § 226. No agreement except to commit a felony upon the person of 
 another, or to commit arson or burglary, amounts to a conspiracy, 
 unless some act beside such agreement be done to effect the object 
 thereof, by one or more of the parties to such agreement. 
 
 § 673-4. (Conspiracy to commit frauds in the sale of passage 
 tickets.) 
 
 These clauses, except § 225, are founded on the Kevised 
 Statutes of the State of New York. 
 
 By the common law, as it is interpreted in Canada, 
 according to a recent Canadian work (Clarke's C. L. 
 1872, p. 401), "A conspiracy is an agreement by two 
 persons, or more, to do, or cause to be done, an act pro- 
 hibited by penal law, or to prevent the doing of an act 
 ordained under legal sanction by any means whatever ; or 
 to do, or cause to be done, an act, whether lawful or not, 
 by means prohibited by penal law." (Cites R. v. Roy, 
 11 L. C. J. 93, per Drummond, J.) 
 
 In the Scotch common law conspiracy appears to be 
 a general criminal title, but in practice to hold a less pro- 
 minent place than it holds in English law. Prosecutions 
 seem to have been instituted in Scotland against workmen 
 for combination between 1790 and 1800, but in 1808 a 
 majority of the judges held that a combination to raise 
 wages was not punishable at common law. The history 
 
80 THE LAW OF 
 
 of the cases which followed, and which seem to have 
 
 established firstly that combinations to coerce employers 
 
 or workmen were pimishable when accompanied with 
 
 violence, and ultimately that they were punishable even 
 
 in the absence of violence, will be found in the fifth Report 
 
 of the Select Committee (H. C.) of 1824, on Artizans 
 
 and Machinery, p. 489. These decisions were based not 
 
 on any supposed ancient precedents or rules of law, but 
 
 on the principle that the common law of Scotland is 
 
 expansive. 
 
 " This new point of dittay [Baron Hume says in a passage quoted 
 uhi sup.l seems therefore now to be thoroughly established, and it 
 furnishes another illustration of the character of our common law, and 
 of its power to chastise, of its own native vigour, all wrongs and dis- 
 orders as the state of society brings them forth, which are found to 
 be materially dangerous to the public welfare." 
 
 § 17. Conclusions. 
 The question remains, what is the proper place or use 
 in the criminal law of the mere mental act or state of 
 agreement or concurrence ; — an act or state which in itself 
 is plainly neutral and conveys no associated idea of praise 
 or blame. In the attempt to answer this question the first 
 step is to distinguish between — (i) agreements for the com- 
 mission of crimes, (ii) agreements for minor offences, and 
 (iii) agreements for acts which in the absence of agree- 
 ment would not be crimes or offences. 
 
 (i). Agreements for the commission of Crimes. — A law 
 which directs the prosecution or punishment in a par- 
 ticular manner of an agreement for a crime is merely 
 auxiliary to the law which creates the crime. The aid 
 which it brings may be of either or all of four kinds. 
 Firstly, the agreement may serve as a substitute for an 
 actual attempt or commission, the mere act of agreement 
 for execution of a criminal design being treated not merely 
 as a sufficient evidence of the design but also as an "overt" 
 
CRIMINAL CONSPIBACIES AND AGREEMENTS. 81 
 
 act or act in furtherance of the design. For this purpose 
 the use of such a law is not altogether so great as at first 
 sight it may appear to be, for it is seldom that direct proof 
 occurs of an actual agreement by words or signs, and the 
 agreement is commonly inferred from apparent concur- 
 rence in acts which might of themselves be made to serve 
 the same purpose. Still in many cases the fact of the 
 concurrence of several persons in acts apparently tending 
 to a particular result assists the conclusion that the accom- 
 plishment of the result was intended by them, and lessens 
 the probability of chance or of ignorance or mistake in any 
 of the persons. Moreover, it is hardly possible to frame a 
 completely satisfactory definition of an attempt, and the 
 concurrence of one person with others in acts done in 
 apparent furtherance of a criminal design may not impro- 
 perly take the place of an approximation to completion of 
 the design as an evidence that the person had fully adopted 
 the design and committed himself to its complete execu- 
 tion. Secondly, the attachment of criminality to the 
 agreement may be useftd in founding jurisdiction. Thus 
 in Wakefield's Case (1827) the design was to carry away 
 an heiress under age from England and to marry her in 
 Scotland to one of the defendants. By the construction 
 put by the judges on the statute on which the crime of 
 abduction then depended, it was of the essence of the crime 
 that the purposes of the abduction should have been con- 
 summated, and as that event was not to happen in England, 
 the commencement of the abduction in England did not 
 amount to an attempt to commit a crime in England. 
 But here the law of conspiracy came in aid of the law of 
 attempts, and gave jurisdiction to the English courts by 
 attaching criminality to the agreement as evidenced by acts 
 done in England in furtherance of the design, although, 
 those acts did not amount to an attempt to commit a crime 
 in England. Thirdly, there may be cases in which the 
 agreement or concurrence of several persons in the execu- 
 tion of a criminal design is a proper ground for aggrava- 
 
 G 
 
82 THE LAW OF 
 
 tion of their punishment beyond what would be proper in 
 the case of a sole defendant. Such would be cases in which 
 the co-operation of several persons at different places is 
 likely to facilitate the execution or the concealment of a 
 crime, or in which the presence of several persons together 
 is intended to increase the means of force or to create 
 terror, or cases of fraud in which suspicion and ordiaary 
 caution are likely to be disarmed by the increased credi- 
 bility of a representation made by several persons. Some 
 instances of the application of this principle are to be 
 found in the English law, as in the Night Poaching Act. 
 In some foreign codes it is applied less sparingly ; and it 
 might probably receive with advantage a still more general 
 application. Lastly, a law which attaches criminality to 
 the mere agreement for a crime may be useM as a ground 
 for admission of evidence which might not be relevant to 
 an issue confined to the actual attempt or commission. 
 The English law of conspiracy to commit crimes attains 
 the first two and the last of these objects ; but it is defec- 
 tive in that it has no sufficient means of proportioning the 
 punishment to the gravity of the criminal design. Conspi- 
 racies to murder are now punishable with penal servitude 
 for ten years (but still only as misdemeanors). Conspi- 
 racies for cheats, extortion, false accusation, or perversion 
 of justice, may be punished with hard labour during such 
 term of imprisonment as may be awarded at common law. 
 But, with these exceptions, conspiracies of the most aggra- 
 vated kinds seem to be punishable only by simple impri- 
 sonment, fine and requirement of surety, as in the case of 
 any misdemeanor at common law. This defect might 
 perhaps be simply cured by extending the. law of abetment 
 in cases of combination to abetments which are not fol- 
 lowed by an actual attempt or complete crime. Such a 
 provision would of itself supply the basis of a graduated 
 scale of punishment, by attracting the punishments already 
 provided for the completed crimes. A limitation of the 
 maximum of punishment, in cases where the crime is not 
 
CKIMINAL CONSPIRACIES AND AGUKE3IENTS. ,83 
 
 completed, to a proportion or part of the punishment pro- 
 vided for the completed crime, and a provision for in- 
 creased punishment in certain cases (as above suggested) 
 when the crime is completed, or when an actual attempt is 
 committed by persons acting in combination, would com- 
 plete a system the principles of which have already been 
 adopted in the Indian and in several Continental penal 
 codes. 
 
 (ii.) Agreements for minor Offences. — So far the ques- 
 tion has been of agreements for crimes. It is next to be 
 considered in what manner agreements ought to be treated 
 when they are for offences punishable only on summary 
 prosecution and by minor penalties. There is great diffi- 
 culty in discovering the principles which are here appli- 
 cable ; but the difficulty wiU be diminished by dismissing 
 at the outset all offences which ought in a good penal 
 system to be treated as crimes, but which happen to be 
 treated only as minor offences in any particular penal 
 system. These being eliminated, the remaining offences 
 consist in the production of results which, ex hypothesi, are 
 not in themselves of grave enough consequence to be 
 matters for indictment ; and, if so, it must in general be 
 immaterial whether the results are produced by one person 
 or by two or more persons. To permit two persons to be 
 indicted for a conspiracy to make a slide in the street of a 
 town, or to catch hedge-sparrows in April, would be to 
 destroy that distinction between crimes and minor offences 
 which in every country it is held important to preserve. 
 On the other hand, there may be cases in which the con- 
 currence of several persons for committing an offence may 
 essentially change its character, and so enhance its mis- 
 chief that the joint act may properly be treated as a crime. 
 It would seem to be inexpedient to leave it to the choice 
 of the prosecutor, after the act has been done, to determine 
 to which of the two classes the act is to be referred in a 
 particidar case, for this would in effect apply a penalty 
 
 g2 
 
84 THE LAW OF 
 
 greater than could have been anticipated by the offenders 
 in that case, and yet would not convey that certain inti- 
 mation of penal consequences to ftiture offenders, without 
 which a punishment fails to deter. What then is the test ? 
 It is conceived that no general test can be found; but that 
 whoever undertakes the task of criminal legislation ought 
 to consider the different kinds of minor offences separately, 
 and to specify in the written law the kinds in which the 
 guilt is liable to be treated as enhanced by combination. 
 Exhaustive lists of minor offences are furnished not only by 
 foreign codes, but by the English statutes, and it would 
 not be dificult to reduce to a smaU. number the cases in 
 which there may be ground for such treatment. This task 
 cannot here be attempted, but instances may be suggested. 
 Firstly, the offence of rattening, as it is defiAcd by the 
 34 & 35 Vict. c. 32 (" if he hide any tools, clothes, or other 
 property owned or used by such person, or deprive him of 
 or hinder him in the use thereof," with a view to coerce 
 him to quit or retuse work, or to belong or not to belong 
 to a union, &c.), seems to be such an instance. Threats 
 of the kinds and used with the intents mentioned in the 
 same statute, seem to be another instance. These are 
 offences which, irrespectively of the agreement, are on the 
 verge of criminal- force, and they derive greatly increased 
 effectiveness from the concurrence of several persons. A 
 case of great difficulty is that of combined breach of con- 
 tract, of a kind for the breach of which an individual may 
 be punished. Much may be said both for and against 
 attaching a criminal sanction to contracts in certain 
 cases (a). But even where it is thought necessary to visit 
 
 (a) For instance, if a criminal penalty is attached to the breach of a 
 time contract, workmen may be likely to abstain from entering into con- 
 tracts which may subject them to criminal jurisdiction; a,nd, in so far as 
 they are induced so to abstain, the law would operate to discourage the 
 undertaking of continuous service, and to prevent the establishment of per- 
 manent and organized relafjions and community of interest between the 
 employer and the employed. On the other hand, there may be some excep- 
 tional trades, the sudden interruption of ■which might be of so mischievous 
 consequence to the public, that workmen who chose to engage in them 
 might properly be required to engage for a fixed term, and be punished 
 for Ipaving work before the end of the term. 
 
