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 The development of the English law of co 
 
 3' 1924 002 402 083 
 
THE LIBRARY 
 
 OF THE 
 
 NEW YORK STATE SCHOOL 
 
 OF 
 
 INDUSTRIAL AND LABOR 
 
 RELATIONS 
 
 AT 
 
 CORNELL UNIVERSITY 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924002402083 
 
THE DEVELOPMENT OF THE ENGLISH LAW OF 
 
 CONSPIRACY 
 
SERIES XXVII NOS. 3-4-5 
 
 JOHNS HOPKINS UNIVERSITY STUDIES 
 
 IN 
 
 Historical and Political Science 
 
 Under the Direction of the 
 
 Departments of History, Political Economy, and 
 Political Science 
 
 THE DEVELOPMENT OF THE ENGLISH 
 LAW OF CONSPIRACY 
 
 BY 
 
 JAMES WALLACE BRYAN 
 
 PRO^eP'W OF LIBRARY 
 
 NEW YORK STATE SCHOOL 
 IND(f'STRfAL Af^D LAGOS RELATIONS 
 
 CORNELL UNIVERSITY 
 
 BALTIMORE 
 THE JOHNS HOPKINS PRESS 
 
 PUBLISHED MONTHLY 
 
 Alarch-April-AVay, igog 
 
 fA.D. 
 
Copyright 1909 by 
 THE JOHNS HOPKINS PRESS 
 
 PRESS OF 
 
 The new Era printing cohpahv 
 lancaster. pa. 
 
CONTENTS. 
 
 Page. 
 PREFACE 7 
 
 CHAPTER I. Origin and Early History of the Law of 
 Conspiracy, to the End of the Reign of 
 Edward I.., 9 
 
 CHAPTER II. The Growth and Decay of the Civil Action 
 
 of Conspiracy 23 
 
 CHAPTER III. The Criminal Law of Conspiracy from the 
 Reign of Edward I to the Beginning of 
 THE Nineteenth Century 51 
 
 CHAPTER IV. The Criminal Law of Conspiracy in the 
 
 Nineteenth Century 82 
 
 CHAPTER V. Combinations of Labor 115 
 
 HI) 
 37 
 
PREFACE. 
 
 The following pages contain the results of a study of 
 the English law relating to criminal conspiracy, begun in 
 the spring of 1906, and continued with little interruption 
 until May, 1908. The author's purpose has been to present 
 an exhaustive discussion of the subject based upon an ex- 
 amination of all the available material extant. Accordingly, 
 he has considered every relevant statute and case, from the 
 earliest to the latest, which a careful search through ancient 
 and modern law writings has enabled him to bring to light. 
 
 There is scarcely a more complex topic in the entire 
 domain of British national jurisprudence than that of illegal 
 combinations. The law relating to them has been more than 
 ordinarily the creature of accident and special conditions. 
 The resultant contradiction and confusion introduced into 
 the cases renders extremely difficult the task of extracting 
 the underlying principles, tracing their rise and growth, and 
 giving an intelligible account of the causes which have de- 
 termined their subsequent history. 
 
 The author desires to acknowledge his indebtedness to 
 Professor W. W. Willoughby for the inspiration which 
 made the work possible, as well as for his helpful sugges- 
 tions and unfailing friendly interest. 
 
THE DEVELOPMENT OF THE ENGLISH 
 LAW OF CONSPIRACY. 
 
 CHAPTER I. 
 
 Origin and Early History of the English Law of 
 
 Conspiracy to the End of the Reign 
 
 of Edward I. 
 
 Our first definite and reliable information regarding the 
 conception of conspiracy in English law is found in sev- 
 eral ordinances and statutes passed during the reign of 
 Edward I. This fact has accordingly led some authorities, 
 notably Mr. Justice Wright, to beheve that the crime of 
 conspiracy was created by these enactments. Others are 
 equally emphatic in claiming for the offense a common-law 
 origin antedating the statutes, and a scope extending far 
 beyond the limits marked out by them. It will be our 
 duty, therefore, to examine the grounds of this conflict of 
 opinion and to endeavor to find out the real truth of the 
 matter. This we shall do by setting out what is known 
 of the law of conspiracy before the passage of the Ed- 
 wardian statutes, and then discussing the effects which 
 these acts appear to have really produced. 
 
 The statutes bear internal evidence that they are in- 
 tended to deal with an offense not entirely unknown to the 
 law. Not until the third statute is the attempt made to de- 
 fine conspiracy. The first Ordinance of Conspirators, anno 
 21 Edward I, provides a remedy against " conspirators, in- 
 ventors and maintainers of false quarrels and their abettors 
 and supporters and having part therein, and brokers of 
 debates." The Articuli super Chartas, 28 Edward I, Stat. 
 3, C. 10, is no more explicit in its mention of " conspirators, 
 false informers, and evil procurers of dozens, assizes, in- 
 
 9 
 
lo Development of the English Law of Conspiracy. [142 
 
 quests and juries." It is obvious that the execution of these 
 acts with justice and uniformity would have been im- 
 possible in the absence of an already existing body of cus- 
 tom supplying a more or less accurate description of the 
 offense denounced. An even clearer reference to extra- 
 statutory legal principles relating to conspiracy seems to 
 be embodied in a clause in the famous Definition of Con- 
 spirators, 33 Edward I (1304), directing "that justices as- 
 signed to the hearing and determination of felonies and 
 trespasses should have the transcript hereof." Since, as 
 we shall see, the two former statutes had provided only 
 civil remedies against conspirators, the criminal liability 
 evidenced by the Definition's being supplied to the criminal 
 justices could have arisen only from the common law.^ 
 
 The inference that the law had begun at a very early 
 period to take cognizance of the special dangers to be ap- 
 prehended from concerted evil-doing is supported by pos- 
 itive testimony. Thus, we find that plotting against the life 
 of the king or of a lord was punished by the Anglo-Saxon 
 laws.'' Passing to a later period, we are shown in the 
 record of the Shropshire Eyre for the year 122 1 a case 
 strikingly similar to a modern boycott.^ The word " con- 
 spirator " is first met in the Mirror of Justices,* written be- 
 tween the years 1285 and 1290. In the chapter entitled 
 " The View of Frankpledge," hundredors are directed to 
 
 'This conclusion is strengthened by the fact that the "villanous 
 judgment," subsequently rendered against conspirators convicted 
 at the suit of the king, is given by no statute, and was believed 
 by Lord Coke and Serjeant Hawkins to have been derived from the 
 common law. Coke, 3 Inst., Cap. 66, p. 143; Cap. loi, p. 222; 
 Hawkins, Pleas of the Crown (Ed. 1762), Bk. i, Ch. 72, f. 193. 
 
 ""Laws of King Alfred, Ch. 4; Laws of King Aethelstan, Ch. 4. 
 
 'The Abbot of Lilleshall complained to the justices of gaol 
 delivery "that the bailiffs of Shrewsbury do him many injuries 
 against his liberty and that they have caused proclamation to be 
 made in the town that none be so bold as to sell any merchandise 
 to the Abbott or his men upon pain of forfeiting ten shillings, so 
 that Richard Peche, the bedell of the said town made this procla- 
 mation by their orders." The defendants all denied the charge; 
 but the " bedell " was ordered to defend himself by the oaths of 
 eleven compurgators. The abbot, however, " remitted the law." 
 Select Pleas of the Crown (Selden Soc.). 
 
 'Mirror of Justices (Selden Soc. Pub.), Ch. 17. 
 
143] Origin of English Law of Conspiracy. 1 1 
 
 assemble once a year all the men of their hundreds in 
 order to inquire of the various " sins against the holy- 
 peace;" among them, " of conspirators, and all other articles 
 which may avail for the destruction of sin." Britton" in- 
 cludes in his discussion of pleas of the crown a chapter upon 
 certain conspiracies or " alliances " to the hindrance of 
 justice; and Bracton' makes mention of the offense of 
 " conspiracy " by name. 
 
 These passages, all of which antedate the passage of 
 the first Ordinance of Conspirators in 1294, clearly evi- 
 dence a conception of conspiracy which had attained to 
 some growth in the. virgin soil of the common law quite 
 independently of the Edwardian statutes.'' 
 
 While claiming for conspiracy an origin in extra-statu- 
 tory law, however, we must be careful to avoid the com- 
 mon error* of holding that the ancient law had developed 
 a conception of the offense in any degree as advanced as 
 that which we have today. The modern law upon the sub- 
 ject is the result of a painful course of evolution lasting 
 many centuries. It has been gradually worked out by the 
 interaction of statutory enactment with judicial elaboration, 
 guided by the circumstances of its history. In order to 
 tell the story of its evolution, therefore, we must examine 
 the condition of the law relating to unlawful combinations 
 as it stood just before the passage of the statutes. 
 
 At this period the law had already assumed the aspect 
 which it was to exhibit for some time afterward. Con- 
 spiracy was limited to combinations whose object was to hin- 
 der or pervert the administration of justice. Explicit in- 
 
 'Britton (Nichols Ed.), p. 79. 
 
 'De Legibus et Consuetudinibus Anglise (Twiss Ed.), Vol. 2, pp. 
 335-7. 
 
 ' Noteworthy also is the absence of any but a single statement 
 (see argument of counsel in Y. B. 3 Edw. II, f. 81) in the ancient 
 writings that conspiracy originated in these statutes. On the other 
 hand, references by counsel, court and commentator to the common- 
 law origin of the offense, in the later Year Books and in the 
 later authorities, are found in abundance. 
 
 'Strikingly exemplified in State vs. Buchanan, S H. & J. 317, 
 the leading American case upon conspiracy. 
 
12 Development of the English Law of Conspiracy. [144 
 
 formation upon this subject is derived from Britton.' In 
 the passage previously referred to, he says : " Let it be also 
 inquired concerning confederacies between the jurors or 
 any of our officers, or between one neighbor and another, to 
 the hindrance of justice; and what persons of the county 
 procure themselves to be pyt upon inquests and juries and 
 who are ready to perjure themselves for hire or through 
 fear of any one; and let such persons be ransomed at 
 our pleasure and their oath never after be admissible." 
 It is an offense of the same narrow scope which is pictured 
 in the statutes of Edward and in the great majority of 
 the early cases in the Year Books.^" 
 
 It is not probable that the courts of the period under 
 examination ever took cognizance of conspiracies to com- 
 mit the more serious crimes, such as murder, robbery, arson, 
 and other felonies. During the reigns between the Norman 
 Conquest and the accession of Edward I crime was exceed- 
 ingly rife. Civil war was common. The country swarmed 
 with outlaws, who rendered life and property insecure and 
 
 ° Op. cit, Bk. I, Ch. 22. 
 
 "We can readily conjecture why the fact should be so. From 
 the very earliest times the law of England had always been par- 
 ticularly severe in denouncing false accusations in a court of justice, 
 and the newly founded supremacy of the royal over the communal 
 courts, which had become nearly complete during the reigns of 
 Henry III and Edward I, doubtless heightened the enormity of 
 these offenses. The improved methods of procedure in the king's 
 courts, the increase in litigation caused by the restoration of order 
 and the establishment of a regular judicature, and especially the 
 vigor and effect with which the judgments of the courts were 
 enforced, would naturally render false accusations, vexatious suits, 
 and fraudulent perversions of justice not only more frequent but 
 also far more serious than they had formerly been. The criminal 
 law was harsh in its treatment of suspected felons, and was not 
 so solicitous as it is now that the accused should be given every 
 chance to prove his innocence. Hence a perversion of the new 
 process of indictment would furnish a ready means of paying off 
 an old grudge. The multiplication of cases of this kind would 
 soon attract the attention of the judges and would make them 
 desirous of finding some method whereby this employment of the 
 machinery of the law as an engine of oppression might be stopped. 
 Now such enterprises almost always require the cooperation of a 
 plurality of performers. Hence, the judges would soon observe 
 that the false prosecution mi^ht be in some degree hindered by 
 an interference with the original combination. In this way the 
 conspiracy would in time come to be considered as at least an 
 element in the offense, and punished as such. 
 
145] Origin of English Law of Conspiracy. 13 
 
 travelling hazardous. The civil authorities, consequently, 
 had to put forth their utmost exertions to punish the actual 
 perpetration of such outrages. Under these conditions 
 the idea of punishing mere agreements to commit crimes 
 would scarcely arise. Such a thing would not be attempted 
 until the supremacy of the law had become so firmly estab- 
 lished that the punishment of actual wrong-doing was regu- 
 lar and certain and opportunity was left for positive at- 
 tempts at prevention. Not until the crime had been com- 
 mitted would the law be invoked; and then the malefactor 
 would be subjected to the penalty prescribed for his mis- 
 deed, with little attention to any conspiracy or other thing 
 preceding, except possibly in so far as it might constitute 
 matter of aggravation. As for combinations to defraud, 
 we must recollect that at the time of Henry III there was 
 no legal remedy for cheating and deception.^^ In the early 
 stages of the law it is not to be supposed that the confed- 
 eracy to perform an act not itself judicially cognizable 
 would be considered a crime. Hence we have every reason 
 to believe that a conspiracy in pre-Edwardian times in- 
 cluded no more than what is mentioned by Britton and ex- 
 emplified in the Year Books — combinations to defeat justice. 
 There is no reference in the books which antedate the 
 first Ordinance of Conspirators to any but the criminal 
 aspect of conspiracy. Whether the law provided a civil 
 remedy for the offense cannot be known with certainty. It 
 seems clear that the royal courts had developed no such 
 remedy before the statutes. Neither Glanville, Bracton, 
 Britton, nor Fleta refers to it, though they all treat ex- 
 clusively and exhaustively of the law administered in those 
 tribunals. Moreover, the writ which is provided by the 
 Ordinance concludes with the phrase " contra formam 
 statuti." It is quite possible, however, that civil actions 
 were entertained in the county, hundred, and feudal courts 
 for the redress of wrongs originating in unlawful combina- 
 tions; if not generally, yet under certain conditions or in 
 certain localities. But no positive proof upon this point 
 
 " Pollock & Maitland, " History of English Law," Vol. 2, p. 538. 
 
14 Development of the English Law of Conspiracy. [146 
 
 can be adduced. Since none of these local tribunals were 
 " courts of record," we have very little information in re- 
 gard to the various customs recognized and enforced by 
 them. Indeed, the older law so confused civil and criminal 
 procedure that in speaking of a " civil " action of conspir- 
 acy at the period under discussion we may be guilty of an 
 anachronism. 
 
 Modern law treats as a crime the mere combination to 
 do certain acts. The offense is complete as soon as the 
 agreement is formed, and is wholly distinct from any act 
 performed in pursuance of it. The ancient law was other- 
 wise. The conspiracy was an element to be taken into 
 account, but was not in itself a complete crime. For this 
 statement we have the authority of Bracton.^^ Writing of 
 .principal and accessory in criminal prosecutions, he states ■ 
 that the accessory may not be put to answer until the princi- 
 pal has been tried ; " because," he adds, " where there is 
 a principal party, there may sometimes be an accessory, 
 but never an accessory where there is no principal party, 
 because where a principal act has no existence, things con- 
 sequent on it can have no place, as may be said of precept, 
 conspiracy, and such like, because these things may occur 
 even without any act, and are sometimes punished if an act 
 is subsequent, but without any act not so, like the saying: 
 ' For what harm did the attempt cause, since the injury took 
 no effect ? ' Nor ought precept, conspiracy, precept and 
 counsel to do harm, unless some act follows." Traces of 
 this principle linger long after the reign of Edward I. In 
 1368 (42 Edw. III)^' we find a case arising upon a writ of 
 conspiracy in which the argument is made by counsel and 
 assented to by the court that a mere " parlaunce " of con- 
 spiracy without an act in execution of it is not an indictable 
 offense. The preamble to the statute 3 Henry VII, C. 14 
 (i486), declaring conspiracies to destroy the king or his 
 great officers to be felonies recites that such conspiracies are 
 frequent, and that " by the law of this land if actual deeds 
 
 "Op. cit., Vol. 2, pp. 33S-7. 
 "Year Book, 42 Edw. Ill, fol. 14. 
 
147] Origin of English Law of Conspiracy. 15 
 
 be not had, there is no remedy for such false compassings, 
 imaginations, and confederacies against any Lord, etc. . . . 
 and so great inconveniences might ensue if such ungodly 
 demeanings should not be straitly punished before that 
 actual deed be done." At the time of this statute, and even 
 of the case cited, the tendency to hold the combination pun- 
 ishable apart from the act performed by it was becoming 
 noticeable. The citations given, however, sufficiently evi- 
 dence the older rule that the bare conspiracy was not sub- 
 ject to the animadversion of the courts." 
 
 The above pages present a complete inventory of such 
 information regarding the ancient common-law conception 
 of conspiracy as can be gleaned from the scanty evidence 
 that has come down to us. We must now take up and ex- 
 plain the contents and effect of the Edwardian statutes of 
 conspiracy. 
 
 The first of these, passed in 1293 (21 Edw. I)," is usually 
 spoken of as the Ordinance of Conspirators. Its provisions 
 are as follows : " As to those who may desire to complain 
 of conspirators, procurers of pleas maliciously to be moved 
 in the country, as well as of brokers who maliciously main- 
 tain and sustain such pleas and contumelies that they may 
 thence have part of the land or any other benefit, let them 
 come before the justices assigned to the pleas of our Lord 
 the King and there let them find security for prosecuting 
 
 "That even the criminal law punished, conspiracy only after the 
 performance of an overt act is rendered probable by the fact that 
 until about the time of Charles II the large majority of the con- 
 spiracy cases in the books are civil actions for damages. In the 
 nature of things, for the purposes of a civil suit the importance 
 of the act done must be greater than the mere combination to do 
 it. The influence of this principle is seen in the rule that a writ 
 of conspiracy would not lie unless the plaintiff had been actually 
 accused of a felony before a competent tribunal and legally ac- 
 quitted by the verdict of a jury. As the criminal law of conspiracy 
 closely followed the principles worked out in the civil courts touch- 
 ing other aspects of the offense, the influence of this great principle 
 also must have affected the attitude of the criminal courts toward 
 the same matter. It is profoundly significant that when the criminal 
 law governing unlawful combinations began to widen, new cases 
 were brought in under the name of " confederacy." For many years 
 "conspiracy" had the technical meaning assigned to it by the civil 
 courts in connection with cases arising upon writs of conspiracy. 
 
 " I Rot. Pari., p. 96. 
 
i6 Development of the English Law of Conspiracy. [148 
 
 their plaint. And let the Sheriff be commanded by the writ 
 of the Chief Justice and under his seal that they [i. e., the 
 defendants] be before the King at a certain day ; and there 
 let swift justice be done. And let those who shall be con- 
 victed of this be severely punished according to the discre- 
 tion of the justices aforesaid, by imprisonment and ransom; 
 or let such plaintiffs, if they so desire, await the iter of the 
 justices in their neighborhood, and there let them pursue 
 their remedy." 
 
 This ordinance appears among the statutes of uncertain 
 date in a slightly altered form :" " Our Lord the King at 
 the information of Gilbert de Roubery, clerk of his council, 
 hath commanded that whoever will complain of conspirators, 
 inventors, and maintainers of false quarrels, and their abet- 
 tors and supporters and having part therein, and brokers 
 of debates, that persons so grieved and complaining shall 
 come to the chief justices of our Lord the King, and shall 
 have a writ of them, under their seals, to attach such 
 offenders to answer to the parties grieved so complaining 
 before the aforesaid justices; and such shall be the writ 
 made for them: [Here follows the writ; see p. 26, n. 3.] 
 And if any be thereof convicted at the suit of such complain- 
 
 '°Bigelow, in his " Cases on the Law of Tort" (p. 211), speaks of 
 this act as having been passed " about the same time " as the 
 Articuli super Chartas. Italicizing the phrase in the writ given by 
 the former act, " secundum ordinationem nostram nuper inde pro- 
 visam," he continues: "From this it appears that this statute 
 (which is classed among those of uncertain date) was subsequent 
 to that of the 21 Edw. I, and that the first act above mentioned 
 was designed to afford an ample private remedy to the person ag- 
 grieved, as well as a public prosecution." 
 
 The better opinion seems to be, however, that this ordinance is 
 not a new enactment, but an inexact transcript or reproduction of 
 the 21 Edw. I, with the addition of a specific writ subsequently de- 
 vised. None of the other authorities mention any ordinance passed 
 between 21 and 28 Edw. I. The instrument under discussion states 
 only that the king " hath commanded," etc. ; it does not direct 
 anything to be done, beyond saying that " such shall be the writ 
 made for them." The contents of the instrument are practically 
 identical with those of 21 Edw. I, except for the writ. So one is 
 forced to conclude that this instrument is nothing but a recital 
 of the Act of 21 Edw. I, accompanied by a definite writ to be 
 used in the premises. 
 
 On the dates of these ordinances, see notes in i Statutes at Large 
 (Tomlins), pp. 256, 292, 399. 
 
149] Origin of English Law of Conspiracy. 17 
 
 ants, he shall be imprisoned till he hath made satisfaction 
 to the party grieved, and he shall also pay a grievous fine 
 to the King." An incorrect and incomplete version of the 
 same ordinance is also appended to the Statute of Cham- 
 perty,^^ and wrongly attributed to the thirty-third year of 
 Edward I. 
 
 Whether the last two of these instruments are but inex- 
 act transcripts of the first, or whether they reenacted it 
 with the addition of a specific writ, the purpose of the group 
 was to provide a civil action in the royal courts for damages 
 caused by the acts of unlawful combinations of malefac- 
 tors. No especial significance is to be attached to the pro- 
 visions for fine and imprisonment to be inflicted upon those 
 found guilty of conspiracy in these proceedings. Such 
 penalties were commonly inflicted upon unsuccessful parties 
 to a civil action, and they only bear testimony to the indis- 
 tinctness of the line drawn between civil and criminal pro- 
 cedure in early English law. 
 
 The next statute that deals with conspiracy is the Arti- 
 cuH Super Chartas, 1300 (28 Edw. I, Stat. 3, C. 10).^* 
 It provides as follows : " In regard to conspirators, false 
 informers, and evil procurers of dozens, assizes, inquests, 
 and juries, the King hath ordained remedy for the plain tififs 
 by a writ out of the chancery. And notwithstanding, he 
 willeth that his justices of the one bench and of the other, 
 and justices assigned to take assizes, when they come into 
 the country to do their office, shall upon every plaint made 
 unto them, award inquests thereupon without writ, and shall 
 do right unto the plaintiffs without delay." This act is 
 evidently intended to improve the remedy previously es- 
 tablished by permitting actions of conspiracy to be begun 
 without^vrits. What its effect was cannot be known with 
 c^rfeinty. One or two allusions in the earlier Year Books 
 would 'indicate some doubt in the minds of the judges 
 whether the action by writ of conspiracy was intended to 
 be entirely superseded by the new remedy. This doubt, 
 
 "33 Edw. Ill, C. 3 (1305) ; I Statutes at Large, p. 150. 
 "l Statutes at Large (Tomlins), p. 283. 
 
 2 
 
1 8 Development of the English Law of Conspiracy. [150 
 
 however, seems to have been resolved in favor of the older 
 action. All the cases in the Year Books (except a few crim- 
 inal prosecutions) were begun by writs ; and there is nothing 
 to show that the liew procedure was ever followed at all.^" 
 We come now to the statute which for the first time tells 
 us something regarding the exact nature of the offense of 
 conspiracy. This is the famous Definition of Conspirators, 
 made in 1304 (33 Edw. I, Stat. 2),"" which served as the 
 very basis of the law for a long time after its passage. It 
 states " who be conspirators " in these words : " Conspira- 
 tors be they that do confeder or bind themselves by oath, 
 covenant or other alliance that every of them shall aid and 
 support the enterprise of each other falsely and maliciously 
 
 " Of this statute Fitzherbert says : " There is also another writ 
 of conspiracy which is given upon -the statute called Articuli super 
 Chartas, 28 Edw. I, cap. 10, which writ shall be directed unto the 
 justices of assize to enquire of the conspiracy; and the writ shall 
 be such: 
 
 "The king to his beloved and faithful W. of S. and his com- 
 panions, etc., assigned, greeting: Whereas among other articles 
 which Lord Edward, formerly king of England, our grandfather, 
 granted for the amendment of the estate of his people, it is ordained, 
 that of conspirators, false informers [etc., following the sub- 
 stance of the statute], as in the articles aforesaid is more fully con- 
 tained: We, willing that the said articles in all things to be in- 
 violably observed, command you that having looked into the 
 ordinance aforesaid, you further willingly do, at the prosecution 
 of all and singular persons complaining before you, that, which 
 according to the form of the ordinance aforesaid shall be fit to 
 be done. Witness, etc. 
 
 " And upon that he shall have an alias and pluries, and attachment 
 against tbe mayor or sheriff, etc., if they do not according to the 
 writ sent unto them, or return the cause why they cannot do the 
 same; and it seemeth reasonable that the party in prison should 
 have an action upon that statute against the recognizor, if he 
 find him not bread and water in prison, etc., according to the 
 statute." De Natura Brevium (gth edition, 1762), f. 116. 
 
 No case is cited referring to the statute, and there is nothing in 
 the books to show the manner in which it operated in practice. Its 
 importance, if it ever had any, was doubtless destroyed by the 
 decadence of the civil action of conspiracy. After this had been 
 displaced by the action on the case, suits for damages caused by 
 false accusations, etc., were brought in the more flexible proceeding, 
 while prosecutions for conspiracy were begun by indictment or 
 information. Thus the older procedure, which partook of the nature 
 both of a civil and of a criminal remedy, was left no sphere in which 
 it could operate. 
 
 "i St. at L., p. 292 (Tomlins Ed.) ; i St. at L. (Ruifhead Ed.), 
 pp. 149-S0. 
 
I si] Origin of English Law of Conspiracy. 19 
 
 to indite, or cause to be indited, or falsely to acquit people, 
 or falsely to move or maintain pleas ; and also such as cause 
 children within age to appeal men of felony, whereby they 
 are imprisoned and sore grieved; and such as retain men 
 in the country with liveries or fees for to maintain their 
 malicious enterprises and to suppress the truth; and this 
 extendeth as well to the takers as to the givers. And 
 stewards and bailiffs of great lords, which by their seig- 
 nory, office or power undertake to bear or maintain quar- 
 rels, pleas or debates for other matters than such as touch 
 the estate of their lords or themselves. This ordinance and 
 final definition of conspirators was made and accorded by 
 the king and his council in his Parliament the thirty-third 
 year of his reign. And it was further ordained, that jus- 
 tices assigned to the hearing and determination of felonies 
 and trespasses should have the transcript hereof." 
 
 There are a few other early statutes relating to con- 
 spiracy. These, however, are of but little importance for 
 our present purpose.^^ 
 
 ^On November 27, 1330 (Stat. 4 Edw. Ill, C. 11; i St. at L., 
 Ruffhead, p. 204), a statute was passed which extended the 
 criminal remedy for conspiracy. This act will be discussed presently. 
 Fourteen years later (1344, 18 Edw. Ill, Stat, i), it was declared 
 that exigents should be awarded against " conspirators, confeder- 
 ators and maintainers of false quarrels." In the seventh year of 
 Henry V (St. 7 Hen. V; i St. at L., 510) the civil remedy was im- 
 proved by an act directing that, on account .of the frequency of 
 prosecutions by conspirators for felonies alleged to have been com- 
 mitted " in a place where there is none such," justices shall notice ex 
 officio whether there is any such place as that named in the appeal 
 or indictment; and if not, the process shall be void, the accused 
 shall have writs of conspiracy against their " indictors, procurers 
 and conspirators," and these shall be also punished by imprisonment, 
 fine and ransom for the benefit of the king. This act was con- 
 tinued by 9 Hen. V, St. i, C. i (1421), and made perpetual bv 
 St. 18 Hen. VI, C. 12 (1439). 
 
 By St. 6 Hen. VI, C. i (1427), reciting that many people are 
 falsely indicted by conspirators, the time within which a capias is 
 returnable and an exigent awarded is extended, and the capias is 
 issued to the sheriff of the county in which the crime was alleged 
 to be committed, as well as to the sheriff of the county in which 
 the accused resides. 
 
 Finally, by Stat. 8 Hen. VI, C. 10 (1429), which recites that many 
 persons are falsely accused of felony in a county or franchise other 
 than that in which they reside, and are outlawed, further safeguards 
 in the way of notice and delay before exigents shall issue are pro- 
 
20 Development of the English Law of Conspiracy. [152 
 
 The real purpose and effect of the Edwardian statutes 
 may be briefly summarized as follows : Although the civil 
 action of conspiracy in the royal courts provided by the 
 Ordinance of 21 Edward I and the Articuli super Chartas 
 was probably an innovation, the Definition of Conspirators 
 was in the nature of a codification of existing law. The 
 conception of conspiracy which appears in the Definition, 
 and in the later statutes which slightly extend and improve 
 it, is but little in advance of that attained by Bracton and 
 Britton. So we may be permitted to believe that these 
 ordinances were intended to set out the entire law of con- 
 spiracy as it was then understood.^^ In other words, the 
 
 vided, and persons acquitted upon such prosecutions are given an 
 action upon the case against the procurers of such indictments and 
 are allowed to recover treble damages. 
 
 ^ The contrary view is taken by Buchanan, J., in the great Amer- 
 ican case upon conspiracy. State vs. Buchanan et al., 5 H. & J. 
 (Md.) 317, decided in 1821. Speaking of the Definition of Con- 
 spirators, 33 Edw. I, he says (p. 335) : " It is equally clear, that 
 the statute does not embrace all the ground covered by the common 
 law. Who doubts, or was it ever questioned, that a conspiracy to 
 commit any felony is an indictable offense; as to rob or murder, 
 to commit a rape, burglary or arson, etc., or a misdemeanor, as 
 to cheat by false public tokens, etc.? . . . Yet such cases of con- 
 spiracy are not made punishable by any statute, and are only in- 
 dictable at common law; which could not be if the statute 33 
 Edw. I either furnished a definition of all the conspiracies in- 
 dictable at common law, or restricted and abridged the latter, by 
 rendering dispunishable, all such as it does not define. . . . The 
 statute, therefore, must be considered either as declaratory of the 
 common law only, so far as it goes, for the purpose of removing 
 doubts and difficulties which may have existed in relation to the 
 conspiracies it enumerates, by giving them a particular and definite 
 description: or as superadding them to other classes of conspiracy 
 already known to the common law, leaving the common law in 
 possession of all the ground it occupied beyond the provisions of 
 the statute. And so it has been Uniformly understood in England, 
 from the earliest down to the latest decision that is to be found 
 on the subject; otherwise the Judges could not have sustained a 
 great proportion of the prosecutions for conspiracy, with which the 
 books are crowded; in some of which the objection, that the matter 
 charged was not withio the statute 33 Edw. I, was made and over- 
 ruled, as will be hereafter shown." 
 
 It will be noted that the phrase "common law" may be un- 
 derstood in two senses. It may refer to the customary law exist- 
 ing before the Definition of Conspirators, or it may mean the 
 entire body of principles developed and applied by the courts at 
 any one period. Now Judge Buchanan is right in saying that 
 conspiracy is largely of common-law origin, understanding the term 
 in the second of these senses. But this does not commit us to 
 
I S3] Origin of English Law of Conspiracy. 21 
 
 essential purpose of the Edwardian statutes was to render 
 clear and certain the already existing principles of the 
 common law relating to unlawful combinations, and to 
 create and improve the judicial machinery through which 
 that law was to be administered.^' 
 
 It is difificult to say just what was the ultimate effect of 
 
 the position that the Definition of 33 Edw. I covered only a part of 
 what was known to be law in regard to conspiracy at that time. 
 The unsoundness of this opinion appears almost beyond question 
 when we examine what evidence has been preserved to us. As the 
 cases increased, and other conspiracies than those to enter false 
 accusations were brought before the courts, the judges extended 
 the law to embrace them. But this was. clearly a process of judi- 
 cial legislation, as appears from the manner in which this ex- 
 tension took place. (See Ch. III.) Thus there was developed a sup- 
 plementary body of unwritten law which soon outstripped the 
 statutes and furnished ample authority to support Judge Buchan- 
 an's decision in the case under discussion. It did not make any 
 real difference, therefore, in this case whether the Edwardian 
 statutes did or did not embody all the then law relating to con- 
 spiracy. Indeed, all that Judge Buchanan needed to hold, in any 
 event, was that the Definition did' not render "dispunishable" all 
 combinations except those which it mentions. 
 
 ^Wright, in his monograph entitled "The Law of Criminal Con- 
 spiracies and Agreements," says (p. 5) : " There appears to be no 
 evidence that, during_ the first of these periods [1200-1600], any 
 other crime of conspiracy or combination was known to the com- 
 mon law than that which was authoritatively and ' finally ' defined 
 in A. D. 1305 by the Ordinance of Conspirators, 33 Ed. I, as con- 
 sisting in confederacy or alliance for the false and malicious pro- 
 motion of indictments and pleas, or for embracery or mainten- 
 ance of various kinds." This statement is substantially true, 
 though a tendency to broaden the offense appears during this 
 period. 
 
 Mr. Justice Wright, however, is in error in his opinion that " even 
 the civil writ of conspiracy appears not to have been extended 
 until the seventeenth century to any matters beyond the purview 
 of the 33 Edw. I" (ibid., p. 12). On the contrary, as is shown in 
 Chapter II of the present study, as early as the reign of Edward 
 III the civil action was entertained for several matters not within 
 the statute; whereas by the seventeenth century it had been prac- 
 tically displaced by the new action on the case in the nature of 
 a conspiracy. 
 
 He also gives several reasons which he considers to be "nearly 
 conclusive that the crime of conspiracy was created by statute, and 
 that no such crime was known to the common law." Without taking 
 these up in detail, we may state that they do not, in our opinion, 
 sustain his contention. A careful examination of all the evidence 
 at our disposal seems amply to justify the conclusion stated in the 
 text: that the Edwardian statutes merely gave definite and au- 
 thoritative expression to a conception which had already arisen in 
 the common law, and which retained its essential features for 
 many years after the passage of these enactments. 
 
22 Development of the English Law of Conspiracy. [iS4 
 
 these statutes upon the development of the conception of 
 conspiracy. They were doubtless both a help and a hin- 
 drance. At the time of their passage the law of conspiracy 
 was in a formative stage. The conception of the offense 
 had not as yet been logically and completely worked out 
 by the legal thought of the age. Hence, statutory expres- 
 sion may have been prematurely given to it, and so have 
 clothed it with a finality and a rigidity which prevented its 
 gradual improvement by the slow and silent processes of 
 the common law.^* This consideration may account for 
 the slow progress made by the law of conspiracy during 
 the next two hundred years, until new impetus was given 
 to it by the decisions of the Court of Star Chamber. Still, 
 it is probable that the total effect of the statutes upon the 
 law was, upon the whole, favorable to its growth. They 
 assigned it a definite place in the national jurisprudence, 
 provided suitable procedure for the trial and punishment 
 of conspirators, and prescribed adequate penalties for the 
 enforcement of the law. Many cases were consequently 
 drawn into the royal courts, whose decisions soon revealed 
 the defects in the old conception of conspiracy and called 
 attention to the possibilities of its future development. In 
 this way the statutes so greatly advanced the progress of 
 the law toward its modern form that they may be justly 
 said to be the most important factor in the early history of 
 conspiracy, though not the original source from which it 
 arose. 
 
 ^ This statement is not inconsistent with the undeniable truth 
 that the principles governing both the civil and the criminal rem- 
 edies for conspiracy were largely a product of judicial legislation. 
 The statutes undoubtedly confined the law within too narrow 
 limits, judged according to our present notions; but it required 
 elaboration and extension even within those limits. This is the 
 task to which the courts devoted themselves for some years after 
 the passage of the statutes; whereas, had these not been enacted, 
 the judges might have been widening the general conception of 
 conspiracy, leaving for a future time the settlement of its details. 
 
CHAPTER II. 
 
 The Growth and Decay of the Civil Action of 
 Conspiracy. 
 