CRIMINAL CONSPIRACIES AND AGREEMENTS. 85 
 
 breaches of contract with summary penalties, it does not 
 follow that it must be expedient to proceed by indictment 
 for the concerted bj-each. The concert may commonly be 
 a mere simultaneity arising from the fact that one real or 
 supposed grievance happens to press at the same time on 
 many persons ; and in such a case, an interchange of com- 
 plaints is inevitable, atid does not of itself involve anything 
 which it can be desirable to punish. StiU, so long as the 
 law continues in any case to consider a breach of contract 
 as a fit subject for punishment, it cannot be said that there 
 may not be instances in which a concert to break, or even 
 to coimsel the concerted breach of such contracts may be 
 properly visited with a punishment greater than that which 
 is inflicted on a sole offender ; for not only may the mis- 
 chief be greater, but in proportion to the superior efficacy 
 of a concerted breach of contract is the temptation to use 
 it for attaining the objects, whatever they may be, for 
 which contracts are broken.. But on the whole it is con- 
 ceived that there can be very few kinds of minor oiFences, 
 the quality of which can be so altered by agreement as to 
 make it necessary to punish them by indictment;, and that 
 those kinds ought to be considered beforehand by the 
 legislature and specified in the written law. 
 
 (iii.) Agreements for Acts which in the absence of 
 Agreement would not be Crimes or Offences. — It remains 
 to be considered in what cases acts which are not pimish- 
 able in one person may properly be treated as crimes when 
 they are done by several persons acting in agreement. 
 Two classes of cases, which rest on peculiar grounds, 
 must first be distinguished. One of these peculiar classes 
 comprises acts which are necessarily collective and which 
 cannot for physical reasons be committed by one person. 
 Such are the crimes of unlawful assembly or association, 
 and " of a fraudulent knock-out at an auction, and the 
 crime, which is punished by the French Code, of concert 
 by officials for improper purposes which Cannot be accom- 
 
86 THE LAW OF 
 
 plished without the co-operation of different departments. 
 The other peculiar class comprises acts, such as certain 
 frauds or perversions of justice, which ought to be punish- 
 able independently of agreement. If a particular penal 
 system is so imperfect as not to punish some acts of this 
 kind, irrespectively of agreement, it may be well that its 
 deficiencies should be partially supplemented by a power 
 to punish the concerted acts ; but the ground on which 
 their punishment is to be justified is not the agreement, 
 but its purposes. 
 
 Apart fi-om cases falling within one or other of these 
 two classes, there appear to be great theoretical objections 
 to any general rule that agreement may make punishable 
 that which ought not to be punished in the absence of 
 agreement ; for if the act is one which can be done by a 
 person acting alone, and when so done ought not to be 
 punished, it is difficult to see at what point and on what 
 ground criminality can be generally introduced by the 
 fact that two or more persons concur in the act. No 
 •such rule seems to have been admitted by the framers of 
 the Indian Code in any case or by the fi-amers of the 
 contiilental codes which have been examined, except in 
 some cases of agreements by traders, employers or work- 
 men. Nor does it seem possible to frame such a rule, at 
 all general in its scope, which would not include large 
 classes of acts that could not properly be made criminal. 
 "With respect to agreements, other than agreements for 
 damage to the interests of individuals, no general test has 
 been suggested. With respect to agreements for damage 
 to the interests of individuals, the only tests which have 
 been suggested are those of civil injuory and of " malice." 
 But it could not be seriously proposed to make agreement 
 in doiag a civil injury generally criminal ; and it has long 
 been recognized that the only general meaning which can 
 be attached to "malice," for legal purposes, is that of 
 Intention to produce a result, and to do so without or not 
 in pursuance of an excuse or just cause : and the legal 
 
CEIMINAIi CONSPIRACIES AND AGREEMENTS. 87 
 
 value of malice depends on the nature of the result which 
 is intended to be produced, and not on the malice itself, 
 which is merely a condition of guilt in certain cases. If 
 two persons agree to walk in a park without leave, or to 
 break a contract which they could perform, their mental 
 state displays every element of malice in the only distinct 
 legal sense in which that term can be used. 
 
 On the other hand, it cannot be doubted but that there 
 may be exceptional cases in which acts, unnecessary to be 
 punished when done by persons acting individually, may 
 become proper objects of penal law when they are done by 
 several or many persons. Such, in the laws of several 
 countries, are certain kinds of combined conduct by traders, 
 employers, or workmen in respect of the prices of goods 
 or labour. Into the policy of penal legislation on these 
 questions it is not proposed to enter. But it is to be 
 observed that, even in these cases, the tendency of modern 
 legislative change has been to abandon the general forms 
 of enactment and to substitute provisions containing 
 definite criteria of criminality, such as the use of violence 
 or of threats of violence. Nor can it be doubted but that 
 this course ought to be followed in all cases, at least so far 
 as to make clear before hand, both to the legislature and 
 to those whom the law will affect, what it is that is for- 
 bidden (5). 
 
 On the whole it seems that the uses in criminal law of 
 
 (S) For instance, there may be mucji to be said for puniabing workmen 
 ■who should agree to tell an employer in a dictatory manner that he must 
 discharge an obnoxious person or that they will strike on the termination 
 of their existing engagements. But it appears to be now lawful for work- 
 men to agree among themselves not to return to work where an obnoxious 
 person continues to be employed ; and a law which should prohibit them 
 from informing the employer of their resolution would leave them no 
 course but that of striking without reason given, as a means of suggesting 
 to the employer that there is a grievance about which he will do well to 
 inquire. Such a law would be more likely to embitter differences than to 
 benefit the public or either of the parties. Then if the dictation in fact by 
 simultaneous cessation of labour is lawful, and if the dictation in words by 
 a civil intimation of the object is lawful, can they be properly made criminal 
 by reason of a bad or offensive manner, which possibly formed no part of 
 the design ? 
 
88 LAW or CRIMINAL CONSPIRACIES AND AGREEMENTS. 
 
 the doctrine of the criminality of agreement are of the 
 following kinds and subject to the following limitations, 
 viz: — 
 
 1. Its principal function is that of a general auxiliary to 
 laws creating particular crimes. Four modes have been 
 specified in which it may be so auxiliary. 
 
 2. In some cases it may be proper to treat the agree- 
 ment for a minor oflFence as so altering its quality and 
 mischief as to make it a fit object for punishment as a 
 crime. But these cases are probably few, and they ought 
 to be specified in the written law. 
 
 3. There are some mischievous conditions of things, 
 such as an unlawful assembly, which ought to be punished 
 as crimes, and which cannot be brought about except by 
 the concurrence of more persons than one. 
 
 4. There 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 agree- 
 ment. But these ought to be specified and carefully 
 defined (c). 
 
 5. In an imperfect system of criminal law the doctrine 
 of criminal agreements for acts not criminal may be of 
 great practical value for the punishment of persons for 
 acts which are not, but which ought to be made pimishable 
 irrespectively of agreement, and especially for some kinds 
 of fi-aud ; but this use of the doctrine involves an important 
 delegation of a legislative power in a matter in which the 
 exercise of such power ought to be carefully guarded, since 
 the legislature admits its own inability to discover the 
 principles on which legislation ought to proceed. 
 
 (c) Perhaps the most difficult case will be found to be that of sedition. 
 It seems to be a question I'ather of policy than of jurisprudence what con- 
 duct should be punishable on this ground, and some vagueness may here be 
 a necessary condition of efficiency. Still propositions so general as some 
 which occur or are involved in O'Connell's Case (^ISHyinf. App. II.) could 
 hardly be embodied in a written law. 
 
APPENDICES. 
 
 I. LIST OP STATUTES. 
 II. LEADING CASES. 
 ni. LISTS OF CASES. 
 
 APPENDIX I. 
 
 LIST OF STATUTES 
 
 Now in force relating to Conspiracies and Criminal Combina- 
 tions {except for Treason, Treason-Felony or Riot). 
 
 A.D. 
 
 1292 20 Edw. 1 . . . . Statutum de Conspiratoribns. 
 
 1300 28 Edw. 1, c. 10 . . Artie, mp. Cart. 
 
 1305 33 Edw. 1 . . . . Ordinatio de Qonspiratoribus. 
 
 1330 4 Edw. 3, c. 11 . . . . Commission of Oyer and Terminer 
 
 to enforce the three former ordi- 
 nances. \ 
 
 1797 37' Geo. 3, u. 123 . . Unlawful Societies. 
 
 1799 39 Geo. 3, c. 79 . . Unlawful Societies. 
 
 1817 57 Geo. 3. c. 19 . . Unlawful Societies. 
 
 1842 5 & 6 Viet. c. 38 . . Jurisdiction of Quarter Sessions. 
 
 1844 7 & 8 Vict. c. 24 . . Forestalling, &c. 
 
 1846 9 & 10 Vict, c. 33 . * Proceedings for Penalties under 
 
 the Acts of 1799 and 1817 must 
 he commenced in the name of a 
 Law Officer. 
 
 1851 14 & 15 Vict. c. 100, s. 29 Hard Labour may he inflicted for 
 
 certain Conspiracies. 
 
 1859 22 & 23 Vict. c. 17 . • Vexatious Indictments Act. 
 
 1861 24 & 25 Vict. c. 100, s.'4 Conspiracy to Murder. 
 
 1867 — ■— 30 & 31 Vict. c. 35 . . Amends the Vexations Indict- 
 ments Act. 
 
( 90 ) 
 
 APPENDIX IL 
 
 LEADING CASES. 
 
 1351. Anon. 
 
 1354. Anon. 
 
 1611. The Poulterers' Case. 
 
 1G65. Starling (Brewers of London). 
 
 1811. Turner. 
 
 1814. De Berenger. 
 1834. Sewai-d. 
 1837. Murphy. 
 1844. O'Connell. 
 1870. Warburton. 
 
 Anon. 1351. 24 Edw. 3, p. 75 (99). 
 
 The son of W. de J. sued in K. B. by leave of the king, to reverse a 
 judgment given against him on circuit at Derby on a presentment of con- 
 spiracy; and he assigned as error that the presentment showed neither day, 
 year, nor place ; and also that the matter alleged, which was imprisonment 
 of a man until he should pay a fine, sounded rather in the nature of 
 oppression of the people than in conspiracy. 
 
 It was answered that he had been arraigned and pleaded not guilty, and 
 so had waived the irregularity; and also, that since his father, who had 
 been indicted with the complainant as- his only co-conspiiator, was dead, a 
 reversal of the judgment against the complainant would leave a judgment 
 on record against the father, which the reversal in the complainant's case 
 would show to have been erroneous; and so there would be inconsistent 
 records. 
 
 But the court held that the court in eyre ought not to have required the 
 complainant to surrender on such a presentment, from which it could not 
 be gathered whence the visne.were to come ; and they said, " It will be a 
 " strong thing if the death of his neighbour or his companion shall bar his 
 " remedy. And because neither year, nor day, nor place was averred, and 
 " in conspiracy it shall be said that they at such a place, &c.; and moreover 
 " because the principal matter of the conspiracy alleged is not conspiracy, 
 " but rather damage and oppression of the people. Wherefore we reverse 
 " and annul the judgment." 
 
 Anon. 1354. 27 Ass. p. 138 h, pi. 44. 
 
 Note that two were indicted of confederacy, each to maintain the other, 
 whether his cause should be true or false, and notwithstanding that nothing 
 was suggested to have been put in ure, the parties were put to answer, 
 because this thing is forbidden by the law {defendu en la ley). (See the 
 Act, 33 Edw. 1, &c.) 
 
 1611. Tlie Poulterers' Case, 9 Eep. 55; Moore, 814.' 
 Mich. 8 Jac. Eegis. (In the Star Chamber. See Moore, 814 ; 1 Bulst. 
 150.) " The case between Stone, plaintiff, and Balph Waters, Henry Bate, 
 
LKADING CASES. 91 
 
 J. Woodbridge and many others, Poulterers of London, defendants, for 
 a combination, confederacy, and agreement betwixt them falsely and mali- 
 ciously to charge the plaintiff (who had married the widow of a poulterer 
 in Gracechurch Street) with the robbery of the said Ralph Waters, supposed 
 to be committed in the county of Essex, and to procure him to be indicted, 
 arraigned, adjudged and hanged, and in execution of this false conspiracy, 
 they procured divers wari:ants of justices of peace by force whereof Stone 
 was apprehended, examined and bound to appear at the assizes in Essex ; 
 at which assizes the defendants did appear, and preferred a bill of indict- 
 ment of robbery against the said plaintiff ; and the justiqes of assize hearing 
 the evidence to the grand jury openly in court, they perceived great malice 
 in the defendants in the prosecution of the cause, and upon the whole 
 matter it appeared, that the plaintiff the whole day that Waters was robbed 
 was in London, so that it was impossible that he committed the robbery, 
 and thereupon the grand inquest found — Ignoramnn. And it was moved 
 and strongly urged by the defendants' counsel, that admitting this combi- 
 nation, confederacy and agreement between them to indict the plaintiff to 
 be false and malicious, that yet no action lies for it in this court or else- 
 where, for divers reasons, — 1. Because no writ of conspiracy for the party 
 grieved, or indictment or other suit for the king lies, but where the party 
 grieved is indicted,' and legitimo inodo acquietatus, as the books arc 
 [F. N. B. 114, &c.]. 2. Every one who knows himself gnilty may, to 
 cover their offences and to terrify or discourage those who would prosecute 
 the cause against them, surmise a confederacy, combination, or agreement 
 betwixt them, and by such means notorious offenders will escape un- 
 punished, or, at the least, justice will be in danger of being perverted, and 
 greisit offences smothered, and therefore they said, that there was no prece- 
 dent or warrant in law to maintain such a bill as this is. But upon good 
 consideration it was resolved that the bill was maintainable ; and in this 
 case divers points were resolved. « • * 
 
 And it is true, that a writ of conspiracy lies not unless the party is 
 indicted, and legitimo modo acquietatus, for so are the words of the writ; 
 but that a false conspiracy betwixt divers persons shall be punished, although 
 nothing be put in execution, is fnll and manifest in our books; and there- 
 fore in 27 Ass. p. 44, in the Articles of the charge of Enquiry by the 
 Enquest in the King's Bench, there is a Nota, that two were indicted of 
 confederacy, each of them to maintain the other, whether their matter be 
 true or false, and notwithstanding that nothing was supposed to be put in 
 execution, the parties were forced to answer to it, because the thing is for- 
 bidden by the law, which are the very words of the book; which proves 
 that such false confederacy is forbidden by the law, although it was not put 
 in use or executed. So there in the next articles in the same book, inquiry 
 shall be of conspirators and confederates, who agree among^ themselves, 
 &c. falsely, to indict, or acquit, &c. the manner of agreement and betwixt 
 whom; which proves also, that confederacy to indict or acquit, although 
 nothing is executed, is punishable by law : and there is another article 
 concerning conspiracy betwixt merchants (a), and in these cases the con- 
 spiracy or confederacy is punishable although the conspiracy or confederacy 
 be not executed; and it is held in 19 R. 2, Brief 926, a man shall have a 
 writ of conspiracy, although they do nothing but conspire together, and he 
 shall recover damages, and they may be also indicted thereof. Also the 
 usual commission of oyer and terminer gives power to the commissioners 
 to enquire, &(!. de omniTms ooadimationiTms, confcederationihns, et falsis 
 alliganciis ; and coadunatio is a uniting of themselves together, confce- 
 deratio is a combination amongst them, and falsa alligantia is a false 
 binding each to the other, by bond or promise, to execute some unlawful 
 
 (a) This was on the statute 27 Edw. 3, st. 2, c. 3, and followed its words. 
 
'J2 APPENDIX II, 
 
 act. In these cases before the unlawful act executed the law punishes the 
 coadunation, confederacy or false alliance, to the end to prevent the un- 
 lawful act, guia guando aliguid prohibetm; proliiietw et id per qnod 
 pervenitur ad illud : et affeotus punitw licet noii sequatur effeetus ; 
 and in these cases the common law is a law of mercy, for it prevents the 
 malignant from doing mischief, and the innocent from suffering it. * * * 
 And afterwards upon the hearing of the case, and upon pregnant proofs, 
 the defendants were sentenced for the said false "Conspiracy by fine and 
 imprisonment. Nota reader, these confederacies, punishable by law, before 
 they are executed, ought to have four incidents: — 1. It ought to be declared 
 by some manner of prosecution, as in this case it was, either by making of 
 bonds, or promises one to the other. 2. It ought to be malicious, as for 
 unjust revenge, &c. 3. It ought to be false against an innocent. 4. It 
 ought to be out of court voluntarily." (See the Act of 1305, 33 Edw. 1). 
 
 1666. Stm-Ung, 1 Sid. 174 ; 1 Keb. 650, 655. 
 
 Information against brewers of London for confederating and conspiring 
 to put down the gallon trade by which the poor are supplied, and to cause 
 the poor to mutiny against the farmers of excise ; and also for that whereas 
 the excise was settled on the king by statute as part'of his revenue the 
 defendants confederated and conspired to depauperate the farmers of the 
 excise. The jury found them guilty on the second count only. It was 
 moved to quash the information on the ground that it is no crime by our 
 law to depauperate another in order to enrich oneself, as by und.erselling. 
 But after several debates, the K. B. (Hyde, C. J., et al.) gave judgment 
 for the king, for that the information recited that the excise was parcel of 
 the king's revenue, and to impoverish the farmers would be to make them 
 incapable of rendering the king his revenue j and although there could not 
 be conspiracy without some overt act of several, , still they all agreed that 
 the conspiracy here is an act punishable. (It seems to have been supposed 
 by counsel in Thorp's Case, 5 Mod. at 224, that the conspiracy was to brew 
 nothing but small beer.) The Court also held that conspiracy and con- 
 federacy need not be laid to be vi et curmis; and they said there were 
 many informations in the Exchequer for conspiracy to lessen the king's 
 revenue without the vi et arinAs. 
 
 1,811. Twner, 13 East, 228. 
 
 Conspiracy to trespass on A.'s preserve by night with offensive weapons 
 and to snare hares there. The K. B. (Lord EUenborough, C. J., Le Blanc, 
 Bay ley and Grose, JJ.) arrested the judgment. 
 
 Lord EUenborough, C. J. — " All the cases in conspiracy proceed upon 
 " the ground that the object of the combination is to be effected by some 
 " falsity; insomuch that in Tailor and Towlin's Case, in Godb. 444, it was 
 " held necessary in conspiracy to allege the matter to be/aZso etmalitiose. 
 " By the old law indeed the offence was considered to consist in imposing 
 " by combination a false crime upon a person. Bnt are you prepared to 
 " show that two unqualified persons going out together by agreement to 
 " sport is a public offence ? 
 