 The statutes of Edward authorizing the royal courts to 
 entertain civil actions for the redress of certain injuries 
 inflicted by combinations of persons served as a foundation 
 upon which the courts reared a complex structure of un- 
 written law relating to conspiracy. Limitations as to space 
 forbid an enumeration of the steps whereby the old " strict " 
 or " formed " action of conspiracy was evolved. The proc- 
 ess was about completed by the time of Henry VII (1485). 
 It will be necessary, however, to examine the matured form 
 of the strict action as it appeared at this period, in order 
 that its inherent limitations and defects may be pointed out, 
 and the way opened for an intelligible account of the prog- 
 ress and causes of its decline and practical disappearance.^ 
 
 The action by writ of conspiracy could be brought by a 
 person who had been acquitted upon a false indictment 
 preferred by two or more persons acting in concert. It 
 also lay for a false appeal in which the plaintiff had been 
 non-suit. Nothing else than a technical acquittal by ver- 
 dict would support the action. If the plaintiff had gone 
 free by reason of a defective indictment, a charter of par- 
 don, or benefit of clergy, he had no standing in court. Even 
 if an appeal had been sued while the indictment was pend- 
 ing, and upon this appeal the accused had been acquitted, 
 wherefore the indictment also failed, he was not entitled to 
 his writ of conspiracy, because he had not been technically 
 
 ' The following description of the old strict action of conspiracy 
 is based upon a personal examination of sixty-odd conspiracy cases 
 in the Year Books of the period between the reign of Edward II 
 and that of Henry VIII. I have thought it best, however, not 
 to encumber the text with speciiic references, except in a few in- 
 stances, to the individual cases. These can be found in F. N. B., 
 f. 116. 
 
 23 
 
24 Development of the English Law of Conspiracy. [156 
 
 acquitted upon the indictment. In like manner, if a person 
 had been falsely indicted as an accessory to a crime, the 
 acquittal of his principal gave him (the accessory) a right 
 of action against the accusers ;' not so if the principal had 
 died before the rendition of a verdict or had escaped in any 
 of the ways mentioned above. The writ of conspiracy 
 could not be brought jointly by husband and wife, or by 
 two or more persons acquitted upon a joint indictment, 
 because the grievance was said to be several in all cases. 
 
 The writ of conspiracy lay only against two or more 
 defendants. Hence, if all the defendants but one were 
 found guiltless, he was necessarily discharged also. If, 
 however, one of two defendants had been discharged by 
 " matter of law " (i. e., in any other way than by acquittal 
 by verdict), or had died during the pendency of the action, 
 the plaintiff might still proceed to a judgment against the 
 other. Husband and wife, also, were held to constitute but 
 one person in the eye of the law, and they wCjre therefore 
 incapable of conspiring with one another. 
 
 Certain classes of persons were immune from actions of 
 conspiracy. The most important of these were the mem- 
 bers of the presenting jury, or " indictors," who had found 
 the indictment upon which the accused had been prosecuted. 
 Their protection was absolute, even if they had procured 
 themselves to be placed upon the inquest for the sole pur- 
 pose of indicting the plaintiff. In one case this protection 
 was allowed, by analogy, to the extendors in an elegit who 
 had conspired to deprive a person of his land by means of 
 a false extension. A qualified immunity could be claimed 
 by witnesses and other informers connected with the un- 
 successful prosecution. As long as these had acted under 
 compulsion of the law and in good faith, they were pro- 
 tected from suit; not so if they could be shown to have 
 been guilty of any collateral corruption, malice or covin. 
 Commissioned judges, justices of the peace, bailiffs and 
 other court officers who had assisted in the prosecution of 
 the accused occupied a very similar position. If they had 
 acted in pursuance of their duties and within the scope of 
 
157] Growth of Civil Action of Conspiracy. 25 
 
 their offices, they were exempt from suit; but if they had 
 gone outside of their duties, they might be held liable. In 
 the same way it appears that a " man of the law " could 
 not be charged with conspiracy by reason of advice ren- 
 dered a client which led to an indictment or an appeal, 
 provided he had acted in good faith and in the course of 
 his professional duty. 
 
 An action of conspiracy lay upon an acquittal by verdict 
 of a charge of felony or of treason. This is the principle 
 finally settled upon by the authorities. We find in the Year 
 Books during the reign of Edward III, however, several 
 cases in which writs of conspiracy were grounded upon 
 injuries not covered by the above principle or even by the 
 Definition of Conspirators.^ These exceptional cases may 
 
 ^The Definition of Conspirators, as we have seen, was confined 
 in its terms almost exclusively to combinations to pervert justice. 
 
 In the Year Book for the fortieth year of Edward III (1366) we 
 find a case wherein an action of conspiracy was allowed for a com- 
 bination to disturb the plaintiffs in the exercise of their right of 
 advowson. The defendants had made a false letter, purporting to be 
 signed by the plaintiffs, requesting the bishop to receive a certain 
 clerk. This clerk was accordingly presented and inducted, and the 
 plaintiffs were thus prevented from appointing their own clerk 
 until they had brought a quare impedit and recovered their presen- 
 tation. The court said that " for such false understandings, de- 
 ceits, or conspiracies the action of conspiracy lies " (P. 40 Edw. 
 Ill, f. 19). 
 
 Two years later a similar action was entertained for a con- 
 spiracy to procure a disseisin and feoffment resulting in a loss of 
 warranty. In the same year an action was brought for a con- 
 spiracy to enter an action of novel disseisin in the name of the now 
 plaintiff, wherein the defendant had pleaded that the plaintiff was 
 a villein and the court had decided accordingly — in other words, for 
 a conspiracy to deprive the plaintiff of his liberty and reduce 
 him to villenage. The court held that the writ of conspiracy would 
 lie, for if such falsity were not punished, any freeman might be 
 made a villein in the same violent manner (H. 42 Edw. Ill, f. i ; 
 P. 42 Edw. Ill, f. 14). 
 
 There is some ground for believing that a writ of conspiracy 
 would lie for combinations to forge false deeds and offer them in 
 evidence, whereby the plaintiff lost his case; also for a conspiracy 
 to cause a false office to be found of the plaintiff's land (T. 39 
 Edw. Ill, 13; 46 Edw. Ill, f. 20; 27 Lib. Ass. 73). 
 
 Not only the civil courts, but the criminal courts as well, took 
 cognizance of various combinations of like nature (26 Lib. Ass. 
 131; 27 Lib. Ass. 74, 73). 
 
 None of the above wrongs fell within the field of the matured 
 form of the action of conspiracy, and most of them were beyond 
 the operation of the Definition of Conspirators. 
 
26 Development of the English Law of Conspiracy. [158 
 
 be attributed to the vague form of the writ of conspiracy- 
 prescribed in the Ordinance of Conspirators/ which af- 
 forded opportunities for much judicial discretion as to 
 entertaining the action in new cases. In course of time the 
 writ became more explicit in describing the conspiracy com- 
 plained of. Several definite formulas, applicable to the 
 various circumstances under which false accusations of 
 treason and felony might be prosecuted in vain, came into 
 existence. Finally, these forms became the only legal 
 forms, and unless the complainant's case could be brought 
 within the words of these standard writs, he was obliged 
 to seek another remedy or, failing in this, go without legal 
 redress altogether. 
 
 Such were the principles governing the strict action of 
 conspiracy. One can easily foresee the defects soon re- 
 vealed in practice. This ancient remedy fell short of the 
 necessities of the conditions under which it originated. 
 
 " The following is the form of writ prescribed by the Ordinance 
 of 21 Edw. I : " The King to the Sheriff, Greeting. We com- 
 mand you that if A. de G. shall give you security for prosecuting 
 his plaint, then place under gage and safe pledges G. de C. that 
 he be before us in octabis sancti Joh' Baptistae, wheresoever in 
 England we shall be, to answer the said A. for his plea of con- 
 spiracy and transgression, according to our ordinance lately there- 
 upon provided, according as the said A. may reasonably show that 
 he ought to answer to him for it, and have there the names of 
 the pledges and this writ. Teste, etc." 
 
 The above language in no way describes the wrong to be re- 
 dressed, beyond calling it a conspiracy. The plaintiff might ac- 
 cordingly sue out his writ of conspiracy, and then "count" upon 
 almost any kind of injury done him by a combination of persons. 
 The court thus was left an unbounded discretion to determine 
 whether the wrong complained of was a conspiracy under the stat- 
 utes or according to the general principles of the common law. 
 This consideration probably accounts for the extensions which the 
 action of conspiracy received during the period under discussion. 
 
 It may have been this very disposition of the courts freely to 
 extend the remedy whenever reason and justice seemed to de- 
 mand it that contributed to cause the writ of conspiracy to become 
 more definite in its description of the tort to be redressed. All 
 we can say with assurance, however, is that exceptional cases like 
 the above are no longer met with after the reign of Edward III, 
 and that by the time of the compilation of the Register Brevium, 
 and of the De Natura Brevium (Fitzherbert), the writ of con- 
 spiracy had become differentiated into a number of distinct forms, 
 each applicable to a single group of circumstances under which 
 the action of conspiracy would lie. 
 
159] Growth of Civil Action of Conspiracy. 27 
 
 There were many injuries of the same general character as 
 those just enumerated which the action of conspiracy was 
 incapable of reaching. False indictments might be pre- 
 ferred by a single individual. The offense charged might 
 be a crime other than treason or felony. Other perversions 
 of justice besides false accusations might be wrought, by 
 single persons or by combinations of persons. False accu- 
 sations might fail in other ways than by the acquittal of 
 the accused. All of these wrongful acts were beyond the 
 purview of the writ of conspiracy, but that they should go 
 unpunished was intolerable. On the other hand, false in- 
 dictments might be preferred by a combination of persons 
 acting in good faith. If such persons were to be liable in 
 damages whenever the accused happened to escape convic- 
 tion, manifest injustice would be done. So extended a 
 liability to actions of conspiracy would also deter people 
 from laying charges against evildoers, and would thus 
 operate as a serious hindrance to the administration of 
 criminal justice.* 
 
 These defects were eliminated by a process of judicial 
 legislation, operating under the cover of a supplementary 
 form of action which grew up beside the action of con- 
 spiracy and enabled the courts to take cognizance^ of wrongs 
 of the same general nature as those redressed by the older 
 remedy, but excluded from its field by some technical bar- 
 rier.^ The result was the complete displacement of the old 
 
 'This was a particularly serious objection in the England of 
 that period, because the prosecution of criminals depended almost 
 entirely upon the zeal of private individuals. Any undue deter- 
 rent upon private initiative in this direction would almost certainly 
 result in a large increase of lawlessness. 
 
 °We ought not to be surprised at seeing the defects of the ac- 
 tion of conspiracy rendered harmless in this roundabout fashion. 
 It would have, been utterly repugnant to the traditions of the early 
 law for the courts openly to have changed the principles govern- 
 ing the older remedy. The characteristic method of legal develop- 
 ment, in England as elsewhere, has always been to mask a change 
 in the essentials of the law under a nominal adherence to its letter. 
 Hence, in quietly broadening the legal remedy for false and ma- 
 licious prosecutions through the agency of a supplementary form of 
 action, which apparently left the older remedy untouched while 
 really undermining its very foundation, the English courts were 
 merely giving a special illustration of the manner in which legal 
 fictions, equitable remedies, and the like, come into being. 
 
28 Development of the English Law of Conspiracy. [i6o 
 
 remedy by the new, which, being based upon an ultimately 
 sound conception, has survived to the present day under 
 the name of "malicious prosecution." The story of this 
 phase of the law of conspiracy is interesting in the extreme, 
 and vividly pictures the mode in which the English com- 
 mon law has grown to be what it is today. We shall ac- 
 cordingly describe the changes in the civil law of conspiracy 
 effected by the new remedy, and then explain the causes 
 which brought them about and finally led to the extinction 
 of the old strict action of conspiracy. 
 
 The new remedy was an action upon the case " in the 
 nature of a conspiracy."* It was first' brought into the 
 
 ° The " action upon the case " had its origin in Chapter 24 of 
 the Statute of Westminster 2, passed in the thirteenth year of the 
 reign of Edward I (1285). Before this statute, when a person 
 wished to bring an action for damages for some legal injury done 
 him, he was obliged to show that the facts of his case could be 
 comprehended within one or more of the formal, authoritative 
 "original" writs contained in the Register. If this were impos- 
 sible, he must appeal to the chancellor or go without remedy alto- 
 gether, for only Parliament could change or create an original 
 writ. In the growing volume of litigation, however, more and 
 more cases appeared which were not covered by already existing 
 original writs, but which obviously called for redress. Accord- 
 ingly the above statute provided as follows : " And whenever from 
 henceforth it shall fortune in the Chancery, that in one case a 
 writ is found, and in like case (in consimili casu) falling under 
 like law, and requiring like remedy, is found none, the clerks of 
 the Chancery shall agree in making the writ." Such writs were 
 held to no strict form, but were framed to fit the circumstances of 
 specific cases. Actions begun by means of these special, individual 
 writs were known as "actions upon the case," and were soon ex- 
 tended to numerous wrongs hitherto not legally remediable. The 
 operation and value of this new remedy are strikingly illustrated 
 in the history of the action upon the case " in the nature of a 
 conspiracy." 
 
 ' Lord Holt seems to claim for the action upon the case in the 
 nature of a conspiracy a much earlier beginning than this. Speak- 
 ing of several earlier cases, among them two or three decided 
 during the reign of Edward III, he says, " These actions of con- 
 spiracy in the old books were really but actions upon the case: 
 but conspiracy properly so-called does not lie unless the party 
 were indicted of a capital crime" (Savile vs. Roberts, 12 Mod. 
 209). This remark holds true of some of the cases that he cites; 
 but it is not applicable to the abnormal cases of conspiracy reported 
 in the reign of Edward III, of which mention has been made. 
 It is improper to speak of these as actions upon the case. The 
 statement implies an anachronism. At that period the strict action 
 of conspiracy was in a formative state. The limits of that remedy 
 
i6i] Growth of Civil Action of Conspiracy. 29 
 
 field heretofore occupied solely by the action of conspiracy 
 by the Statute 8 Henry VI, Chapter 10 (1429). This act 
 provided that any person falsely indicted or appealed in a 
 jurisdiction in which he does not reside shall, after acquit- 
 tal by verdict, " have a writ and action upon his case against 
 every procurer of such indictments or appeals," and shall 
 recover treble damages. This statute was held (Y. B., 11 
 Hen. VH, f. 25) to have provided a remedy broader than 
 the strict action of conspiracy: whereas the latter lay only 
 after a false indictment for felony, and only against two or 
 more defendants, the former lay for a false indictment for 
 a mere trespass, and against a single defendant. The 
 obvious advantages of the action begun by a writ " framed 
 as the matter required," and " tied down to no strict form," 
 soon caused it to encroach deeply upon the province of the 
 strict action of conspiracy, where indeed it almost imme- 
 diately displaced the older remedy altogether. There are 
 no cases begun by a strict writ of conspiracy later than the 
 reign of James I (1603-1624). The discussions regarding 
 the nature of the strict action of conspiracy, so often met 
 with from the time of James I until the reign of Anne, 
 were designed to mark out the limits of the ancient remedy, 
 and to show that the new principles being introduced in 
 connection with actions upon the case in the nature of a 
 conspiracy were not inconsistent with the old, because ap- 
 plicable to an entirely different sphere.* 
 
 were so indistinct and shifting (owing, as we have seen, to the 
 vague and general phraseology of the writ of conspiracy) that 
 redress could readily be extended to exceptional cases without 
 violence to any of the principles relating to the action of con- 
 spiracy. Not until these had hardened into the set forms of a later 
 period was it necessary that an action upon the case be employed 
 to redress "consimiles casus." At the time of Edward III, the 
 conditions which gave rise to the action upon the case in the na- 
 ture of a conspiracy had not yet come into existence. 
 
 'Thus, in Smith vs. Cranshaw, I Jones 93 (i Car. I, 1625), the 
 court says : " There are two writs of conspiracy : the one the writ 
 of conspiracy in the Register and the other is an action on the 
 case, and if a man brings writ of conspiracy mentioned in the 
 Register, he should be indicted and acquitted, and if he is not ac- 
 quitted no action lies. There must be a conspiracy, hence writ 
 of conspiracy does not lie against one, for one cannot conspire 
 
30 Development of the English Law of Conspiracy. [162 
 
 The improvements effected in the law by means of the 
 new action upon the case were gradually wrought out in a 
 line of judicial decisions extending from the reign of Henry 
 VII to that of George I (1485-1726). The practical com- 
 pletion of the process was shown in the great cases of 
 Savile vs. Roberts (10 Wm. Ill, 1698) and Jones vs. 
 Gwynn (12 Anne, 171 3), to be discussed presently. Its 
 results may be briefly stated in the form of the new prin- 
 ciples established by it. 
 
 I. A single person who preferred a false and malicious 
 indictment was subjected to a liability to the party injured 
 similar to that previously enforced in an action of con- 
 spiracy against a combination of persons who had been 
 guilty of the same act. In the words of Lord Holt,' 
 " Wherever an action of conspiracy is maintainable against 
 two, there if it be a malicious prosecution by one, case 
 will lie."i» 
 
 alone, for the writ of conspiracy having a precise form cannot 
 be extended beyond the form." But the action upon the case, 
 the court continues, is framed as the matter requires, and is not 
 confined to any strict form. Hence it lies against one person, and 
 upon a mere ignoramus. The purpose of this contrast is clearly 
 to enable the court to establish the broader principles applicable to 
 the action upon the case without contravening the current doctrines 
 regarding the action of conspiracy. There are similar comparisons 
 between the two forms of action, and for a like purpose, in Savile 
 vs. Roberts (12 Mod. 209), and Jones vs. Gwynn (10 Mod. 148, 
 214). 
 
 " Savile vs. Roberts, 12 Mod. 208. 
 
 "The availability of the action upon the case against a single de- 
 fendant was the feature which first attracted notice. At first 
 there was a tendency for the courts to hold that actions upon 
 the case would lie against one defendant only when the crime 
 charged had been a trespass. For malicious indictments for felony, 
 it was thought, the action of conspiracy would furnish the only 
 redress. Thus, in Shotboldt's Case, Godb. 76 (28-29 Eliz., 1586-7), 
 Clench, J., said that " such a conspiracy which is grounded upon 
 an indictment of felony must be against two at the least, for the 
 same is an action grounded upon the common law." This distinc- 
 tion, however, soon disappeared. The case of Knight vs. German, 
 Cro. El. 70, 134, decided during the same reign (29 and 31 Eliz., 
 1587 and 1589), was grounded upon a false indictment for felony, 
 and a single defendant was made to plead probable cause. Lord 
 Coke said, " The words here, and in a conspiracy, are all one ; 
 and as a writ of conspiracy lieth against two, so here [case lieth] 
 against one." This is the doctrine of the later cases. The books 
 record an increasing number of actions upon the case against single 
 
163] Growth of Civil Action of Conspiracy. 31 
 
 2. Actions upon the case were entertained in favor of 
 persons injured by false and malicious accusations of 
 offenses amounting only to trespasses.^^ Recovery was in 
 like manner allowed for the damages inflicted by false and 
 malicious proceedings in the civil^^ and in the ecclesiasticaP^ 
 
 defendants wherein the wrongs complained of would have supported 
 actions of conspiracy had they been perpetrated by a combination of 
 persons. The true principle was broadly stated in Savile vs. Rob- 
 erts, and it held its place until the decay of the actioni of conspiracy 
 took away from it all practical importance. 
 
 "Here again the courts at first showed a disposition to narrow 
 the operation of the new principle. It was intimated in Law vs. 
 Beardmore, T. Raym. 135 (17 Car. II, 1665), that an indictment 
 for a bare trespass is not actionable; "but where the matter of 
 the indictment is scandal, or cause of corporal punishment, there 
 [an action] lyeth." Three cases decided in the twenty-first year 
 of Charles II (1669) — Skinner vs. Gunton, 2 Keb. 473, wherein the 
 plaintiff had been arrested and imprisoned in a false civil action 
 of debt; Price vs. Crofts et al., T. Raym. 180, arising out of a false 
 indictment for barratry; and Henly vs. Burstall, i Vent. 23, 25 (21 
 Car. II, 1669), in which the cause of action was an indictment 
 against a justice of the peace for rescuing a vagabond out of the 
 hands of the constable who had brought the latter before him — 
 all these were within the limitation of Law vs. Beardmore. This 
 limitation, however, was soon exceeded. In Norris vs. Palmer, 2 
 Mod. SI (confirmed in Anon., 2 Mod. 306, 20 Car. II, 1668), the 
 plaintiff was allowed to recover in an action for a malicious in- 
 dictment for a common trespass involving no scandal — the aspor- 
 tation of 100 bricks. 
 
 The point was fully discussed in Savile vs. Roberts, 12 Mod. 
 208. The plaintiff had been maliciously and falsely indicted for a 
 riot. Lord Holt expressly overruled the doctrine that an action 
 would not lie for a. false indictment for a trespass unless the 
 charge involved scandal, and gave judgment for the plaintiff. This 
 decision was fully examined and confirmed in Jones vs. Gwynn, 
 10 Mod. 214 (12 Anne, 1713), wherein an action had been brought 
 upon a false and malicious prosecution for exercising without a 
 license the trade of a "corn-badger." Premising that the ground 
 of the action was the expense to which the plaintiff had been 
 put to defend himself from the false charge, the court said that 
 the damage was as great whether the charge was scandalous or 
 not, and the malice also as great or greater. " If scandal be men- 
 tioned, it is only mentioned in the nature of damages." This is the 
 modern doctrine. 
 
 "The early practice of permitting the defendant in an action 
 of debt to be arrested at the beginning of the suit and held in 
 prison unless he was able to give bail to appear in court and 
 satisfy any judgment that might be rendered against him opened 
 manifest opportunities for false and malicious proceedings for 
 which the allowance of costs was not an adequate redress. Ac- 
 cordingly, during the reign of Charles II, actions upon the case 
 for the damages caused by such malicious civil suits came to 
 be allowed. The first of them reported is Skinner vs. Gunton, 
 
32 Development of the English Law of Conspiracy. [164 
 
 courts. It became finally settled, also, that an action upon 
 the case would lie for false and malicious accusations of 
 treason,^* in regard to which the courts for a time had 
 exhibited some uncertainty. 
 
 T. Raym. 176, 2 Keb. 473 (21 Car. II, 1669). A typical case is 
 Daw vs. Swaine, I Sid. 424, decided the same year. Swaine had 
 falsely and maliciously affirmed to the sheriff of Middlesex that 
 Daw owed him £1000, and caused bail to be fixed accordingly, 
 whereas the debt really amounted to only £^0. Daw had been 
 unable to secure such larpe bail, and had consequently been kept in 
 gaol for several days. He was allowed to recover a judgment 
 against Swaine in an action upon the case; "because," the court 
 said, " he had special damages from such false parlaunce." See 
 also Hocking vs. Mathew et al., i Sid. 463 (22 Car. II, 1670), Web- 
 ster vs. Haigh, 3 Lev. 210 (36-37 Car. II, 1684), and Bird vs. Line, 
 Comyn 190 (8 Anne, 1709). During the reigns of William III 
 and Anne it was thought that such an action would lie only in case 
 the plaintiff could show that he had been held to excessive or 
 "special" bail. See Neal vs. Spencer, 12 Mod. 257 (10 W. Ill, 
 1698) ; Robins vs. Robins, 12 Mod. 273 (11 W. Ill, 1699) ; Parker vs. 
 Langley, 10 Mod. 145, 210 (11-12 Anne, 1712-13). In Goslin vs. 
 Wilcock, 2 Wils. 302 (6 Geo. Ill, 1765), however, the plaintiff was 
 allowed to recover in an action for a false arrest in a malicious 
 civil suit, without any allegation that he had been held to exces- 
 sive bail. This decision was perfectly proper. Excessive bail is 
 only an evidence of malice or of damages; and if these can be 
 proved by other facts, the necessities of the action are satisfied. 
 
 "This doctrine dates from the case of Carlion vs. Mill, Cro. 
 Car. 291 (8 Car. I, 1632), where it was held that an action upon 
 the case would lie against the apparitor of a bishop for maliciously 
 causing a man to be cited to the consistory court upon a ground- 
 less suspicion of incontinence. The reasons for allowing such 
 actions were the same as those given in support of actions for 
 false and malicious civil suits : the malice of the defendant, and the 
 costs which the plaintiff had incurred in repelling the charge. See 
 Hocking vs. Mathew et al., i Sid. 463 (22 Car. II, 1670) ; Grey 
 vs. Degge, T. Jones 132 (31-32 Car. II, 1679-80). 
 
 An action would lie for a false charge of an ecclesiastical of- 
 fense only in case the court before which it had been preferred 
 had had jurisdiction over the offense. Thus, in Bomber vs. Painter, 
 2 Bulst. 343 (8 Car. I, 1632), an action for an attempt to charge 
 the plaintilf at quarter sessions with being the father of a bastard 
 child was disallowed, because scandals of this kind were properly 
 cognizable in the spiritual, not in the secular, courts. 
 
 "In Lovet vs. Falconer, 2 Bulst. 220 (11 Jac. I, 1613), an action 
 upon the case had been brought for a false and malicious ac- 
 cusation of treason. The court inclined against entertaining it. 
 " Every one," they said, " by his oath of allegiance is bound to dis- 
 cover treason, and to have one punished for this by an action 
 upon the case in the nature of a writ of conspiracy to be brought 
 against him should be very hard." The case, however, went off upon 
 the point that the false accusation had been preferred before a court 
 without jurisdiction to try it. The question was settled in the 
 great case of Smith vs. Cranshaw, 2 Bulst. 270, i Jones 93, and other 
 
165] Growth of Civil Action of Conspiracy. 33 
 
 3. The former technical principle requiring the plaintiff 
 in an action of conspiracy to prove a legal acquittal by 
 verdict of the false charge was greatly relaxed. It became 
 gradually settled that an action upon the case would lie 
 where the grand jury had refused to find an indictment, 
 but had returned an ignoramus upon the bill preferred.^" 
 
 reports^ (20 Jac. I — i Car. I, 1622-1625), wherein the court held, 
 after listening to several rearguments, that an action would lie 
 for a false and malicious charge of speaking treasonable words, 
 and that as to this there was no diversity between a conspiracy to 
 indict for treason and a conspiracy to indict for a felony. 
 
 "The first suggestion of this principle is to be found in the 
 case of Sydenham vs. Keilway, decided anno 16 Eliz. (iS74)> and 
 cited in a case reported anno i Jac. I (1603), Cro. Jac. 7. The 
 court said that although an action of conspiracy would not lie 
 upon an ignoramus found, an indictment for the conspiracy would 
 lie at the common law. This distinction was adhered to when 
 actions upon the case came into general use. Thus, in Barnes vs. 
 Constantine, Yelv. 46 (2 Jac. I, 1604), there is an obiter dictum that 
 " this action is but for damages for a slander, which well lies . . . 
 if a bill is offered and an ignoramus found." This statement was 
 confirmed in the Poulterers' Case, 9 Co. 56 b, six years later. The 
 court said, "And it is true that a writ of conspiracy lies not unless 
 the party is indicted and legitimodo acquietatus, for so are the 
 words of the writ." But they upheld an action upon the case 
 for a false accusation of robbery whereon the grand jury had 
 found ignoramus. Some doubt was thrown upon this doctrine in 
 Lovet vs. Falconer, 2 Bulst. 270 (11 Jac* I, 1613), and was exhibited 
 by the court during the first argument of Smith vs. Cranshaw, 
 Palm. 315 (i Car. I, 1625). The final decision of the latter case, 
 however, so firmly established the doctrine that it was never after- 
 wards shaken. See Payn vs. Porter, Cro. Jac. 490 (16 Jac. I, 
 1618) ; Pollard vs. Evans, 2 Show. 50 (31 Car. II, 1679). In God- 
 dard vs. Smith, 6 Mod. 261 (3 Anne, 1704), the court seemed 
 clearly opposed to extending it to a case wherein the plaintiff 
 could show only a nolle prosequi; but no decision was rendered. 
 
 In Savile vs. Roberts, 12 Mod. 208, 211 (10 W. Ill, 1698), Lord 
 Holt was inclined to think that an action could not be maintained 
 upon an ignoramus unless the charge involved scandal. This quali- 
 fication, however, was not adhered to in Jones vs. Gwynn, 10 Mod. 
 214 (12 Anne, 1713), which contains a final statement of the law 
 upon this point. The principle under discussion was unequivocally 
 laid down as authoritative, upon the reason suggested in the 
 Poulterers' Case and more fully explained in Smith vs. Cranshaw. 
 " Conspiracy," concludes Parker, C. J., " lies not without acquittal, 
 and the reason of this, and the only one, is because this is a formed 
 action, and the form of the writ in the Register is so. . . . There 
 is certainly no argument from an action which is a formed one, 
 for which there is a formed writ in the Register, to an action upon 
 the case, that is tied down to no form at all. If an action upon 
 the case be brought upon an indictment, where the jury find igno- 
 ramus, there is no possibility that there can be an acquittal." 
 
34 Development of the English Law of Conspiracy. [i66 
 
 By a parity of reasoning, actions came to be entertained 
 where the plaintiff had escaped prosecution by reason of a 
 technical defect in the indictment found.^' Later, also, 
 suits were allowed even for damages inflicted by false and 
 malicious proceedings, civil and criminal, before a tribunal 
 which was without jurisdiction in the premises.'^' 
 
 '"The first statement that an action would lie for a malicious 
 prosecution upon a defective indictment is found in an obiter 
 dictum in Barnes vs. Constantine, Yelv. 46 (2 Jac. I, 1604). It 
 was repeated as part of the ratio decidendi in Smithson vs. Sym- 
 son et al., 3 Keb. 141 (25 Car. II, 1673), and confirmed in a 
 note to Pedro vs. Barrett, i Ld. Raym. 81 (8 W. Ill, 1696). Lord 
 Holt, in Savile vs. Roberts, remarked obiter that such an action 
 grounded upon an erroneous indictment would lie for the slander 
 and injury to the plaintiff's good name ; sed aliter when the indict- 
 ment " contains crime without slander," as in forcible entry. The 
 doubt suggested in Goddard vs. Smith, 6 Mod. 261 (3 Anne, 1704), 
 seems applicable to the formed action of conspiracy. 
 
 The law upon this matter was finally settled, however, in Jones 
 vs. Gwynn, 10 Mod. 214 (12 Anne, 1713). The plaintiff had been 
 indicted for exercising without a license the trade of a "corn- 
 badger." The prosecution failed because this was not an indictable 
 offense. The court held that an action of conspiracy could not 
 be sustained upon these facts, but that an action upon the case 
 might, since the gist of such an action is malice and damages. 
 "It is to be considered," says Parker, C. J. (p. 217), "that the 
 grounds of this action are, on the plaintiff's side, innocence, and 
 on the defendant's side malice. . . . And as the plaintiff is equally 
 damnified by an insufficient as sufficient indictment, so the malice of 
 the defendant is not at all less because the matter was not in- 
 dictable; nay it is rather an aggravation." Nor is there any reason, 
 he continues, for making a difference when the matter of the in- 
 dictment is scandalous and when not. Judgment was accordingly 
 given for the plaintiff. This decision has been followed in the later 
 cases. As was said in Chambers vs. Robinson, i Stra. 691 (12 Geo. 
 I, 1726), "a bad indictment [serves] all the purposes of malice, by 
 putting the party to expense, and exposing him, but it serves to 
 no purpose of justice in bringing the party to punishment if he 
 be guilty." See also Wicks vs. Fenton et al., 4 T. R. 247 (21 Geo. 
 Ill, 1780). 
 
 " An action of conspiracy would not He unless the alleged false 
 and malicious prosecution had been before a court of competent 
 jurisdiction. This principle was at first held applicable to ac- 
 tions upon the case, and the declaration was required to disclose 
 upon its face the competence of the tribunal in which the charge 
 had been tried. See Throgmorton's Case, Cro. El. 563 (39 Eliz., 
 IS97) ; Arundell vs. Tregono, Yelv. 116 (s Jac. I, 1607) ; Lovet vs. 
 Falconer, 2 Bulst 270 (11 Jac! I, 1613); Anon.., Styles 374 (1653). 
 In time, however, the strictness of the rule began to relax. In 
 Taylor and Towlin's Case, Godb. 444, decided anno 4 Car. I (1628), 
 a bill of conspiracy for a false indictment for rape was entertained 
 by the Court of Star Chamber, although the jurisdiction of the 
 
167] Growth of Civil Action of Conspiracy. 35 
 
 4. Although the framers of the statutes of conspiracy- 
 had sought to provide remedies for false and malicious 
 accusations only, the courts of the time of Edward III, in 
 their zeal to break up conspiracies, were inclined to punish 
 
 court in which the charge had been prosecuted was not distinctly 
 alleged. The court at first was inclined to think this a good ex- 
 ception. " But afterwards," we are told, " upon view of the Bill, 
 because the conspiracy was the principal thing tryable and exarn- 
 inable • in this court, and that was well laid in the bill, the bill 
 was retayned, and the court proceeded to sentence." 
 
 Actions for malicious prosecutions coram non judice were not 
 long in finding their way into the common-law courts. In 1653 
 the case of Atwood vs. Monger, Styles 378, arose out of a false 
 presenttnent before the conservators of the River Thames for 
 suffering eight loads of dirt to fall into the river. After verdict for 
 the plaintiff, the defendant moved in arrest of judgment upon the 
 ground that the record did not disclose the authority of the con- 
 servators to receive presentments. The court said, however, that 
 an action lies " for bringing an appeal against one in the common 
 pleas, though it be coram non judice, by reason of the vexation of 
 the party and so it is all one whether here were any jurisdiction or 
 no, for the plaintiff is prejudiced by the vexation, and the conser- 
 vators took upon them authority to take the presentment." 
 
 The principle that an action might lie for a false and malicious 
 civil suit before a court without jurisdiction was stated obiter in 
 Temple vs. Killingworth, 12 Mod. 4 (3 W. and M., 1691), and 
 in Jones vs. Gwynn, 10 Mod. 214, 219, 220 (12 Anne, 1713). It 
 becomes part of the ratio decidendi in Goslin vs. Wilcock, 2 Wils. 
 302 (6 Geo. Ill, 1765). Wilcock had caused the arrest of Goslin 
 upon a false and malicious civil action in the court for the Borough 
 of Bridgewater. It was shown that the court at Taunton had 
 jurisdiction of the case, but that Wilcock had caused Goslin to 
 be arrested at Bridgewater because he (Goslin) had a stall in 
 the fair at that place. After verdict for Goslin in an action upon 
 the case grounded upon the above facts, Wilcock moved for a 
 new trial ; but the court said : " If you hold a man to bail in 
 an inferior court when you know it hath not jurisdiction, and 
 with malice, an action will lie; that though it was somewhat doubt- 
 ful but that the declaration should have alleged that the defend- 
 ant knew he had no cause of action in the jurisdiction of Bridge- 
 water . . . yet justice and equity being on the side of the plaintiff, 
 a new trial would be refused." 
 
 It has always been necessary, however, for the plaintiff in an 
 action for a malicious prosecution to show that the prosecution is 
 at an end ; " otherwise, he might recover in the action, and yet 
 iDe afterwards convicted on the original prosecution." Fisher vs. 
 Bristow, I Dougl. 215 (19 Geo. Ill, 1778). See also Glaseour vs. 
 Hurlestone, Gouldsb. 51 (29 Eliz., 1587) ; Shotboldt's Case, Godb. 
 76 (28-9 Eliz., 1587) ; Throgmorton's Case, Cro. Eliz., 563 (39 Eliz., 
 IS97) ; Arundell vs. Tregono, Yelv. 116 (5 Jac. I, 1607) ; Skinner 
 vs. Gunton, 2 Keb. 473 (21 Car. II, 1669) ; Parker vs. Langley, 10 
 Mod. 14s, 210 (11-12 Anne, 1713) ; Lewis vs. Farrell, i Stra. 114 
 (S Geo. I, 1719) ; Morgan vs. Hughes, 2 T. R. 225 (28 Geo. Ill, 
 1788). 
 
36 Development of the English Law of Conspiracy. [168 
 
 all false accusations whatsoever.^' The evil effects of this 
 policy have been already shown. They were corrected by 
 the later doctrine of " probable cause," which has survived 
 in full force until the present day. According to this doc- 
 trine, the defendant in an action upon the case for malicious 
 prosecution will escape liability for the false arrest and 
 prosecution if he can prove that the circumstances under 
 which he ordered the plaintiff's arrest had been such as to 
 justify a man of ordinary prudence and judgment in believ- 
 ing that the plaintiff was guilty of the crime charged.^* 
 
 "2 Pollock and Maitland, "History of English Law," p. 538. 
 
 "The evolution of the doctrine of probable cause is interesting. 
 In ArcheboU vs. Borrell, 3 Leon. 139, 142 (28 Eliz., 1586), Walmes- 
 ley, Serjeant, states that no action lies for any "vexation by 
 suit, if no corruption or covin be in the party who prosecutes the 
 suit." In Knight vs. German, Cro. Eliz. 70 (29, 31 Eliz., 1587, 
 1589), the court held that no suit can be brought upon a false 
 indictment of felony in cases where "the indictment is preferred 
 by the party grieved, and he pursueth it according to law." But the 
 defendant should plead that he " did it upon good presumption," 
 else " everyone shall be in danger of his life by such malicious 
 practices." 
 
 During the reigns of Elizabeth and James I it was several 
 times decided that a good "ground of suspicion" constituted a 
 sufficient justification for having preferred a false indictment. See 
 Pain vs. Rochester, Cro. Eliz. 871 ; Chambers vs. Taylor, ibid., goo ; 
 Weele vs. Wells, 3 Bulst. 284. Thus the finding by the plaintiff, 
 in the hands of the defendant, of goods stolen from him was 
 held a good defense (Anon., Moore 600), likewise the plea of a 
 father sued for a false charge of rape that he had believed and 
 acted upon the statement of his young daughter (Cox vs. Wirrall, 
 Cro. Jac. 193). 
 
 In Ashley's Case, 12 Co. 90 (9 Jac. I, 1611), the Court of Star 
 Chamber enumerated the elements which must concur in order 
 that the defendant in malicious prosecution might justify upon the 
 ground of a "good cause of suspicion." (i) A felony must have 
 been committed. (2) The arrester must' plead suspicion upon 
 good cause, which is traversible. (3) The party who pleads sus- 
 picion must actually have arrested the plaintiff. He cannot com- 
 mand another to do so, since suspicion is purely personal. Com- 
 mon voice and rumor were said to be sufficient grounds of sus- 
 picion. 
 
 In Payn vs. Porter, Cro. Jac. 400 (16 Jac. I, 1618), the Court 
 of Exchequer recognized that "the exhibiting the bill upon true 
 and just presumptions is excusable." See also Carlion vs. Mill, Cro. 
 Car. 291 (8 Car. I, 1632) — "groundless suspicion;" Hockin vs. 
 Matthew et al., I Sid. 463 (22 Car. II, 1670) — "without any 
 cause." 
 
 The term " probable cause " seems to be employed for the first 
 time in Atwood vs. Monger, Styles 378 (1653). There the court 
 
169] Growth of Civil Action of Conspiracy. 37 
 
 Thus was the law extended to cases which the strict 
 action of conspiracy had been unable to reach. We must 
 now endeavor to explain the causes of the process of 
 growth just described, and to show why the action upon 
 the case displaced the old action by strict writ of conspiracy. 
 
 None of the defects in the older remedy were such as 
 would necessarily prove fatal to it. Their presence alone 
 does not suffice to explain the displacement of the old 
 remedy by the new. These defects might well have been 
 corrected within the limits of the action of conspiracy, or 
 the two forms might have continued to exist side by side 
 and remained mutually exclusive. But the old form of 
 action embodied a fundamental error. This error lay in 
 the idea that the element of combination among several 
 persons to inflict harm upon another might in itself furnish 
 a universally valid foundation for a civil action for the 
 recovery of damages.^" 
 
 said, "And I hold that an action on the case will lye, for mali- 
 ciously bringing an action against him where he had no probable 
 cause," etc. The term recurs in the argument of Pemberton, Ser- 
 jeant, in Norris vs. Palmer, 2 Mod. 51 (27 Car. II, 1675). It was 
 adopted generally by the courts, and the conception denoted by 
 it refined in the later decisions. 
 
 Until the case of Savile vs. Robert's had been decided, the 
 practice was for defendants to plead probable cause as their justi- 
 fication. After that decision, however, it became incumbent upon 
 the plaintiff t'o allege and prove affirmatively the absence of prob- 
 able cause in the defendant, else the declaration would be held 
 bad upon demurrer. This is the modern practice. 
 
 ^ This idea is at the foundation of the early statutes and cases. 
 The gist of the civil action of conspiracy was the combination. 
 No judgment could be pronounced against the defendants unless 
 at least two were found guilty. The action had to be brought in 
 the county in which the combination had been formed, not where 
 the false indictment had been preferred and discharged, the reason 
 being that the conspiracy was the " root of the fact," and acts 
 in execution of it were " only consequences following upon this," 
 or " matters of aggravation." During the reign of Richard II it 
 was even said that one "might have a writ of conspiracy although 
 they [the defendants] did nothing but the confederacy together, 
 and may recover damages" (Bellewe's Cases, Temp. Rich. II). 
 In Cockshall vs. Mayor of Boalton, i Leon., f. 189, pi. 269 (31 
 Eliz., 1589), the plaintiff brought suit against the mayor, town- 
 clerks, and gaoler of Boalton for a conspiracy to delay him in re- 
 covering in an action of debt by allowing the debtor to go free 
 without bail. It was objected by the defendants that the taking of 
 bail is a judicial act, and can therefore give rise to no action, but 
 
38 Development of the English Law of Conspiracy. [170 
 
 The fallacy involved in making a conspiracy the gist of 
 a civil action is manifest. The immediate purpose ^of such 
 action is to reimburse the plaintiff for some material loss 
 resulting from the infliction upon him of a legal injury. 
 The amount recoverable is the estimated pecuniary measure 
 of the loss, and in some cases an additional sum by way of 
 " punitive damages." In every instance, however, the 
 plaintiff must have suffered actual damage from the very 
 acts constituting the legal wrong. Now obviously a bare 
 agreement among two or more persons to harm a third 
 person inflicts no material hurt upon him. However ma- 
 levolent the combination may be, the person against whom 
 it is directed suffers, no loss until the acts planned are actu- 
 ally performed. Hence the acts done and not the con- 
 spiracy to do them should be regarded as the gist of the 
 proceeding to make good the damage. Attention should be 
 paid primarily to the damnum; injuria, though essential to 
 recovery, occupies a position of secondary importance as 
 regards the procedure by which such recovery is to be had. 
 
 The form of action upon the case enabled the courts to 
 accomplish this shift of emphasis from the conspiracy to 
 the acts done. Its convenience and consequent popularity 
 also led to the substitution of malice for conspiracy as the 
 element of injuria in torts founded upon false prosecutions. 
 The relation existing between conspiracy and malice in this 
 connection is curious and instructive. The vitality of the 
 strict action of conspiracy lay in the fact that it was devised 
 to remedy a class of malicious injuries. The malice of the 
 conspirators was what attracted the attention of the early 
 lawyers^^ and supplied the moral support of the action. 
 
 the court entertained the suit, " for the not taking bail is not 
 the cause of the action but the conspiracy." And when the at- 
 tempt was made later on to find a reliable means of distinguishing 
 the action of conspiracy from the action upon the case in the 
 nature of a conspiracy, one of the methods employed was to de- 
 termine whether the conspiracy was the ground of action, or 
 whether the emphasis was placed upon the acts done and the con- 
 spiracy was mentioned by way of aggravation. 
 
 '"Thus, Chapter 12 of the Statute of Westminster 2 (13 Edw. I, 
 128s), provides a remedy for malicious appeals. The Ordinance of 
 
17 1] Growth of Civil Action of Conspiracy. 39 
 
 But noting that false and malicious indictments and appeals 
 were always preferred by several persons acting in concert, 
 these jurists were led to found the tortious character of 
 such enterprises upon what is little more than a single evi- 
 dence of malice, instead of malice itself. The remedy 
 constructed under these circumstances worked very well as 
 long as malicious prosecutions retained their original inci- 
 dents. But as litigation increased, malice exhibited itself 
 in new activities. To meet them the action upon the case 
 was employed. The variety of malicious injuries so 
 brought before the courts soon irecalled into prominence the 
 idea of malice as the secondary element of such wrongs. 
 After this idea- had become firmly established it was not 
 long before its more general validity and increased scope 
 caused the recognition of its superiority over the element 
 of conspiracy as a constituent of tort. In a word, the strict 
 action of conspiracy was rendered obsolete by the reappear- 
 ance in the conscious thought of the times of the general 
 conception of malice as a secondary element of tort.^" This 
 process will now be explained in detail. 
 
 Conspirators is directed against those who "procure pleas ma- 
 liciously to be moved," and those who "maliciously maintain 
 and sustain" such pleas. Stat. 33 Edw. I defines conspirators as 
 " they that do conf eder or bind themselves . . . falsely and ma- 
 liciously to indict or cause to be indicted . . . and such as retain 
 men for to maintain their malicious enterprises," etc. There are 
 also other statutes and cases at this period which aim to punish 
 various injuries inflicted with malice. 
 
 . '^Even in their treatment of actions upon the case wherein the 
 right of the plaintiff to recover was explicitly based upon malice 
 and damages, the courts at first exhibited a tendency to repeat 
 the process of erecting into fundamental conditions for redress 
 circumstances which were really but particular evidences of malice 
 or measures of damages — the same process whereby the action of 
 conspiracy had become invested with its stiff and contracted char- 
 acter. Manifestations of this tendency are seen in the earlier hold- 
 ings that an action upon the case for a fjilse and malicious accusa- 
 tion of a trespass, or for a malicious prosecution upon a defective 
 indictment or before a court without jurisdiction to conduct the 
 prosecution, or for a malicious accusation whereupon the grand 
 jury had found an ignoramus, would not lie except in cases in which 
 the charge involved slander or the plaintiff had suffered corporal in- 
 jury or imprisonment. Of the same nature was the principle at 
 first announced that an action for a false and malicious proceeding 
 in the civil courfs would lie only in cases in which the plain- 
 tiff had been held to excessive bail. Fortunately, the number and 
 
40 Development of the English Law of Conspiracy. [172 
 
 So completely had the current conception of malice as 
 the secondary element of the torts under discussion found 
 expression in the principles governing the remedy by writ 
 of conspiracy, and so efficient, we may be permitted to be- 
 lieve, was this remedy in reaching the most prominent class 
 of malicious injuries then judicially noticed, that express 
 reference to malice in conspiracy cases of the period from 
 the reign of Edward II to that of Henry VII (i 307-1 509) 
 practically ceased.^' But even at this time a tacit idea of 
 the significance of malice lingered in legal thought. Its 
 presence may be detected in the qualified immunity from 
 suit granted to witnesses, justices, and attorneys concerned 
 in an unsuccessful prosecution for crime. Such persons 
 could not be held liable for what they might do in the 
 regular and impartial discharge of their oifificial duties, but 
 if they went further, and took any extra-official part in 
 the prosecution, their protection ceased. We can readily 
 conjecture that this principle flowed from the conception 
 of malice. Such persons, we should say today, must be 
 presumed to act without malice so long as they confine 
 themselves to their official duties. But this presumption 
 does not relieve them from the consequences of improper 
 conduct, prearranged plans, and the like, because these 
 clearly evidence malicious intent. That this conception was 
 the real foundation of the above immunities and marked out 
 their limits appears in the saying of the court in the case 
 of Gerlington vs. Pitfield, 21 Keb. 527 (21 Car. II, 1669) : 
 
 variety of the cases compelled the courts to abandon these prin- 
 ciples before they had become firmly established, and finally led 
 them to adopt that general view of the nature of malice which has 
 survived. 
 
 " The term " malice " occurs but twice in the Year Books for 
 this period, and in neither instance is any especial significance 
 attached to it (P. 17 Edw. II, f. 544; 13 Edw. II, Fitz. f. 222, 
 pi. 25). In the "Articles Inquired of by Inquest of Ofiice," 27 
 Edw. Ill (27 Lib. Ass. C. 44), conspirators are said to be those 
 who combine and agree " that each will aid and sustain the en- 
 terprise of the other, be it false or true ; and who falsely have 
 people indicted and acquitted, or falsely move or maintain pleas." 
 Here, so_ completely has the conception of malice received ex- 
 pression in the current principles relating to the action of conspiracy 
 that even the term is lost'. 
 
173] Growth of Civil Action of Conspiracy. 41 
 
 " Strict proof of malice in this case of a Justice is requisite, 
 and procuring witnesses is no prosecution." 
 
 The official positions occupied by the defendants who 
 claimed an exemption from liability in such cases, and the 
 reasons upon which their exemption was ostensibly based,^* 
 prevented an explicit statement that malice was the real 
 ground of action in conspiracy cases. Express recognition 
 of the importance of malice first recurred during the reign 
 of Henry VII, in a case wherein a false accusation had been 
 preferred in good faith by a private individual.^" Here 
 the court said : " To each sessions all men may come for the 
 common profit, and if they come with that intent, and for 
 the zeal that they have for justice, and not from malice, 
 they act sufficiently for the common profit . . . and if it was 
 from malice, the matter would be otherwise." The idea 
 thus suggested was taken up and developed by the courts 
 during the reigns of James I, Charles I and Charles II. 
 The judges employed the term " malice " more frequently. 
 They gradually came to perceive and to state more clearly 
 that the essential elements of the torts redressed by actions 
 upon the case in the nature of conspiracy were the dam- 
 
 °* Indictors, or members of the grand jury which found the in- 
 dictment against the plaintiff, enjoyed an absolute protection from 
 action or prosecution for conspiracy (13 Edw. II, 401; 21 Edw. Ill, 
 17 a; 47 Edw. Ill, 16, 17; 30 Lib. Ass. 21; 7 Hen. IV, 31): It 
 was said that "they cannot ... be adjudged conspirators, because 
 thejr affirmed by their oaths " (27 Lib. Ass. 12 ; 9 Hen. IV, 9) ; and 
 again, "the law understands, when a man is sworn, that he will do 
 according to his conscience " (27 Hen. VIII, 2) . In the twen- 
 ty-seventh year of Edward III a witness sought to claim an im- 
 munity upon the same ground (27 Lib. Ass. 12). He pleaded that 
 he was sworn to inform the jury, but his plea was disallowed. 
 The qualified protection enjoyed by witnesses taking part in the 
 false prosecution was founded, not upon their oath, but upon the 
 fact that they were compelled by law to testify (27 Hen. VIII, 
 2). In this respect they occupied the same position with primer 
 trovers and participators in the hue and cry (20 Hen. VII, 11 ; 
 35 Hen. VI, 14). Justices and other court officials could not be 
 sued for what they migrht have done in open court and in the 
 execution of their official duties (47 Edw. Ill, 16, 17; 12 Edw. IV, 
 18; 27 Lib. Ass. 12; 9 Hen. IV, 9; 21 Edw. IV, 67), because "the 
 law will not admit proof against this vehement and violent pre- 
 sumption of law that a justice sworn to do justice will do injus-. 
 tice" (Floyd vs. Barker, 12 Co. 23). 
 
 "Y. B., M. 20 Hen. VII, f. 11; Keilway, ff. 81 b. & 83 b. 
 
42 
 
 Development of the English Law of Conspiracy. [174 
 
 ages suffered by the plaintiff aiid the malicious intent 
 prompting the defendant's acts.^*" " Malice " was still used 
 in its popular sense. It signified malevolence, " as for un- 
 just revenge."'''' 
 
 Contemporaneously with the gradual increase in the judi- 
 cial consciousness of the importance of malice, the action 
 upon the case was being extended to afford a remedy for 
 false prosecutions for trespasses and for ecclesiastical of- 
 fenses, for arrests in civil cases, and for prosecutions upon 
 defective indictments and before courts without jurisdic- 
 tion. This extension advanced the growth of the conception 
 of malice, although in most of the cases of this class no ex- 
 press reference to malice was made. Such cases provided 
 the courts with varied specimens of malicious acts causing 
 damages. As the specimens became sufficiently numerous 
 to be made the basis of generalization, it became evident that 
 the comirion elements of malice and damages were the bonds 
 connecting even the most heterogeneous of them. In the 
 
 ^°The growing emphasis put upon malice as an essential element 
 in malicious prosecutions can be traced in the following cases : 
 Knight vs. German, Cro. Eliz. 70 (31 Eliz., 1589) ; Miller vs. Reign- 
 olds & Bassett, Godb. 205 (Jac. I), wherein the court said that a 
 conspiracy should be malicious as well as false, " else it is no 
 conspiracy," wherefore malice should be proved; Cox vs. WirralL 
 Cro. Jac. 193 (4 Jac. I, 1606) ; Poulterers' Case, 9 Co. 56 b. (8 
 Jac I, 1610), nota by Lord Coke; Payn vs. Porter, Cro. Jac. 
 490 (16 Jac. I, 1618) ; Smith vs. Cranshaw, i Jones 93 (i Car. I, 
 1625) ; Taylor & Towlin's Case, Godb. 444 (4 Car. I, 1628) ; Car- 
 lion vs. Mill, Cro. Car. 291 (8 Car. I, 1632) ; Atwood vs. Monger, 
 Styles 378 (1653) ; Norris vs. Palmer, 2 Mod. 51 (27 Car. II, 
 1675) ; Daw vs. Swaine, i Sid. 424, i Lev. 275 (21 Car. II, 1669) ; 
 Hockin vs. Mathew et al., i Sid. 463 (22 Car. II, 1670) ; Gray vs. 
 Degge, T. Jones 132 (31-2 Car. II, 1680) ,' Webster vs. Haigh, 3 
 Lev. 40 (37 Car. II, 1684). An interesting extension of the idea as 
 to the significance of malice in these actions is seen in Anon., 
 2 Mod. 306 (30 Car. II, 1678), a case arising out of an indictment 
 for a common trespass. The court said that after acquittal of 
 the trespass the indictment should be held malicious, since the 
 defendant might have brought a civil action for his own recom- 
 pense and hence had no reason to indict the plaintiff other than 
 to put him to charges and make him pay fees to the clerk of the 
 assizes. 
 
 The above list comprises all the cases decided prior to Savile 
 vs. Roberts in which malice had been expressly recognized as 
 essential to recovery in actions for false prosecutions. 
 
 " Note by Lord Coke in Poulterers' Case, 9 Co. 56 b. 
 
i7S] Growth of Civil Action of Conspiracy. 43 
 
 same manner the development of the doctrine of probable 
 cause, which was rapidly progressing during the same per- 
 iod, and reached its practical completion during the reign 
 of Charles II, threw much light upon the true significance 
 of malice as an element of the torts under discussion. This 
 doctrine supplied the courts with a much needed principle 
 to guide them as they extended the action upon the case to 
 new circumstances. It eventually became a fundamental 
 condition for recovery in such actions that the plaintiff 
 should prove that the defendant had ordered his arrest 
 without a reasonable cause to believe him guilty. Maturer 
 thought was not long in recognizing that the absence of 
 probable cause is nothing but a more or less accurate test 
 or measure of malice, thus bringing into clearer view the 
 real part played by malice as an element of tort. 
 
 During all the period in which the true conception of the 
 significance of malice was being slowly and painfully 
 worked out, and for some time after it had become prac- 
 tically complete, the old strict action of conspiracy remained 
 theoretically intact, although it was never resorted to. The 
 principles relating to it were frequently stated and affirmed 
 by the courts, even in cases in which they were basing the 
 plaintiff's right to recovery upon the malice of the defend- 
 ant. At first sight the long coexistence (in theory) of the 
 two forms of action is surprising, in view of the superiority 
 of the conception upon which the action upon the case was 
 built. Two causes, however, may be assigned to account 
 for the length of time which elapsed before the incompa- 
 tibility between an action founded upon malice and the strict 
 action of conspiracy was perceived, and the latter driven 
 into obsolescence. The first was the fact that the courts 
 had lost sight of the true significance of conspiracy, and 
 had ceased to regard it as a mere evidence of malice. The 
 term had come to connote the act commonly performed by 
 the conspirators as well as to denote the plurality of the 
 performers. " Conspiracy " always carried with it the 
 suggestion of a false prosecution. For many years after 
 the introduction of the action upon the case for malicious 
 
44 Development of the English Law of Conspiracy. [176 
 
 prosecutions, this remedy was called " an action upon the 
 case in the nature of a conspiracy." The writ by which it 
 was begun always contained an averment that the false 
 prosecution had been instituted as the result of a conspiracy 
 — " conspiratione inde praehabita " — even in cases in which 
 only a single defendant was named. Also, in the digests 
 of the period between the reign of Henry VIII and that of 
 Charles II, cases of malicious prosecution, whether against 
 a single defendant or against several, are all listed under 
 the caption "conspiracy." As the word had thus become 
 a vocabulum artis, with a special formal meaning quite dif- 
 ferent from its primary signification, the validity of the 
 conception expressed by it as the ground of a civil remedy 
 was not readily perceived to be undermined by the growth 
 in the conscious thought of the times of the conception of 
 malice as the true secondary element of actionable false 
 prosecutions'. 
 
 The second reason was the fact that this conception of 
 the importance of malice was worked out through the 
 medium of the action upon the case, which began to be 
 employed as a remedy for false accusations almost simul- 
 taneously with the reappearance of that conception. For 
 a long time the courts busied themselves in extending re- 
 dress through this new form of action to the many cases in 
 which the strict action of conspiracy was powerless to afford 
 relief, in developing the doctrine of probable cause, and in 
 coming clearly to base the rights of the plaintiff upon the 
 damage suffered by him and the malice of the defendant. 
 Not until they had arrived at a comparatively matured con- 
 ception of the significance of malice in such cases did the 
 courts begin to compare the new remedy with the old, and 
 to inquire into the relations existing between them. These 
 considerations explain why the strict action of conspiracy 
 was preserved from the disintegrating effects of the new 
 conception of malice until the latter had become sufficiently 
 developed to destroy the old action at a blow. 
 
 Comparisons between the two forms of action, leading to 
 the analyses of their basic conceptions which proved fatal 
 
177] Growth of Civil Action of Conspiracy. 45 
 
 to the older form, were first instituted, it is curious to note, 
 as a direct result of the conservatism of the courts in retain- 
 ing the name and as many as possible of the attributes of 
 the older action while developing the new. It was often 
 important to determine whether the action brought was an 
 action of conspiracy or an action upon the case.^^ The 
 similarity of the two proceedings made necessary a close 
 examination of their fundamental characteristics in order 
 to distinguish them. The discussions thus inaugurated, 
 though at first productive of a great deal of confusion and 
 contradiction, revealed the vital differences between the two 
 remedies. The result was the establishment of the broad 
 principle that the action of conspiracy should be confined to 
 cases wherein there had been a combination such as would 
 subject its members to the villanous judgment; that is, a 
 combination falsely and maliciously to indict of a capital 
 crime. In such cases, if the action were based upon the con- 
 spiracy as the principal element of the wrong, the other 
 facts being alleged by way of aggravation, it was an action 
 of conspiracy. In all cases in which the false accusation 
 had been preferred by a single defendant, or even in which 
 a conspiracy was alleged but the emphasis was placed upon 
 the acts causing the damage, the mention of the conspiracy 
 being by way of aggravation, the proceeding was said to 
 
 ^ Thus, the localities in which the two actions should be brought 
 differed. An action of conspiracy was cognizable by the court 
 having jurisdiction over the place in which the combination was 
 formed; an action upon the case, in the jurisdiction in which 
 the malicious prosecution took place. So, too, the jury which 
 tried an action of conspiracy had to be drawn from the several 
 vicinages in which the conspiracy had been entered into and 
 put into execution, whereas the jury in an action upon the 
 case need come only from the vicinage in which the case was 
 tried. It may be said generally that in actions of this char- 
 acter, for prosecutions alleged to have been instituted by a com- 
 bination of persons, it would frequently happen that all the defen- 
 dants but one would be acquitted, or the plaintiff would be un- 
 able to show that he had been acquitted upon the alleged false 
 charge, or the like. The defendant would then move in arrest of 
 judgment that the proceeding was an action of conspiracy and that 
 he could not be held alone, etc. In such an event the fate of 
 the action depended upon which form of action the court held it to 
 be; hence the importance of distinguishing between them with 
 certainty. 
 
46 Development of the English Law of Conspiracy. [178 
 
 be an action upon the case.^* In this manner the two forms 
 of action were drawn into sharp contrast with each other. 
 
 ■*This method was first suggested in Smith vs. Cranshaw, 
 Palm. 31S (l Car. I, 1625), an action upon the case for a false 
 and malicious accusation of having uttered treasonable words. The 
 question had been raised whether the jury should be drawn from 
 the county in which the conspiracy had been formed, or partly 
 from that county and partly from the county in which the con- 
 certed design had been executed. Dodd, J., believed "that the 
 action will be brought and tried where the conspiracy, which is 
 the root of the fact, is laid; for the others are only consequences 
 following upon this." He held further that the damages "will be 
 equal and entire; because the conspiracy is the cause, and all 
 are found guilty together." Ley, C. J., agreed that " if the con- 
 spiracy only had been the offense, there the visne will be where 
 the conspiracy is committed." 
 
 Skinner vs. Gunton, T._ Raym. 176 (21 Car. II, 1669), is a lead' 
 ing case in this connection. An action upon the case had been 
 brought against three defendants for a conspiracy to have the 
 now plaintiff arrested in a grand action of debt. Only one de- 
 fendant being found guilty, his attorney argued in arrest of judg- 
 ment that the proceeding was an action of conspiracy, wherein 
 a single defendant cannot be held. A majority of the court held 
 that it was an action upon the case, the reason being that "the 
 substance of the action was the undue arresting of the plaintiff, 
 and not the conspiracy" (i Saund. 227). The same idea is ex- 
 pressed in another report of the same case (i Vent. 12) : "Here 
 'tis rather in the nature of an action upon the case, and the con- 
 spiracy alleged by way of aggravation." In still a third report (2 
 Keb. 497) we are told: "The court said', the writs being the 
 same, it's one or the other, as the plaintiff titles it, albeit the word 
 conspiracy be used; and according to the offense, if felony con- 
 spiracy; if but trespass, action upon the case." Here the action 
 was entitled "In placito transgressionis super casum" (i Vent. 18). 
 Three years later the case reappears, and it is laid down (3 Keb. 
 118), "In placito transg. quod conspiraverunt or indictari procura- 
 verunt, if trespass be the principal and this but for aggravation of 
 damages, finding one guilty is sufficient, but in a bare conspiracy 
 not, though no villanous judgment be given." 
 
 The above principles were discussed and reaffirmed in Rex vs. 
 Thode, 3 Keb. iii (24 Car. II, 1672), in the following words: "In 
 an action on the case for disceit, conspiratione inde habita, one 
 may be convicted alone, but when it is an action upon the case 
 quod conspiraverunt, one alone cannot be convicted." In another 
 report (i Vent. 234) of this case we find that "Wild said:_ The 
 difference was, where the suit was upon conspiracy wherein the 
 villanous judgment was fo be given, and where the conspiracy 
 is laid only by way of aggravation; as in this case. Hale said 
 it would be the same in an action against two upon the case for 
 conspiracy; but not in such actions where there be a charge of con- 
 spiracy, yet the gist of the action is upon another matter." 
 
 The inconsistency and inaccuracy of the language employed in 
 the above decisions bear striking testimony to the confusion of 
 thought which lingered in the minds of the judges. Still, the 
 main ideas intended to be conveyed are clear enough in their 
 
179] Growth of Civil Action of Conspiracy. 47 
 
 So stood the law when the great case of Savile vs. Rob- 
 erts, 9 and 10 William III (1698), arose. In this decision, 
 which supplies the foundation of modern doctrines relating 
 to malicious prosecution and is still quoted as a leading case, 
 the various principles which we have been discussing sepa- 
 rately were woven into a single, harmonious fabric' The 
 transition to the conception of malice and damages as the 
 true essentials for recovery in actions upon the case for 
 malicious prosecution was completed. Confusion of 
 thought resulting from the numerous attempts of former 
 times to inject principles valid within the field of the action 
 of conspiracy into the field of the action upon the case was 
 cleared away. The inadequacy of the mere conspiracy as 
 the foundation of a civil action was pointed out, and the 
 triumph of the new proceeding over the- old was openly 
 recognized. 
 
 Roberts brought an action upon the case in the Court of 
 Common Pleas against Savile,'" alleging that the latter 
 "maliciously and wickedly intending to oppress the plain- 
 tiff, caused him to be maliciously indicted of a riot," and 
 recovered a judgment for in damages. The defendant 
 then sued a writ of error into the Court of King's Bench, 
 where, after several arguments, the judgment of the lower 
 court was affirmed. Lord Holt, in his opinion, emphasized 
 the principle that the damage suffered by the plaintiff was 
 the true ground of the action. If a person suffer loss by 
 reason of a false and malicious prosecution, " it is reason 
 and justice that he should have an action to repair him the 
 injury; though of late it has been questioned, yet it has 
 always been allowed formerly. . . . But it may be objected 
 against the authority of the old books that these actions 
 were grounded upon a conspiracy, which is of an odious 
 nature ; and that without conspiracy they are not maintain- 
 able; but to this it is answered that the conspiracy was 
 nothing in these cases; that was not the ground of these 
 
 "" 12 Mod. 208. 
 
48 Development of the English Law of Conspiracy. [ 1 80 
 
 actions, but the damage sustained by the party ;'^ for if 
 there be never so great a conspiracy to indict a man, yet if 
 nothing be done in pursuance of that conspiracy, the party 
 can have no action. . . . Now if a man be prosecuted 
 maliciously for trespass, either with or without a con- 
 spiracy, it is the same thing; the trouble and expense is the 
 same ; and I take it that wheresoever an action of conspiracy 
 is maintainable against two, there if it be a malicious prose- 
 cution by one, case will lie. These actions of conspiracy in 
 the old books were really but actions upon the case: but 
 conspiracy properly so-called does not lie unless the party 
 were indicted of a capital crime."'^ 
 
 Lord Holt says further that malicious acts causing dam- 
 age always give the injured party a right of action, even in 
 some cases where the malicious prosecution is a proceeding 
 in the civil courts. Still, he cautions,^' " though this action 
 does lie, yet it is an action not to be favored, and ought not 
 to be maintained without rank and express malice and in- 
 iquity. Therefore, if there be no scandal or imprisonment, 
 and ignoramus found, no action lies, though the matter be 
 false; yet if the indictment be fairly prosecuted, no action 
 lies; so if the court has a jurisdiction, though the matter 
 be scandalous, yet if there be no malice, no action lies. But 
 
 ''It must be borne in mind that Lord Holt is speaking of actions 
 upon the case, not of actions of conspiracy. Though the founda- 
 tion of the latter, as well as of the former, was really the damage 
 done to the plaintiff by the false accusation, the conspiracy was 
 nevertheless considered an integral part of the wrong to be re- 
 dressed. See note 20, p. 37. 
 
 "The remainder of this passage, in which Lord Holt further 
 contrasts the two actions, is as follows : " . . . unless the parties 
 were indicted of a capital crime (F. N. B. 116), in which action 
 of conspiracy properly so-called, if it be brought against two, and 
 the one found guilty, and the other acquitted, no judgment can 
 be given against him who is found guilty. . . . And no villanous 
 judgment shall be given, but where a conspiracy was to take away 
 a man's life; and conspiracy, though nothing be done thereupon, 
 is a crime and punishable at the suit of the King. But where the 
 conspiracy is only to indict a man for a misdemeanor, though the 
 action be against two, and only one is found guilty, yet judgment 
 shall be against him, as in the case of trespass; for really it is 
 an action on the case, and no action of conspiracy" (s Mod. 394, 
 408). 
 
 " 12 Mod. 211. 
 
i8i] Growth of Civil Action of Conspiracy. 49 
 
 in the case before us. the verdict has found express malice; 
 and therefore judgment ought to be affirmed." 
 
 The same points arose again in the case of Jones vs. 
 Gwynn/* decided a few years later, wherein an action upon 
 the case had been brought upon a false and malicious indict- 
 ment for following the trade of " corn-badger " without a 
 license. The above doctrines were reaffirmed and applied, 
 with extensions and improvements. 
 
 These two cases mark the culmination of the long process 
 whereby the courts had been gradually unfolding the basic 
 principles relating to the action upon the case for malicious 
 prosecution as it exists today. The courts clearly and 
 authoritatively announce that not conspiracy, but damages 
 flowing from the malice of the defendant, are essential req- 
 uisites for recovery. The old action of conspiracy was not 
 in terms declared obsolete. But the action upon the case 
 was so broadened in its scope that it became available to 
 redress not only wrongs beyond the operation of the older 
 remedy, but also torts which the old action might still reach ; 
 and in competition with the new form of action the action 
 of conspiracy immediately succumbed. Henceforth the 
 activities of the courts are confined .to clearer statements 
 and to logical extensions of the principles laid down in 
 the above cases. The terms employed receive further 
 elucidation. A more objective conception of malice, mak- 
 ing the latter nearly coextensive with absence of legal ex- 
 cuse, is evolved, and the significance of probable cause and 
 other evidences of malice is discussed.^' These matters, 
 
 "10 Mod. 148, 214; Gilb. Cases, Law & Eq., 185. 
 
 " Clearer and more general statements that the elements of the 
 tort of malicious prosecution are malice, innocence, and damages: 
 Jones vs. Gwynn, 10 Mod. 214 (1713); Chapman vs. Pickersgill, 2 
 Wils. 145 (1762) ; Goslin vs. Wilcock, 2 Wils. 302 (1765) ; Purc.ell 
 vs. McNamara, 9 East 361 (1808). Malice as absence of legal jus- 
 tification : Jones vs. Gwynn (supra) ; Sutton vs. Johnstone, I T. 
 R. 493 (178(5). Analysis of the conception of "probable cause," etc. : 
 Muriel vs. Tracy, 6 Mod. 169 (1704) ; Jones vs. Gwynn (supra) ; 
 Farmer vs. Darling, 4 Burr. 1971 (1766) ; Purcell vs. McNamara 
 (supra). Anything may be employed as an instrument of malice: 
 Chapman vs. Pickersgill (supra) ; Chambers vs. Robinson, i Stra. 
 691 (1726). 
 
50 Development of the English Law of Conspiracy. [182 
 
 however, fall outside of our province. Our interest in the 
 doctrines worked out by the civil courts ceases with the 
 disappearance of the conception that conspiracy is in itself 
 a constituent element of tort. From this time on our atten- 
 tion will be centered upon the criminal aspect of conspiracy, 
 until at the end of the nineteenth century the results flowing 
 from the decision of Allen vs. Flood,** coupled with certain 
 modem industrial conditions, again force the conception 
 of conspiracy to occupy a position of prominence in civil 
 cases. . 
 
 ='77 L. T. Rep., N. S., 717 (1898). 
 
CHAPTER III. 
 
 The Criminal Law of Conspiracy, from the Reign of 
 
 Edward I to the Beginning of the 
 
 Nineteenth Century. 
 
 Although the Ordinance of Conspirators (21 Edw. I) 
 and the Articuli super Chartas (28 Edw. I) were intended 
 to deal with the civil remedy for conspiracy, they both con- 
 tain elements of a criminal nature.^ There is also a clause in 
 the Definition of Conspirators which evidences a criminal 
 liability for the offense.^ Not until the fourth year of the 
 reign of Edward III (1330), however, was a statute passed 
 devoted exclusively to the criminal aspect of conspiracy. 
 This statute is as follows : " Item, Where in times past 
 divers people of the realm, as well great men as other, have 
 made alliances, confederacies, and conspiracies, to maintain 
 parties, pleas, and quarrels, whereby divers have been 
 wrongfully disinherited, and some ransomed and destroyed, 
 and some for fear to be maimed and beaten, durst not sue 
 for their right, nor complain, nor the juries of inquests give 
 their verdicts, to the great hurt of the people, and slander 
 of the law and common right; it is accorded. That the jus- 
 tices of the one bench and of the other, the justices of 
 assizes, whensoever they come to hold their sessions, or to 
 take inquests upon nisi prius shall inquire, hear, and deter- 
 mine, as well at the King's suit, as at the suit of the party, 
 of such maintainers, bearers and conspirators, and also of 
 
 'The infliction of penalties of fine and imprisonment upon per- 
 sons found guilfy of conspiracy in a civil proceeding, in addition 
 to the damages awarded to the plaintiff, does not fall in with our 
 modern ideas respecting the separation which should be made 
 between civil and criminal procedure. 
 
 ' The significance of the direction contained in the Definition that 
 "Justices assigned to the hearing and determination of felonies 
 and trespasses should have the transcript hereof" has already been 
 alluded to. See supra, p. 10. 
 