 " Spragg's Case was a conspiracy to indict another of a capital crimes 
 " which no doubt is an offence. And the case of The King v. Eccles and 
 " others was considered as a conspiracy in restraint of trade, and so far a 
 " conspiracy to do an unlawful act affecting the public. But I should be 
 " sorry that the cases in conspiracy against individuals, which have gone 
 " far enough, should be pushed still farther : I should be soiTy to have it 
 " doubted whether persons agreeing to go and sport upon another's ground, 
 " in other words, to commit a civil trespass, should be thereby in peril of 
 " an indictment for an offence which would subject them to infamous 
 " punishment." (See in text, Sect. II. § 11-), 
 
LEADING CASES. 93 
 
 1814. De Berenger, S M. & S. 67. 
 
 Indictment for that the defendants contriving by false reports to induce 
 the subjects to believe that peace would soon be made with ^France, and 
 thereby to occasion a rise of the funds and injure the subjects who should 
 buy funds on I'ebruarySl, conspired to spread a false report of Napoleon's 
 death, &c. 
 
 Lord EUenborough, C. J. — " A public mischief is stated as the object of 
 " this conspiracy ; the conspiracy is by false rumours to raise the price of 
 " the public funds and securities ; and the crime lies in the act of con- 
 " spiracy and combination to effect that purpose, and would have been 
 " complete although it had not been pursued to its consequences, or the 
 " parties had not been able to carry it into effect. The purpose itself is 
 " mischievous, it strikes at the price of a vendible commodity in the market, 
 " and if it gives it a fictitious price, by means of false rumours, it is a fraud 
 " levelled against all the public, for it is' against all such as may possibly 
 " have anything to do with the funds on that particular day. It seems to 
 " me also not to be necessary to specify the persons, who became purchasers 
 " of stock, as the persons to be affected by the conspiracy, for the defend - 
 " ants could not, except by a spirit of prophecy, divine who wpuld be the 
 " purchasers on a subsequent day." 
 
 Le Blanc, J. — " The charge in the indictment is that the defendants 
 " conspired by false rumours to raise the price, of the funds on a particular 
 " day. It may be' admitted therefore that the raising or lowering the price 
 " of the public funds is not per se a crime. A man may have occasion to 
 " sell out a large sum, which may have the effect of depressing the price 
 " of stocks, or may buy in a large sum , and thereby raise the price on a 
 " particular day, and yet he will be guilty of no offence. But if a number 
 " of persons conspire by false rumours to raise the funds on a particular 
 " day, that is an offence; and the offence is, not ii^ raising the funds 
 " simply, but in conspiring by false rumours to raise them on that particular 
 " day. 
 
 " In the same manner it is if a false rumour be spread on a day prior to 
 " a market day, in order to raise the price of a commodity in the market, 
 " whether it be an article of necessity or not." 
 
 Bayley, J. — " To raise the public funds may be an innocent act, but to 
 " conspire to raise them by illegal means, and vpith a criminal view, is an 
 " offence ; an offence, perhaps not affecting the public in an equal degree, 
 " as if it were done with intent to affect the purchases of the commissioners 
 " for the redemption of the national debt, which would be affecting the 
 " public in its aggregate capacity ; but still, if it be completed it will cer- 
 " tainly prejudice a large portion of the king's subjects who have occasion 
 " to purchase on that day. And it is not necessary to constitute this an 
 " offence that it should be prejudicial to the public in its aggregate capacity, 
 " or to all the king's subjects, but it is enough if it be prejudicial to a class 
 " of the subjects. Jlere then is a conspiracy to effect an illegal end, and 
 " not only so, but to effect it by illegal means, because to raise the funds 
 " by false rumom-s, is by illegal means. And the end is illegal, for it is to 
 " create a. temporary rise in the funds without any foundation, the necessary 
 " consequence of which must be to prejudice all those who become pui- 
 " chasers during the period of that fluctuation. The next objection is, 
 " that the indictment does not state the persons by name whom the dc- 
 " fendants intended to defraud, and it is suggested that the indictment 
 " would have been good if it had stated that the conspiracy was with intent 
 " to prejudice certain persons by name, and that by means thereof those 
 " persons were prejudiced. But the conspiracy is the thing which consti- 
 '' tutes the crime, and it is sufficient if the indictment state the conspiracy 
 " as it existed at the time when the crime was complete. It might have 
 " been detected before any purchases were made or the mischief was effected. 
 
94 APPENDIX II. 
 
 " yet that would not have altered the offence, because the parties had done 
 " everything in their pOwer, and all that vfas essential to complete the 
 " crime, when they had formed the conspiracy, and used illegal means for 
 " efEecting it. It did not depend on them but on others whether their con- 
 " spiracy would be mischievous to others, but their criminality must depend 
 " on their own act, and not on the consequences that ensued from it." 
 
 Dampler, J. — " I own I cannot raise a doubt but that this is a complete 
 " crime of conspiracy according to any definition of it. The means used 
 " are wrong, they were false rumours ; the object is wrong, it was to give 
 " a false value to a commodity in the public market, Vhich was injuiious 
 " to those who had to purchase." 
 
 1834. Semard, 1 A. & E. 706. 
 
 First count, that S. was a male pauper, settled in St. Ives; that B. was 
 a female pauper settled in and chargeable to the parish of Chatteris; that 
 the defendants, conspiring to exonerate Chatteris and to charge St. Ives 
 with B.'s maintenance, procured S. to marry B. and promised him money 
 for so doing. The third count alleged a meeting for the purposes of the 
 conspiracy and a subsequent removal of the woman to St. Ives, after her 
 marriage, by virtue of an order of justices. The fourth count referred to 
 the fact that the woman was with child and to the expenses of her lying- 
 in. The fifth count alleged an unlawful conspiracy to procure the marriage 
 for the purposes above-mentioned, stating the promise and payment of the 
 bribe to the man. Judgment was arrested. Taunton, J., " It is not the 
 " combining to do any wrongful act that constitutes a conspiracv: — R. i). 
 " Turner." 
 
 Lord Denman, C. J. — " I am of opinion that this rule must be absolute. 
 " An indictment for conspiracy ought to show, either that it was for an 
 " unlawful purpose, or to effect a lawful purpose by unlawful means: that 
 '.' is not done here. To say that meeting together and combining to ex- 
 " onerate one parish from the burthen of a poor person, and throw it on 
 " another, amounts to an indictable conspiracy, is extravagant. If such a 
 " proposition could be maintained, it would apijly to parishioners hiring 
 " out a poor boy from their own parish into another. Then, when it is 
 " said that such a proceeding , is a conspir^icy, because it is to be carried 
 " into effect by unlawful means, we must see in the means stated something 
 " which amounts to an offence. In Hex v. ITowler, money was given to 
 " procure the marriage; but Buller, J., directed an acquittal, no force or 
 " contrivance appearing. As to Eegina v. Best, it was properly held there, 
 " that the conspiracy was indictable, though nothing had been done in pur- 
 " suance of it, because the object was falsely to charge a person with being 
 " the father of a bastard child. From the nature of the fact, there could 
 " be no doubt that the conspiracy in itself was unlawful. In Hex v. Spragg, 
 " the indictment only charged a conspiracy to indict a person for a crime, 
 "not saying ' falsely to indict;' and this was objected to as insufficient; 
 " but -it being afterwards alleged that the deferldants, according to the 
 " conspiracy, did falsely indict the party, Lord Mansfield said that ' this 
 " was a complete-formed conspiracy, actually carried into execution:' the 
 " averment of the execution, there, reflected back upon the statement of 
 " the conspiracy. That case is not like the present." 
 
 Littledale, J.^ — " The mere procuring of that marriage was a legal act in 
 " itself, and the indictment does not state that such procuring was effected 
 " by any unlawful means or devices, or false pretences. If it had been 
 " alleged to have been done with a sinister purpose and by unlawful means, 
 " that statement would have been sufScient. The substance of this charge 
 " is, that the defendants conspired to burthen the parish of St. Ives with a 
 " pauper (for the merely exonerating themselves could be no offence) ; but, 
 " because the natural consequence of the marriage of these parties was to 
 
LEADING CASES. 95 
 
 " subject the husband's parish to a burthen, it does not follow that those 
 " who procured the marriage were indictable." 
 
 Taunton, J. — "I am of the same opinion. Merely persuading an un- 
 " married man and woman in poor circumstances to contract matrimony, 
 " is not an offence. If, indeed, it were done by unfair and undue means, it 
 " might be unlawful; but that is not stated. There is no averment that 
 " the parties were unwilling, or that the marriage was brought about by 
 " any fraud, stratagem or concealment, or by duress or threat. No unlawful 
 " means are stated, and the thing in itself is not an offence: to call this a 
 " conspiracy, is giving a colour to the case which the facts do not admit 
 " of. _ As stated, it is nothing more than the case where the ofScers of a 
 " parish agree, after consultation, to apprentice out children from their own 
 " parish into another: no doubt, when that is done, the one parish may be 
 " exonerated and the other subjected to a charge; but no offence is com- 
 " mitted." 
 
 Williams, J. — " I have always understood, that an indictment was suf- 
 " fioient if it alleged what amounted to a conspiracy in law, though no overt 
 " act were stated, or none stated perfectly: and in this case, I have had 
 " some doubt whether the fourth count was not suificient ; but, on con- 
 " sideration, I can hardly think that, in that count, if the overt acts are 
 " rejected, and the conspiracy alone relied upon, enough appears to make 
 " out an indictable offence. Among other things, the fact of the woman 
 " having been a burthen to Chatteris at the time in question, is not clearly 
 " averred: the terms used are not such that we can, judicially, take her to 
 " have been actually chargeable to that parish when the alleged offence- 
 " was committed. Furthermore, I doubt whether the allegation of con- 
 " spiracy in that count is to be understood in the sense in which the counsel 
 " for the prosecution have put it to us. It is stated, that the defendants 
 " unlawfully conspiring to exonerate the inhabitants of Chatteris from the 
 " expense which might ensue to them from S. M. Brittan, as a poor person, 
 " being an unmarried woman with child, and then having a legal settlement 
 " in Chatteris, and to aggrieve the inhabitants of St. Ives, and wrongfully to 
 " burthen them with the maintenance of the said S. M. B., and with the 
 " charges of her lying-in, unlawfully did combine, conspire, and meet to- 
 " gether for the purpose last aforesaid ; and, being so met, did unlawfully 
 " cause and procure, &c. Now, whether a conspiracy for the purpose of 
 " doing an act is equivalent to a conspiracy to do an 'act, may be doubted. 
 " In iTex V. Nield and Others, the defendants were convicted under a 
 " statute (39 & 40 Geo. 3, c. 106), which makes it penal to enter into agrce- 
 " raents for controlling certain workmen ; the conviction stated the de- 
 " f endants to have entered into an agreement (which was not set out)/o7' 
 " thepv/rpoie of controlling; and this was held insufficient." 
 
 Judgment arrested. 
 
 1887. Murphy, 8 C. & P. 297. 
 
 Conspiracy to prevenc the levy of a church-rate by libelling the broker 
 employed to levy and by obstructing him by collecting riotous assemblies 
 and by inciting persons to resist him. 
 
 Coleridge, J. (in summing up). — "You have been properly told that this 
 " being a charge of conspiracy, if you are of opinion that the acts, though 
 " done, were done without common concert and design between these two 
 " parties, the present charge cannot be supported. On the other hand, 
 " I am bound to tell you, that although the common design is the root of 
 " the charge, it is not necessary to prove that these two parties came to- 
 " gether and actually agreed in terms to have this common design, and to 
 " pursue it by common means, and so to carry it into execution. This is 
 " not necessaiy, because in many cases of the most clearly established con- 
 " spiracles there are no means of proving any such thing, and neither law 
 
96 APPENDIX II. 
 
 " nor common sense requires that it should be proved. If you find that 
 " these two persons pursued bj' their acts the same object, often by the 
 " same means, one performing one part of an act, and the other another 
 " part of the same act, so as to complete it, with' a view to the attainment 
 " of the object which they were pursuing, you will be. at liberty to draw the 
 " conclusion that they have been engaged in a conspiracy to effect that 
 " object. The question you have to ask yourselves is, ' Had they this com- 
 " men design, and did they purpose it by these common means — the design 
 " being unlawful?' I ought also to tell you that by iinding the defendants 
 " guilty you will not (as has been said) affect the right of petitioning. It 
 " is not ^vrongful to assemble in a public meeting to petition parliament 
 •' against that which is alleged to be a public grievance, neither is it un- 
 " lawful to refuse payment of the church-rate in money, and to leave the 
 " collector to obtain payment by taking the goods of the party, as is eon- 
 " stantly done in the case of the Quakers ; but it is unlawful, by means 
 " like those charged in this indictment, to prevent these rates being levied 
 " on the goods of the party. It is not necessary that it should be proved 
 " that these defendants met to concert this scheme, nor is it necessary that 
 " they should have originated it. If a conspiracy be already formed, and 
 " a person joins it afterwards, he is equally guilty. Tou are to say whether, 
 " from the acts that have been proved, you are satisfied that these defend- 
 " ants were acting in concert in this matter. If you are satisfied that there 
 " was concert between them, I am bound to say that being convinced of the 
 " conspiracy, it is not necessary that you should find both Mr. Murphy and 
 " Mr. Douglas doing each particular act, as, after the fact of a conspiracy 
 " is once established in your minds, whatever is either said or done by either 
 " of the defendants in pursuance of the common design, is, both in law and 
 " in common sense, to be considered as the act of both. 
 
 " You must satisfy yourselves that in this case the acts of the defendants 
 " arose from previous concert and conspiracy, or you should not convict 
 " them." * 
 
 1844. O'Connell, 11 CI. & F. 155. 
 
 The first count for seditiously conspiring to excite disaffection among 
 the subjects and to excite them to hatred and contempt of and seditious 
 opposition to the government and constitution ; and to promote ill will 
 between different classes of subjects, and especially between the English 
 and Irish, and to excite disaffection in the army ; and to procure unlawful 
 and seditious assemblies for obtaining alterations in the government and 
 laws by show of physical force ; and to bring the Irish courts into contempt, 
 &c.; and for certain overt acts for these purposes. 
 
 The second count, as the first, but omitting the overt acts. 
 
 The third, fourth and fifth counts were variations of the first and 
 second. 
 
 The sixth count, that the defendants unlawfully and seditiously intending 
 by means of intimidation and the demonstration of great physical force to 
 procure and effect changes to be made in the government, laws and consti- 
 tution, unlawfully and seditiously did conspire, &c. to cause and procure, 
 &c. divers subjects of the queen to meet and assemble together in large 
 numbers at various times and at different places for the unlawful and. 
 seditious purpose of obtaining by means of intimidation to be thereby 
 caused, and by means of the exhibition and demonstration of great 
 physical force at such assemblies and meetings, changes in the government, 
 laws and constitution. 
 
 The seventh count as the sixth, but added — "and especially, by the 
 means aforesaid, to bring about and accomplish a dissolution of the legis- 
 lative union now subsisting between Great Britain and Ireland." 
 
 The eighth count stated an intent to bring the tribunals of justice into 
 
LEADING CASES. 97 
 
 contempt, and to cause the subjects to withdraw their differences from the 
 said tribunals. 
 
 The ninth count stated an intent to assume and usurp the prerogative of 
 the crown in the establishment of courts for the administration of the law. 
 
 The tenth count stated an intent to bring into disrepute the tribunals for 
 the administration of justice. 
 
 The eleventh count, that the defendants, intending by means of intimi- 
 dation and demonstration of physical force, &c. by causing large numbers 
 of persons to meet and assemble, and by means of seditious and inflam- 
 matory speeches to be delivered to the said persona, and by means of pub- 
 lishing divers unlawful and seditious writings, to intimidate the lords 
 spiritual and temporal and commons of the parliament of the united 
 kingdom, and thereby to effect changes in the laws and constitution, un- 
 lawfully and seditiously did conspire, &c. to cause large numbers of persons 
 to meet together at divers places and times, and by means of seditious 
 speeches, of publishing to the subjects of the queen unlawful and seditious 
 writings, &c. to intimidate the lords spiritual and temporal and the com- 
 mons, and thereby to effect and bring about changes and alterations in the 
 laws and constitution. 
 
 Upon writ of error in the House of Lords, the question was put to the 
 judges : — " Are all or any, and if any, which, of the counts in the indict- 
 ment bad in law ? so that if such count or counts stood alone in the indict- 
 ment, no judgment against the defendants could properly be entered upon 
 them ? " The judges thought that the sixth and seventh counts were 
 insufficient, but that all the other counts sufficiently disclosed objects for 
 which it was criminal to combine. 
 
 Tindal, C. J., delivered the opinion of the judges as follows:— "My 
 " Lords, the answer to the first question will depend upon the consideration, 
 " whether all the counts of the indictment are framed with that proper 
 " and convenient certainty, with respect to the substance of the charge of 
 " conspiracy, which the law requires; for, undoubtedly, if any of such 
 " counts are framed in so loose, uncertain or inapt a manner, as that the 
 " defendants might have availed themselves of the insufficiency of the 
 " indictment upon a demurrer, there is nothing to prevent them from having 
 " the same advantage of the objection upon a writ of error. The crime of 
 " conspiracy is complete if two, or more than two, should agree to do an 
 " illegal thing; that is, to effect something in itself unlawful, or to effect, 
 " by unlawful means, something which in itself may be indifferent, or even 
 " lawful. That it was an offence known to the common law, and not first 
 " created by the 33 Edw. 1, is manifest. That statute speaks of conspiracy 
 " as a term at that time well known to the law, and professes only to be ' a 
 " definition of conspirators.' It has accordingly been always held to be 
 " the law, that the gist of the offence of conspiracy is the bare engagement 
 " and association to break the law, whether any act be done in pursuance 
 " thereof by the conspirators or not. (E. v. Best, R. v. Edwards.) No 
 " serious objection appears to have been made at your Lordships' bar 
 " against the sufficiency of any of the counts prior to the sixth. Indeed, 
 " there can be no question but that the charges contained in the first five 
 " counts do amount, in each, to the legal offence of conspiracy, and are 
 " sufficiently described therein. There can be no doubt but that the agree- 
 i' ing of divers persons together to raise discontent and disaffection amongst 
 " the liege subjects of the Queen, to stir up jealousies, hatred and ill-will 
 " between different classes of her Majesty's subjects, and especially to pro- 
 " mote amongst her Majesty's subjects in Ireland feelings of ill-will and 
 " hostility towards her Majesty's subjects in other parts of the United 
 " Kingdom, and especially in England— which charges are found in each 
 " of the first five counts which first occur in the indictment— do form a 
 " distinct and definite charge in each, against the several defendants, of an 
 
 H 
 
98 APPENDIX II. 
 
 "agreement between them to do an illegal act; and it therefore becomes 
 " nnnecessary to consider the other additional objects and purposes alleged 
 " in some of those respective counts to have been comprised within the 
 " scope of the agreement of the several defendants. With respect, how- 
 " ever, to the sixth and seventh counts, in the form in which they stand 
 " upon this record, we all concur in opinion that they do not state the 
 " illegal purpose and design of the agreement entered into between the 
 " defendants with such proper and sufficient certainty as to lead to the 
 " necessary conclusion that it was an agreement to do an act in violation 
 " of the law. Each of these two counts does in substance state the agree- 
 " ments of the defendants to have been ' to cause and procure divers sub- 
 " jects to meet together in large numbers, for the unlawful and seditious 
 " purpose of obtaining, by means of the intimidation to be thereby caused, 
 " and by means of the exhibition and demonstration of the great physical 
 " force at such meetings, changes in the government, laws and constitution 
 " of the realm.' Now, though it may be inferred from this statement, that. 
 " the object of the defendants was probably illegal, yet it does not appear 
 " to us to be so alleged with sufficient certainty. The word ' intimidation' 
 " is not a technical word: it is not vocahvlum artis, having a necessary 
 " meaning in a bad sense ; it is a word in common use, employed on this 
 " occasion in its popular sense; and in order to give it any force, it ought 
 " at least to appear from the context what species of fear was intended, or 
 " upon whom such fear was intended to operate. But these counts contain 
 " no intimation whatever upon what persons this intimidation was in- 
 " tended to operate; it is left in complete uncertainty whether the inti- 
 " midation was directed against the peaceable inhabitants of the sur- 
 " rounding places, against the subjects of the Queen dwelling in Ireland in 
 " general, against persons in the exercise of public authority there, or even 
 " against the legislature of the realm. Again, the mere allegation that 
 " these changes were to be obtained by the exhibition and demonstration of 
 " physical force, without any allegation that such force was to be used, or 
 " threatened to be used, seems to us to mean no more than the mere 
 " display of numbers, and consequently to carry the matter no further. 
 " Applying the same principle and mode of reasoning to the consideration 
 " of the eighth, ninth and tenth counts of the indictment, we all concur in 
 " opinion that the object and purpose of the agreement entered into by the 
 " defendants, as disclosed upon those counts, is an agreement for the per- 
 " formance of an act, and the attainment of an object, which is a violation 
 " of the laws of the land. We think it unnecessary to state reasons in 
 " support of the opinion, that an agreement between the defendants to 
 " diminish the confidence of her Majesty's subjects in Ireland in the general 
 " administration of the law therein, or an agreement to bring into hatred 
 " and disrepute the tribunals by law established in Ireland for the admi- 
 " nistration of justice, are each and every of them agreements to effect 
 " purposes in manifest violation of the law. Upon the sufiHciency of the 
 " eleventh count, no doubt whatever has been raised." 
 