 51 
 
52 Development of the English Law of Conspiracy. [184 
 
 them that commit champerty, and of all other things con- 
 tained in the aforesaid article, as well as justices in eyre 
 should do if they were in the same county. And that which 
 cannot be determined before the justices of the one bench 
 or the other upon the nisi prius, for the shortness of time, 
 shall be adjourned into the place whereof they be justices, 
 and there be determined as right and reason shall require."* 
 
 Fourteen years later (18 Edw. Ill, 1344) it was enacted 
 by Parliament that exigents should be awarded against 
 " conspirators, confederators, and maintainers of false 
 quarrels." 
 
 The above statutes do nothing more than improve the 
 criminal procedure relating to the prosecution of conspira- 
 tors. The common law, as has been shown, had already 
 raised a criminal liability against conspiracy. The content 
 of that offense was described in the Definition of Conspira- 
 tors. It was left for the courts gradually to expand and 
 improve the law applicable to illegal combinations and to 
 adapt it to changing conditions until they brought it to the 
 position which it now occupies. 
 
 During the period between the reign of Edward I and 
 that of Charles II the criminal aspect of conspiracy was far 
 less important than the civil. With the exception of several 
 cases reported during the reign of Edward III, the books 
 record practically no criminal prosecutions for conspiracy.* 
 
 ' Of this statute Wright (" The Law of Criminal Conspiracies," 
 p. 14, n. 7) says, "The 4th Edw. 3 C. 11, made conspiracy effec- 
 tively criminal, by directing the justices of either bench or of 
 assize in sessions to hear and determine conspiracies and mainten- 
 ances." But it does not in reality create an entirely new criminal 
 liability for conspiracy. The very terms of the act evidences pre- 
 existing liability. It will be noted that justices at nisi prius are 
 simply invested with the jurisdiction already exercised by justices 
 in eyre. If, therefore, this statute rendered conspiracy for the 
 first time " effectively criminal," it must have done so by improv- 
 ing the machinery for prosecution. 
 
 *The criminal prosecutions for conspiracy reported in the Year 
 Books are: 22 Lib. Ass., C. 77; 24 Edw. Ill, 75 ; 26 Lib. Ass. f. 
 131 (pi. 62) ; 27 Lib. Ass. 12, 73, 74, 59, 138 (ch. 44) ; 28 Lib. 
 Ass. 12 ; 30 Lib. Ass. 21 ; 9 Hen. IV, f . 9. 
 
 The narrow scope of the offense of conspiracy during this 
 period is shown in 24 Edw. Ill, f. 75 (1351). Here was a present- 
 ment for conspiracy to imprison a man until he should pay a fine. 
 
1 8s] The Criminal Law of Conspiracy. S3 
 
 In the few such cases which we do find, the conceptions 
 worked out by the courts in connection with civil actions 
 of conspiracy were closely followed. The offense included 
 only combinations to pervert justice. The combination was 
 not punishable apart from the act performed. The same 
 immunities were enjoyed by indictors, justices, and wit- 
 nesses. The party injured must have been acquitted by 
 verdict. In general, the principles governing the civil and 
 the criminal proceedings were substantially the same. 
 
 The expansion of the criminal law of conspiracy began 
 during the reign of Edward III, was accelerated in the time 
 of Elizabeth and James I, and had made its most important 
 progress by the end of the reign of George III. In com- 
 paring this course of evolution with that undergone by the 
 civil law of conspiracy we are struck with two main dif- 
 ferences. First, the principle that several persons should 
 be punished criminally for engaging in a mere combination 
 to do evil is sound. Second, although the growth of the 
 criminal law was influenced and hampered by the narrow 
 conceptions at the basis of the civil law of conspiracy, it 
 encountered no difficulties flowing from a technical form 
 of procedure which had to be respected. 
 
 Our treatment of the development of the criminal law of 
 conspiracy will be divided into two parts: First, we shall 
 
 Upon a petition in the Court of King's Bench to reverse the 
 judgment, the court said: "And because neither year, nor day, nor 
 place is averred, . . . 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." 
 
 In 40 Edw. Ill, f. ig, Thorpe, J., admitted that where the con- 
 spiracy had been entered into in one county and executed in another 
 the king could not maintain an indictment in the first county, 
 although a private plaintiff could pursue his remedy by writ of con- 
 spiracy in that county. The reason, he says, is "that the suit of 
 the party in such a case is broader than the suit of the King." 
 
 The only other criminal proceedings against conspirators of 
 which we have any account until the time of Charles II are a 
 few cases in the Court of Star Chamber during the reigns of 
 Elizabeth, James I, and Charles I. See note 7, p. 55. 
 
 The first of the modern prosecutions for conspiracy seems to 
 be Rex vs. Timberley & Childe, i Sid. 68, I Lev. 62 (13-14 Car. 
 II, 1662). 
 
54 Development of the English Law of Conspiracy. [i86 
 
 trace the rise of the principle that the bare unexecuted con- 
 spiracy is a complete offense; second, we shall show how 
 the classes of combinations punishable as conspiracies 
 increased. 
 
 The language of the Definition of Conspirators is broad 
 enough to include combinations which have performed no 
 act. It appears, however, that an unexecuted agreement to 
 do evil was first declared punishable during the reign of 
 Edward III," and by an unsupported judicial determination. 
 
 " In the Book of Assizes, 27 Edw. Ill, ch. 44, f. 138, we find the 
 following (Art. s) : " Item of those who retain people with their 
 liveries or fees to suppress the truth, and to maintain their evil 
 enterprizes, etc. . . . And nota, that two were indicted of con- 
 federacy, each of them to maintain the other, whether their mat- 
 ter were true or false, and notwithstanding that nothing was sup- 
 posed as put in action, the parties were put to answer, because 
 this thing is forbidden in the law." This article, as its language 
 indicates, was founded upon the Definition of Conspirators. The 
 offense described in the nota represents a natural, though unmistak- 
 able, extension of the terms of the Definition. 
 
 The subsequent history of this new offense of confederacy, as dis- 
 tinguished from conspiracy, is an interesting illustration of the 
 methods of legal development. A difference between the two 
 offenses was recognized in a number of later cases : 27 Lib. Ass., 
 ch. 44, Item 6 (apparently based upon item S, supra) ; 28 Lib. 
 Ass., f. 12; 29 Lib; Ass., f. 166, pi. 45. See also the language of 
 the Commission of Oyer et Terminer (" de omnibus coadunation- 
 ibus, confoederationibus et falsis alligantiis"). 
 
 In the Poulterers' Case the court once or twice uses conspiracy 
 and confederacy synonymously. But a careful reading of the whole 
 opinion reveals that the court is sensible of a difference between 
 conspiracy and the offense then before them, and inclines to call 
 the latter "confederacy." This is the term employed by Lord Coke 
 in his nota. 
 
 Windham, J., in Rex vs. Sterling, i Keb. 675 (1664), carefully 
 distinguishes the offenses, and says that Sterling and his com- 
 panions were guilty of confederacy " as in the Poulterers' Case." 
 Twisden, J., however, says, "The false alliance or binding by oath 
 is but a further degree of conspiracy, which is all one and syn- 
 onymous with confederacy, and of which the assembly and con- 
 sultation is a sufficient fact." But in Reg. vs. Best, 6 Mod. 185 
 (1704), Lord Holt recognizes the distinction in these words: "This 
 indeed is not an indictment for a formed conspiracy, strictly 
 speaking, which requires an infamous judgment, and loss of liberam 
 legem, as upon conviction on an attaint, and for which an indict- 
 ment will not lie until acquittal or an ignoramus found. But 
 this seems to be a conspiracy late loquendo, or a confederacy to 
 pharge one falsely, which sure without more is a crime," etc. 
 
 The above facts possess _ a deep significance. They indicate that 
 "conspiracy" had a special meaning of its own. Hence, when 
 other combinations than agreements falsely and maliciously to in- 
 
187] The Criminal Law of Conspiracy. 55 
 
 Moreover, this declaration took place in connection with 
 the offense of " confederacy," which, though apparently 
 within the terms of the Definition of Conspirators, had 
 become differentiated from " conspiracy " strictly so called, 
 and embraced combinations to commit maintenances of 
 various kinds. 
 
 There is an obiter dictum upon the subject of unexecuted 
 conspiracies in a case anno 19 Richard II (1395)° arising 
 out of a civil action upon writ of conspiracy. Waddell, J., 
 said : " A man will have writ of conspiracy although they 
 did nothing but the confederacy together, and they will 
 recover damages, and may be indicted of this also, and 
 sic nota." 
 
 The great impetus toward the principle that an unexe- 
 cuted conspiracy is criminal came from several cases de- 
 cided in the Court of Star Chamber at the beginning of the 
 seventeenth century.'' The act creating this extraordinary 
 
 diet of felony were brought to the attention of the courts, they 
 were punished under the name of " confederacy." Thus it ap- 
 pears that this new oflfense bore practically the same relation to 
 the criminal law of conspiracy that the action upon the case 
 bore to the civil law. Under cover of "confederacy" the courts 
 were able to develop new principles relating to unlawful combina- 
 tions, the most notable being that the mere act of combination 
 is criminal, which is at the very foundation of the modern law 
 upon the subject. 
 
 As long as the dominance of the civil action of conspiracy served 
 to keep alive the technical meaning of conspiracy, the latter offense 
 remained distinct from confederacy. With the decadence of the 
 old civil proceeding before the newer " action upon the case," 
 however, the term "conspiracy" gradually lost its former narrow 
 signification. The dividing line between it and confederacy 
 became confused, and the two terms were often used synony- 
 mously (as in the Poulterers' Case and Sterling's Case). By 
 means of this interchangeabilify of the words, "conspiracy" was 
 enabled to appropriate the conceptions proper to "confederacy." 
 Finally the latter, having vastly enriched the law of illegal com- 
 bination by the infusion of the principles worked out under the 
 protection of its name, lost its separate existence; and the crime 
 of conspiracy was made to include all criminal agreements what- 
 soever. 
 
 ' Bellewe's Cases, Temp. Rich. II, p. 8o_, pi. 108. 
 
 'The first of these Star Chamber decisions was Glaseour vs. 
 Hurlestone, Gouldsb. 51 (pi. 14), 1587, in which "it was over- 
 ruled by the lords, that if a jury at the common law. . . . give 
 their verdict, although they make a false oath, yet they shall not 
 be impeached by a bill in the Star Chamber: But if any collateral 
 
S6 Development of the English Law of Conspiracy. [i88 
 
 tribunal* was held to have invested it with plenary jurisdic- 
 tion over all wrongs perpetrated by combinations of per- 
 sons. Influenced no doubt by the precedents supplied by 
 confederacy cases and by the theoretical importance as- 
 signed to the element of combination in civil actions of 
 conspiracy, as well as by the conditions of the times, the 
 judges of the Star Chamber soon came to look upon the 
 conspiracy itself as the " principal matter " to be noticed. 
 The extreme flexibility of proceedings in this court and the 
 broad scope of its authority permitted a free development 
 of the tendency just mentioned. The result of the inter- 
 action of these conditions can be seen in a line of decisions 
 
 corruption be alleged in them, as that they took money or bribes, 
 a bill shall lye thereof well enough." 
 
 In Amerideth's Case, Moore 562 (1600), certain tenants had 
 combined and made joint obligations to contribute to maintain 
 suits against their lord compelling him to grant copyhold estates to 
 the heirs of the holders. "They were fined for the combination, 
 and the maintenances, and the taking of the obligations one from 
 the other." In Lord Grey's Case, Moore 788, pi. 1088 (1607), cer- 
 tain tenants had joined in a petition to the king to obtain the 
 benefit of a similar custom of the manor in respect to copyhold es- 
 tates, and had agreed to share the expense ratably among them, 
 and had signed a blank paper, giving authority to one Perkins to 
 fill in what petition he pleased. The Star Chamber held this agree- 
 ment illegal. "And Popham said that an illegal combination is not 
 justifiable although the complaint is . . . For the blank they seem 
 all to be censurable, because it is an illegal combination, although 
 the complaint is not censurable, because made to the King who 
 has power to redress it; and the complaint is not made with 
 terror, nor for a thing apparently illegal." In these two cases 
 we seem to find the germ of the later doctrine that a conspiracy 
 renders unlawful that which it is perfectly legal for one person 
 to do. 
 
 Scroggs vs. Peck and Grey, Moore 562, pi. 765 (1600), was 
 grounded upon agreement to file a false bill in chancery against 
 a third person. The scheme was abandoned, but notwithstanding 
 this the parties were fined for the matter of agreement in prejudice 
 of a third person without his privity. 
 
 Miller vs. Reignolds & Basset, Godb. 205, and Floyd vs. Barker, 
 12 Co. 23 (1608), are not important for our present purpose. The 
 next case in point of time is the Poulterers' Case. It was fol- 
 lowed by Ashley's Case, 12 Co. 90, in the following year. The 
 last Star Chamber decision upon conspiracy was Tailor & Towlin's 
 Case, Godb. 444 (1628), in which the court entertained a bill of 
 conspiracy for a false indictment before a tribunal whose juris- 
 diction was not distinctly alleged, "because the conspiracy was the 
 principal thing tryable and examinable in this court, and that 
 was well laid in the bill." 
 
 ' St. 3 Hen. VII, C. i, 
 
189] The Criminal Law of Conspiracy. 57 
 
 culminating in the famous Poulterers' Case,* anno 8 James I 
 (1610), wherein, after a full discussion of the law, it was 
 said that a bare conspiracy is punishable independently of 
 any act done in execution of it. 
 
 The plaintiff in the Poulterers' Case had instituted pro- 
 ceedings in the Star Chamber against .the defendants for a 
 conspiracy falsely to charge him with robbery, upon which 
 charge the grand jury had returned an ignoramus. The 
 defendants relied upon the settled principle of the common 
 law that no action or indictment for conspiracy could be 
 entertained unless the plaintiff had been legally acquitted 
 by verdict. The court, however, refused to dismiss the bill. 
 After stating that at common law an innocent person was 
 protected by the bill de odio et atia in the interval between 
 the laying of a charge and the finding of an indictment, the 
 judges say: "And it is true that a writ of conspiracy lies 
 not, unless the party is indicted and legitimodo 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 full and manifest in our books." 
 The authority cited in support of this proposition consists 
 in (i) the confederacy case above referred to, which ap- 
 pears in Item 5 of the Articles Inquired of by Inquest of 
 Office, anno 27 Edward III (1354), and the language of 
 Items 6 and 19 of the same articles; (2) the anonymous 
 case anno 19 Richard II (1395), also mentioned above; (3) 
 the clause in the usual Commissions of Oyer and Terminer 
 giving the commissioners the power to inquire " de omnibus 
 coadunationibus, confoederationibus et falsis alligantiis." 
 The court continues : " 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 . . . 
 and in these cases the common law is a law of mercy, for it 
 prevents the malignant from doing mischief, and the iimo- 
 cent from suffering it." After a hearing, therefore, the 
 defendants were punished by fine and imprisonment, and 
 
 " Co. 56 b. 
 
5 8 Development of the English Law of Conspiracy. [190 
 
 one of them was branded in the face with the letters 
 " F. A.," for " false accuser." 
 
 Although the judges profess to base their decision in this 
 case upon the common law, the Poulterers' Case represents 
 a long step in advance of existing principles. The prece- 
 dents cited do not sustain the decision. The language em- 
 ployed in the Articles Inquired of by Inquest of Office (27 
 Lib. Ass., Ch. 44), the case there noticed, and the terms of 
 the Commission of Oyer and Terminer, all apply to confed- 
 eracy — a combination for an evil purpose, to be sure, but 
 one quite different in its nature from conspiracy strictly so 
 called.^" The dictum cited from the case anno 19 Richard 
 II was undoubtedly erroneous in so far as it applied to the 
 civil action of conspiracy, and we have every reason to 
 believe that it was an equally inaccurate statement of the 
 doctrine relating to the criminal aspect of the offense. On 
 the other hand, the holding in the Poulterers' Case was 
 utterly opposed to the notion common at that time to both 
 the civil and the criminal law of conspiracy that the offense 
 was not complete until the person injured had been indicted, 
 tried, and acquitted by the verdict of twelve men. 
 
 It is to be noted, however, that the importance of this 
 decision lies not so much in what is contained in the ratio 
 decidendi as in the manner in which the doctrines laid down 
 in it were understood and applied. The general statement 
 that conspiracy in itself is punishable is obiter dictum. The 
 case really decides nothing more than that persons guilty 
 of concerted efforts to secure the conviction of an innocent 
 person upon a capital charge may be punished for con- 
 spiracy, although the false prosecution end otherwise than 
 in an acquittal by verdict.^^ This principle is consonant 
 with those of the common law as explained by Bracton and 
 
 " See note S, p. S4- 
 
 "To his report of the Poulterers' Case Lord Coke appends 
 the following commeni; : " Nota, reader, these confederacies, pun- 
 ishable by law before they are executed, ought to have four 
 incidents: It ought to be declared by some manner of prosecu- 
 tion, as in this case it was, either by making of bonds or promises 
 one to the other; 2 . . . malicious, as for unjust revenge, etc.; 3 
 . . . false against an innocent ; 4 . . . out of court, voluntarily." 
 
iQi] The Criminal Law of Conspiracy. $9 
 
 declared in the Edwardian statutes of conspiracy.^'' The 
 extension given to the criminal law by the Poulterers' Case, 
 so interpreted, was practically identical with the contem- 
 poraneous advances being made by the civil law relating to 
 the same class of offenses under cover of the remedy by 
 action upon the case.' In the later cases, however, the prin- 
 ciple broadly laid down that the bare conspiracy is punish- 
 able was looked upon as having been settled by this decision. 
 A doctrine probably valid as to a limited class of evil com- 
 binations thus^came to be extended over the entire field of 
 such enterprises. The Poulterers' Case, therefore, in view 
 of the effects actually produced by it, must always be re- 
 garded as one of the historic landmarks upon the highway 
 of English legal history. 
 
 The Poulterers' Case was cited and confirmed in Ashley's 
 Case^^ (9 Jac. I, 161 1) and in Tailor and Towlin's Case^* 
 (4 Car. I, 1628), both Star Chamber cases, in which the 
 facts were identical in principle with those of the earlier 
 case. The statement that an unexecuted conspiracy is an 
 offense punishable is met with for the first time in the Court 
 of King's Bench in an obiter dictum in Bagg's Case'^^ (13 
 Jac. I, 1615). It was repeated, again obiter, upon the au- 
 thority of the Poulterers' Case, in Smith vs. Cranshaw;^" 
 also in Rex vs. Timberly^^ (13-14 Car. II, 1662), wherein, 
 as in the Poulterers' Case, acts had been performed in exe- 
 cution of the conspiracy, but the enterprise had not been 
 such as would constitute a formed conspiracy in the strict 
 sense. In Rex vs. Starling (or Sterling), however, another 
 case of surpassing importance, decided anno 15 and 16 
 Charles II (1664), it was authoritatively laid down, upon 
 
 "In Sydenham vs. Keilway, Cro. Jac. 7 (1574). It was said 
 obiter that where two conspire to indict a person falsely, and the 
 grand jury returns an ignoramus, no writ of conspiracy lies "be- 
 cause he never was indicted nor acquitted; yet he may be indicted 
 upon conspiracy at common law for this false conspiracy and mis- 
 demeanor, which is punishable at common law." 
 
 "12 Co. 90. 
 
 "Godb. 444. 
 
 " II Co. 93 b. 
 
 " Palm. 315. 
 
 " I Sid. 68. 
 
6o Development of the English Law of Conspiracy. [192 
 
 an appropriate set of facts, that a conspiracy is a crime quite 
 apart from anything done to carry out its purpose. 
 
 An information had been laid against Sterling and others, 
 brewers of London, charging that in pursuance of an illicit 
 conspiracy to impoverish the king's excisemen they had 
 given orders that no more little " servois," called " gallon- 
 beer," a commodity largely consumed by the poor, should 
 be brewed; and that ale should be sold only at a certain 
 price. By these means, it was alleged, the defendants de- 
 signed to excite the common people to violence against the 
 excisemen, in order that the latter might be impoverished 
 and so disabled to pay their rent to the king. Upon a plea 
 of not guilty the defendants were found guilty of assem- 
 bling and consulting to impoverish the excisemen, but not 
 guilty of the other facts charged. The prisoners' counsel 
 accordingly made a motion in arrest of judgment, arguing 
 that the only fact found was the conspiracy, and that the 
 only conspiracies punishable without overt act " must be 
 such as concern the public, which does not appear here in 
 this general charge, but an injury to the fermors by par- 
 ticular name."'^* 
 
 Counsel for the king replied that since the effect of im- 
 poverishing the fermors of the excise would be a diminu- 
 tion of the king's revenue, this conspiracy was a great of- 
 fense " of public concernment." Moreover, a conspiracy to 
 injure any third party is punishable. Again, although the 
 mere conspiracy is an act ad intra, the communication of it 
 is an overt act, punishable " though nothing ensue thereon." 
 The conspiracy is the crime, and the other acts are but 
 " particular instances of it," of value only as evidence. 
 
 The court unanimously overruled the motion. Keel- 
 ing, J.," was of the opinion " that this bare conspiracy is a 
 great crime, where it is to do that which is evil, although 
 to a private person; so is the Poulterers' Case." But the 
 conspiracy in question, he continued, was of a public nature, 
 as it touched the king's revenue. Windham, J., " conceived 
 
 " I Keb. 65s. 
 " I Keb. 67s. 
 
193] ^^^ Criminal Law of Conspiracy. 6i 
 
 it a point of weight and difficulty. . . . They are acquitted 
 of conspiracy, which properly is where it's to indict men for 
 their lives, and this is that whereon the writ lieth ; but the 
 false alliance and union by mutual swearing to maintain 
 quarrels, is rather a confederacy. A'lso ... if it were a 
 conspiracy, there ought to have been some overt act ex- 
 pressed; as if H. be indicted for forestalling, or being a 
 common thief, or barrator; or conspirator, and as to this 
 there is no difference betwixt indictment and an action or 
 information; I do conceive the defendants found guilty of 
 confederacy, as in the Poulterers' Case." After stating that 
 the offense contemplated by the present conspiracy was of 
 a public nature, he continued : " I agree that general con- 
 federacy, without designment to public or private end, is 
 punishable by action upon the case ... or by indictment, 
 in 19 Rich. II in Poulterers' Case is according [sic] ; and 
 therefore I do conceive here is enough found to give judg- 
 ment against them for a confederacy, by their assembling 
 together, their consultation and conspiracy, which is as much 
 a false alliance as if they had bound themselves by oath." 
 
 Twisden, J., held that the defendants were guilty " of an 
 unlawful assembly, and of a conspiracy. . . . Also, intent, 
 while private, is fluctuating, and so cannot be punished, but 
 when it's declared by act, it's punishable ; also, voluntas non 
 reputabitur pro facto . . . that is, it shall not be punished 
 so fully, but it is still punishable : The false alliance or bind- 
 ing by oath is but a farther degree of conspiracy, which is 
 all one and synonymous with confederacy, and of which the 
 assembly and consultation is a sufficient fact." Sterling 
 was accordingly fined £1000, the others £300 each. 
 
 The language of the court is confused in parts, but sev- 
 eral points stand out clearly: (i) The declaration that the 
 mere combination to do evil is a crime is part of the ratio 
 decidendi. (2) This principle is based upon obiter dicta in 
 the Poulterers' Case and in Bagg's Case, and is not sup- 
 ported by what was actually decided in these cases. (3) 
 Although Windham, J., correctly distinguishes between 
 confederacy and conspiracy, the tendency to widen the prin- 
 
62 Development of the English Law of Conspiracy. [194 
 
 ciples applicable to the former until they should include 
 all unlawful combinations, and to embrace the latter within 
 the term " conspiracy," is plainly apparent. (4) The real 
 advance shown by this case over the Poulterers' Case lies 
 in the nature of the overt act decided to be necessary to 
 evidence the conspiracy : whereas the overt act in the Poul- 
 terers' Case was an unsuccessful prosecution, the overt act 
 in Sterling's Case was the mere consultation and agree- 
 ment, (s) The modern view as to the nature of the 
 offense and the connection between the conspiracy and the 
 acts done appears for the first time. 
 
 In several cases decided soon afterward, however, the 
 court seemed to hesitate to apply the doctrine of Sterling's 
 Case. In Rex vs. Tayler and Gard^° the punishment of 
 the defendants was lightened because the conspiracy had 
 been unsuccessful. In Rex vs. Armstrong et al.,^^ counsel 
 for the defense argued that a bare conspiracy without overt 
 act is not indictable, and cited the Poulterers' Case. The 
 court -answered that there had been " as much overt act as 
 the nature and design of this conspiracy did admit," instead 
 of making the obvious rejoinder that the conspiracy itself 
 was the crime. And in Rex vs. Parkehurst et al.^^ the court 
 even declared obiter that an information for conspiracy 
 would not lie unless an overt act be proved. 
 
 The law was settled finally by Lord Holt. Even this 
 great judge, however, experienced some vacillation of mind 
 before arriving at a final conclusion. In Savile vs. Rob- 
 erts^' he declared obiter that " conspiracy, though nothing 
 be done thereupon, is a crime, and punishable at the suit 
 of the King." But in Reg. vs. DanielP* he agreed with 
 counsel for the defense that a conspiracy to prosecute an 
 innocent man upon a false criminal charge is not indictable 
 unless executed, ' although he seemed to think that a con- 
 spiracy to rob or kill a man, or to charge him with the 
 
 ™3 Keb. 399 (20 Car. II. 1668). 
 "i Vent. 30s (28^ Car. II, 1677). 
 "^3 Keb. 799 (29 Car. II, 1677). 
 °'i2 Mod. 208, 209. 
 "6 Mod. 100 (2 Anne, 1703). 
 
195] "^he Criminal Law of Conspiracy. 63 
 
 paternity of a bastard child, might be punishable without 
 more."" 
 
 Lord Holt's ultimate, opinion is to be found in the great 
 case of Reg. vs. Best et al. (1704-5). The defendants 
 had been indicted for a conspiracy to extort money from 
 one Pickering by falsely charging him in public places with 
 being the father of a bastard child. A motion to quash the 
 indictment being overruled, a demurrer was entered, upon 
 two grounds i''" (i) " That it does not appear that anything 
 was done in pursuance of the conspiracy, and that ought 
 to appear according to the Poulterers' Case." (2) The 
 indictment contained no averment of Pickering's innocence 
 of the charge, which averment, it was insisted, was neces- 
 sary, upon the analogy of an accusation of perjury, wherein 
 the falsity of the statement sworn to must be proved. 
 
 Lord Holt said : " Your case of perjury is not like this ; 
 for there the crime consists in the fact sworn, and the mat- 
 ter is indifferent until the averment of ubi revera comes: 
 but here is a confederacy to charge a man falso, nequiter, 
 malitiose, etc. . . . This indeed is not an indictment for a 
 formed conspiracy, strictly speaking, which requires an in- 
 famous judgment, and loss of liberam legem, as upon con- 
 viction on an attaint, and for which an indictment will not 
 lie until acquittal or an ignoramus found. But this seems 
 to be a conspiracy late loquendo, or a confederacy to charge 
 one falsely, which sure, without more, is a crime ; and it is 
 a crime for several people to join and agree together to 
 prosecute a man right or wrong. If in an indictment for 
 such confederacy you proceed further, and shew a legal 
 prosecution of the confederacy, there you must shew the 
 event thereof, as ignoramus returned on the indictment, or 
 an acquittal, or else the indictment fails ; but where yod rest 
 upon the confederacy, it will be well without more." 
 
 The whole court held " that the very agreeing together to 
 
 ^This conflict really disappears if we hold to the distinction 
 between conspiracy and confederacy. It comes from using the 
 terms synonymously. 
 
 ="6 Mod. i8s. 
 
64 Development of the English Law of Conspiracy. [196 
 
 charge a man with a crime falsely is a consummate offense, 
 and indictable." They believed, also, that the lack of an 
 averment of Pickering's innocence was not fatal to the 
 indictment, and hence gave judgment for the queen. The 
 doctrine laid down is thus summarized in another report 
 of the case ■?'' " The conspiracy is the gist of the indictment, 
 and that, though nothing be done in prosecution of it, it is 
 a oompleat and consummate offense of itself; and whether 
 the conspiracy be to charge a temporal or ecclesiastical 
 offense on an innocent person, it is the same thing." 
 
 The case was reargued during the Easter term of the 
 following year. The point that seemed to " stick much with 
 the court "^^ was the absence of any statement that Picker- 
 ing was innocent. The question of the criminality of the 
 bare conspiracy, however, was raised again, and Weld, Ser- 
 jeant, argued that such a combination " stands singly upon 
 the intention,"^" and is not criminal unless something come 
 of it, " for it is the damage the party receives by the con- 
 spiracy that makes it criminal." The court finally held to 
 its former decision. They cited precedents wherein " a 
 conspiracy without any further act done had been held to be 
 indictable."^" Lord Holt said further f^ " If two or three 
 persons meet together and discourse and conspire how to 
 accuse another falsely of an offense, it is an overt act, and 
 is an offense indictable. So if two or three meet together 
 to conspire the death of the queen, yet though there was 
 nothing but words passed, the very assembling together was 
 an overt act." 
 
 The case of Reg. vs. Best contains a fuller discussion of 
 the law relating to this phase of our subject than is to be 
 found in any preceding case. Lord Holt shows deference 
 to the ancient distinction between conspiracy and confeder- 
 acy, but this distinction soon lost all importance. Confed- 
 eracy so widened its scope that it came to include all un- 
 
 "i Salk. 174. 
 
 ''2 Ld. Raym.. 1167. 
 
 "11 Mod. 55. 
 
 "2 Ld. Raym. 1167. 
 
 " II Mod. SS. 
 
197] The Criminal Law of Conspiracy. 65 
 
 lawful combinations except those comprised within the 
 narrow class of conspiracies strictly so called. And when 
 the decadence of the civil action of conspiracy had robbed 
 the term " conspiracy " of its special significance, it was 
 appropriated to all unlawful combinations and subjected to 
 the principles worked out under the cover of the offense 
 of " confederacy." 
 
 From the time of this decision the principle that a bare 
 conspiracy is punishable as a crime was accepted with little 
 question. Counsel argued for the last time against this 
 proposition in Rex vs. Kinnersley and Moore'^ (5 Geo. I, 
 1719). The objection was vigorously combatted by coun- 
 sel for the king, and was brushed aside by the court with 
 little ceremony. From this time on attention is centered 
 largely upon the nature of the offense of conspiracy and 
 the relation between the various elements composing it. 
 
 We turn now to a discussion of the unlawful purpose 
 which transforms a combination into a criminal conspiracy. 
 During the period of the dominance of the civil action 
 of conspiracy practically no combinations were included 
 within the offense technically so called except combinations 
 to enter false accusations of capital crimes. In this respect 
 the criminal courts followed the practice of the civil courts. 
 The exceptional civil actions of conspiracy entertained dur- 
 ing the reign of Edward III are paralleled by several ex- 
 ceptional criminal prosecutions during the same period. In 
 all these criminal cases, however, the prisoners escaped 
 punishment in one way or another. After this reign the 
 rigidity and the narrow scope of the civil law relating to 
 conspiracy appear to have been reflected in the conception 
 of conspiracy in its criminal aspect. 
 
 The germinal origin of the modern law of conspiracy, 
 looked at from the viewpoint of the illegal purpose as well 
 as from that of the element of combination, seems to be the 
 clause of the Definition of Conspirators relating to the 
 retention of men in the country "with liveries or fees for 
 
 "i Stra. 193. 
 
 S 
 
66 Development of the English Law of Conspiracy. [198 
 
 to maintain their malicious enterprises and to suppress the 
 truth." From this portion of the Definition sprang the 
 offense of " confederacy," through the medium of which 
 many important principles relating to concerted wrong- 
 doing were developed. By the twenty-seventh year of the 
 reign of Edward III (1364) confederacy had been made 
 to include a combination between two persons whereby each 
 had agreed to "maintain the other whether their matter 
 were true or false."^* As time went on, the scope of the 
 offense was gradually broadened to reach other kinds of 
 evil combinations, which later formed the basis of generali- 
 zations. But the main progress even in this direction was 
 made possible by the above described shift of emphasis 
 from the act to the combination as the gist of the offense. 
 When the courts arrive at the conception that the crim- 
 inality of conspiracy lies in the intent as manifested by 
 overt acts, they can readily bring within the definition of 
 the crime combinations for an indefinite number of objects. 
 The tendency to enlarge the class of unlawful combina- 
 tions first operated in the direction of agreements to per- 
 form acts directly harmful to the public.^* The first sug- 
 
 "27 Lib. Ass., ch. 44, f. 138. 
 
 " Bagg had been removed from his ofBce of chief burgess of the 
 Borough of Plymouth. He complained that he had been un- 
 justly treated. The Court of King's Bench said, "So if he in- 
 tends, or endeavors of himself, or conspires with others, to do a 
 thing against the duty or trust of his freedom, and to the prej- 
 udice of the public good of the city or borough, but he doth not 
 execute it, it is a good cause to punish him, as is aforesaid, but not 
 to disfranchise him" (11 Co. 93 b, 98). This passage strikingly 
 shows the assimilation by the court of conspiracy to intent and at- 
 tempt. 
 
 That the criminality of treason lies in the intent of the parties 
 was first stated in Blunt's Case, i How. St. Tr. 1410 (43 Eliz., 1600). 
 The solicitor-general argued that "the compassing the Queen's 
 destruction, which by judgment of law was concluded and implied 
 in that consultation, was treason in the very thought and cogitation, 
 so as that thought be proved by an overt act j that same consulta- 
 tion was an overt act." The lord chief justice said that the act 
 of one treasonable conspirator, "though different in the manner, 
 is the act of all of them who conspire, by reason of the general 
 malice of the intent." 
 
 These cases contain the elements out of which can be readily ex- 
 tracted the general doctrine that a bare conspiracy to do acts pre- 
 judicial to the public welfare is criminal. 
 
199] The Criminal Law of Conspiracy. 6^ 
 
 gestion that combinations of this character are punishable 
 is to be found in Bagg's Case"* (13 Jac. I, 1615), wherein 
 the principle is announced obiter, and without the citation 
 of any authority. It may probably be traced ultimately to 
 the judicial practice already adopted in reference to con- 
 spiracies to commit treason, wherein the combination, as 
 evidencing the treasonable intent, was punished because of 
 its direct influence upon the public weal. Such a principle 
 fully accorded with contemporaneous opinion, which fa- 
 vored the protection of the rights and privileges of the 
 king whatever might be the effect upon the conflicting inter- 
 ests of individual citizens. It was applied in Sterling's 
 Case to a combination to reduce the king's revenue by im- 
 poverishing the fermors of the excise, and was extended 
 in the later cases. To this principle can be attributed the 
 illegality of the combination spoken of in Vertue vs. Ld. 
 Clive,'° wherein the military officers of the East India Com- 
 pany had sought to force concessions by simultaneously 
 
 Other combinations the criminality of which can be accounted 
 for by this principle are: To raise the price of merchandise, Anon., 
 12 Mod. 248 (10 W. Ill, 1698), Rex. vs. Norris, 2 Ld. Ken. 300 
 (1758). To raise wages, Journeymen Tailors' Case, 8 Mod. 11 (1721), 
 etc. ; see Chapter V. To procure a marriage between paupers for 
 the purpose of charging another parish with their support, Rex 
 vs. Watson et al., i Wils. 41 (1743), Rex vs. Herbert et al., 2 Ld. 
 Ken. 466 (1759), Rex vs. Fowler et al., East P. C. 461 (1788), 
 Rex vs. Tanner et al., i Esp. 304 (i79S). To prevent the burial 
 of a corpse, Young's Case (cited in Rex vs. Lynn), 2 T. R. 733 
 (1788). To solicit a witness to disobey a summons, Rex vs. 
 Steventon et al., 2 East 362 (1802). To defraud the king by 
 false vouchers, Rex vs. Brissac & Scott, 4 East 166 (1803). To 
 induce a female ward in chancery to marry a man in low circum- 
 stances (such acts constituting an interference with the jurisdiction 
 of the Court of Chancery), Rex vs. Locker et al., 5 Esp. 107 
 (1804), Ball vs. Coutts, I Ves. & B. 292, 296 (1812), Wade vs. 
 Broughton, 3 Ves. & B. 172 (1814) — said to be "a species of 
 robbery." To stifle a prosecution, Elaridge vs. Hoare, 14 Ves. 59 
 (1807). To obtain money as compensation for the corrupt pro- 
 curement of an appointment as coast waiter, Rex vs. PoUman 
 et al., 2 Canip. 229 (1809). To issue a false certificate to be used 
 as evidence in a criminal proceeding, Rex vs. Mawbey et al., 6 T. 
 R. 619 (1796). To raise the price of government securities by 
 circulating false rumors, Rex vs. De Berenger et al., 3 M. & S. 68 
 (1814)— said to be "a fraud levelled against all the public." 
 