 Lord Denman doubted whether the counts relating to contempts of the 
 courts were good: — "I am by no means clear that there is anything illegal 
 " involved in exciting disapprobation of the courts of law, for the purpose 
 " of having other courts substituted more cheap, efficient, and satisfactory." 
 
 Lord Campbell said, — " A conspiracy to effect an unlawful purpose, or 
 " to effect a lawful purpose by unlawful means, is by the law of England 
 " an indictable offence: and it is fit that if several persons deliberately 
 " plot mischief to an individual or to the state, they should be liable to 
 " punishment, although they may have done no act in execution of their 
 " scheme. Where they have actually done what they intended to do, it 
 " may be more proper to prosecute them for their illegal acts; but in point 
 " of law, they remain liable for the offence of entering into the conspiracy. 
 
LEADING CASES. ' 99 
 
 " The first five connta clearly charge the-defendants with hdiving conspired 
 " together to effect unlawful purposes. The fifth count was strongly 
 " objected to; but I consider that any person who deliberately attempts to 
 " promote feelings of ill-will and hostility between different classes of her 
 " Majesty's subjects — to make the English be hated by the Irish, or the 
 " Irish be hated by the English— is guilty of a moat culpable proceeding; 
 " and that, if several combine to do so, they commit a misdemeanor for 
 " which they may be indicted and punished. I have entertained some 
 " doubt whether the eighth count does more than charge a design to show 
 " the inefficiency of certain tribunals, that others more efficient may be 
 " substituted for them by the legislature— in which case it would be insuf- 
 " ficient; although a conspiracy generally to bring into discredit the 
 " administration of justice in the country, with a view to alienate the 
 " peopl^rom the government, would certainly be a misdemeanor." 
 Other points in this case were — 
 
 1. That where a count charged an agreement for several purposes, a 
 verdict was bad which found that a defendant had agreed with A. for some 
 of the pnrpoaes, and with B. for others; for this was a finding of two agree- 
 ments, where the count charged only one. 
 
 2. That where a count charged an agreement for several purposes, a 
 verdict was bad for repugnancy which found three defendants guilty 
 generally, and others guilty as to some only of the purposes; for the 
 finding as to the three implied that all had agreed with them as to all the 
 purposes. 
 
 3. That the general judgment on several counts, some of which were bad, 
 was erroneous. (But in Mulcahy's Case, 1868, it was held in D. P., in a 
 case of treason felony, that a verdict and judgment on a count were good 
 where the count contained some sufficient overt acts, although it also 
 averred others which were insufficient.) 
 
 1870. Warburton, L. R., 1 0. C. 274. 
 
 General count for conspiracy by divers subtle means and devices to 
 cheat and defraud L. Proof that the prisoner was partner with L., and 
 conspired with P. by means of false accounts to pretend that the firm owed 
 money to P., with intent that such money when paid to P. should be 
 divided between P. and the prisoner, and that L. should so be defrauded. 
 The conspiracy was before the passing of the Recorder's Act, 31 & 32 Vict. 
 c. 116, for protection of partners. It was objected that the prisoner's act, 
 though immoral, was not illegal, that L. would have had no remedy at law 
 against the prisoner, nor could the prisoner be indicted either for larceny 
 or for false pretences (Evans, 32 L. J., M. C. 38 ; L. & C. 252) ; and that 
 an act for which there is merely an equitable remedy is not an illegal act 
 within the meaning of the law of conspiracy. But the C. C. C. R. held 
 the conviction good. 
 
 Cockbum, C. J., " Even assuming that no action or indictment would lie 
 " for such acts, the acts are wrongful nevertheless, and there is a remedy, 
 " viz., by proceedings in equity." 
 
 Cockbum, 0. J.— "It has been doubted sometimes whether the law of 
 " England does not go too far in treating as conspiracies agreements to do 
 " acts which, if done, would not he criminal offences. This question does 
 " not, however, arise here, as no one would wish to restrict the law so that 
 " it should not include a case like the present. It is sufficient to constitute 
 " a conspiracy if two or more persons combine by fraud and false pretences 
 " to injure another. It is not necessary in order to constitute a conspiracy 
 " that the acts agreed to be done should be acts which if done would be 
 " criminal. It is enough if the acts agreed to be done, although not 
 " criminal, are wrongful, i. «., amount to a civil wrong. Here, there was 
 " undoubtedly an agreement with reference to the division of the partner- 
 
 h2 
 
100 APPENDIX II. 
 
 " ship property or of the partnership profits. It is equally clear that the 
 " agreement was to commit a civil wrong, because the agreement was to 
 " deprive the prisoner's partner by fraud and false pretences of his just 
 " share of the property or profits of the partnership. A civil wrong was 
 " therefore intended to Lister. The facts of this case thus fall within the 
 " rule that when two fraudulently combine, the agreement may be criminal, 
 " althongh if the agreement were carried out no crime would be committed, 
 " but a civil wrong onlj' would be inflicted on a third party. In this case 
 " the object of the agreement was, perhaps, not criminal. It is not neces- 
 " sary to decide whether or not it was criminal ; it was, however, a con- 
 " spiracy, as the object was to commit a civil wrong by fraud and false 
 " pretences, and I think that the conviction should be affirmed." 
 Channell and Cleasby, BB., Keating and Brett, JJ., concurred. 
 
( 101 ) 
 
 APPENDIX III. 
 
 LISTS OF CASES. 
 
 [Note. — This Appendix does not include the ancient cases on the writ of 
 conspiracy, nor the cases on treason, except such cases of either of 
 these kinds as are of some importance for the general law of con- 
 spiracies and criminal agreements.] 
 
 A List of the Cases on Conspiracy chronologically 
 arranged. 
 
 1699. Savile v. Roberts. 
 1704. Orbell. 
 1704. Daniell. 
 
 1350. Anon. 
 
 1.S54. 27 Edw. 3, Art. of Inquest. 
 
 1354. Anon. 
 
 1356. Anon. 
 
 1369. The Lumbard's Case. 
 
 1574. Sydenham v. Keilaway. 
 
 1597. Anon. 
 
 1599. Ameridcth. 
 
 1600. Blunt. 
 
 1607. Lord Gray of Groby. 
 
 1608. Floyd v. Barker. 
 
 1611. The Poulterers' Case. 
 
 1612. Ashley. 
 1613." Scarlet. 
 1616. Bagg. 
 
 1629. Tailor and Towlin. 
 1636. Midwinter and Scrogg. ' 
 1663. Timberley and Childe (or 
 
 Kimberty). 
 1665. Starling. 
 1671. Opie. 
 1674. Thody. 
 1678. Armstrong. 
 1680. Blood. 
 
 1682. Lord Grey. (SeeiVbi«,p.l06.) 
 1686. Salter. 
 1688. Grimes. 
 
 1697. Thorp. 
 
 1698. Anon. 
 
 1705. Callingwood. 
 1705. Maccarty. (SeeiVbfe,p.l06.) 
 1705. Best. 
 1719. Cope. 
 
 1719. Kinnersley and Moore. 
 1721. Journeymen Tailors of Cam- 
 bridge. 
 1725. Edwards. 
 1730. Bryan. 
 
 1744. Robinson. 
 
 1745. Niccols. 
 
 1752. Chetwynd v. Lindon. 
 1756. M'Daniel. 
 
 1758. Norris. 
 
 1759. Herbert. 
 
 1760. Spragg. 
 
 1761. Wheatley. 
 
 1762. Rispal. 
 
 1763. Parsons. 
 1763. Delaval. 
 1767. Tarrant. 
 
 1769. Vertue v. Lord Clive. 
 1775. Leigh. 
 1780. Young. 
 
 1782. Hevey. 
 
 1783. Eccles. 
 
102 
 
 APPENDIX III. 
 
 1783. Compton. 
 
 1788. Fowler. 
 
 1789. Pasley v. Freeman. 
 
 1792. Parkhouse. 
 
 1793. Priaoners' Case. 
 
 1794. Hardy. 
 
 1794. Home Tooke. 
 
 1795. Tanner. 
 
 1796. Stone. 
 1796. Mawbey. 
 1799. Hammond. 
 1802. Marks. 
 
 1802. Steventon. 
 
 1803. Brisac. 
 
 1804. Locker. 
 
 1804. Salter. 
 
 1805. Nield. 
 
 1807. Claridge v. Hoare. 
 
 1808. Roberta. 
 
 1809. PoUman. 
 1809. Stratton. 
 1809. Teal. 
 
 1809. Clifford v. Brandon. 
 
 1811. Turner. 
 
 1814. Askew. 
 
 1814. DeBerenger. 
 
 1814. Wade v. Bronghton. 
 
 1816. Pywell. 
 
 1816. Brodribb. 
 
 1817. "Watson. 
 