 =°il Co. 93 b. 
 
 "4 Burr. 2472 (10 Geo. Ill, 1769). 
 
68 Development of the English Law of Conspiracy. [200 
 
 resigning their commissions. The same is true of the vari- 
 ous conspiracies to hinder or pervert the administration of 
 justice, to defraud the government, and generally to do acts 
 directly harmful to the public welfare, which are so fre- 
 quently met with during the eighteenth and early nineteenth 
 centuries. This principle lends itself to the accomplish- 
 ment of great extensions in the definition of conspiracy, 
 and some of the most important innovations in the law 
 were made in connection with cases of this character. 
 
 A second avenue of progress in the same direction was 
 found in a line of cases, contemporaneous with the above, 
 in which, starting from the offense of conspiracy strictly 
 so called, the courts were gradually and naturally led to 
 treat as criminal various combinations to defame and to 
 extort money by blackmail. This phase of the develop- 
 ment of the criminal law of conspiracy is closely analogous 
 to the contemporaneous process of growth in the civil law 
 whereby the action upon the case was made to reach new 
 classes of wrongs. From punishing combinations to enter 
 false charges of capital crimes it was an easy step to punish 
 conspiracies to charge an innocent person, either in court 
 or merely in public places, with acts amounting only to tres- 
 passes or to spiritual offenses.^' At first the courts fol- 
 
 "' This principle was first laid down in Rex vs. Timberly & 
 Childe, I Sid. 68 (13-14 Car. II, 1662), wherein there had been an 
 indictment for conspiracy to charge a person with being the father 
 of a bastard child, with intent to extort money. The court upheld 
 the indictment, saying that "this court has conusance of every il- 
 legal thing for which damages may come to the party as here 
 they may, for he will be for this liable for the maintenance of 
 the child." 
 
 The facts in Green vs. Turnor et ux., 3 Keb. 399 (26 Car. II, 
 1674), were similar. Twisden, J., thought that the court (B. R.) 
 had no " conusance '' of the offense charged upon the prosecutor, 
 since it was merely spiritual. " Contra by Wild and Rainsford, the 
 information being for the conspiracy to draw sums of money from 
 the plaintiff, not for getting the Bastard." Judgment, however, 
 was stayed after conviction. But in Rex vs. Armstrong et al., 
 I Vent. 30s (1677), a similar conspiracy was held indictable. The 
 court said that it was " a contrivance to defame the person and 
 cheat him of his money, which was a crime of a very heinous 
 nature." 
 
 In Reg. vs. Daniell, 6 Mod. 100 (2 Anne, 1703), and Reg. vs. 
 Best, 6 Mod. 137, 185 (3-4 Anne, 1704-5), Lord Holt laid it down 
 
20i] The Criminal Law of Conspiracy. 69 
 
 lowed closely the analogy between cases of this nature and 
 those in which there had been an actual prosecution in court 
 upon the false accusation. But since practically all of 
 these conspiracies to defame were at bottom schemes of 
 blackmail, the attention of the court became fastened upon 
 the intent falsely and unjustly to extort money from the 
 injured person. Thus they came to hold generally that a 
 combination to extort money by a false defamatory charge 
 is a criminal conspiracy. From this principle it is an easy 
 transition to the still broader one that a conspiracy to injure 
 another person by any illegal means is criminal. In this 
 direction the conception of conspiracy has been extended 
 very far. Still, the direct connection between combinations 
 of the character under discussion and the primitive offense 
 of conspiracy technically so called is manifest and inter- 
 esting. 
 
 Combinations to cheat or defraud are among the most 
 numerous and important criminal conspiracies brought be- 
 fore the courts of the present time. The doctrine that they 
 are criminal offenses, however, had a special origin, and 
 was not such an obvious and natural deduction from older 
 settled principles as were those which we have just been 
 treating. The earlier courts exhibited a tendency to pun- 
 ish cheating, whether engaged in by one or by several per- 
 
 generally that a conspiracy to charge a person with a merely 
 spiritual offense is indictable in the temporal courts. He did not 
 look beyond the charge to the purpose for which it was preferred, 
 although the indictment alleged that it was a scheme to extort 
 money. 
 
 In Rex vs. Kinnersley and Moore, i Stra. 193 (s Geo. I, 1719), 
 the defendants were convicted of a conspiracy to charge Lord 
 Sunderland with an attempt to commit sodomy, in order to ex- 
 tort money. 
 
 Atty. Gen. vs. Blood et al., T. Raym. 417 (32 Car. II, 1680), 
 arose out of a conspiracy to indict the Duke of Buckingham for 
 buggery. Conviction. Rex vs. Veal et al., 2 Keb. 59 (18 Car. II, 
 1665), was a case of conspiracy to charge with carnal knowledge. 
 In neither of these was the purpose to extort money mentioned. 
 
 In Rex vs. Rispal et al., i W. Bl. 368 (1760), however, Lord 
 Mansfield described the offense as "the getting money out of a 
 man, by conspiring to charge him with a false fact." Or, as re- 
 ported in 3 Burr. 1320, "The gist of the offense is the unlawful 
 conspiring to injure the man by this false charge" (p. 1321). 
 
/o Development of the English Law of Conspiracy. [202 
 
 sons. The element of conspiracy, if noticed at all, was 
 considered merely as matter of aggravation. In Rex vs. 
 Wheatley^' (i Geo. Ill, 1760), however, Lord Mansfield 
 held that " all indictable cheats are where the public in gen- 
 eral may be injured; as by using false weights, measures, 
 or tokens; ... or where there is- a conspiracy." This 
 decision was attacked by counsel in Rex vs. Lara'° (36 
 Geo. Ill, 1796), but Lord Kenyon recognized its authority. 
 " There must either be a false token or a conspiracy," he 
 said; otherwise a cheat is not indictable.*" 
 
 These cases established the principle that a cheat accom- 
 panied by a conspiracy is a crime. It was clearly the prod- 
 uct of judicial legislation, and probably resulted from the 
 increased importance attributed to the element of combina- 
 tion in other cases and the similarity between concerted 
 
 " I W. Bl. 273. 
 
 "6 T. R. 565. 
 
 "In Anon., i Lev. 53 (13-14 Car. II, 1662), the court advised 
 the plaintiff in a suit to reverse a judgment on account of fraud 
 to prefer " an information against the cheat, and also against the 
 vinter in which the house was, in this court." Here the element 
 of combination does not enter. 
 
 Rex vs. Thode, 3 Keb. in, i Vent. 234 (1672), was a con- 
 spiracy to cheat by the use of false dice. The court (Wild, J.) said, 
 however, that "the conspiracy is laid only by way of aggravation." 
 
 In Rex vs. Armstrong et al., i Vent. 305 (1677), it was said 
 that here was " a contrivance to defame the person and cheat him 
 of his money, which was a crime of a very heinous nature." 
 
 In Reg. vs. Orbell, 8 Mod. 42 (1703), the indictment charged that 
 the defendant fraudulently and per conspirationem, to cheat J. S. of 
 his money, got him to lay a certain sum of money upon a foot-race 
 and prevailed with the party to run booty. The court refused 
 to quash it upon motion, " for they said that being a cheat, though 
 it was private in the particular, yet it was public in its conse- 
 quences." 
 
 In Reg. vs. Macarty et al., 8 Mod. 302 (1704), and Reg. vs. 
 Parry et al., 2 Ld. Raym. 865 (1704), the cheats were looked 
 upon as the gist of the offenses. In both cases' several persons 
 were charged, but they were in terms convicted of the cheats. No 
 mention at all was made in the opinion of the court of the ele- 
 ment of combination. The indictment in the Macarty Case charged 
 a "combination to cheat," but in the Parry Case there was no 
 reference at all to the plurality of defendants. After Rex vs. 
 Wheatley, however, the element of combination became essential. 
 See Rex vs. Hevey et al., i Leach Cr. L. 232 (1782) ; Rex vs. 
 Pywell et al., I Starkie 402 (1816). The holding in Rex vs. 
 Wheatley was in effect, though not avowedly, anticipated in Rex 
 vs. Martham Bryan, 2 Stra. 866 (1729). 
 
203] The Criminal Law of Conspiracy. T\ 
 
 cheats and conspiracies to injure the public. By a further 
 piece of judicial legislation, it was decided in the leading 
 case of Rex vs. Gill and Henry*^ that a bare conspiracy to 
 cheat is a crime. 
 
 Of still later origin was the doctrine that a conspiracy to 
 commit a crime is indictable. The statute of Henry VII 
 ( i486, C. 14) , enacting that conspiracies to destroy the king 
 and his great lords shall be punished as felonies without 
 overt act, recites that up to that time such combinations 
 were not punishable. In Rex vs. Parkehurst and Eling" 
 an information had been laid against the defendants for a 
 conspiracy and an attempt to rob Sir Robert Gaire, and 
 lying in wait, etc. The court said that the information 
 would not lie in the absence of proof of an " overt act or 
 lying in wait ;" and the verdict went finally for the defend- 
 ants, " there being no certain appointment of time, place or 
 person." In a later case** Lord Holt said obiter that " if 
 a meeting be to rob or kill, it may be indictable ;" and two 
 years afterward he also remarked,** again obiter, " So if 
 two or three meet together to conspire the death of the 
 queen, yet though nothing but words passed, the very as- 
 sembling together was an overt act." These are the only 
 instances in the old books wherein a conspiracy to commit 
 a crime was noticed as such. Combinations of this charac- 
 ter were not in terms declared to be punishable until the 
 complete separation between the criminality of the combi- 
 nation and that of the act done had led to the general doc- 
 trine that a combination to commit any unlawful act is a 
 criminal conspiracy.*" 
 
 The doctrine that a combination to inflict an injury upon 
 a third person is an indictable offense cannot be traced to 
 
 "2 B. & A. 204 (59 Geo. Ill, 1818). 
 
 "3 Keb. 799. 
 
 "Reg. vs. Daniell, 6 Mod. 100 (2 Anne, 1703). 
 
 "Reg. vs. Best, 11 Mod. SS (i70S). 
 
 "The first general statement that a combination for a criminal 
 object is itself punishable seems to have occurred in Reg. vs. Row- 
 lands et al., 2 Den. C. C. R. 364, 388 (1851). Erie, J., overruling 
 the case of Rex vs. Tumor, 13 East 226 (1810), said, "An agree- 
 ment to commit an indictable offense undoubtedly amounts to a con- 
 spiracy." See Chapter IV. 
 
72 Development of the English Law of Conspiracy. [204 
 
 any one source. It was quietly accepted and applied by the 
 courts in suitable cases without the citation of authority, 
 and seems to have been a reflection from the other types of 
 conspiracy, especially conspiracy to cheat, to which it bears 
 a close affinity. The doctrine was first announced in Rex 
 vs. Sterling." Counsel for the king had argued that the 
 " very conspiracy to do a lawful act to the prejudice of a 
 third person is inquirable and punishable in B. R." Keel- 
 ing, J., agreed, obiter,*' " that this bare conspiracy is a great 
 crime, where it is to do that which is evil, although to a 
 private person; so is Poulterers' Case." Windham, J., 
 said : " I agree that general confederacy, without design- 
 ment to public or private end, is punishable by action upon 
 the case or indictment. . . . But this is cause to mitigate 
 the fine, that it is only private." The first case directly in 
 point is Rex vs. Cope" (5 Geo. I, 1719), wherein there 
 had been a conspiracy to ruin the trade of the king's card 
 maker by bribing his apprentice to put grease into the card 
 paste. This was followed by Elizabeth Robinson's Case*' 
 (1746), in which the defendants were punished for a con- 
 spiracy to marry under a false name in order to obtain the 
 estate of the man personated. The mooted question here 
 was whether there was sufficient evidence of a concerted 
 intent " to do an injury to the person or estate of another." 
 In Rex vs. Eccles"" several were convicted of a conspiracy 
 to impoverish a tailor and prevent him " by indirect means " 
 from carrying on his trade. It appears also from Clifford 
 vs. Brandon"^ that Lord Mansfield considered unlawful a 
 conspiracy to hiss an actor. Thus the principle that com- 
 binations illegally to oppress or injure a third person are 
 punishable had become fairly settled by the beginning of 
 the nineteenth century."^ 
 
 " I Keb. 650. 
 "Ibid., 675. 
 "i Stra. 144. 
 "i Leach Cr. L. 38. 
 " I Leach Cr. L. 274 (1783). 
 "2 Campb. 358 (1809). 
 
 " In addition to the cases cited in the text, the following may 
 be noted: Rex vs. Thorp et al., S Mod. 221 (8 W. Ill, 1^6), a 
 
205] The Criminal Law of Conspiracy. 73 
 
 Conspiracies to accomplish a merely immoral purpose 
 were scarcely noticed as such until the nineteenth century. 
 The only eighteenth century case touching upon this sub- 
 ject is Rex vs. Delaval et al."^ Lord Mansfield granted an 
 information against the defendants for an executed con- 
 spiracy to apprentice a young girl eighteen years old to Sir 
 Francis Delaval for purposes of prostitution, saying that 
 " the general inspection and superintendence of the morals 
 of the people belongs to this court [i. e., the Court of 
 King's Bench], as custos morum of the nation . . . espe- 
 cially when the offense is mixed with confederacy and con- 
 spiracy, as in the present case." Here, as in the early cases 
 concerned with conspiracies to cheat, the gist of the offense 
 was the act done rather than the combination. 
 
 conspiracy to entice a young man under eighteen years of age to 
 marry a woman of ill fame, contrary to his father's wishes. Reg. 
 vs. Tracy, 6 Mod. 169, 170 (1704), to arrest the plaintiff and il- 
 legally to hold him without bail. McDaniell's Case, i Leach Cr. 
 L. 444 (1759), and Rex vs. Spragg, 2 Burr. 993 (1760), were con- 
 spiracies to indict innocent persons of crimes. These would have 
 been conspiracies at any period after the time of Edward I. In 
 Rex vs. Tumor, 13 East 226 (1810), Lord Ellenborough decided 
 that a combination to commit a civil trespass was not an indictable 
 conspiracy. This decision, however, was not followed in the 
 later cases. See Chapter V. 
 
 It should be observed that in all of these cases (with the possible 
 exception of Oifford vs. Brandon) there were elements of illegality 
 present in addition to the mere damage or oppression suffered by 
 the complainant. Thus, as to Rex vs. Thorp, we may point out 
 that the procurement of such marriages was looked upon as unlaw- 
 ful, independently of the element of conspiracy; Reg. vs. Blacket 
 & Robinson, 7 Mod. 39 (1703) ; In Re Seeles, Cro. Car. S57 (1639). 
 Moreover, the attorney for the prosecution argued that the con- 
 spiracy was mentioned only as matter of aggravation. In any 
 event, no judgment was given in that case. In Rex vs. Cope, 
 Reg. vs. Tracy, McConnell's Case and Rex vs. Spragg, the acts done 
 would have amounted to civil wrongs if performed by single indivi- 
 duals. In Elizabeth Robinson's Case there was a scheme to defraud. 
 Of Rex vs. Eccles, Lord Ellenborough said, in Rex vs. Turnor, that 
 it "was considered as a conspiracy in restraint of trade, and so 
 far a conspiracy to do an unlawful act affecting the public." 
 The statement in Clifford vs. Brandon is obiter dictum; and it 
 seems that in the case cited in the note thereto the element of 
 combination was treated as matter of aggravation. 
 
 Thus it appears that the above cases present no exception to the 
 principle soon to be announced that a conspiracy always contem- 
 plates the accomplishment of an unlawful purpose or the use of 
 unlawful means. 
 
 ■^ I W. Bl. 410, 440. 
 
74 Development of the English Law of Conspiracy. [206 
 
 Conspiracies among merchants and others to raise the 
 price of merchandise, and among workmen to enhance their 
 wages, had found their way into the criminal courts during 
 the period under consideration. We shall reserve our treat- 
 ment of them, however, for a separate chapter. They may 
 be classed under the general category of conspiracies to 
 injure the public welfare. 
 
 By the end of the eighteenth century the definition of 
 criminal conspiracy included combinations for a number of 
 objects besides those known to the older law. The courts, 
 moreover, had little hesitation in looking beyond the proxi- 
 mate to the ultimate purpose of the combination in order to 
 determine its character. The principle that a conspiracy to 
 do a lawful act to an unlawful end is illegal arose compara- 
 tively early. It first appears in the argument of counsel in 
 Rex vs. Sterling.^* It was pressed upon and approved by 
 the court in Rex vs. Edwards et al., though not strictly as 
 part of the ratio decidendi. Its spirit is plainly evident in 
 the conviction in Elizabeth Robinson's Case,"*" where there 
 had been a conspiracy to marry under an assumed name for 
 the purpose of obtaining title to one Richard Holland's 
 estate. Upon the same principle the court held criminal a 
 combination among the overseers of a parish to procure a 
 marriage between paupers''' for the purpose of throwing 
 
 "I Keb. 650. 
 
 ='i Leach Cr. L. 38 (20 Geo. II, 1746). 
 
 ™ There are a number of these cases in the books. In some, 
 acts of this character were considered as criminal although per- 
 formed by a single individual. See Rex vs. Watson et al., i Wils. 
 41 (1743) — several defendants, but no conspiracy; Anon., Sayer 
 260 (1755); Rex vs. Tarrant, 4 Burr. 2106 (1767). In others the 
 element of conspiracy was present. See Rex vs. Edwards; Rex vs. 
 Herbert et al., 2 Ld. Ken. 446 (1759) ; Rex vs. Compton et al. ; Rex 
 vs. Tanner et al., i Esp. 304 (1795) — acquittal because prosecution 
 failed to prove its case. 
 
 In Rex vs. Fowler et al.. East P. C. 461 (1788), the indictment 
 was held not to lie; but this was because the purpose wrongfully 
 to charge another parish had not been properly alleged. 
 
 Finally, in Rex vs. Seward, 3 M. & M. 557 (1834), it was 
 held that such combinations are not conspiracies, because the pur- 
 pose of charging another parish with the maintenance of a pauper 
 is not illegal. 
 
207] The Criminal Law of Conspiracy. 75 
 
 the expense of their maintenance upon another parish,'^ 
 and a combination to bind a girl ostensibly as an apprentice 
 in music but for the ultimate purpose of prostitution."' 
 This principle became firmly established as a result of the 
 holding in Rex vs. Eccles et al.," that if a conspiracy to 
 accomplish an illegal purpose is charged, the means to be 
 employed need not appear in the indictment at all. In Rex 
 vs. De Berenger et al.,°° counsel for the defendants seemed 
 to admit " that to conspire to do a lawful act to an unlawful 
 end is a crime," and endeavored to prove that the purpose 
 of the combination under discussion was not unlawful. 
 
 We turn now to a discussion of a few of the more gen- 
 eral aspects of the conception of conspiracy as developed 
 during the period under review. 
 
 Although it had been settled by the Poulterers' Case, 
 Rex vs. Sterling, and Rex vs. Best that a conspiracy with- 
 out more is a crime, the courts were rather loath to pursue 
 this doctrine to its consequences. There are a number of 
 statements by counsel and a few obiter dicta by the court 
 that the conspiracy is the gist of the offense quite independ- 
 ently of the acts done. But the cases in which this prin- 
 ciple was actually applied are rare. Court and counsel 
 took that position only as a last resort. The general prac- 
 tice in conspiracy cases was to charge in the indictment 
 that the prisoners had done certain acts per conspirationem 
 inter eos habitam. In most instances the combination was 
 treated as an element in the offense, or as matter of aggra- 
 vation, emphasis being laid upon the acts done. Thus, in 
 cases in which a conspiracy to cheat was noticed, the earlier 
 holding, as we have seen, was that a cheat accompanied by 
 a conspiracy is indictable. Lord Holt even went so far as 
 to say that in Rex vs. Sterling*^ " the gist of the offense 
 was its influence upon the public, and not the conspiracy." 
 
 "Rex vs. Edwards, 8 Mod. 320 (1725). Rex vs. Compton, Cald. 
 246 (1782). 
 "Rex vs. Delaval, i W. Bl. 410, 439 (1762). 
 "WiUes 583 (1783). 
 "3 M. & S. 68 (1814). 
 "Reg. vs. Daniell, 6 Mod. 100 (2 Anne, 1703). 
 
76 Development of the English Law of Conspiracy. [208 
 
 Lord Mansfield thus describes the offense charged in Rex 
 vs. Rispal :°^ " The crime laid is an unlawful conspiracy. 
 This, whether it be to charge a man with criminal acts, or 
 such as only may affect his reputation, is fully sufficient. 
 The several charges in the indictment are not to be consid- 
 ered as distinct and separate counts; but as one and the 
 same united and continued offense, pursued through its dif- 
 ferent stages, and then it is clear that the whole will amount 
 to an indictable offense: viz., the getting money out of a 
 man by conspiracy to charge him with a false fact." 
 
 In some cases, also, where the acts complained of had 
 been done by a combination of malefactors, the element of 
 conspiracy was not noticed in the indictment. In others, 
 although the indictment alleged that the acts had been done 
 " per conspirationem," attention was fixed solely upon the 
 acts performed, and the conspiracy received no further 
 mention. And even in cases, such as Reg. vs. Best,°^ Rex 
 vs. Journeymen Tailors,** etc., in which it was held that the 
 conspiracy was the gist of the offense, the acts done were 
 described in some detail in the indictment, and the above, 
 principle was urged in reply to an objection that the facts 
 had not been properly alleged.'^ 
 
 '^1 W. Bl. 368 (2 Geo. Ill, 1760). 
 
 "6 Mod. 137 (3 Anne, 1704). 
 
 "8 Mod. II (8 Geo. I, 1721). 
 
 °° Cases in which several persons joined in the wrongf-doing, but 
 the element of combination was disregarded : Reg. vs. Parry et 
 al., 2 Ld. Raym. 865 (2 Anne, 1703) ; Rex vs. Watson et al., I Wil- 
 son 41 (1743). 
 
 Cases in which the conspiracy is mentioned, but apparently con- 
 sidered as a secondary element in the offense charged: Rex vs. 
 Thode, 3 Keb. iii (24 Car. II, 1672) ; Rex vs. Parkehurst et al., 
 3 Keb. 799 (1677) ; Rex vs. Ld. Grey, i East P. C. 460 (1682) ; Rex 
 vs. Thorp, S Mod. 221 (1696) ; Rex vs. Grimes & Thompson, 3 Mod. 
 220 (1688); Reg. vs. Daniell, 6 Mod. 100 (1703); Reg. vs. Orbell, 
 8 Mod. 42 (1703) ; Rex vs. Edwards, 8 Mod. 320 (1725) ; Rex vs. 
 Wheatley, i W. Bl. 273 (1760); Rex vs. Rispal, i W. Bl. 368 
 (1760) ; Rex vs. Delaval, i W. Bl. 410, 440 (1762) ; Rex vs. Hevey, 
 I Leach Cr. L. 232 (1782). 
 
 In the following cases the conspiracy seems to be the gist of the 
 offense: Reg. vs. Best et al., 6 Mod. 137 (1704); Rex vs. Cope, 
 I Stra. 144 (1719) ; Rex vs. Kinnersley & Moore, i Stra. 193 
 (1719) ; Rex vs. Journeymen Tailors, 8 Mod. 11 (1721); Elizabeth 
 Robinson's Case, i Leach Cr. L. 38 (1746) ; Rex vs. Parsons, i W. 
 Bl. 392 (1762) ; Rex vs. Compton, Cald. 246 (1782). 
 
209] "^^^ Criminal Law of Conspiracy. ^y 
 
 The complete separation, in respect to their criminality, 
 between the conspiracy and the act took place during the lat- 
 ter years of the reign of George III. In Rex vs. Eccles et 
 al.,°' the defendants had been convicted upon an indictment 
 for a conspiracy to impoverish one H. Booth, a tailor, and 
 to prevent him " by indirect means " from carrying on his 
 trade. In arrest of judgment it was urged that the indict- 
 ment should have described the acts committed, in order 
 that the defendants might know the particular charges 
 against them. Lord Mansfield said that "this is certainly 
 not necessary, for the offense does not consist in doing the 
 acts by which the mischief is effected, for they may be 
 perfectly indifferent, but in conspiring with a view to effect 
 the intended mischief by any means. The illegal combina- 
 tion is the gist of the offense." This principle was con- 
 firmed in Rex vs. De Berenger"^ and Rex vs. Gill and 
 Henry.^' In both cases the defendants had been convicted 
 of a conspiracy to accomplish an unlawful purpose, and 
 had urged in arrest of judgment that the means to be em- 
 ■ ployed should have been set out. Both motions were over- 
 ruled. Lord Ellenborough, in Rex vs. De Berenger, said 
 that " the crime lies in the act of conspiracy and combina- 
 tion 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." And 
 Abbott, C. J., in Rex vs. Gill, stated that " the gist of the 
 offense is the conspiracy. . . . The offense of conspiracy 
 may be complete, although the particular means are not 
 settled and resolved on at the time of the conspiracy." 
 
 Modern practice in reference to indictments for con- 
 spiracy is founded upon these cases; and it was by reason 
 of the complete separation between the criminality of the 
 conspiracy and that of the acts done that the broad scope 
 given the former offense became possible. 
 
 There is little discussion in the early cases as to the 
 
 ™i Leach Cr. L. 274 (24 Geo. Ill, 1783). ~ 
 
 "3 M. & S. 68 (S4 Geo III, 1814). 
 "2 B. & A. 204 (59 Geo. Ill, 1818). 
 
78 Development of the English Law of Conspiracy. [210 
 
 nature of the act of combining. It would appear that in 
 civil actions of conspiracy the courts did not look beyond 
 the mere fact that there had been a plurality of performers. 
 During the reign of Henry VI we find it stated for the 
 first time (in argument of counsel) that the plaintiff must 
 show that there had been a previous " parlaunce " between 
 the defendants as to how the thing should be done."* 
 There is some evidence that for a time the mere consulta- 
 tion in respect to doing an unlawful act was sufficient. 
 Thus, in Rex vs. Sterling'''' it is said that the defendants 
 were found guilty of " assembling and consulting " to im- 
 poverish the fermors. So in Reg. vs. Best/^ Lord Holt 
 says, "If two or three persons meet together and dis- 
 course and conspire how to accuse another falsely of an 
 offense, it is itself an overt act, and is an offense indict- 
 able." In the same case, however, Powell states the mod- 
 ern rule : " If people meet together to consult or conspire, 
 to make it criminal they ought to come to some resolution." 
 He adds a proviso, however, apparently taken from Bagg's 
 Case,''^ that " if it appeared that he repented, it might alter 
 the case." This exception, however, is not considered to 
 be valid at the present time. 
 
 Almost contemporaneously with the doctrine that an 
 unexecuted conspiracy is a crime, the courts adopted the 
 principle that the acts done are to be treated as evidence of 
 the concerted design. Thus, in Rex vs. Sterling,^^ Twis- 
 den, J., said, " If any of the particular facts, which are but 
 evidence of the design charged, be found, it's sufiScient to 
 support the indictment." Lord Mansfield, in Rex vs. Par- 
 sons et al.,^* instructed the jury " that there was no occa- 
 
 ""Y. B. 35 Hen. VI, f. 14. ~" 
 
 "I Lev. 125. 
 
 "II Mod. 55. 
 
 " Cause of disfranchisement of a burgess should be " an act or 
 deed, and not a conation or an endeavor, which he may repent 
 of before the execution of it and from whence no prejudice 
 comes." The context indicates that the court considered this prin- 
 ciple equally applicable to a conspiracy. 11 Co. 93 b, 98. 
 
 "i Keb. 650. 
 
 "W. Bl. 392 (3 Geo. Ill, 1763). 
 
21 1] The Criminal Law of Conspiracy. 79 
 
 sion to prove the actual fact of conspiring, but that it might 
 be collected from collateral circumstances." After the 
 complete separation for purposes of indictment had taken 
 place between the combination and the act, this principle 
 served to keep them in their proper relation. 
 
 There is little discussion in the early books as to the 
 theoretical basis of the criminality of conspiracy. The civil 
 liability for conspiracy rested ultimately upon the damage 
 suffered by the plaintiff. This view seems to have been 
 adopted at first by the criminal courts. In the Poulterers' 
 Case the reason given for punishing the unexecuted con- 
 spiracy was that such a policy tended to prevent crime and 
 injury to innocent third parties. The modern view that 
 the criminality of conspiracy lies in the intent, which is 
 declared by the acts done, was first suggested in Rex vs. 
 Sterling.'^ Except in these few passages, however, the 
 judges do not attempt, until the nineteenth century, to 
 justify the punishment of a bare agreement to commit an 
 unlawful act. Conspiracy was considered as of an " odious 
 nature." It was a " crime of blacker dye than barratry," 
 comprehended under the denomination of crimen falsi, a 
 conviction of which destroyed the competency, of the party 
 as a witness.'* Hence it doubtless appeared to the courts 
 that the reasons for punishing conspiracy were too obvious 
 to require explanation. An interesting evidence of this 
 attitude is seen in the principle that what is lawful for a 
 single individual to do may be unlawful if done by a com- 
 bination. This view, which had its origin in two Star 
 Chamber decisions''' of the time of Elizabeth, and was 
 thought by some to have been laid down in Rex vs. Sterling, 
 was received with some favor, and without discussion, dur- 
 ing the seventeenth and eighteenth centuries.'* 
 
 " I Keb. 67s. 
 
 "Rex vs. Priddle, i Leach Cr. L. 442 (1787). 
 
 " Amerideth's Case, Moore 562 ( 1600) ; Lord Grey's Case, Moore 
 788 (1607). See note 7, pp. SS, 56. 
 
 "In Rex vs. Thorp, s Mod. 221 (1696), counsel for the king 
 argued that "that which is lawful for one man to do, may be 
 made unlawful to be done by conspiracy," citing Rex vs. Sterling. 
 
8o Development of the English Law of Conspiracy. [212 
 
 The punishment of those convicted of conspiracy has 
 varied. In the civil courts the penalty was originally 
 damages to the plaintiff, a fine to the king, and imprison- 
 ment. The criminal courts were more severe, and sub- 
 jected conspirators to the "villanous judgment,"'" which 
 seems to have had its origin in the common law. The last 
 "villanous judgment" of which there is a record was 
 passed in the reign of Edward III.*"' 
 
 As time went on, punishments for conspiracy became 
 lighter. In the Star Chamber, barbarous penalties lingered 
 longer than they did in the common-law courts. We ac- 
 cordingly find during the reign of James I cases in which 
 conspirators were fined, whipped, pilloried, branded or 
 
 This idea was approved and applied in Rex vs. Journeymen 
 Tailors, 8 Mod. 11 (1721). The court said: "A conspiracy of any 
 kind is illegal, although the matter about which they conspired^ 
 might have been lawful for them, or any of them, to do, if they 
 had not conspired to do it, as appears in the case of the Tubwomen 
 vs. the Brewers of London." The latter case is supposed to be 
 the popular name of Rex vs. Sterling. In Rex vs. Martham Bryan, 
 2 Stra. 866 (1729), the court said obiter, in regard to Reg. vs. 
 Best, "There the conspiracy was the crime; and an indictment 
 will lie for that, though it be to do a lawful act." The same prin- 
 ciple was approved, again obiter, by Lord Mansfield in Rex vs. 
 Eccles, I Leach Cr. L. 274 (1783), and by Grose, J., in Rex vs. 
 Mawbey, 6 T. R. 619 (1796). Although no authority was cited, both 
 Lord Mansfield and Grose, J., evidently had in mind Rex vs. Journey- 
 men Tailors. 
 
 At the present time a combination to accomplish a legal pur- 
 pose by legal means is not a criminal conspiracy. Even today, how- 
 ever, a combination may be criminal although the acts contemplated 
 would be merely unlawful, not indictable, if performed by a single 
 individual. The same is true of a combination to employ law- 
 ful means as part of an unlawful scheme. See Chapter IV. 
 
 '"The character of the villanous judgment appears from the fol- 
 lowing report (46 Lib. Ass. 11): "A man was attainted of con- 
 spiracy at the suit of the king upon indictment. Wherefore it 
 was adjudged he lose his ' frank-law,' so that he should not hence- 
 forth be put upon juries, nor assizes, nor otherwise received in testi- 
 mony of the truth, and that he shall not come within twelve leagues 
 of the place where the king's court may be; and that his lands be 
 seized into the king's hands, and his fields laid waste, and his 
 wife and his children ousted and his trees uprooted, and his body 
 taken and imprisoned. But if he be attainted at the suit of a 
 [private] party, he shall have only simple judgment that the plain- 
 tiff recover his damages; and that he be imprisoned." See also 
 27 Lib. Ass. 59. 
 
 "Lord Mansfield so states in Rex vs. Spragg, 2 Burr. 993 (1796). 
 
213] ^^^ Criminal Law of Conspiracy. 8i 
 
 mutilated. In Miller vs. Reignolds and Basset" all of these 
 punishments were inflicted, and Reignolds, who was an at- 
 torney, was also degraded and " cast over the common pleas 
 barre." 
 
 In the court of King's Bench, fine and imprisonment were 
 the usual punishments, though corporal punishment was 
 sometimes inflicted. Rex vs. Brissac and Scott^^ is the last 
 case recorded in which a conspirator was pilloried. The 
 amount of the fine and imprisonment of course varied with 
 the enormity of the offense. In Rex vs. Priddle*' a con- 
 viction of conspiracy was held to have destroyed the com- 
 petency of the prisoner as a witness. 
 
 By the end of the eighteenth century the law of con- 
 spiracy had assumed very nearly its present shape. Its 
 growth, however, had been extremely unsystematic and 
 dependent upon casual circumstances. The task of the 
 courts in the nineteenth century, therefore, has been to 
 develop and apply principles already suggested, to extract 
 general doctrines from the confusion of the earlier cases, 
 and to reduce the law to some degree of orderly and scien- 
 tific arrangement. The manner in which this was at- 
 tempted will be discussed in the following chapter. 
 
 "Godb. 205. 
 
 ''4East i66 (1803). 
 
 ''i Leach Cr. L. 442 (28 Geo. Ill, 1787). 
 
CHAPTER IV. 
 
 The Criminal Law of Conspiracy in the Nineteenth 
 
 Century. 
 
 It was laid down in Rex vs. Gill that since the combina- 
 tion is the gist of the offense of conspiracy, all that need 
 be charged in an indictment is a combination for an illegal 
 object. The overt acts performed serve merely as evi- 
 dence to prove the conspiracy, and hence, in accordance 
 with the general rule, are not required to be set out. 
 
 "This principle is perfectly logical, but in practice it was 
 found to work hardship upon persons accused of con- 
 spiracy. The . connection between the combination and the 
 acts to be done is too close to allow the prosecution to keep 
 the accused in entire ignorance up to the time of the trial 
 of what facts he will be called upon to disprove. Accord- 
 ingly the practice arose of compelling prosecuting attorneys 
 in conspiracy cases, upon the request of the defendants, to 
 furnish bills of particulars giving more specific informa- 
 tion in respect to the charges to be repelled. Just when 
 this practice originated cannot be stated with certainty. 
 In an anonymous case^ decided in 1819, Abbott, C. J., 
 refused to order a bill of particulars, saying that the gist 
 of the indictment was the conspiracy, and that the applica- 
 tion for such a bill was " unprecedented." But by 1836 
 these applications had come to be regarded with favor. 
 Ordering a bill of particulars in proper cases was said to 
 be a " highly beneficial practice."^ In Reg. vs. Ryecroft* 
 (1852) and Reg. vs. Stapylton* (1857) the defendants 
 
 '■ I Chitty 698. 
 
 'Rex vs. Hamilton, 7 Car. and P. 448, 454. 
 
 °6 Cox C. C. 76. 
 
 '8 Cox C. C. 69. 
 
 82 
 
215] -^fflw of Conspiracy in Nineteenth Century. 83 
 
 claimed and were supplied with bills of particulars as a 
 " matter of right." 
 