 1818. Kroehl. 
 1818. Hilbers. 
 
 1818. Gill. 
 
 1819. Ferguson. 
 
 1819. Roberts r. Roberts. 
 
 1819. Anon. 
 
 1820. The Queen's Case. 
 1820. King. 
 
 1820. Hunt. 
 
 1822. Ridgway. 
 
 1823. Murray. 
 
 1824. WHtehead. 
 
 1824. Thomas. 
 
 1825. Hollingberry. 
 
 1826. Serjeant. 
 1826. Cooke. 
 
 1826. Bashell v. Barrett. 
 
 1827. Mott. 
 1827. Wakefield. 
 
 1830. Mandsley. 
 
 1831. Fowle. 
 
 1832. Bykerdike. 
 
 1832. Jones. 
 
 1833. Ford and Aldridge. 
 1833. Bloomfield v. Blake. 
 
 1833. Levi v. Levi. 
 
 1834. Richardson. 
 1834. Biers. 
 1834. Seward. 
 1834. Ball. 
 1834. Iiovelass. 
 1834. i>ixoR. 
 
 1836. Hamilton. 
 
 1837. Murphy. 
 1839. pick. 
 
 1839. Frost. 
 1839; Vincent. 
 
 1840. Shellard. 
 
 1841. Steel. 
 
 1842. Parker. 
 
 1842. Harris. 
 
 1843. Gregory v. Duke of Bruns- 
 
 wick. 
 
 1843. Kenrick. 
 
 1844. Blake. 
 1844. King. 
 1844. O'Connell. 
 
 1844. Ward. 
 
 1845. Jacobs. 
 
 1846. Gompertz. 
 
 1847. Sydsei-ff.' 
 
 1847. Selsby. 
 
 1848. Brittain. 
 1848. Button. 
 
 1848. Lacey. 
 
 1849. Wright. 
 1851. Mears. 
 1851. Thompson. 
 1851. Hewitt. 
 1851. Rowlands. 
 
 1851. Duffield. 
 
 1852. Whitchouse. 
 1852. Eycroft. 
 1852. Read. 
 
LIBTS OF CASES. 
 
 103 
 
 1852. Hamp. 
 
 1864. Howell. 
 
 1852. Ahearne. 
 
 1865. Barry. 
 
 1853. Yates. 
 
 1865. Burch. 
 
 1853. Lnmley r. Gye. 
 
 1866.. Shelbourne v. OUver. 
 
 1854. Carlisle. 
 
 1866. Wood V. Bowron. 
 
 1856. Hilton v. Eckcrsley. 
 
 1867. Skinner. 
 
 1856. Bullock. 
 
 1867. ( Druitt. 
 1867. 1 Bailey. 
 
 1857. Stapylton. 
 
 1857. Hall. 
 
 1867. Hornby v. Close. 
 
 1858. Timothy. 
 
 1868. Desmond. 
 
 1858. Esdaile. 
 
 1868. Sheridan. 
 
 1858. Brown. 
 
 1868. Springhead Co. v. Riley 
 
 1858. Bernard. 
 
 1868. Mulcahy. 
 
 1859. Absolon. 
 
 1869. bhepherd. 
 
 1859. Perham. 
 
 1869. Lewis. 
 
 1860. Hudson. 
 
 1869. Gurney. 
 
 1861. Walsby v. Anley. 
 
 1869. Farrer v. Close. 
 
 1863. O'Neill v. Longman. 
 
 1870. Warburton. 
 
 1863. O'Neill v. Kruger. 
 
 1871. Boulton. 
 
 1864. Latham. 
 
 1871. Taylor. 
 
 1864. Knowlden. 
 
 1872. Bunn. 
 
 1864. Kohn. 
 
 
 A List of the Cases on Conspiracy alphabetically 
 arranged, with the References. 
 
 Absolon, 1859, 1 F. & F. 498. 
 Ahearne, 1852, 6 Cox, 6. 
 Amerideth, 1599, Moore, 562. 
 Anon. 1350, 24 Edw. 3, p. 75 (99). 
 Anon, (27 Edw. 3), 1354, Art. of 
 
 Inq., 27 Ass. p. 138 b, pi. 44. 
 Anon. 1356, 29 Ass. p. 166, pi. 
 
 45. 
 Anon. 1597, 3 Inst. 196. 
 Anon. 1698, 12 Mod. 248. 
 Anon. 1819, I Chit. Rep. 698. 
 Armstrong, 1678, 1 Vcntr. 304. 
 Ashley, 1612, Moore, 816; 12 Rep. 
 
 91. 
 Askew, 1814, 3M.&S.^9. 
 Bagg, 1616, U Rep. 93 J; 1 Roll. 
 
 Rep. 225. 
 
 Bailey, 1867, 10 Cox, 592; 16 L. T. 
 
 (N. S.) 855, 859. 
 Ball, 1834, 6 C. & P. 563. 
 Barry, 1865, 4 E. & F. 389. 
 Bernard, 1858, 1 F. & F. 240. 
 Best, 1705, 2 Ld. Raym. 1167; 1 
 
 Salk. 174; 6 Mod. 185. 
 Biers, 1834, 1 A. & E. 327. 
 Blake, 1844, 6 Q. B. 126. 
 Blood, 1680, 2 T. Raym. 417. 
 Bloomfield v. Blake, 1833, 6 C. & 
 
 P. 75. 
 Blunt, 1600, 1 St. Tr. 411. 
 Boulton, 1871, 12 Cox, 87. 
 Brisac, 1803, 4 East, 164. 
 Brittain, 1848, 3 Cox, 76. 
 Brodribb, 1816, 6 C. & P. 571, n. 
 
104 
 
 APPENDIX III. 
 
 Bryan, 1730, 2 Stra. 165. 
 Brown, ] 858 (see Esdaile). 
 Ballock, 1856, Dears. 653. 
 Bunn, 1872, " Morning Advertiser," 
 
 20 Dec. 1872 ; " Times," 20 Dec. 
 
 1872. 
 Burch, 1865, 4 P. & P. 407. 
 Bnshell o. Barrett, 1826, Ey. & M. 
 
 439. 
 Button, 1848, 11 Q. B. 929. 
 Bykerdike, 1832, 1 Moo. & Kob. 179. 
 Callingwood, 1705, 2 Ld. Eaym. 
 
 1116. 
 Carlisle, 1854, Dears. 337. 
 Chetwynd v. Lindon, 1752, 2 Vesey, 
 
 sen. 450. 
 Claridge v. Hoare, 1807, 14 Ves. 65. 
 Clifford V. Brandon, 1809, 2 Camp. 
 
 358. 
 Compton, 1783, Cald. 246. 
 Cooke, 1826, 5 B. & C. 538/ 
 Cope, 1719, 1 Stra. 144. 
 Daniell, 1704, 6 Mod. 99; 1 Salk. 
 
 380. 
 De Berenger, 1814, 3 M. & S. 67. 
 Delaral, 1763, 3 Burr. 1434i 1 W. 
 
 Bl. 410, 439. 
 Desmond, 1868, 11 Cox, 146'. 
 Dixon, 1834, 6 C. & P. 601. 
 Druitt, 1867 («ee Bailey). 
 Duffield, 1851 (see Rowlands). 
 Eccles, 1783, 1 Leach, 274; see also 
 
 13 East, 230, n. ; WiUes, Eep. 
 
 583, n. 
 Edwards, 1725, 2 Stra. 707; 1 Sess. 
 
 Ca. 836; 8 Mod. 320. 
 Esdaile, 1858 (or Brown), 1 P. & P. 
 
 213; 7 Cox. 442. 
 Parrer v. Close, 1869, L. E., 4 Q. B. 
 
 602. 
 Ferguson, 1819, 2 St. 489. 
 Floyd V. Barker, 1608, 12 Eep. 23. 
 Ford and Aldridge, 1833, 1 N. & M. 
 
 776. 
 Fowle, 1831, 4 C. & P. 592. 
 Powler, 1788, 1 East, 461, 462. 
 
 Frost, 1839, 9 C. & P. 129. 
 Gill, 1818, 2 B. & A. 204. 
 Gompertz, 1846, 9 Q. B. 825. 
 Gray of Groby (Lord), 1607, Moore, 
 
 788. 
 Gregory v. Duke of Brunswick, 1843, 
 
 1 C. & K. 24; 6 M. & G. 205. 
 Grey (Lord), 1682, 2 St. Tr. 519 
 
 (9 St. Tr. 127). 
 Grimes, 1688, 3 Mod. 220. 
 Gnmey, 1869, 11 Cox. 414. 
 Hall, 1857, 1 P. & P. 33. 
 Hamilton, 1836, 7 C. & P. 448. 
 Hammond, 1799, 2 Esp. 719. 
 Hamp, 1852, 6 Cox, 167. 
 Hardy, 1794, 24 St. Tr. at 438. 
 Harris, 1842, C. & M. 661, n. 
 Herbert, 1759, 1 East, P. C. 461. 
 Hevey, 1782, 2 East, P. C. 858. 
 Hewitt, 1851, 5 Cox, 162. 
 Hilbers, 1818, 2 Chit. Eep. 163. 
 Hilton V. Eckersley, 1856, 6 E. & B. 
 
 47; 25 L. J., Q. B. 199, C. Sc. 
 HolUngberry, 1825, 4 B. & C. 329. 
 Hornby v. Close, 1867, L. E., 2 Q. 
 
 B. 153. 
 Home Tooke, 1 794, 25 St. Tr. at 127. 
 Howell, 1864, 4 P. & P. 160. 
 Hudson, 1860, 29 L. J., M. C. 145 ; 
 
 Bell, 263. 
 Hunt, 1820, 3 B. & A. 566. 
 Jacobs, 1845, 1 Cox, 173. 
 Jones, 1832, 4 B. & Ad. 346. 
 Journeymen Tailors of Cambridge, 
 
 1721, 8 Mod. 10. 
 Kenrick, 1843, 5 Q. B. 49. 
 Kimberty (see Timberley), 1663. 
 King, 1844, 7 Q. B. 782! 
 King, 1820, 2 Chit. Rep. 217. 
 Kinnersley and Moore, 1719, 1 Stra. 
 
 193. 
 Knowlden, 1864, 9 Cox, 483. 
 Kohn, 1864, 4 P. & P. 68. 
 Kroehl, 1818, 2 St. 348. 
 Lacey, 1848, 3 Cox, 522. 
 Latham, 1864, 9 Cox, 516. 
 
LISTS OF CASES. 
 
 105 
 
 Leigh, 1773, in 1 C. & K. 28, n., & 
 
 2 Camp. 372, n; 6 Wentw. PI. 
 
 443. 
 Levi v. Levi, 1833, 6 C. & P. 239. 
 Lewis, 1869, 11 Cox, 404. 
 Locker, 1804, 5 Esp. 107. 
 liovelass, 1834, 6 C. & P^ 596. 
 Lnmbard's Case, 1369, 4*3 Ass. 276 
 
 (38). 
 Lumley v. Gye, 1853, 22 L. J., Q. 
 
 B. at 471. 
 Maccarty, 1705, 2 Ld. Eaym. 1179; 
 
 6 Mod. 301; 1 Salk. 286. 
 Marks, 1802, 3 East, Rep. 157. 
 Maudsley, 1830, 1 Lew. 51. 
 Mawbey, 1796, 6 T. R. 619 ; 4 
 
 Wentw. PI. 123. 
 M'Daniel, 1756, Eost. 130 ; 1 Leach, 
 
 44. 
 Mears, 1851, 2 Den. 79. 
 Midwinter v. Scrogg, 1636, in 1 
 
 Keb. 656. 
 Mott, 1827, 2 C. & P. 521. 
 Mulcahy, 1868, L. R., 3 E. & I. 
 
 App. 806. 
 Murphy, 1837, 8 C. & P. 297. 
 Murray, 1823, 1 Bum's J. (30th 
 
 ed.), 976. 
 Niccols, 1745, 2 Stra. 1227. 
 Nield, 1805, 6 East, 417. 
 Norris, 1758, 2 Ken. 300. 
 O'Connell, 1844, 11 Q. & F. 155. 
 O'NeiU V. Kruger, 1863, 4 B. & S. 
 
 389. 
 O'Neill V. Longman, 1863, 32 L. J., 
 
 M. C. 239; 9 Cox, 360; 4 B. & 
 
 S. 376. 
 Opie, 1671, 1 Wms. S. 300 I. 
 Orbell, 1704, 6 Mod. 42. 
 Parker, 1842, 3 Q. B. 292. 
 Parkhonse, 1792, 1 East, P. C. 462. 
 Parsons, 1763, 1 W. Bl. 392. 
 Pasley v. Ereeman, 1789, 3 T. R. 
 
 at p. 58. 
 Peck, 1839, 9 A. & E. 686. 
 Perham, 1859, 5 H. & K. 30; 29 
 
 L. J., M. C. 31, 33. 
 
 Pollman, 1809, 2 Camp. 230. 
 Poulterers' Case, 1611, 9 Rep, 55; 
 
 Moore, 814. 
 Prisoners' Case, 1793, Hawk. 1, 72, 2. 
 Pywell, 1816, 1 St. 402. 
 Queen's Case, 1820, 2 B. & B. 
 
 303. 
 Read, 1852, 6 Cox, 77, n. 
 Richardson, 1834, 1 M. & Rob. 
 
 402. 
 Ridgway, 1822, 5 B. & A. 527. 
 Rispal, 1762, 3 Burr. 1320 ; 1 W. 
 
 BI. 368. 
 Roberts, 1808, 1 Camp. 399. 
 Roberts v. Roberts, 1819, 3 B. & A. 
 
 367. 
 Robinson, 1744, 1 Leach, 37. 
 Rowlands, 1851, 2 Den. 364; 5 Cox, 
 
 404, 460; 17 Q. B. 671. 
 Rycroft, 1852, 6 Cox, 76. 
 Salter, 1685, 2 Show. 456. 
 Salter, 1804, 5 Esp. 135. 
 Savile v. Roberts, 1699; 1 Ld. 
 
 Raym. 374 ; 5 Mod. 394, 405 ; 
 
 1 Salk. 13; Carth. 416. 
 Scarlet, 1613, 12 Rep. 98. 
 Selsby, 1847, 5 Cox, 495, n. 
 Serjeant, 1828, 1 R. & M. (N. P.) 
 
 352. 
 Seward, 1834, 1 A. & E. 706. 
 Shelboume ■». Oliyer, 1866, 13 L. T., 
 
 N. S. 630. 
 Shellard, 1840, 9 C. & P. 277. 
 Shepherd, 1869, 11 Cox, 325. 
 Sheridan, 1868, " Leeds Mercury," 
 
 13 Aug. 1868. 
 Skinner, 1867, 10 Cox, 493. 
 Spragg, 1760, 2 Burr. 993, 1027. 
 Springhead Co. v. Riley, 1868, 
 
 L. R., 6 Eq. 551. 
 Stapylton, 1857, 8 Cox, 69. 
 Starling, 1665, 1 Sid. 174 ; 1 Keb. 
 
 650,655; 1 Lev. 125. 
 Steel, 1841, 2 Moo. 246. 
 Steventon, 1802, 2 East, Rep. 362. 
 Stone, 1796, 6 T. E. 527. 
 Stratton, 1809, 1 Camp. 549, n. 
 I 
 
106 
 
 APPENDIX III. 
 
 Sydenham v. Keilaway, 1574, in Cro. 
 
 Jac. 8. 
 SydserfE, 1847, U Q. B. 245, Cam. 
 
 Sc. 
 TaUor and Towlin, 1629, Godb. 444. 
 Tanner, 1795, 1 Esp. 304. 
 Tarrant, 1767, 4 Burr. 2106. 
 Taylor, 1871, 25 L. T. (N. S.) 75. 
 Teal, 1809, 11 East, 307. 
 Thody, 1674, 1 Ventr. 234. 
 Thomas, 1824, 1 C. & P. 472. 
 Thompson, 1851, 16 Q. B. 832. 
 Thorp, 1697, 5 Mod. 221. 
 Timberley and Childe, 1663 (or 
 
 Kimberty), 1 Sid. 68 ; 1 Lev. 62 ; 
 
 IKeb. 203; 1 Keb. 254. 
 Timothy, 1858, 1 F. & E. 39. 
 Turner, 1811, 13 East, 228. 
 Vertue v. Lord Clive, 1769; 4 Burr. 
 
 2472. 
 
 Vincent, 1839, 9 C. & P. 91. 
 Wade V. Broughton, 1814, 3 Ves. 
 
 & B. 172; S. P. 1 Ves. & B. 292. 
 Wakefield, 1827, 2 Lew. 1. 
 Walsby v. Anley, 1861, 3 E. & E. 
 
 516; 30 L. J., M. C. 121. 
 Warburtan, 1870, L. B., 1 C. C. 
 
 274. 
 Ward, 1844, 1 Cox, 101. 
 Watson, 1817, 2 St. 116. 
 Wheatley, 1761, 2 Burr. 1127; 1 W. 
 
 Bl. 273. 
 Whitehead, 1824, 1 C. & P. 67. 
 Whitehouse, 1852, 6 Cox, 38. 
 Wood V. Bowron, 1866, L. E., 2 Q. B. 
 
 21. 
 Wright, 1849, 14 Q. B. 148. 
 Yates, 1853, 6 Cox, 441. 
 Toung, 1780 (?), cited in 1788, 
 
 JLynn, 2 T. R. 733. 
 
 Note.— The cases of Lord Grey (1682) and Maccarty (1705J are inserted 
 in these lists of cases because they are cited by East and other writers as 
 cases of conspiracy But Maccarty's Case is in truth only an example of 
 an indictment for a cheat before the rule was established that private cheats 
 were not indictable at common law (see sup. p. 10). The indictment is set 
 out in 2 Ld. Baym. 1179, and it contains nothing about conspiracy or agree- 
 ment, but only the word msimul, which is never used to describe conspi- 
 racy, but only a joint crime. In Lord Grey's Case the word "conspirantes" 
 occurs merely by way of aggravation in one of the inducements, and nothing 
 is said about conspiracy throughout the case except in the recital of the 
 indictment by the counsel who opened it. The direction of the L. C. J, 
 Pemberton plainly shows that the case was regarded merely as a case of 
 abduction and procurement of the then crime of adultery. Precedents of 
 indictments against sole defendants for adultery will be found in Tremayne. 
 It is true that there was not in law any criminal abduction, for the lady 
 was seventeen, and not an heir apparent nor a ward of court: but the true 
 meaning of " guardianship by nature" had not then been established by 
 Hargrave (on Co. Lit. 88 b). 
 
 Attorney General. " This case, my lord, is in the nature of a ravishment 
 of ward, for it is for taking a young lady out of the tuition and custody of 
 her father, who is her guardian by nature." 
 
 L. C. J. Pemberton. " Look you, gentlemen of the jury, here is an inforr 
 
LISTS OF CASES. 107 
 
 mation on the behalf of the king against my Lord Grey and the other de- 
 fendants ; and it doth set forth that my Lord Grey having married one of 
 the daughters of the Earl of Berkeley, and having opportunity of coming to 
 the Earl of Berkeley's house, he did unlavi^fuUy solicit the Lady Henrietta, 
 another daughter of thq Earl of Berkeley's, a young lady, to unlawful love; 
 and that he did entice her from her father's house; and that he did cause 
 her to be conveyed away from thence against her father's consent ; and 
 that he did unlawfully use her company afterwards in a very ill manner ; 
 and this, gentlemen, is the substance of the information ; in truth, it is 
 laid, that he did live in fornication with her. • • • Now, then, the 
 question before you is, whether there were any such unlawful solicitation 
 of this lady's love ; and whether there was any inveiglement of her to with- 
 draw herself and run away from her father's house without his consent ; 
 and whether my Lord Grey did at any time frequent her company after- 
 wards." 
 
LONDON! 
 PRINTED BY C. ROWORTH AND SONS, 
 NEWTON STREET, W.C. 
 

 Date Due 
 
 
 MWf 18 7? 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Library Burea 
 
 jCat. No. 1137 
 
 

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