 The custom of granting bills of particulars, however, 
 cannot be construed as a modification of the doctrine laid 
 down in Rex vs. Gill. It was simply an " expedient now 
 employed in practice "° to protect defendants against being 
 put at a disadvantage by the vagueness of indictments 
 which merely described in general terms a conspiracy to 
 effect an evil purpose. The prisoner was not necessarily 
 entitled to know all the details of the case against him, such 
 as the specific acts he was charged with having done, and 
 the times and places at which they were done.« He could 
 demand only such information as was reasonably sufficient 
 to enable him fairly to defend himself in court; not a 
 degree of particularity which would unduly hamper the 
 prosecutor in the conduct of his case.' A bill of particu- 
 lars, in short, needed only to contain such information as 
 would appear in a special count. It would be refused, 
 therefore, if the indictment contained a special count, un- 
 less the defendant made affidavit that the special count did 
 not give sufficient information regarding the overt acts to 
 enable him to meet the accusation.' 
 
 In this way were solved the practical difficulties caused 
 by the lack of specific information as to overt acts in indict- 
 ments for conspiracy. But other problems springing from 
 the generality of indictments drawn subsequently to Rex 
 vs. Gill engaged the attention of the courts for almost forty 
 years (1819-1859) after that famous decision. Guided 
 by the principle there laid down that the conspiracy and its 
 object are all that need be stated, the prosecuting attorney 
 
 "Reg. vs. Kenrick, D. & M. 208 (1843). 
 
 'Rex vs. Hamilton et al. (1836), 7 Car. & P. 448. 
 
 'Reg. vs. Stapylton (1857), 8 Cox C. C. 69, 71. 
 
 'See the above cases. Even if a bill of particulars were fur- 
 nished, the prosecution was not necessarily confined to the matters 
 therein stated. "If," said Littledale, in Rex vs. Hamilton et al., 
 " the prosecutors give a distinct and separate notice, that they mean 
 to go into other evidence, and the defendants at the trial object to 
 that, and rely upon the particulars, the judge at the trial will decide 
 whether he will receive any evidence beyond the particulars." 
 
84 Development of the English Law of Conspiracy. [216 
 
 would endeavor to tell in the indictment as little about his 
 case as possible. The accused could then demand his bill 
 of particulars. In many cases, however, he would prefer 
 to take his chances at the trial, and then upon conviction 
 he would move in arrest of judgment upon the ground that 
 the indictment was defective in that it did not describe the 
 offense with sufficient accuracy or fullness. The authority 
 of Rex vs. Gill and, Rex vs. Eccles was called in question 
 a number of times, and the courts were compelled to scru- 
 tinize again and again the doctrines laid down in those 
 decisions.' The result was a complete triumph for the 
 principles there announced. The courts consistently de- 
 cided that the indictment for conspiracy need only allege 
 a combination, and a purpose which the court can see is 
 unlawful. Hence, in respect to conspiracies to cheat and 
 defraud, it was repeatedly affirmed that the indictment need 
 not specify the fraudulent methods and pretences to be 
 employed, nor the names of the persons to be defrauded, 
 nor the goods to be embezzled, and the like.^" These details 
 were said to be merely matters of evidence to prove the 
 conspiracy. In this manner the separation between the 
 combination and the acts done was strongly emphasized. 
 
 The courts, however, took care that the unlawful pur- 
 pose should be described with sufficient particularity to 
 reveal the true nature of the concerted intention.^^ If 
 there was a variance between the purpose as charged in the 
 
 " See Reg. vs. Kenrick, D. & M. 208 (1843) ; O'Connell vs. Reg., 
 II CI. & F. iss, 194-197 (1844) ; Reg. vs. King et al., 7 Q. B. 780 
 (184s) ; Reg. vs. Gompertz, 9 Q. B. 824 (1846) ; Sydserf vs. Reg., 
 II Q. B. 24s (1848). 
 
 '"Anon., I Chitty 698 (1819) ; Reg. vs. Kenrick et al., D. & M. 208 
 (1843) ; Reg. vs. Blake & Tye, 6 Q. B. 126 (1844) ; Reg. vs. King 
 et al., 7 Q- B. 780 (184s) ; Sydserf vs. Reg., 11 Q. B. 245 (1848) ; 
 Reg. vs. Whitehouse et al., 6 Cox C. C. 39 (1852). 
 
 "In Rex vs. Fowle & Elliott, 4 C. & P. 592 (1831), the indict- 
 ment charged that the defendants " did confederate, combine and 
 conspire to cheat and defraud the just and lawful creditors " of 
 Fowle. Lord Tenderden, C. J., said : " This count appears to me 
 to be much too general. It does not state what was intended to be 
 done, or the persons to be defrauded. I should be very sorry to 
 give effect to so general a count as this." However, he let the case 
 proceed, and the defendants were acquitted. As to necessity for 
 naming the persons to be defrauded, see note 10, supra. 
 
217] "^^^ ^f Conspiracy in Nineteenth Century. 85 
 
 indictment and the purpose as proved by the evidence, the 
 indictment was thrown out.^^ The same was true if the 
 object of the combination as described in the indictment 
 was not unlawful by necessary intendment.^^ And al- 
 though the overt acts need not be enumerated in the indict- 
 ment, yet if they were alleged at all, and the averment of 
 the particular intent was dependent upon them, they had 
 to be proved as laid;^* otherwise the defendants would not 
 be found guilty of the particular conspiracy charged. In 
 Reg. vs. Parker et al.^" (1842) the ownership of goods of 
 which the prosecutor was alleged to have been defrauded 
 by a conspiracy was held necessary to be shown. In Reg. 
 vs. King et al.^° it was even said that where the circum- 
 stances of the case indicated that the persons to be de- 
 
 ^In Rex vs. Thomas et al., i C. & P. 472 (1824), persons accused 
 of a conspiracy to procure false witnesses in a certain action of 
 ejectment were acquitted because the description of the court so 
 imposed upon was uncertain, and also because there was a variance 
 between the action mentioned in the indictment and that shown in 
 the proof. 
 
 In Rex vs. Biers, i A. & E. 327 (1834), an indictment for con- 
 spiracy to charge the prosecutors with an oiifense under a certain 
 act of Parliament was held to be vitiated by a misrecital of the act. 
 
 See also Reg. vs. Steel, Car. & M. 337 (1841), a case of var- 
 iance between the indictment and the evidence. 
 
 "In Rex vs. Jones et al., 4 B. & A. 345 (1832), judgment was 
 arrested upon a conviction of conspiracy to embezzle the estate 
 of Jones, a bankrupt, in order to cheat his creditors, because the 
 indictment did not indicate beyond a doubt that Jones was leg- 
 ally a bankrupt. Denman, C. J., said (p. 349) : " Here the indict- 
 ment charges a conspiracy to remove and conceal the goods of 
 Jones : but if the commission was bad, Jones had a right to re- 
 move them. If we were to hold such an indictment good, it would 
 follow as a consequence, that a party who was entitled to re- 
 cover goods in an action, if taken from him, might be declared 
 a felon for removing the very same goods. There is nothing 
 stated on the face of this indictment to constitute an offense." In 
 Reg. vs. Peck, 9 A. & E. 686 (1839), he said, "Now obtaining 
 goods without paying is, as Mr. Murphy argued, not necessarily 
 a fraud: the words might apply to the obtaining goods to sell on 
 commission." 
 
 See also Rex vs. Richardson et al., i Mod. & R. 402. Rex vs. 
 Seward et al., 3 M. & N. 557 (1834): "When the charge is 
 that it was intended to do the act by unlawful means, it must appear 
 how those means are unlawful" (p. S6i). 
 
 "Reg. vs. Dean et al., 4 Jur. 364 (1840). 
 
 "3 Ad. & E. N. S. 741. See also Reg. vs. Bullock, 1858. 
 
 "7 Q. B. 795. 806 (184s). 
 
86 Development of the English Law of Conspiracy. [218 
 
 frauded were certain and definite individuals, they should 
 have been named, or reasons given why they had not been 
 named. In all these instances, however, the court simply 
 exhibits the desire that the acts set out shall be sufficient 
 to evidence and identify the guilty intent which is at the 
 foundation of the offense of conspiracy. ^^ 
 
 The principle that the criminality of the conspiracy is 
 independent of the criminality of the overt acts following 
 upon it has been logically applied, and has received some 
 interesting illustrations in practice. Thus, in Reg. vs. King 
 et al.^^ (1845) it was said that if the first part of an indict- 
 ment alleged a complete conspiracy, the overt acts set out 
 would not reduce it to something not indictable even 
 though they were in themselves innocent, their only object 
 " being to give information of the particular facts by which 
 it is proposed to make out the conspiracy." Again, in Reg. 
 vs. Button^' (1848), the attorney for the defendants ac- 
 cused of conspiracy to commit larceny argued that the con- 
 spiracy, being a misdemeanor, merged in the larceny, which 
 was a felony; also, that unless this objection were sustained, 
 they might be twice punished for the same offense. The 
 court overruled both defenses, saying that the two offenses 
 are " different in the eye of the law," though Denman, 
 C. J., thought that if the defendants should be prosecuted 
 for larceny after a conviction of conspiracy, the court 
 should apportion the sentence with reference to the former 
 conviction. In Reg. vs. Thompson et al.^" (1851) it was 
 held that a conspiracy to violate an act of Parliament -was 
 not cured by the subsequent repeal of the act.^^ The fact, 
 also, that the acts done in pursuance of a conspiracy to 
 
 "Upon a plea of autrefois acquit, however, the identity of the 
 conspiracy must be a matter of evidence in ninety-nine cases out 
 of a hundred. Reg. vs. Blake & Tye, 6 Q. B. 126 (1844). 
 
 "7 Q- B. 780. 
 
 "3 Cox C. C. 229. 
 
 =»i6Q. B.832. 
 
 ^ The fact, also, that one of the accused enjoys a statutory im- 
 munity from prosecution for the unlawful acts agreed upon will 
 not affect the liability of either party for the conspiracy to do 
 them. Rex vs. Duguid, 75 L. J. K. B. 470 (1906). 
 
219] i-ow; of Conspiracy in Nineteenth Century. By 
 
 defraud would not result in barring the title of the party 
 to be injured will not affect the liability of the prisoners.^^ 
 In Reg. vs. Kohn^' (1864) the jury were instructed that 
 a conspiracy entered into at Ramsgate between foreigners 
 to scuttle a foreign ship upon the high seas was cognizable 
 by the English courts, although they would have no juris- 
 diction to punish the acts done. The doctrine under dis- 
 cussion received its farthest extension in the recent case 
 of Reg. vs. Whitechurch"* (1890), in which the court held 
 that a conspiracy between a woman and several others to 
 commit an abortion upon her person was criminal, although 
 she had been mistaken in believing herself pregnant.^' 
 
 It must be borne in mind, however, that this separation 
 between the combination and the act done relates to the 
 criminality of the two elements. Usually the conspiracy is 
 closely bound up with the overt acts, because only by means 
 of the latter can the combination be made out. The doc- 
 trines laid down in the cases respecting the nature of the 
 evidence whereby conspiracy is to be proved are interesting 
 and throw considerable light upon the conception of the 
 offense entertained by the courts. 
 
 If in a prosecution for conspiracy the crown is able to 
 produce a witness, not a co-conspirator,^* who can testify 
 directly to the fact of combination, the case is easy of proof. 
 But, as Erie, J., well says,^^ " It does not happen once in 
 
 °^Reg. vs. Carlisle & Brown, i Dears. C. C. 337 (1854). 
 
 ="4 F. & F. 68. 
 
 ="24 Q. B. D. 420. 
 
 "The Act of S and 6 Victoria, C. 38 (1842), creates a more defi- 
 nite relation between the criminality of the conspiracy and that of 
 the act done by providing that no justice of the peace or recorder 
 of any borough shall at any session of the peace or at any ad- 
 journment thereof try any person or persons for certain offenses; 
 among them (Sec. 16), "Unlawful combinations and conspiracies, 
 except conspiracies pr combinations to commit any offense which 
 said justices or recorder respectively have or has jurisdiction to try 
 when committed by one person." 
 
 '" " So in the case of several persons indicted for burglary or 
 conspiracy; one may be convicted on his own confession, which, 
 though in terms involving the others is no legal evidence against 
 them" (obiter dictum). Robinson vs. Robinson & Lane, I Sw. 
 & Tr. 362, 365. 
 
 "Reg. vs. Duffield, S Cox C. C. 404, 434. 
 
88 Development of the English Law of Conspiracy. [220 
 
 a thousand times that anybody comes before the jury to 
 say, ' I was present at the time when these parties did con- 
 spire together, and when they agreed to carry out their 
 unlawful purpose.' " Hence the courts have consistently 
 held that the prosecution is not obliged to prove that the 
 persons accused actually met and laid their heads together, 
 and after a formal consultation came to an express agree- 
 ment to do evil. On the contrary, if the facts as proved 
 are such that the jury, " as reasonable men [can] see there 
 was a common design, and they [i. e., the prisoners] were 
 acting in concert to do what is wrong, that is evidence 
 from which the jury may suppose that a conspiracy was 
 actually formed."^' In other words, the overt acts may prop- 
 erly be looked to as evidence of the existence of a concerted 
 intention. " If," said Coleridge, J., to the jury in Reg. vs. 
 Murphy et al.^° ( 1837) , " 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 are pursu- 
 ing, you will be at liberty to draw the conclusion that they 
 have been engaged in a conspiracy to effect the object." 
 To the same purpose was the instruction of Erie, J., in Reg. 
 vs. Duffield^" (1851) : "If you see several men taking sev- 
 eral steps, all tending towards one obvious purpose, and 
 you see them through a continued portion of time, taking 
 steps that lead to an end, why it is for you to say whether 
 these persons had not combined together to bring about 
 that end, which their conduct so obviously appears adapted 
 to effectuate."'^ Thus, in Reg. vs. Hall et al.»* (1858),. it 
 was held that in a prosecution for a conspiracy among mer- 
 
 ""Reg. vs. Brown, 7 Cox C. C. 442 (1858). 
 
 "8Car. &P. 297. 
 
 °°S Cox C. C. 404, 434. 
 
 ^"Conspiracy is a matter of inference, deduced from certain 
 criminal acts of the parties accused, done in pursuance of an 
 apparent criminal purpose in common between them and which 
 hardly ever are confined to one place." Grose, J., (obiter) in Rex 
 vs. Brissac et al., 4 East 166, 169 (1803). 
 
 "i F. & F. 33. 
 
22 1] Law of Conspiracy in Nineteenth Century. 89 
 
 chants to dispose of their goods in contemplation of bank- 
 ruptcy, with intent to defraud their creditors, their clandes- 
 tine removal of the goods, prior to an absconding, would 
 be evidence of such a conspiracy. So, too, letters passing 
 between the accused may be offered to prove or disprove 
 a conspiracy.*' 
 
 The overt acts are not merely evidence that there was a 
 common design on the part of the accused. They may also 
 be relied upon as a means of detecting the object of the 
 combination. This principle, in conjunction with the 
 principle that the criminality of the conspiracy lies in the 
 concerted intention, supplies an intelligible basis for the 
 doctrine that when once a conspiracy is shown to exist, the 
 acts of each conspirator in furtherance of its object are 
 evidence against each of the others; and this whether such 
 acts were done before or after his entry into the combina- 
 tion, in his presence or in his absence. This doctrine was 
 announced as early as the time of Elizabeth,'* but it re- 
 ceived its greatest development and application during the 
 nineteenth century. According to its tenets, the prosecu- 
 tion must first prove that several persons had combined to 
 effectuate a common design.'^ Evidence is also receivable 
 at this preliminary stage of the case to show the general 
 nature of the combination and its object.'* Before all this 
 can be made to affect any particular person accused of con- 
 spiracy, however, it must be clearly proved that he had 
 become a participator in the combination so made out. But 
 as soon as he is thus connected with the " general intent and 
 
 "Reg. vs. Banks, 12 Cox C. C. 393 (1873). Rex vs. Whitehead, 
 I Car. & P. 67 (1824). 
 
 " " If many do conspire to execute treason against the prince 
 in one manner, and some of them do execute it in another manner, 
 yet their act, though different in the manner, is the act of all of 
 them who conspire, by reason of the general malice of the intent." 
 Blunt's Case, i How. St. Tr. 1410, 1412 (43 Eliz., 1066). See also 
 Hardy's Case, 24 How. St. Tr. 438 (1794) ; Home Tooke's Case, 
 25 How. St. Tr. 27 (1794) ; Rex vs. Stone et al., 6 T. R. 527 (1796) ; 
 Rex vs. Hammond et al., 2 Esp. 719, 720 (1799) ; Reg. vs. Salter 
 et al., S Esp. 125 (1804). 
 
 "Queen's Case, 3 B. & B. 309 (1820). 
 
 "Reg. vs. Lacey, 3 Cox C. C. Si7 (1848). 
 
go Development of the English Law of Conspiracy. [222 
 
 objects of the conspiracy,"'^ as soon as his privity with the 
 combination and its object and his adoption of the acts 
 already performed are shown, each conspirator becomes 
 bound by the antecedent and the consequent acts of his co- 
 conspirators. As Coleridge, J., well says, in Reg. vs. 
 Murphy'8 ( 1837) : " 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 conspiracy be already formed, and a person joins it after- 
 wards, he is equally guilty. ... 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 the conspiracy is 
 once established in your minds, whatever is either said or 
 done by either of the defendants in pursuance of the com- 
 mon design, is, both in law and in common sense, to be 
 considered as the act of both."'° 
 
 The reason for this doctrine is plain. Conspirators are 
 not thereby subjected to punishment for offenses committed 
 by their fellows. But since the crime lies in the concerted 
 intention, and this is to be gathered from the acts done, 
 such acts preceding the entry of a particular person into 
 the combination are evidence to show the nature of the 
 coricert to which he becomes a party, and the subsequent 
 acts of the other members indicate further the character of 
 the common design in which all are presumed to be equally 
 concerned. Therefore it follows that only acts done in fur- 
 therance of the common object are admissible in evidence 
 against co-conspirators. A declaration by one conspirator 
 after the completion of the transaction is not evidence 
 against the others. In Reg. vs. Blake and Tye*" (1844) 
 the defendants had been accused of a conspiracy illegally 
 to secure the entry of imports without the payment of 
 
 "Reg. vs. Stenson, 12 Cox C. C. iii (1871). 
 
 "■8 Car. & P. 297, 310. 
 
 ""See also O'Keefe vs. Walsh et al. (1903), 2 Ir. R. 681. 
 
 "6 Q. B. 126, 139. 
 
223] ^'^'^ °f Conspiracy in Nineteenth Century. 91 
 
 duties and so defraud the queen of her customs. It was 
 held that Tye's daybook showing that the quantity of goods 
 entered was much greater than had been declared to the 
 customs officials should be received, but not a statement in 
 his checkbook that a certain check afterwards drawn had 
 been the means whereby he had transferred one half the 
 profits of the scheme to Blake. 
 
 Several principles laid down in the cases follow logically 
 from the above doctrines. In Wright vs. Reg.*^ it was 
 objected that an indictment for a conspiracy to obtain the 
 " means and power " of securing certain East India stock 
 belonging to a widow was defective in not charging the 
 unlawful object with sufficient certainty. But Denman, 
 C. J., thought that it should be sustained, as " the statement 
 of the means used for effecting the object of the conspiracy 
 is so interwoven with the charge of conspiracy as to show 
 upon the face of these counts an unlawful conspiracy." 
 Creswell, J., in Reg. vs. Read*^ (1852), instructed a jury 
 that " it is not necessary to prove that all the parties met 
 together. If any evidence or circumstances had been ad- 
 duced safely leading to the conviction that Read was a 
 party, although absent, that would do." In Reg. vs. 
 Stenson et al.*^ (1871), Kelly, C. B., said, "There can be 
 no doubt that anything done at any time, even as late as 
 the day before the trial, which shows that a person had 
 been at a former time a party to a conspiracy, is admissible 
 in evidence against him." 
 
 The fundamental principle that the act of combination 
 is the gist of the offense of conspiracy received careful 
 statement and development during the nineteenth century. 
 Williams, J., in Rex vs. Seward" (1834), expressed a 
 doubt " whether, without an overt act, the conspiracy itself 
 amounts to any crime." No weight can be allowed to this 
 remark, however, in the face of the numerous statements 
 
 " 14 Q. B. 147, 168. 
 6 Cox C. C. 134. 
 "12 Cox C. C. Ill, 117. 
 "3 M. & M. SS7, 563. 
 
92 Development of the English Law of Conspiracy. [224 
 
 that a bare agreement to accomplish a forbidden purpose 
 is indictable quite independently (except as explained 
 above) of what is actually done in pursuance of it.*" The 
 modern rule is well stated by Brett, J. A., in Rex vs. Aspin- 
 all** (1876) : " Now, first, the crime of conspiracy is com- 
 pletely committed, if it is committed at all, the moment two 
 or more have agreed that they will do, at once or at some 
 future time, certain things. It is not necessary in order to 
 complete the offense, that any one thing should be done 
 beyond the agreement. The conspirators may repent and 
 stop, or may have no opportunity, or may be prevented, or 
 may fail. Nevertheless the crime is complete; it was com- 
 pleted when they agreed." 
 
 A combination among the prisoners, however, must be 
 proved. If unlawful acts are done without concert, the 
 charge of conspiracy cannot be maintained. Nothing turns 
 upon the word " conspiracy."*'' As Lord Campbell puts it 
 in Reg. vs. Hamp*' (1852), "Conspire is nothing, agree- 
 ment is the thing." In Reg. vs. Brown*' (1858) the same 
 judge cautions the jury " against supposing that, if one or 
 several have done what is improper, that will establish the 
 charge against them," unless it is shown that there was 
 " a joint design, a joint combination and conspiracy." In 
 Reg. vs. Barry=" (1865), Martin, B., said: "What I want 
 is evidence of a conspiracy, which means a combination. 
 In the books it is always called an agreement. In order to 
 make out a conspiracy, there must be some concert. The 
 parties must put their heads together to do it." In the 
 
 "Rex vs. Kenrick, D. & M. 208 (1843); O'Connell vs. Reg., 
 II CI. & F. 1 55, 233; Reg. vs. Hamp, 6 Cox C. C. 167 (1852); 
 Reg. vs. Brown et al., 7 Cox C. C. 442 (1858) ; Reg. vs. Barry, 
 4 F. &. F. 389 (1865); Mulcahy vs. Reg., Ir. R. i Com. Law 
 13 (1866-7) ; Reg. vs. Banks, 12 Cox C. C. 393 (1873) ; Reg. vs. 
 Bunn, 12 Cox C. C. 316 (1872) ; Reg. vs. Hilbert, 13 Cox C. C. 82 
 (1875) ; Reg. vs. Aspinall, 2 Q. B. D. 48 (1876) ; Reg. vs. Parnell 
 et al., 14 Cox C. C. 508 (1881). 
 
 "2 Q. B. D. 48, 58. 
 
 "Reg. vs. Murphy, 8 Car. & P. 297, 310 (1837). 
 
 "6 Cox C. C. 167, 173. 
 
 "7 Cox C. C. 442, 445. 
 
 "4 F. & F. 389. 399- 
 
22 s] Law of Conspiracy in Nineteenth Century. 93 
 
 great case of Mulcahy vs. Reg." (1868) Mr. Justice Willes 
 advised the House of Lords that conspiracy consists, not in 
 the mere intention, but in the agreement, to do the forbid- 
 den act.''^ And in Reg. vs. Banks"' (1873) the court in- 
 structed the jury that they must " be satisfied that an agree- 
 ment actually existed between Leah and Elizabeth [Banks] 
 to destroy the child when born. The jury must say whether 
 the letter from Leah to Elizabeth, and the three previous 
 letters from Elizabeth to Leah, indicated any such agree- 
 ment. A mere suggestion from one to the other would not 
 be sufficient." 
 
 It follows as a corollary from this proposition that if 
 several are indicted jointly for conspiracy, the acquittal of 
 all but one operates to free him also. The verdict of 
 guilty rendered against a single person would be incon- 
 sistent with the charge of a concerted design. In Reg. vs. 
 Thompson et al.°* (1851) the jury found that Thompson 
 had conspired with either Tillotson or Maddox, but they 
 were unable to say which one. Cresswell, J., directed a 
 verdict of not guilty against Tillotson and Maddox, and 
 guilty against Thompson. Upon rule nisi for a new 
 trial, Lord Campbell and a majority of the Court of 
 Queen's Bench were of the opinion that the verdict could 
 not stand. The indictment and the evidence tended to 
 prove a conspiracy among the three ; and hence if two were 
 acquitted, the third could not have been guilty of the con- 
 spiracy set out in the indictment. Erie, J., dissented, be- 
 lieving that the charge was against each prisoner separately, 
 wherefore a verdict that Thompson had conspired with 
 some one (the jury did not know with whom) should have 
 
 " L. R. 3 H. of L. 306, 316. 
 
 °^The same idea had been expressed in Rex vs. Nield et al., 6 
 East 41S (180s), in these words: "And it is necessary to show a 
 criminal object as well as a criminal intent. . . . But here the 
 offense does not consist in intent merely. It is not enough that 
 the agreement should be for the purpose of controlling; but it 
 must be entered into for controlling, that is, for effecting that 
 object." The language employed is inaccurate, but the meaning 
 is clear enough. 
 
 ''12 Cox C. C. 393, 399. 
 
 » 16 Q. B. 832. 
 
94 Development of the English Law of Conspiracy. [226 
 
 been rendered and sustained. The opinion of the majority 
 in this case, however, is really not inconsistent with the 
 general principle contended for by Erie. It was applicable 
 to the form of the verdict as actually rendered and the 
 evidence upon which it had been based. The court ex- 
 pressly said that if there had been a conspiracy among 
 "five or six," and Tillotson and Maddox had been ac- 
 quitted, the matter might have been different; in other 
 words, there would have been room for a verdict that 
 Thompson had conspired with a person unknown. Reg. 
 vs. Thompson was cited and followed in Reg. vs. Manning''^ 
 (1883). The indictment was against Manning and Haman 
 for conspiracy to cheat and defraud. The jury found a 
 verdict of guilty against Manning, but were unable to agree 
 in regard to Haman, and hence were discharged from giv-' 
 ing a verdict as to him. A new trial was ordered. Man- 
 ning, J., said : " The rule appears to be this. In a charge 
 for conspiracy in a case like this where there are two 
 defendants, the issue is raised whether or not both the men 
 are guilty, and if the jury are not satisfied as to the guilt 
 of either, then both must be acquitted.""" 
 
 If, however, a verdict of guilty against a single defendant 
 does not amount to a " legal impossibility " by reason of 
 repugnancy apparent upon its face, the verdict will stand."^ 
 In Rex vs. Cooke"^ (1826) several were indicted for a con- 
 spiracy. Two pleaded not guilty, one never appeared, one 
 pleaded in abatement. While the plea in abatement was 
 pending, the trial of the two who had pleaded not guilty 
 took place. One of these was acquitted, and the other was 
 found guilty of conspiring with the defendant who had 
 
 "12 Q. B. D. 241, 243. 
 
 "The farthest extension of the general principle under discus- 
 sion is shown in Rex vs. Plummer, 71 L. J. N. S. 80S (1902). The 
 three defendants had been indicted for obtaining money under false 
 pretences, and for conspiracy to defraud. Plummer pleaded guilty 
 to the charge of conspiracy, not guilty as to the rest. The_ other 
 two defendants were afterwards acquitted upon the whole indict- 
 ment. The court held that the conviction of Plummer must be 
 quashed, since his plea was inconsistent with the verdict. 
 
 "Reg. vs. Quinn, 19 Cox C. C. 78 (1898). 
 
 "S B. & C. 538. 
 
227] ^^'^ °f Conspiracy in Nineteenth Century. 95 
 
 pleaded in abatement, and who had not yet been tried upon 
 the merits of the case. The court refused even to stay 
 judgment until the latter defendant could be tried. "We 
 are not warranted in presuming that the other defendant 
 in this case will be acquitted.'''^ Littledale, J., however, 
 remarked, " If the other defendant, R. S. Cooke, shall be 
 hereafter acquitted, perhaps the judgment may be re- 
 versed." Very similar was Reg. vs. Ahearne'" (1852), in 
 which one of several defendants accused of conspiracy to 
 murder was tried alone, found guilty, and sentenced to 
 death. The court refused to stay judgment, although it 
 was argued that the other prisoners might be acquitted, 
 from which the innocence of Ahearne would follow by 
 necessary intendment. Lefroy, C. J., said, " The reasons 
 offered here by the prisoners' counsel may be good grounds 
 for respiting execution, but certainly not for respiting or 
 arresting judgment." 
 
 Conspiracy, then, is an agreement. The parties must 
 unite in a common intention. But there must be something 
 more. Mere concert is not in itself a crime, although the 
 principles applied by the Court of Star Chamber and per- 
 haps by the earlier Courts of King's Bench may have taught 
 otherwise. The additional element of intention to effect a 
 forbidden purpose is necessary to constitute the ofjfense of 
 conspiracy.*^ Hence, a person accused of conspiracy may 
 offer in evidence letters showing that although he had par- 
 ticipated in the unlawful scheme, he had been the dupe of 
 the other defendant, and so had been without privity in 
 the concerted illegal intention to do wrong.'^ It has been 
 expressly laid down in reference to indictments for con- 
 
 "Ibid., p. 545. 
 
 "6 Cox C. C. 6. 
 
 "Reg. vs. Murray, i Burns, J. (30th Ed.), 976 (1823). Reg. vs. 
 Parnell, 14 Cox C. C. 508 (1881). Reg. vs. Aspinall, 2 Q. B D. 
 48 (1870). 
 
 ■In Rex vs. Pollman et al., 2 Campb. 229 (1809), Lord EUenbor- 
 ough said : " You must prove that all the defendants v^ere cognizant 
 of the object ofthe conspiracy, and the mode stated in the indict- 
 ment by which it was to be carried into effect. A contrary doctrine 
 would be extremely dangerous." 
 
96 Development of the English Law of Conspiracy. [228 
 
 spiracy to defraud the public by issuing a false prospectus 
 describing shares of stock in a corporation,'* and to defraud 
 the public, the shareholders, and the customers of a bank 
 by publishing false balance-sheets and other public repre- 
 sentations regarding the affairs of the institution,** that the 
 prosecution must prove, in addition to the performance of 
 the acts charged, the existence of a common intention to 
 defraud. If the defendants had had an honest belief in 
 the truth of the statements so made, they could not be found 
 guilty of conspiracy, although their conduct might not have 
 been wholly free from elements of impropriety. So in 
 Reg. vs. Burch"^ (1865), Smith, J., instructed the jury that 
 they " must be satisfied, before they could convict, that 
 there was a conspiracy on the part of both to make a false 
 balance-sheet, and that they had an intention to defraud. 
 The questions for consideration are three in number — ^first, 
 whether there was a conspiracy or concert between them to 
 make a balance-sheet; secondly, whether that balance-sheet 
 was false and untrue; and thirdly, whether they conspired 
 to defraud and deceive the shareholders. If they found all 
 these questions in the affirmative, they would convict; if 
 they found either in the negative, it would be their duty 
 to acquit them." 
 
 It should be noted, in reference to this doctrine, that the 
 " intent " is not necessarily identical with the particular 
 intention in the minds of individual defendants. It ex- 
 tends to the consequences naturally following from the acts 
 agreed upon ; and if the object, adopted with full knowledge 
 by the defendants, is illegal, the guilty intent to accomplish 
 it must be ascribed to the conspirators, although their indi- 
 vidual desires may have been proper enough. In Reg. vs. 
 Burch'* (1865), accordingly. Smith, J., told the jury that 
 " it would be no answer on the part of the defendants to 
 say that they had no personal advantage to obtain by mak- 
 
 ""Reg. vs. Brown, 7 Cox C. C. 442 (1858). 
 "Reg. vs. Burch, 4 F. & F. 407 (1865). Reg. vs. Gumey, 11 
 Cox C. C. 414 (1869). 
 "4 F. & F. 407, 422. 
 ™4 F. & F. 407, 422. 
 
229] -^^w °f Conspiracy in Nineteenth Century. 97 
 
 ing the false balance-sheet." In Reg. vs. Harap" (1852) 
 there was an indictment for a conspiracy to obstruct the 
 course of justice. It appeared that Hamp, having falsely 
 charged one Brown with having cheated him in a certain 
 transaction, had been bound by recognizance to appear and 
 prosecute. Afterwards, fearing lest he render himself lia- 
 ble for perjury, Hamp and others agreed with Brown's 
 wife that if she would pay them £400 (which was £100 
 less than the amount of the recognizance under which 
 Hamp had been placed), the latter would not appear or give 
 evidence against Brown. It was argued that here was evi- 
 dently no intent to obstruct justice, but only a desire to get 
 Hamp out of trouble. But Lord Campbell said,"* " If 
 the necessary effect of the agreement was to defeat the 
 ends of justice, that must be taken to be the object." In 
 Ex Parte Dalton°* (1890), a case in which there had been 
 a conspiracy among certain inhabitants of Ireland to induce 
 the Irish tenants of A. H. Smith-Barry not to pay their 
 rent, the court said, " The intent to injure ... is in the 
 present case involved as matter of law in the object of the 
 conspiracy." 
 
 We now approach the question as to what is the nature of 
 the concerted intent constituting the gist of conspiracy. Or, 
 in other words, since the intention is bound up in the object 
 of the combination. What is the general character of the 
 purpose which renders illegal a combination to effect it? 
 
 Here lies the crux of modern discussion upon the sub- 
 ject of conspiracy. Shortly stated, the problem before the 
 courts is to frame a general definition of conspiracy broad 
 enough to include all criminal combinations, and at the 
 same time sufiBciently definite and consistent to enable the 
 judges to apply the law with precision in the manifold con- 
 spiracy cases which find their way into the courts. 
 
 This problem did not begin to exercise the courts until 
 the nineteenth century. The growth of the law of con- 
 
 "6 Cox C. C. 167. 
 '^ Ibid., p. 172. 
 °» 28 L. R. Ir. z*^- 
 7 
 
98 Development of the English Law of Conspiracy. [230 
 
 spiracy during the three preceding centuries had been 
 guided by few general principles. The conception of the 
 offense had been freely expanded to take in new combina- 
 tions which the courts thought deserving of punishment, 
 with little discussion or reference to any fixed standard.'^" 
 Of course partial groupings of the cases had taken place. 
 Thus, a number of more or less heterogeneous combina- 
 tions were comprised under the general captions of con- 
 spiracy to injure the public,^^ conspiracy to cheat, and the 
 like. But no conscious attempt had been made to extract 
 from the multiplicity of the cases any general principle 
 which should serve as a reliable test to distinguish criminal 
 
 "It is noteworthy that until 1834 there had been only one im- 
 portant case in which the court held that the combination before 
 it was not indictable as a conspiracy. The only other case was Rex 
 vs. Salter, 2 Show. 443 (1685). This was an indictment "for that 
 [the defendant] being an evil man, etc., and conspiring to aggrieve 
 one Laud, pretended that he had broke his arm, and accordingly 
 counterfeited the same, and upon that pretence refused to seek his 
 living by any labor, and exhibited a complaint' against him to 
 the justices of the peace, etc." The indictment was quashed upon 
 motion " as a matter not indictable." This case, however, is 
 anomalous and possesses little significance. 
 
 But in Rex vs. Tumor et al., 13 East 226 (1810), Lord Ellen- 
 borough arrested judgment upon a conviction of conspiracy to 
 trespass upon a game preserve and snare, kill and destroy the 
 hares therein. He said (p. 231) : "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 sorry 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 offense which would 
 subject them to infamous punishment." He seems, however, to 
 recognize the principle making punishable combinations to achieve 
 their objects "by some falsity" (p. 230). 
 
 This case was expressly overruled by Erie, J., in Reg. vs. Row- 
 lands, 2 Den. C. C. R. 364, 388 (1851), upon the ground that the 
 object which the conspirators had in view was also indictable, as 
 well as actionable. But later cases have firmly established the 
 principle that a combination to commit a tort is criminal. (See 
 page 102.) 
 
 Conspiracies of this kind reported during the nineteenth century 
 were : To pervert the course of justice by procuring false witnesses. 
 Rex vs. Thomas et al., i C. & P. 472 (1824) ; Bushell vs. Barrett, 
 Ry. & M. 434 (1826). To secure a passport in the name of one 
 person for use by another. Rex vs. Brailsford et al. (1901), 2 K. 
 B. 730. 
 
 In addition, we may include combinations to defraud the public 
 in various ways (see note 85, p. 103), and certain combinations 
 among workmen (see Chapter V). 
 
231] Law of Conspiracy in Nineteenth Century. 99 
 
 conspiracies from other combinations. Not until the nine- 
 teenth century had rooted out the instinctive antipathy of 
 former times to all combinations, and had awakened the 
 courts^^ to the danger lurking in the extreme elasticity of 
 the law of conspiracy, did the necessity for such a test make 
 itself felt. In the meantime, however, the principle that 
 the conspiracy is the crime had become firmly established, 
 and the variety of the cases had made it necessary that the 
 generalization possess wide limits. 
 
 The classic judicial definition of criminal conspiracy is 
 a sentence uttered by Lord Denman in Rex vs. Jones'' 
 (1832). Several persons had been indicted for a con- 
 spiracy to conceal and embezzle the personal estate of Jones, 
 a bankrupt, for the purpose of cheating his creditors. 
 Upon conviction, the defendants made a motion in arrest 
 of judgment, objecting that the indictment did not disclose 
 beyond a doubt that Jones had been legally declared a 
 bankrupt. Lord Denman said : " The indictment ought to 
 charge a conspiracy, either to do an unlawful act, or a law- 
 ful act by unlawful means. Here the indictment charges 
 a conspiracy to remove and conceal the goods of Jones; 
 but if the commission was bad, Jones had a right to remove 
 them. . . . There is nothing stated on the face of this 
 indictment to constitute an offense." 
 
 Now it is clearly evident that the above antithesis was 
 intended to limit the offense of conspiracy, not to define it. 
 The court simply meant that the object of every criminal 
 conspiracy must be unlawful, not necessarily that every 
 combination for an unlawful object is criminal. Lord 
 Denman himself said in a later case,''* in answer to a cita- 
 tion by counsel of the antithesis, " The words ' at least ' 
 should accompany that." In Rex vs. Seward'" (1834) he 
 again relied upon the antithesis as a limitation : " No in- 
 dictment for a conspiracy can be maintained unless it charge 
 
 '"Observe the language of Lord EUenborough in Rex vs. Tumor 
 et al., 13 East 226 (note 70, p. 98). 
 "4 B. & A. 34S, 349. 
 "Reg. vs. King, 7 Q. B. 782, 788 (184s). 
 "3 M. & M. SS7, s6i. 
 
lOO Development of the English Law of Conspiracy. [232 
 
 that the defendants conspired to do an unlawful act, or to 
 do a lawful act by unlawful means; and I see neither of 
 these requisites here." And in Reg. vs. Peck'* (1839) the 
 same judge said, " I do not think the antithesis very cor- 
 rect." But the part which it played in the later decisions 
 presents another very striking illustration of the accidental, 
 unsystematic method by which the law of conspiracy has 
 developed. In Reg. vs. Vincent et al.'' (1839) Alder son, 
 B., employed Lord Denman's antithesis for the first time 
 as a definition, saying that conspiracy " is a crime which 
 consists either in a combination and agreement by persons 
 to do some illegal act, or a combination and agreement to 
 effect a legal purpose by illegal means." In spite of its 
 author's dissatisfaction with it, this antithesis has been 
 treated as a definition ever since. As such it serves as the 
 very foundation of the modern law of . conspiracy. It has 
 been cited, always with approval and without examination 
 or criticism, in a long line of nineteenth and twentieth cen- 
 tury cases,'* until its terms have become firmly embedded 
 in the structure of the national jurisprudence. 
 
 A considerable portion of the progress made by the law 
 of conspiracy during the past seventy-five years has taken 
 the direction of simple deduction from Lord Denman's 
 antithesis. The problem has been to determine the mean- 
 ing of the words " unlawful act " and " unlawful means." 
 The manner of its solution during the nineteenth century is 
 largely responsible for the broad scope characteristic of 
 the modern conception of criminal conspiracy. The earlier 
 
 "9 A. & E. 686, 690. 
 
 "9 C. & P. 91, 109. 
 
 " See Rex vs. Seward et al., 3 M. & M. 557 (1834)— by Lord Den- 
 man; Reg. vs. Vincent, 9 C. & P. 91 (1839); O'Connell vs. Reg., 
 II CI. & F. iss, 233 (1844) ; Reg. vs. Carlisle & Brown, i Dears. 
 C. C. 337 (1854) ; Reg. vs. Brown ef al., 7 Cox C. C. 442 (1858) ; 
 Reg. vs. Howell et al., 4 F. & F. 160 (1864) ; Mulcahy vs. Reg., Ir. 
 Rep. I Com. Law, 13, 31 (1866-7) ; Reg. vs. Bunn, 12 Cox C. C. 
 316 (1872) ; Reg. vs. Aspinall, 2 Q. B. D. 48 (1876) ; Reg. vs. Or- 
 man & Barber, 14 Cox C. C. 381 (1880) ; Reg. vs. Parnell et al., 14 
 Cox C. C. S08 (1881) ; Ex Parte Dalton, 28 L. R. Ir. 36 (1890) ; 
 Quinn vs. Leathem, 70 L. J. R. C. 76 (1901) ; Rex vs. Brailsford 
 (190S), 2 K. B. 730. 
 
233] ^^'^ °f Conspiracy in Nineteenth Century. loi 
 
 cases had settled little more than that concerted enterprises 
 directly harmful to the public, and schemes of blackmail 
 by false charges, are punishable as conspiracies. 
 
 It is obvious that an indictable offense is an " unlawful 
 act." Combinations to commit crimes, of statutory or of 
 common-law origin, therefore, clearly fall within Lord 
 Denman's definition. This principle was laid down ex- 
 pressly by Erie, J., in Reg. vs. Rowlands'^ (1851), over- 
 ruling Rex vs. Turnor : " An agreement to commit an 
 indictable offense undoubtedly amounts to a conspiracy." 
 A large number of the conspiracy cases decided during the 
 nineteenth century were of this character, among them 
 numerous conspiracies to cheat, wherein the means em- 
 ployed would have rendered an individual guilty of the 
 crime of obtaining money under false pretences.'" 
 
 ™2 Den. C. C, R. 364, 388. 
 
 ™The following are cases in which the objects of the combina- 
 tions were themcclves indictable offenses. To cheat the king by 
 false vouchers, Rex vs. Brissac et al., 4 East 166 (1803). To 
 hold an unlawful, seditious and disorderly meeting, Rex vs. Hunt 
 et al., 3 B. & A. 566 (1820). To obtain enhanced wages, in viola- 
 tion of St. 39 and 40 Geo. Ill, Rex vs. Ridgeway, S B. & A. 527 
 (1822). To carry away a young lady under sixteen years of 
 age from the custody of her parents and guardians and marry 
 her to one of the conspirators, contrary to St. 3 Hen. VII, C. 2, Rex 
 vs. Wakefield, 2 Lew. i (1827). To poison a man, Maudsley's 
 Case, 2 Lew. 51 (1830). To conceal and embezzle the goods of 
 a bankrupt, and so to cheat his creditors, Rex vs. Jones et al., 4 
 
 B. & A. 345 (1832). To raise an insurrection and obstruct the laws, 
 Reg. vs. Shellard, 9 C. & P. 277 (1840). To hold an unlawful as- 
 sembly and create disaffection, Reg. vs. Vincent et al., 9 C. & P. 
 91 (1839). To cheat and defraud by false pretences, Reg. vs. 
 Parker et al., 3 Ad. & E. N. S. 741 (1842). To cheat of money 
 by false pretences, Reg. vs. Kenrick, D. & M. 208 (1843). To 
 create disaffection, hatred and sedition, etc., O'Connell et al. vs. Reg., 
 II CI. & F. 155 (1844). To forge a post-office money order, and 
 thus to defraud the queen and others, Reg. vs. Brittain & Shackell, 
 3 Cox C. C. 76 (1848). To use a dyer's materials wrongfully to 
 dye goods for other persons (under circumstances such as to 
 make the conspirators liable for larceny or embezzlement of the 
 materials), Reg. vs. Button et al., 3 Cox C. C. 229 (1848). To 
 violate Act 6 Geo. IV, C. 129 (see Chapter V), Reg. vs. Duffield 
 et al., 5 Cox C. C. 404 (1851) ; Reg. vs. Rowlands et al., S Cox 
 
 C. C. 436 (1851). To commit murder, Reg. vs. Ahearne, 6 Cox C. 
 C. 6 (1852); Reg. vs. Bernard, I F. & F. 240 (1858). To de- 
 stroy a ship w'th intent to prejudice the underwriters (a felony 
 by Stat. 24-5 Vict., C. 79), Reg. vs. Kohn, 4 F. & F. 68 (1864). 
 To defraud a benefit society of its funds, Reg. vs. Knowlden et 
 
I02 Development of the English Law of Conspiracy. [234 
 
 But the courts made the term " unlawful " as used in 
 Lord Denman's definition include many acts which would 
 not have been criminal if performed by a single person. 
 Thus, they held that a combination to induce a girl to 
 become a common prostitute was an indictable conspiracy, 
 as being a combination " to bring about an unlawful 
 thing."*^ Also, it was specifically decided in several cases, 
 and finally generalized in Reg. vs. Duffield'^ (1851) and 
 in later cases down to Ex Parte Dalton*^ (1890), that an 
 agreement to do (or threaten to do) an act which would 
 amount only to a private wrong if performed by a single 
 person is a criminal conspiracy,'^ such object being " il- 
 legal " within the meaning of the definition. Again, a 
 great variety of combinations to cheat and defraud — by far 
 the largest class of criminal combinations at the present 
 
 al., 9 Cox C. C. 483 (1864). To liberate from gaol a prisoner 
 charged with treason (a felony), Reg. vs. Desmond et al., 11 Cox 
 C. C. 146 (1868). To commit larceny, Reg. vs. Taylor and Smith, 
 25 L. T. N. S. 75 (1871). To kill an infant after it should be 
 born, Reg. vs. Banks, 12 Cox C. C. 393 (1873). To commit 
 abortion, Reg. vs. Whitechurch, 24 Q. B. D. 420 (1890). To 
 defraud by false pretences, Rex vs. Plummer, 71 L. J. N. S. 
 805 (1902). To take a child out of the custody of its guardians 
 (a felony by St. 24 and 25 Vict., C. 100, Sec. 56), Rex vs. Duguid, 
 75 L. J. K. B. 470 (1906). 
 
 _ Within this class of conspiracies should be included combina- 
 tions among workmen to do acts forbidden by statute. See Chap- 
 ter V. 
 
 ""Reg. vs. Howell et al., 4 F. & F. 160 (1864). See also Reg. vs. 
 ■Mears, T. & M. Cr. C. 414 (1851). 
 
 »' 5 Cox C. C. 404- 
 
 ''28 L. R. Ir. 36. 
 
 " In the following cases the acts contemplated by the con- 
 spirators would have amounted to legal injuries if performed 
 by single individuals. To poison cattle with arsenic. Rex vs. King 
 et al., 2 Chitty 217 (1820). To extort money by a false charge 
 of forgery and felony. Rex vs. Ford & Aldridge, I N. & M. 776 
 (1833). To extort goods by a threat to imprison, Bloomfield vs. 
 Blake et al., 6 C. & P. 75 (1833). To charge a person with a 
 crime, Rex vs. Biers, i A. & E. 327 (1834). To extort money by a 
 threat to charge with a crime, Reg. vs. Yates et al., 6 Cox C. C. 441 
 (1853). To impoverish Irish landlords by inducing and compelling 
 tenants not to pay rent, Reg. vs. Parnell et al., 14 Cox C. C. 508 
 (1881); Ex Parte Dalton, 28 L. R. Ir. 36 (1890). 
 
 The principle that a conspiracy to commit a legal injury is in- 
 dictable was stated generally in Reg. vs. Parnell (supra), Kearney 
 vs. Lloyd, 26 L. R. Ir. 268, Quinn vs. Leathern, 70 L. J. R. C. 76 
 (1901). 
 
235] Law of Conspiracy in Nineteenth Century. 103 
 
 time — were brought within the conception of conspiracy, 
 although the deception practised was not of such a charac- 
 ter as would render a single person guilty of the crime of 
 obtaining money under false pretences.'" All these were 
 
 "The following combinations may be embraced within the gen- 
 eral category of conspiracies to cheat and defraud. To obtain 
 goods on credit with intent to defraud the merchant of the price, 
 Rex vs. Roberts et al., i Campb. 399 (1808). To cheat and de- 
 fraud by selling an unsound horse, Rex vs. Pywell et al., i Star- 
 kie 402 (1816). To defraud of goods, Anon., i Chitty 698 (1819). 
 To defraud by misrepresenting value of certain lands and proper- 
 ties and thus inducing the prosecutor to loan large sums of monev. 
 Rex vs. Whitehead, i Car. & P. 67 (1824). To cheat and de- 
 fraud (but indictment said to be "too general"). Rex vs. Fowle & 
 Elliott, 4 C. & P. 592 (1831). To buy goods with intent not to 
 pay for them, etc., Reg. vs. Peck, 9 A. & E. 686 (1839). To de- 
 fraud of goods by false pretence that the defendant was a cer- 
 tain merchant named Grantham, Reg. vs. Steel, Car. & M. 337 
 (1841). To cheat and defraud of the fruits of a verdict (but 
 charge said to be "too general"), Reg. vs. Richardson et al., i Moo. 
 & R. 402 (1841). To defraud the queen by procuring the illegal 
 entiry of dutiable imports without payment of the duty, Reg. vs. 
 Blake & Tye, 6 Q. B. 126 (1844). To cheat and defraud by 
 false pretences in a sale of two horses and a mare, Reg. vs. Ward, 
 I Cox C. C. (1844). "To cheat and defraud of goods and 
 chattels," Sydserf vs. Reg., 11 Q. B. 245 (1848). To defraud of 
 money by inducing a person by false pretences to accept certain 
 bills of exchange, Reg. vs. Gompertz et al., 9 Q. B. 824 (1846). To 
 cheat and defraud by securing goods on credit and selling them 
 to one of the defendants upon execution after a collusive action, 
 Reg. vs. King et al., 7 Q. B. 780 (1845). To cause foreign goods 
 to be removed unlawfully from a bonded warehouse, with intent 
 to defraud the queen of duties payable thereon, Reg. vs. Thomp- 
 son et al., 16 Q. B. 832 (1851). To obtain goods from tradesmen 
 with intent not to pay for them, Reg. vs. Whitehouse et al., 6 Cox 
 C. C. 39 (1852); Reg. vs. Ryecroft et al., 6 Cox C. C. 76 (1852). 
 To cheat and defraud of leasehold tenements and messuages, 
 Reg. vs. Whitehouse et al., 6 Cox C. C. 129 (1852). To cheat and 
 defraud by false representations as to the soundness of horses, 
 Reg. vs. Carlisle & Brown, i Dears. C. C. 337 (1854). To de- 
 fraud of money by exchanging cancelled notes for good money, Reg. 
 vs. Bullock- & Clarke, Dears. C. C. 653 (1856). Among trades- 
 men, to dispose of their goods in contemplation of bankruptcy, 
 with intent to defraud creditors, Reg. vs. Hall et al., i F. & F. 33 
 (1858). To cheat and defraud by false representations as to the 
 solvency or trade of another person, whereby the prosecutor was 
 induced to enter. into partnership with him and suiiered loss, Reg. 
 vs. Timothy et al., i F. & F. 39 (1858). Among directors of a cor- 
 poration, by false representations in a balance-sheet to defraud 
 shareholders and the public, Reg. vs. Brown et al., 7 Cox C. C. 
 442 (1858). To defraud a railway company by obtaining and 
 selling non-transferable excursion tickets to other persons for 
 use by them, Reg. vs. Absolon & Clarke, i F. & F. 498 (1859). To 
 
I04 Development of the English Law of Conspiracy. [236 
 
 held to be combinations for " illegal " purposes. A good 
 statement of the modern law upon the subject is found in 
 Reg. vs. Aspinall^" (1876). Erie, J., said: "It is not, of 
 course, every agreement which is a criminal conspiracy. 
 It is diiBcult, perhaps, to enumerate an exhaustive or a 
 complete definition ; but agreements may be described which 
 are undoubtedly criminal. An agreement to accomplish an 
 end forbidden by law, though by means which would be 
 harmless if used to accomplish an unforbidden end, is a 
 criminal conspiracy. An agreement to accomplish, by 
 means which are if done by themselves forbidden by law, 
 an end which is harmless if accomplished by unforbidden 
 means, is a criminal conspiracy. An agreement made with 
 a fraudulent or wicked mind to do that which, if done, 
 would give to the prosecutor a right of suit founded on 
 fraud, or on violence exercised on or towards him, is a 
 
 cheat by procuring a person to bet upon a proposition which had 
 been " fixed " beforehand (guilt of offenders was not relieved 
 by the fact that the prosecutor had intended in the same manner 
 to cheat one of the defendants), Reg. vs. Hudson et al.. Bell C. C. 
 263 (i860). To defraud of money by false pretences, Latham et 
 al. vs. Reg., 5 B. & S. 63s (1864). To defraud an insurance com- 
 pany by sending in false lists of goods destroyed in a fire, Reg. vs. 
 Barry et al., 4 F. & F. 389 (1865). To defraud shareholders in 
 a corporation by publishing a false balance-sheet, Reg. vs. Burch 
 et al., 4 F. & F. 407 (1865). To cheat the public by circulating 
 a false prospectus leading to the sale of worthless shares of stock, 
 Reg. vs. Gurney et al., 11 Cox C. C. 414 (1869). Between a 
 partner in a firm and a third person to defraud the other part- 
 ner of the share of assets to which he was entitled upon a dis- 
 solution of the partnership, Reg. vs. Warburton, 11 Cox C. C. 
 584 (1870). To defraud certain booksellers by circulating forged 
 testimonials respecting a certain book which they were thereby in- 
 duced to buy, Reg. vs. Stenson et al., 12 Cox C. C. iii (1871). To 
 defraud by procuring by false pretences the listing of certain 
 stock by the stock exchange, Reg. vs. Aspinall et al., 2 Q. B. _D. 
 48 (1876). To defraud tradesmen of certain jewelry by obtaining 
 it on credit without intention to pay for it, Reg. vs. Orman & 
 Barber, 14 Cox C. C. ■^81 (1880). To sue for and collect a debt 
 which had been already paid, Reg. vs. Taylor & Boynes, 15 Cox C. C. 
 26s (1883). To cheat and defraud, Reg. vs. Manning, 12 Q. B. D. 
 241 (1883). To cheat the public by inducing persons to buy stock 
 given a fictitious value by manipulation, Scott vs. Brown, 61 L. J. 
 Q. B. 738 (1892). To cheat and defraud of goods, Reg. vs. De 
 Kromme, 17 Cox C. C. 492 (1892). To cheat and defraud a rail- 
 way company by abstracting and selling return half-tickets, Reg. vs. 
 Quinn et al., 19 Cox C. C. 78 (18 "" 
 ""2 Q. B. D. 48. 
 
237] ^'^^ °f Conspiracy in Nineteenth Century. 105 
 
 criminal conspiracy; see Reg. vs. Warburton. There may 
 be and probably are others." 
 
 There seems to be no doubt at the present time that the 
 above described combinations are criminal conspiracies. 
 Now the question arises, Are there any cases in which a 
 combination, whose object, whether proximate or remote, 
 was not " illegal " in the senses above indicated, has been 
 authoritatively declared to be criminal? 
 
 This question has been raised most frequently in connec- 
 tion with combinations in furtherance of industrial disputes. 
 These will be discussed in detail in the following chapter. 
 It may be stated generally, however, that during the nine- 
 teenth century every combination held to be a criminal con- 
 spiracy had for its object, either proximate or remote, some- 
 thing which was clearly illegal. In a few cases it is doubt- 
 ful whether the acts contemplated were unlawful in the 
 sense of being criminal or even tortious. Thus, in Rex vs. 
 Serjeant'^ (1826) the defendants were convicted of con- 
 spiracy by false oath and false pretences to cause a marriage 
 between an infant and a prostitute, with the intent thereby 
 to injure the infant, deprive him of his property, and bring 
 him into public scandal. Also, in Levi vs. Levi*' (1833), 
 Gurney, B., said obiter that a combination among brokers 
 to refrain frorii bidding against one another at an auction 
 sale, and afterwards to share the profits arising from the 
 low selling prices thereby induced, would be an indictable 
 conspiracy. Again, in Rex vs. Motf (1827), Abbott, C. J., 
 instructed the jury that a combination to fabricate shares 
 in a corporation in addition to the number authorized in the 
 charter was a conspiracy, although there had been a defect 
 in the formation of the company."" There are other cases 
 
 " I R. & M. 352. ~~ 
 
 "6 Car. & P. 239. 
 
 "2 Car. & P. 521. 
 
 "" Observe the difference between Rex vs. Mott and Rex vs. 
 Stratton et al., note to Buck vs. Buck, i Campb. 549 (1808), where- 
 in the defendants had been indicted for a conspiracy to deprive 
 a man of his office as secretary in an unincorporated company with 
 transferable shares. Lord EUenborough held that the indictment 
 could not be maintained, saying: "This society was certainly il- 
 
io6 Development of the English Law of Conspiracy. [238 
 
 of the same general character."^ But in all of them either 
 the object aimed at or the means employed was certainly 
 " illegal " in the sense of deceitful, fraudulent, against pub- 
 lic policy, or the like. Often the acts done might be cog- 
 nizable by the courts in proper cases, though not giving rise 
 to an action under the particular circumstances shown. 
 
 Understanding its terms in a wide sense, therefore, we 
 may accept Lord Denman's antithesis as a comprehensive 
 definition of the offense of conspiracy in modern English 
 law. 
 
 There is some apparent confusion and contradiction in 
 the nineteenth century cases as to the status of combina- 
 tions to. effect an admittedly illegal purpose by the use of 
 means not illegal per se. 
 
 As we have seen, it was declared during the eighteenth 
 century that such combinations were indictable, no matter 
 whether the means to be employed were lawful or not. 
 There are also cases in the nineteenth century in which this 
 principle was affirmed. In Rex vs. Hollingberry"^ (1825) 
 the prisoners were convicted of a conspiracy to extort 
 money from the prosecutor by indicting him for keeping a 
 
 legal. Therefore to deprive an individual of an office in it, can- 
 not be treated as an injury. When the prosecutor was secretary 
 to the Company, instead of having an interest which the law 
 would protect, he was guilty of a crime." Such companies had 
 been forbidden bySt, 6 Geo. I, C. 18, and branded as common 
 nuisances. , 
 
 °'The following cases should be noted in addition to those set 
 out in the text. To defraud by holding a mock auction and col- 
 lusively bidding up inferior goods, Rex vs. Lewis, 11 Cox C. C. 
 404 (1834). To prevent the collection of a church rate by gath- 
 ering riotous assemblies before the broker's house and directing 
 public hatred against him, Rex vs. Murphy et al., 8 Car. & P. 297 
 (1837). To disquiet a person in possession of leasehold estates by 
 molesting the tenants, etc.. Rex vs. Cooke, 5 B. & C. 538 (1826).- 
 To defraud a legatee of money under a will by making a false oath 
 that a certain third person was the testator's grandson, Reg. vs. 
 Dean et al., 4 Jur. 364 (1840). To defraud a widow of East India 
 stock by fraudulently obtaining letters of administration upon the 
 estate of her husband, etc., Wright vs. Reg., 14 Q. B. 147 (1849). 
 To extort money by threat to charge a person with a crime of 
 which he was really guilty. Rex vs. HoUingberry, 6 D. & R. 345 
 (1825); Reg. vs. Yates et al., 6 Cox C. C. 441 (1853); Reg. vs. 
 Jacobs et al., I Cox C. C. 173 (1845). 
 
 ""e D. & R. 345, 349. 
 
239] ■^'"^ °f Conspiracy in Nineteenth Century. 107 
 
 gaming house, although the jury found specifically that the 
 charge was true. Abbott held that this latter circumstance 
 was immaterial, "because the question was whether they 
 exhibited them [the charges] illegally, with an illegal intent 
 and for an illegal purpose, which the jury, after full con- 
 sideration, have found that they did." This ruling was 
 cited and confirmed in Reg. vs. Jacobs»« (1845)'. Likewise, 
 in Reg. vs. HalP* (1858) a conspiracy among traders to dis- 
 pose of their goods in contemplation of bankruptcy, with 
 intent thereby to defraud their creditors, was held to be 
 indictable, and in Reg. vs. Taylor and Boynes"" (1883) 
 it was decided that a combination to sue for and collect a 
 sum of money to which the defendants knew they were not 
 entitled was a criminal conspiracy. Lord Coleridge said 
 "that a legal proceeding perfectly regular might yet be 
 fraudulent, or a step taken or means used in the prosecution 
 of a fraudulent scheme." This direction was approved by 
 the entire court upon motion for a new trial. As Mathew, 
 J., put it, " the broad question was this — ^whether these two 
 defendants laid their heads together to obtain a judgment 
 for £30, very little of which, as they knew, was due." 
 
 In addition to these specific cases, the books contain a 
 number of general statements confirming the doctrine that 
 the legality vel non of the means employed in execution of 
 the conspiracy is immaterial. In Reg. vs. King'* (1845) 
 Lord Denman said : " It was argued that the overt acts 
 limit the allegation in the first part of the indictment, and 
 that even if that showed a criminal conspiracy, the state- 
 ments afterward reduce it to something not indictable. But 
 I think that result does not follow, even if the overt acts 
 alleged are innocent; the only object of those being to give 
 information of the particular facts by which it is proposed 
 to make out the conspiracy, and the mode in which the 
 prosecutor asserts that it was carried into effect." The 
 
 "i Cox C. a 173. 
 "i F. & F. 33. 
 "is Cox C. C. 265. 
 "7 Q. B. 780. 
 
io8 Development of the English Law of Conspiracy. [240 
 
 same view appears in the opinion of Brett, J., in Reg. vs. 
 Aspinall'^ (1876). In elaborating Lord Denman's defini- 
 tion of conspiracy, he says in terms, " An agreement to 
 accompHsh an end forbidden by law, though by means which 
 would be harmless if used to accomplish an unforbidden 
 end, is a criminal conspiracy." 
 
 Some apparent doubt was cast upon this doctrine by the 
 cases of Rex vs. Seward^* (1834) and Reg. vs. Taylor and 
 Smith"" (1871). In the Seward case there had been a con- 
 spiracy among several parish officers to procure a marriage 
 (by a promise to secure the marriage license, pay the ex- 
 penses of the marriage, and give the husband £3) between 
 a male pauper and a female pauper with child of a bastard, 
 for the purpose of throwing the burden of the woman's 
 maintenance upon the husband's parish. The Court of 
 King's Bench unanimously held that this combination was 
 not indictable. The majority of the judges based their 
 decision upon the ground that the purpose of the transaction 
 (i. e., to charge the other parish) was not illegal, provided 
 no unlawful means were used. Hence, the question as to 
 a conspiracy to accomplish a wrongful purpose by innocent 
 means was not really before the court. But in answer to 
 an argument by the prosecution that conspiring to do a law- 
 ful act for the purpose of injuring another is indictable, 
 Littledale, J., said (p. 560), "If parties conspire to do an 
 unlawful act, or a lawful act by unlawful means, this is a 
 conspiracy, for which they may be indicted ; but that is not 
 so where the parties conspire to do a lawful act, for the 
 purpose of injuring another." The prosecution then urged 
 that the gist of the offense was not " a conspiracy to pro- 
 cure a marriage between paupers, but for conspiring unlaw- 
 fully to remove a burden from their own parish, and un- 
 lawfully to charge the other parish;" that this was an 
 indictable offense, wherefore the means employed need not 
 be stated. But Denman, C. J., answered, " But when overt 
 acts are stated, some of them must be unlawful." 
 
 "'2 Q. B. D. 48, 58. 
 ="3M. &M. SS7. 
 "2S L. T. N. S. 75. 
 
24i] Law of Conspiracy in Nineteenth Century. 109 
 
 The idea apparently in Lord Denman's mind seems to 
 have been clearly expressed in Reg. vs. Taylor and Smith."" 
 Here was an indictment for conspiracy to commit larceny. 
 The evidence offered at the trial showed " that the prisoners 
 and another were seated on a door step ; that when a well- 
 dressed man or woman went into the crowd, one of the 
 prisoners nudged the others, whereupon two of them rose 
 and followed that person. In the case of a man, they lifted 
 his coat-tail, as if to ascertain if there was anything in his 
 pocket; but they did not attempt to insert a hand in the 
 pocket. In the case of a woman, they went and stood by 
 her side; the hand of one of the prisoners was seen to be 
 against her gown, but it was not seen as attempted to be 
 thrust into her pocket, nor was any complaint made by these 
 persons of any such attempt." Cox, Serjeant, held that 
 there was not sufficient evidence of conspiracy or attempt : 
 " It appears to me to be impossible to say that the doing 
 of an act not illegal is evidence of a conspiracy to do an 
 illegal act, there being no other evidence of conspiracy than 
 the act so done." Accordingly, a verdict of not guilty was 
 returned under the instruction of the court. 
 
 It would seem that the doctrine that a combination to 
 effect an admittedly illegal purpose by means not illegal 
 per se is an indictable conspiracy is sound upon both reason 
 and authority. It is limited, however, by the Taylor Case, 
 to this extent : a conspiracy to accomplish an illegal purpose 
 cannot be proved by a series of legal acts. This limitation 
 goes not to the essence of the offense, but to the evidence 
 by which it is to be made out. An indictment, consequently, 
 which charges a conspiracy to effectuate an unlawful pur- 
 pose would not be vitiated by the fact that the overt acts 
 set out are not illegal per se. This follows from the prin- 
 ciple laid down in Rex vs. Gill that the means to be em- 
 ployed are no part of the charge of conspiracy, the latter 
 resting wholly upon the combination for an unlawful object. 
 The overt acts alleged might be rejected as surplusage and 
 
 «°25 L. T. N. S. 75 (1871). 
 
no Development of the English Law of Conspiracy. [242 
 
 leave the charge itself untouched. Of course, if the acts 
 described showed conclusively that the intent imputed to the 
 conspirators had not in reality been entertained by them, 
 the indictment would fail; but the same practice would be 
 followed in respect to indictments for any other offense. 
 Ordinarily, an indictment charging a conspiracy to attain 
 an unlawful object by lawful means should be sustained 
 upon demurrer, but at the trial the prosecutor should be 
 required to adduce other evidence of the unlawful purpose 
 than the doing of perfectly legal acts. The point becomes 
 clear when we compare Rex vs. Taylor and Smith with Rex 
 vs. Taylor and Boynes. In the former case there was no 
 evidence of the illegal combination beyond the acts men- 
 tioned above. In the latter there was the additional cir- 
 cumstance that the debt sued for had already been paid to 
 the prisoners, and hence their subsequent resort to an action 
 at law to collect it could only have been for the purpose of 
 defrauding the prosecutor of her money. 
 
 It is interesting to note that in only two cases decided 
 during the nineteenth century did the courts attempt to give 
 any reason why a mere agreement should be punished as a 
 crime. In both, the formidable character of the combina- 
 tion is cited as the justification. Thus, in Reg. vs. Duf- 
 field"^ (1851) Erie, J., said: "It is most obvious, in a 
 word, that if persons, intending to break the law, are com- 
 pelled to act single-handed, those on the side of the honest 
 part of the community can very well oppose them, and for 
 the most part keep them under, but if those who are deter- 
 mined to break the law combine and cooperate together for 
 that illegal purpose, they are a much more formidable 
 enemy, and the law has said that combination for an illegal 
 purpose is an indictable offense." 
 
 To the same effect is the statement of Fitzgerald, J., in 
 his charge to the jury in Reg. vs. ParnelU'"' (1881) : " The 
 agreement to effect an injury or wrong to another by two or 
 more persons is constituted an offense, because the wrong 
 
 ™S Cox C. C. 404, 432. 
 '" 14 Cox C. C. S08, S14. 
 
243] ^^'^ °f Conspiracy in Nineteenth Century. 1 1 1 
 
 to be effected by a combination assumes a formidable 
 character." From this view the Hmitation suggested in Rex 
 vs. Kenrick"' (1843) ^s to punishing combinations as 
 criminal conspiracies follows logically. The court said, 
 " Doubts have also been expressed how far an indictment 
 for conspiracy may be maintained, where the object of it 
 was of a trivial nature, or where the whole matter might 
 be thought to sound in damage, not in crime."^°* 
 
 There are several indications in the cases that the courts 
 regard conspiracy as a more or less anomalous offense. 
 Thus, in Reg. vs. Hilbert"^ (1875), Cleasby, J., said, "It 
 [conspiracy] differs from other charges in this respect, that 
 in other charges the intention to do a criminal act is not a 
 crime of itself until something is done amounting to the 
 doing or attempting to do some act to carry out that inten- 
 tion." This remark, however, betrays a misconception of 
 the nature of the offense. It was brought out very clearly 
 in the argument of counsel in Mulcahy vs. Reg.^"' that a 
 conspiracy involves " some outward act distinct from the 
 mere operation of the mind of one person. Two persons 
 cannot conspire and agree without some communication, 
 either by word or in writing." That is, the crime consists, 
 
 "=D. & M. 208, 216. 
 
 "*A somewhat similar idea as to the limitation to which the law 
 of conspiracy should be subjected was suggested as early as 1752, 
 in the case of Chetwynd vs. Lindon, 2 Ves. & Sr. 450. The de- 
 fendant had demurred to such part of a bill in chancery as sought 
 to compel her to discover a conspiracy or attempt to set up a child 
 which she pretended to have had by a person who had lived with 
 her and was desirous of having a child by her, because such a dis- 
 closure might subject her to penal proceedings. Lord Hardwicke 
 said : " The question is whether it is so charged, as, if confessed 
 in the answer, would be a ground for a criminal prosecution in 
 a court of law; for it is not every conspiracy will be a ground 
 for a criminal prosecution. If that was the case, almost all the 
 causes in this court would come within that description. The 
 boundaries are often very nice, where a matter is near indictable 
 and a fraud in this court. This setting up a private fraud does not 
 impede the course of descent in law so as to defeat the heir at 
 law; for if so, it might be a conspiracy indictable: but this is to 
 the disherison of no one; and by this means several frauds in this 
 court might be covered by demurrer." Demurrer overruled. 
 
 "» 13 Cox C. C. 82, 86. 
 
 '"' Q. R. Rep. I Com. L. 13, 28. 
 
112 Development of the English Law of Conspiracy. [244 
 
 not in the mere intention, but in the agreement to do wrong. 
 Since, therefore, " their agreement is an act in advancement 
 of the intention which each of them has conceived in his 
 mind," it was held to be an overt act sufificient to support 
 a conviction for treason.^"^ In this particular there seems 
 to be no generic difference between criminal conspiracy and 
 criminal attempt. 
 
 The principle that an agreement to do an act not in itself 
 a crime is a punishable offense was several times attacked 
 by counsel during the nineteenth century, but without suc- 
 cess. The only case in which the court expressed any dis- 
 satisfaction with this principle was Reg. vs. Warburton^"* 
 ( 1870) . Cockburn, C. J., there said : " There may be a 
 doubt whether the law of England is consistent in saying 
 that what is not criminal in one man alone is criminal when 
 done by two men. This, however, is not a case in which 
 it is desirable to put any restriction on the rules of law 
 relating to conspiracy." In other cases in which the point 
 was raised the courts have been content with laying down 
 as a matter of " common learning " that what may be done 
 by one man with impunity may render a combination to do 
 it guilty of conspiracy. 
 
 The consciousness of the anomalous character of con- 
 spiracy as a criminal offense appears very plainly in the 
 case of Reg. vs. Selsby"' (1847). Rolfe, B. (afterwards 
 Lord Cran worth), remarks upon the fact that the defend- 
 ants were indicted, not for the acts done, but for a con- 
 spiracy to do them, " the having done which is the proof 
 of the conspiracy. It is never satisfactory, although un- 
 doubtedly it is legal." 
 
 At the present time the crime of conspiracy as defined by 
 the law of England consists in the bare agreement to do 
 something illegal. Any such agreement may be punished; 
 but the courts, in passing upon specific cases, will determine 
 whether particular unlawful combinations are serious 
 
 '" L. R. 3 H. of L. 306, 316, 328. 
 "»ii Cox C. C. S84, 587. 
 "'5 Cox C. C. 495 (note). 
 
24S] ■^'■^^ °f Conspiracy in Nineteenth Century. 1 1 3 
 
 enough in their consequences to deserve criminal penalties. 
 Conversely, it is very improbable that the judges will hold 
 criminal any combination which purposes committing only 
 legal acts, however oppressive to individuals such acts may 
 be.' Even in the civil courts, in which such combinations 
 have been most discussed, the general principle seems still 
 to remain intact that the fact of combination will not trans- 
 form an otherwise legal undertaking into an actionable 
 wrong."" The only exception has reference to certain 
 combinations among workmen, which will be treated in the 
 following chapter. 
 
 It would be interesting to inquire in detail as to how far 
 the practice of punishing bare agreements to do evil can be 
 justified upon sound principles of jurisprudence. We can- 
 not deny that the English law relating to criminal conspiracy 
 is unique. Being largely the creature of special circum- 
 stances, it has no parallel in the legal systems of France, 
 Germany, and other continental countries in which the con- 
 ditions under which it originated and grew were not dupli- 
 cated. We may say generally, however, that the offense 
 of conspiracy does not in reality constitute an exception to 
 the fundamental principle that the law will not take cog- 
 nizance of a bare intent to do evil. But whenever the law 
 punishes criminal acts, it can and does examine into the 
 intent of the actor. In all crimes the intent is at least as 
 important as the act done ; in some, it is much more impor- 
 tant. Thus, in the crime of attempt to commit a criminal 
 offense, the element of guilty intent is the principal factor. 
 The nature and consequences of the act done are wholly 
 immaterial. It appears, therefore, that in some cases at all 
 events the law will punish an intent, provided it be mani- 
 fested in an act done to effectuate it. The English courts 
 have given open expression to this principle in discussing 
 the crime of treason. Upon the same principle we can 
 justify the punishment of criminal conspiracy. The latter, 
 
 ""Kearney vs. Lloyd, 26 L. R. Ir. 268; Sweeny vs. Coote (1906), 
 I Ir. R. 51; (1907) W. N. 92. 
 8 
 
114 Development of the English Law of Conspiracy. [246 
 
 as we have shown, consists in a criminal intent manifested 
 by the act of agreement. It differs from criminal attempt 
 only in respect to the nature of the act in which the intent 
 appears. 
 
 There is some difference of opinion as to whether the 
 English law of conspiracy has received too wide an exten- 
 sion. This, however, is a subject with which we need not 
 at present concern ourselves. It will be sufficient to say 
 that, upon the whole, the principles relating to illegal com- 
 binations play a useful part in the administration of criminal 
 justice. Through them the law is enabled to reach a num- 
 ber of wrongful enterprises which would otherwise be im- 
 mune from punishment. The criminal liability thus created 
 may well operate as a deterrent upon the pernicious activi- 
 ties of that considerable class of citizens who feel no scruple 
 against engaging in almost any scheme of fraud or oppres- 
 sion not involving the doing of acts which are in themselves 
 indictable offenses. 
 
CHAPTER V. 
 Combinations of Labor. ' 
 
 During the nineteenth century the law relating to crim- 
 inal conspiracy has affected combinations of labor much less 
 in England than it has upon this side of the Atlantic. Our 
 English brethren have preferred to deal with this important 
 subject by means of carefirily drawn statutory enactments, 
 whereas in America the problems growing out of the con- 
 flict between capital and labor have been thrown largely 
 upon the courts for solution. In late years Parliamentary 
 labor legislation has been directed against specific acts 
 rather than against combinations to act. In years gone by, 
 however, the element of combination occupied a prominent 
 place in the field of labor law; and an account of its vicis- 
 situdes forms an interesting and instructive chapter in the 
 history of our subject. 
 
 The labor problem began to engage the attention of Par- 
 liament at an early period. The first Statute of Laborers 
 was passed in 1349 (23 Edw. Ill),' and was aimed against 
 the rise of wages consequent upon the Black Death. It 
 provided that all unemployed able-bodied persons below the 
 age of sixty years might be compelled " to serve him which 
 so shall him require," upon pain of imprisonment. They 
 were to take no more than the customary wages, and were 
 not to depart from service before the end of the period 
 agreed upon. By a second act passed in the following year 
 (25 Edw. Ill, Stat. I, 1350) the wages to be paid to the 
 different classes of laborers were specifically prescribed, and 
 strict provision was made for the enforcement of the law. 
 
 The policy of state regulation of labor so inaugurated 
 was continued and extended by a number of acts subse- 
 quently passed. Attempts were made to regulate in great 
 
 "5 
 
1 16 Development of the English Law of Conspiracy. [248 
 
 detail the conditions of labor. Laborers were permitted to 
 " use but one mystery."^ They were restricted to the hun- 
 dred in which they resided, and after they had reached the 
 age of twelve years they were compelled to follow the trade 
 of their fathers.^ Upon leaving employment they were 
 required to obtain testimonials, and other persons were for- 
 bidden to employ any workman who had not such a testi- 
 monial. The hours of labor, the dress which laborers 
 should wear, the arms they might carry, the games they 
 might indulge in, even the time to be allowed them for 
 meals' — all these matters claimed the attention of Parlia- 
 ment, and the justices of the peace were directed to enforce 
 the laws rigidly.* In 1389 (13 Rich. II) statutory regula- 
 tion of wages was replaced by a policy of allowing them to 
 be prescribed at Easter and Michaelmas by a justice of the 
 peace. This policy was continued by Statute 6 Henry VI 
 (chap. 3, 1427), directing that wages be fixed by justices at 
 quarter sessions, and in the towns by the mayor and the bail- 
 iffs, " because masters could not get servants without giving 
 higher wages than allowed by the statute." Direct statu- 
 tory regulation of wages was tried again in 15 14 (Stat. 6 
 Hen. VIII, C. 3), but was finally abandoned in 1562, when 
 the great Statute of Laborers (5 Eliz., C. 4) was passed. 
 
 This famous act was a consolidation of previous labor 
 laws. Most of the provisions of the foregoing statutes 
 were retained and elaborated. Wages were to be fixed and 
 revised from time to time by justices of the peace, and the 
 giving or taking of more than the prescribed rate was made 
 punishable. A new feature was a careful regulation of 
 apprenticeship. 
 
 The Act of 5 Elizabeth marks the highest point attained 
 by state regulation of labor in England. It gradually be- 
 came a dead letter, but was not finally repealed until 1875. 
 
 '36 Edw. Ill (1362); 34 Edw. Ill (1360). 
 
 ^12 Rich. II (1388) — restriction as to place removed by 2 and 
 3 Edw. VI, C. IS, Sec. 4 (1S48). 
 
 '12 Rich. II (1388); 6 Hen. VIII, C. 3 (1514) ; 4 Hen. IV 
 (1402). 
 
 *2 Hen. V, C. 4 (1414). 
 
249] Combinations of Labor. 1 17 
 
 " Throughout the whole of the seventeenth and the greater 
 part of the eighteenth century," says ^ir James Stephen, 
 " no act was passed for the general regulation of trade and 
 labor in any degree comparable in importance to the 5 
 Elizabeth, C. 4."= 
 
 The laborers themselves, however, were not pleased with 
 this strict policy of regulation. The attempts made by 
 them to advance their own interests in spite of the law soon 
 developed organization, and this it was that brought the 
 element of combination among workmen to the attention 
 of the lawmakers. Such organizations began to grow up 
 almost immediately after the first Statute of Laborers 
 (23 Edw. Ill, 1349). Eleven years after its passage. Par- 
 liament mildly declared void "all alliances and covins be- 
 tween masons, carpenters and guilds, chapters and ordi- 
 nances." The ineffective character of this prohibition and 
 the strength of the resistance engendered by the labor laws 
 of the reigns of Edward III, Richard II, Henry IV and 
 Henry V are evidenced by the peremptory terms of the 
 statute 3 Henry VI, C. i ( 1424) . Reciting that " by the 
 annual congregations and confederacies made by the masons 
 in their general chapters assembled the good course and 
 effect of the statute of laborers are publicly violated and 
 destroyed in subversion of the law," the act commanded 
 " that such chapters and congregations be not henceforth 
 held," under severe penalties. 
 
 The growth and increased efficiency of the rudimentary 
 combinations of labor which sprang up during the follow- 
 ing century and a quarter find an eloquent testimonial in 
 the next act upon the subject, " The Bill of Conspiracies of 
 Victuallers and Craftsmen," Statute 2 and 3 Edward VI, 
 C. 15 (1548). This statute enacted that "if any artificers, 
 workmen or laborers do conspire, covenant or promise to- 
 gether, or make any oaths, that they shall not make or do 
 their works but at a certain price or rate, or shall not enter- 
 prise or take upon them to finish that another hath begun, 
 
 " " History of the Criminal Law of England," Vol. 3, p. 205. 
 
ii8 Development of the English Law of Conspiracy. [250 
 
 or shall not do but a certain work in a day, or shall not 
 work but at certain hours and times ; that then every person 
 so conspiring, covenanting, swearing or ofifending" shall 
 suffer a fine of £10 or twenty days' imprisonment for the 
 first offense, and a severer punishment for subsequent 
 offenses. Moreover, section 2 provided that such a con- 
 spiracy entered into by a majority of any society, brother- 
 hood or company of such persons should work an instant 
 dissolution of their charter, besides subjecting them indi- 
 vidually to the above penalties. 
 
 The Elizabethan Statute of Laborers (5 Eliz., C. 4, 1562) 
 said nothing about combinations of labor. The law was 
 silent upon this subject until the year 1720, when the first 
 of the notable eighteenth century statutes against combina- 
 tions among laborers was passed. 
 
 This act (7 Geo. I, Stat. i,.C. 13) was directed against 
 combinations among journeymen tailors. It enacted " that 
 all contracts, covenants and agreements . . . made or en- 
 tered into ... by or between any persons brought up in, 
 or professing, using or exercising the art or mystery of a 
 taylor, or journeyman taylor . . . shall be and are hereby 
 declared to be illegal, null and void to all intents and pur- 
 poses;" and any one convicted before two justices of the 
 peace of remaining in such combinations after May i, 1721, 
 might be committed to the House of Correction or to the 
 common gaol for not more than two months. 
 
 Four years later (12 Geo. I, C. 34, 1725) a statute en- 
 titled " An act to prevent unlawful combinations of work- 
 men employed in the woollen manufactures, and for better 
 payment of their wages " similarly provided that contracts 
 and agreements, by-laws and ordinances made and entered 
 into by such workmen for regulating the prices of their 
 goods, or raising their wages, or shortening their hours of 
 labor, should be " illegal, null and void to all intents and 
 purposes." Those who entered into or remained in such 
 combinations after June 24, 1726, might be summarily pun- 
 ished as described in Act 7 George I. Subsequent acts 
 made like provision against combinations of workmen in 
 
251] Combinations of Labor. 119 
 
 other specified trades. The Act 22 George II, C. 27, Sec. 
 12 (1749), extended the operation of Act 12 George I, after 
 June 24, 1749, to journeymen dyers, hot pressers and others 
 engaged in the manufacture of woollens ; also to all work- 
 men employed in the making of felts and hats, and in the 
 fur, iron, leather, mohair, fustian and various textile manu- 
 factures. In 1777 (17 Geo. Ill, C. 55) an act was passed 
 more especially directed against the organization and meet- 
 ing of societies and clubs of persons working at the manu- 
 facture of hats. By the Act 36 George III, Cm (1796), 
 provisions similar to the foregoing series were extended to 
 workmen employed in the paper trade. 
 
 The culmination of the anti-combination laws was reached 
 in the Acts of 39 and 40 George III (1799, 1800), which 
 contained general enactments similar to the specific prohibi- 
 tions in previous acts. These famous statutes represented 
 the highest point ever reached by repressive labor legisla- 
 tion in England. 
 
 Reciting the prevalence of unlawful combinations among 
 workmen, and the ineffectiveness of former laws to sup- 
 press them, the Act 39 George III, C. 81, enacted " that from 
 and after the passing of this act all contracts, covenants and 
 agreements whatsoever . . . heretofore made or entered 
 into between any journeymen manufacturers or other work- 
 men, or other persons within this kingdom, for obtaining an 
 advance of wages of them, or any of them, or any other 
 journeymen manufacturers or workmen, or other persons 
 in any manufacture, trade or business, or for lessening or 
 altering their or any of their usual hours or time of work- 
 ing, or for decreasing the quantity of work, or for prevent- 
 ing or hindering any person or persons from employing 
 whomsoever he, she or they shall think proper to employ 
 in his, her or their manufacture, trade or business, or for 
 controlling or any way affecting any person or persons car- 
 rying on any manufacture, trade or business, in the conduct 
 or management thereof, shall be, and the same are hereby 
 declared to be illegal, null and void to all intents and pur- 
 poses whatsoever." 
 
I20 Development of the English Law of Conspiracy. [252 
 
 Section 2 provided further that "no journeyman, work- 
 man, or other persons " at any time after the passage of 
 this act should enter into, " or be concerned in the making 
 of or entering into " such illegal contract, covenant or 
 agreement; and "every journeyman workman, or other 
 person, who, after the passing, shall be guilty of any of the 
 said offenses," being convicted in a summary proceeding 
 before justices of the peace, should be imprisoned in the 
 common gaol for not more than three months, or in a House 
 of Correction at hard labor for not more than two months. 
 
 Section 3 imposed the same penalty upon " every work- 
 man who shall at any time after the passing of this act 
 enter into any combination to obtain an advance of wages, 
 or to lessen or alter the hours or duration of the time of 
 working, or to decrease the quantity of work, or for any 
 other purpose contrary to this act." The other offenses 
 similarly punished were certain acts done by individuals, 
 which were made criminal without regard to the element 
 of combination. 
 
 Sections 4 and 5 were more particularly aimed at trade 
 unions. " For the more effectual suppression of all com- 
 binations among journeymen " and other workmen, section 
 4 pronounced the same punishment against persons who 
 might attend, or in any way endeavor to induce any work- 
 man to attend, any meeting held for the purpose of forming 
 or maintaining any agreement or combination for any pur- 
 pose declared illegal by this act, or who might endeavor in 
 any manner to induce any workman to enter into or be con- 
 cerned in any such combination; also against those who 
 should collect or receive money from workmen for any of 
 the aforesaid purposes, or who should pay or subscribe 
 money toward the support or encouragement of any such 
 illegal meeting or combination. Section 5 imposed a pen- 
 alty of is or imprisonment upon any person who might 
 contribute toward the expenses incurred by any persons 
 acting contrary to the statute, or toward the support or 
 maintenance of any workman for the purpose of inducing 
 him to refuse to work or be employed. By section 6 money 
 
253] Combinations of Labor. 121 
 
 already contributed for any purpose forbidden by the act, 
 unless divided within three months after its passage, was 
 declared forfeited. 
 
 The remainder of the act (sections 7-17) prescribed in 
 detail the manner of its execution, and granted supple- 
 mentary powers essential thereto. 
 
 In the following year (1800) it was found "expedient 
 to explain and amend " the foregoing act, and accordingly 
 the Acts of 39 and 40 George III, C. 106, were passed for 
 this purpose. The later act repealed the former, and sub- 
 stituted other provisions in its place. The first sixteen sec- 
 tions of the new act, however, were identical with the cor- 
 responding sections of the old, except for a few minor 
 improvements, chiefly verbal. But the new act introduced 
 two novel features. Section 17 declared that all contracts 
 and agreements between " masters or other persons, for 
 reducing the wages of workmen, or for adding to or alter- 
 ing the usual hours or time of working, or for increasing 
 the quantity of work," should be illegal and void; and- any 
 person convicted in a summary proceeding before any two 
 justices of the peace of entering into such an agreement 
 should forfeit £20, or be imprisoned in the gaol or the 
 House of Correction for not less than two or more than 
 three months. Sections 18 to 23 provided an elaborate 
 system for the compulsory arbitration of trade disputes. 
 
 The net result of the above mentioned acts (in so far as 
 they concern our present purpose) was to render illegal and 
 criminal any and every combination among masters or 
 workmen to fix the wages or alter the conditions of labor. 
 
 The Anti-Combination Acts of George III were passed 
 during the period of the dominance of Old Toryism, but 
 even at that time the new school of Individualism was 
 issuing its challenge to the reactionary and oppressive doc- 
 trines of the older school. The manner in which the teach- 
 ings of Bentham and his disciples gained the ascendancy 
 need not be detailed here. It will be sufficient to note that 
 just twenty-five years after the Acts of 39 and 40 George 
 III the entire legislative policy of England toward combina- 
 
122 Development of the English Law of Conspiracy. [254 
 
 tions of labor was fundamentally transformed. This 
 change was brought about by two acts : 5 Geofge IV, C. 95 
 (1824), and 6 George IV, C. 129 (i825).» 
 
 The first of these statutes began with a long section 
 repealing, specifically and generally, all former "laws, 
 statutes and enactments now in force throughout or in any 
 part of Great Britain and Ireland " relative to combinations 
 of workmen for the purposes therein specified. It then 
 enacted (sec. 2) " that journeymen, workmen, or other 
 persons who shall enter into any combination to obtain an 
 advance, or to fix the rate of wages, or to lessen or alter 
 the hours or duration of the time of working, or to decrease 
 the quantity of work, or to induce another to depart from 
 his service before the end of the time or term for which he 
 is hired, or to quit or return his work before the same shall 
 be finished, or not being hired, to refuse to enter into work 
 or employment, or to regulate the mode of carrying on any 
 manufacture, trade or business, or the management thereof, 
 shall not therefore be subject or liable to any indictment or 
 prosecution for conspiracy, or to any other criminal infor- 
 mation or punishment whatever, under the common or 
 statute law." By section 3 masters entering into combina- 
 tions for the opposite purposes were exempted from pun- 
 ishment to a like extent. 
 
 Laboring men and others were regulated by means of 
 the prohibition of certain specified acts, whether performed 
 by an individual or by a combination. Section 5 provided 
 that " if any person by violence to the person or property, 
 by threats or by intimidation shall wilfully or maliciously 
 force another " to cease working or to refuse employment, 
 or should employ the above methods toward another on 
 account of his not complying with rules, orders, or regula- 
 tions made to obtain an advance of wages, etc., or should 
 endeavor by such means to force an employer to change his 
 
 '"To the desire to extend contractual freedom belongs the re- 
 form in the Combination Law, effected under the direct influence 
 of the Benthamite school in accordance with the principles of 
 individualism by means of the two Combination Acts of 1824- 
 1825." Dicey, " Law and Opinion in England," p. 190, 
 
25 S] Combinations of Labor. 123 
 
 mode of conducting his business, tiie offender should be 
 imprisoned for not more than two months. Section 6 
 imposed the same punishment upon persons who " combine 
 and " do the above things, the criminaHty being evidently 
 attributed to the acts done, not to the mere combining to 
 do them. The other sections provided summary proceed- 
 ings for cases arising under the act, and contain other 
 matter relating to procedure. 
 
 The Act of S George IV, C, 95, remained in force but 
 a single year. It was repealed and replaced by the Act of 
 6 George IV, C. 129 (1825). The details of the former 
 act, and not its underlying principle, are changed. After 
 reciting that the provisions of the Act of 5 George IV, C. 95, 
 " have not been found effectual," and after reenacting the 
 long repealing section of the former act, the new statute 
 (first repealing the old one) forbids the accomplishment, 
 "by violence to the person or property, or by threats or 
 intimidation, or by molesting or in any way obstructing 
 another," of certain purposes. These were but a more 
 comprehensive enumeration of the purposes forbidden by 
 S George IV, C. 95, Sec. 5, and embrace the following: 
 forcing or endeavoring to force, by the above means, any 
 workman to quit work, to return his work before the same 
 shall be finished, to refuse to accept employment, to belong 
 to any club or association, to pay any fine or penalty for 
 not belonging to such club or for not complying with any 
 order of regulation for the advancement of the unionists' 
 policies or for not contributing to the union funds; also, 
 by the above methods, forcing or endeavoring to force any 
 employer to alter the mode of carrying on his business, to 
 limit the number of his apprentices, or to limit the number 
 or description of his workmen. " Every person so offend- 
 ing, or aiding, abetting or assisting therein " was made lia- 
 ble, upon conviction in a summary proceeding, to imprison- 
 ment at hard labor for not more than three months. 
 
 The above acts were rendered criminal whether perpe- 
 trated by an individual or by a combination. Certain labor 
 combinations, however, by a carefully drawn section of 
 
124 Development of the English Law of Conspiracy. [256 
 
 narrower scope than the corresponding section of the for- 
 mer act, were expressly declared not to be criminal, in these 
 words (sec. 4) : " Provided always, and be it enacted. 
 That this act shall not extend to subject any persons to 
 punishment, who shall meet together for the sole purpose 
 of consulting upon and determining the rate of wages or 
 prices, which the persons present at such meeting or any 
 of them, shall require or demand for his or their work, or 
 the hours or time for which he or they shall work in any 
 manufacture, trade, or business, or who shall enter into any 
 agreement, verbal or written, among themselves, for the 
 purpose of fixing the rate of wages or prices which the 
 parties entering into such agreement, or any of them, ghall 
 require or demand for his or their work, or the hours or 
 time for which he or they will work, in any manufacture, 
 trade or business ; and that persons so meeting for the pur- 
 poses aforesaid, or entering into any such agreement as 
 aforesaid, shall not be liable to any prosecution or penalty 
 for so doing; any law or statute to the contrary notwith- 
 standing." Section 5 extended the same protection in the 
 same words to masters who meet, consult and agree upon 
 rates of wages and times of working to be paid to or re- 
 quired of their journeymen, worlanen or servants. 
 
 The policy of making cognizable the acts done irrespec- 
 tive of the combination, and also of allowing the workmen 
 freedom to combine as far as compatible with the legiti- 
 mate interests of the employer and of the public, was con- 
 tinued and extended in subsequent acts. Most of these 
 were intended to specify with greater accuracy and detail 
 what particular methods workmen might not employ in 
 furtherance of trade disputes. Attempts to widen their 
 right to combine, however, were made in a few instances. 
 The Act of 22 Victoria, C. 34 (1859), explanatory of the 
 Act of 6 George IV, C. 129, declared "that no workman 
 or other person, whether actually in employment or not, 
 shall by reason merely of his entering into an agreement 
 with any workman or workmen or other person or persons, 
 for the purpose of fixing or endeavoring to fix the rate of 
 
257] Combinations of Labor. 125 
 
 wages or remuneration at which they or any of them shall 
 work ... be subject to any prosecution or indictment for 
 conspiracy." A further protection to trade unions in this 
 respect was given by the Acts of 34 and 35 Victoria, C. 31, 
 Sec. 2 : " The purposes of any trade union shall not, by 
 reason merely that they are in restraint of trade, be deemed 
 to be unlawful so as to render any member of such trade 
 union liable to criminal prosecution for conspiracy or other- 
 wise." This principle was retained in the Acts of 34 and 
 35 Victoria, C. 32 (proviso at end of Sec. i), which repealed 
 Acts 6 George IV, C. 129, and 22 Victoria, C. 34. The 
 final stage in the decadence of the importance of criminal 
 conspiracy as applied to labor combinations is to be found 
 in the Conspiracy and Protection of Property Act, 1875, 
 38 and 39 Victoria, C. 86. Section 3 of this act provided : 
 " An agreement or combination by two or more persons to 
 do or procure to be done any act in contemplation or fur- 
 therance of a trade dispute between employees and work- 
 men shall not be indictable as a conspiracy if the same act 
 committed by one person would not be punishable as a 
 crime." This provision extends to combinations for the 
 above purposes a protection from prosecution not enjoyed 
 by combinations with different objects. The Trade Dis- 
 putes Act, igo6 (6 Edw. VII, C. 47), similarly denied to the 
 element of combination any effect even upon the civil lia- 
 bility incurred by workmen for what they might do in the 
 conduct of a strike, etc., providing (sec. i), "An act done 
 in pursuance of an agreement or combination by two or 
 more persons shall, if done in contemplation or furtherance 
 of a trade dispute, not be actionable unless the act, if done 
 without any such agreement or combination, would be 
 actionable." 
 
 From the history of legislation touching combinations of 
 labor we turn to a review of the decisions of the courts 
 upon the same subject. 
 
 Up to the year 1721 combinations among workmen to 
 raise their wages or otherwise to alter the conditions of 
 labor were apparently not regarded as criminal conspiracies 
 
126 Development of the English Law of Conspiracy. [258 
 
 at common law. Such combinations were certainly not 
 included in the Definition of Conspirators (33 Edw. I). 
 As long as conspiracy retained its original technical mean- 
 ing and narrow scope, of course neither court nor counsel 
 would be likely to think that combinations of labor were 
 judicially cognizable. Hence the number of early statutes 
 upon the subject. The frequency of these acts, and the 
 terms in which they were couched, would seem to indicate 
 a belief that the combinations prohibited were being made 
 unlawful for the first time. Indeed, since the objects for 
 which these combinations were formed were for the most 
 part forbidden by the various statutes of laborers, the early 
 anti-combination laws tend to show that the definition of 
 conspiracy was not currently regarded as including even 
 combinations to violate a statute. 
 
 In 1721 (8 Geo. I), just one year after the passage of the 
 act declaring illegal all combinations among tailors to raise 
 their wages, etc., the famous case of the King vs. The 
 Journeymen Tailors of Cambridge^ arose. This decision, 
 which declared that a combination to raise wages was a 
 conspiracy at common law, so profoundly affected the atti- 
 tude of the courts toward such combinations in later times 
 that a careful analysis of it should be made. 
 
 One Wise and several other journeymen tailors, of or in 
 the town of Cambridge, were indicted for a conspiracy to 
 raise their wages. Upon a verdict of guilty they moved in 
 arrest of judgment. Among other objections it was urged 
 that no crime appeared upon the face of the indictment, 
 " for it only charges them with a conspiracy and refusal to 
 work at so much per diem, whereas they are not obliged to 
 work at all by the day, but by the year, by 5 Eliz., C. 4." 
 In reply, the prosecution boldly affirmed " that the refusal 
 to work was not the crime, but the conspiracy to raise the 
 wages." 
 
 The court sustained the position of the prosecution. 
 " The indictment," they held, " it is true, sets forth, that 
 the defendants refused to work under the wages which they 
 
 '8 Mod. II (Nov. 6, 1721). 
 
259] Combinations of Labor. 127 
 
 demanded; but although these might be more than is di- 
 rected by the statute, yet it is not for the refusing to work, 
 but for conspiring, that they are indicted, and a conspiracy 
 of any kind is illegal, although the matter about which they 
 conspired might have been lawful for them, or any of them, 
 to do, if they had not conspired to do it, as appears in the 
 case of the Tubwomen vs. The Brewers of London." 
 
 The defendants further urged that since the offense was 
 a crime within the Stat. 2 and 3 Edward VI, C. 15, and the 
 " late Statute 7 Geo. I, C. 13," the indictment should have 
 concluded " contra formam statuti." For the king it was 
 replied that the defendants had been indicted, not for " the 
 denial to work except for more wages than is allowed by 
 the statute, but it is for a conspiracy to raise their wages," 
 which is " an offense at common law." The court again 
 sustained the prosecution, saying, "This indictment need 
 not conclude contra formam statuti, because it is a con- 
 spiracy, which is an offense at common law." Accord- 
 ingly, the judgment "was confirmed by the whole court 
 quod capiantur." 
 
 The authority of the Journeymen Tailors' Case has been 
 called in question by later writers, and doubts have been 
 thrown upon the authenticity of the report which has been 
 preserved to us. There is indeed little question that the 
 case represents a notable piece of judicial legislation. The 
 principles laid down in it, however, are thoroughly in har- 
 mony with the development then taking place in the law of 
 conspiracy in general. They can be deduced from certain 
 wider principles current at the time, and are enforced by 
 several cases of an analogous character decided previously.' 
 
 ' As to the statement that " a conspiracy of any kind is illegal," 
 etc., Wright says : " This general expression was in no way nec- 
 essary for the decision; it is not supported by its reference (Star- 
 ling) ; and it amounts to the proposition which is negatived by 
 every previous and subsequent authority, that combination is per 
 se criminal, independently of its purposes. Moreover that the re- 
 port is untrustworthy appears from the fact that the reporter makes 
 the arguments as to a case at Cambridge turn on the 7 George I, 
 C. 13, which did not apply to Cambridge, but only to the metropo- 
 lis." Wright on Conspiracy, p. 42. 
 
128 Development of the English Law of Conspiracy. [260 
 
 However this may be, the fact remains that the Journey- 
 men Tailors' Case settled the law for the time being that 
 a combination of the kind therein discussed was a criminal 
 
 In defense of the Journeymen Tailors' Case, however, we may 
 adduce the following considerations: (l) The proposition that 
 what is lawful for one person to do may yet render unlawful a 
 combination to do it would by no means have seemed absurd in 
 1721. Several earlier cases had held criminal a combination to do 
 an act not in itself a crime. Moreover, the two Star Chamber 
 decisions directly in point (see note 7, pp. 55, 56) had never been over- 
 ruled. In addition, Sterling's Case was well calculated to produce 
 the impression that the court had approved this principle. That 
 it was so interpreted is indicated by the language used in the ar- 
 gument of counsel in Reg. vs. Thorp, 5 Mod. 221, 223 (1696) : 
 " That which is lawful for one man to do, may be made unlaw- 
 ful to be done by conspiracy: for instance, it is lawful for any 
 brewer to brew small beer, but if several shall conspire together 
 to brew no small but all strong beer, on purpose to defraud the 
 king pf his duties, such conspiracy is unlawful. And so it was 
 held ill Sir Samuel Sterling's Case," etc. Moreover, the promin- 
 ence given to the element of conspiracy in Reg. vs. Best, decided 
 but a few years before (1705), doubtless had its effect likewise. 
 So there is nothing improbable in the view taken by the court in 
 the Journeymen Tailors' Case if the attendant circumstances be 
 borne in mind. (2) Rex vs. Sterling, however, had marked the 
 beginning of the principle that a combination to injure the public 
 was undoubtedly criminal. There can be little doubt that such a 
 combination of workmen was regarded as highly prejudicial to 
 the public welfare. This clearly appears in the language of the Act 
 of 7 George I, St. I, C. 13, and in the industrial history of the 
 period. The treatment likely to be accorded to a combination to 
 raise wages, moreover, is significantly foreshadowed by the cases 
 holding illegal the endeavor by individuals and combinations to 
 raise artificially the price of merchandise. See 27 Lib. Ass., Ch. 
 44, Item 19; 29 Lib. Ass., f. 166, pi. 45; Anon., 3 Inst. 196; Lom- 
 bard's Case, 41 Lib. Ass., f. 38; Rex vs. Sterling, i Keb. 655. 
 
 In view of these circumstances, there seems to be little room 
 for doubt either as to the authenticity of the report of the Jour- 
 neymen Tailors' Case, or as to the soundness of the decision 
 Judged according to th'e standard of contemporaneous conditions. 
 
 We may note, also, that not only was this case accepted without 
 criticism or comment at the time, but it was never drawn in 
 question even in the nineteenth century until Mr. Wright himself at- 
 tacked it. It was cited with approval bv Lord Brampton in 
 Quinn vs. Leathern, 70 L. J. P. C. 76 (1901). 
 
 The general criticism which may be passed upon Mr. Wright's 
 book is well expressed by Professor Dicey: "Wright's Law of 
 Criminal Conspiracies — published before, but not republished after 
 he was raised to the bench^-contains elaborate arguments to show 
 that this extension [i e., of the law of conspiracy in general] 
 was illegitimate, and was not really supported by the authorities on 
 which it is supposed to rest. From a merely historical point of 
 view these arguments have great force, but from a merely legal 
 point of view their effect is diminished by the reflection that sim- 
 
26 1 ] Combinations of Labor. 129 
 
 ■conspiracy apart from legislative enactment. This appears 
 both from the statutes and from the cases. The language 
 of the former undergoes an immediate change. The 
 phraseology of the Act of 12 George I, C. 34, passed four 
 years after the decision of the above case, as compared 
 with the Act of 7 George I, enacted the year before, is very 
 significant.* Without going into details, it may be said that 
 the language of the statutes passed after 1721 unmistakably 
 indicates that the combinations attacked were looked upon 
 as already contrary to law, and that the purpose of the acts 
 was to declare the law and to make " more effectual pro- 
 vision . . . against such unlawful combinations."^" 
 
 Turning now to the cases, we find the doctrine of the 
 Journeymen Tailors' Case approved obiter by Lord Mans- 
 field. In Rex vs. Eocles" (1783) he said: "The illegal 
 combination is the gist of the offense, persons in possession 
 of any articles of trade may sell them at such prices as they 
 individually 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 com- 
 
 ilar arguments if employed by a lawyer of as wide historical in- 
 formation and of as keen logical acumen as Sir R. S. Wright, 
 would shake almost every accepted principle of English law, in 
 so far as it does not depend upon statute." " Law and Opinion 
 in England," p. 97, note. 
 
 "Thus the Act 7 George I, Stat, i, C. 13 (1720), recites that the 
 combinations among the tailors to raise their wages, etc., were 
 " of evil example and manifestly [tend] to the prejudice of trade, 
 to the encouragement of idleness and to the great increase of the 
 poor ; For remedy thereof " it is enacted that such combinations, 
 etc., " shall be and are hereby declared to be illegal, null and void 
 to all intents and purposes." 
 
 Act 12 George I, C. 34, however, entitled " An Act to prevent 
 unlawful combinations of workmen," etc., recites the formation of 
 "unlawful cIuIds and societies," and their presuming "contrary 
 to law to enter into combinations ; " also, that such persons " so un- 
 lawfully assembling and associating themselves " have committed vio- 
 lence; and that "more effectual provision should be made against 
 such unlawful combinations . . . and for bringing all offenders in 
 the premises to more speedy and exemplary justice." 
 
 This language, which is followed by the later statutes, including 
 the Acts 39 & 40 George III, clearly shows that the above com- 
 binations were regarded as already unlawful. 
 
 "Preamble, 39 Geo. Ill, C. 81. 
 
 " I Leach Cr. L. 274, 276. 
 
130 Development of the English Law of Conspiracy. [262 
 
 bination not to work under certain prices is an indictable 
 oflfense." The same principle was cited in the argument of 
 counsel for the king in Rex vs. Mawbey^^ (1796), and was 
 recognized (though again obiter) by Grose, J., in the same 
 case, thus : " 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 them- 
 selves, would not have been illegal. As in the case of 
 journeymen conspiring to raise their wages; each may in- 
 sist on raising his wages, if he can ; but if several meet for 
 the same purpose, it is illegal, and the parties may be in- 
 dicted for a conspiracy." The above passages, together 
 with the language of Grose and Lawrence, JJ., in Rex vs. 
 Marks^^ (1802), clearly indicate that the courts of the 
 eighteenth century entertained little doubt as to the ille- 
 gality at common law of the combinations prohibited by the 
 Acts 39 and 40 George III, and that they were also thor- 
 oughly in accord with the economic views which those 
 statutes embodied. 
 
 There are but two cases^* in the books arising out of the 
 Anti-Combination Laws of George III. In only one of 
 these (Rex vs. Ridgeway) was a combination to raise wages 
 punished. The question there was as to the sufSciency in 
 point of form of the conviction drawn up by the justices 
 who had tried the case. The Court of King's Bench, 
 quashing the order of the court of sessions holding the 
 conviction defective in form, merely decided that the con- 
 viction was sufficient. 
 / The most important cases relating to combinations of 
 labor came after the Act of 6 George IV, C. 129. This 
 statute, as we have seen, expressly legalized agreements 
 among workmen or masters to raise or lower wages, but 
 prohibited the accomplishment of this and other purposes 
 
 "6 T. R. 619, 628, 636. 
 "3 East 157. See post, p. 146. 
 
 "Rex vs. Ridgeway (1822), s B. & A. 527; Rex vs. Nield et 
 al. (180s), 6 East 415. 
 
263] Combinations of Labor. 131 
 
 by force, threats, obstruction or molestation. As soon, 
 however, as the workmen endeavored to exercise the right 
 of combination so conferred upon them, they came into 
 immediate conflict with the courts. The judges had not 
 experienced that complete change of opinidn which had led 
 Parliament to repeal the Anti-Combination Laws. They 
 were desirous of protecting the master, as far as possible, 
 from what they considered undue interference at the hands 
 of his dissatisfied employees. The result was to confine 
 within very narrow limits the privileges granted by the 
 statute. This object the courts attained largely through 
 the agency of the common-law doctrines regarding crim- 
 inal conspiracy. The cases upon this subject, therefore, 
 merit careful examination. Our present purpose, however, 
 requires us only to ask, " How far was the definition of 
 conspiracy modified or extended by the demands so put 
 upon it ? " 
 
 Whatever may have been the views of the judges as to 
 the legality or illegality per se of a strike, it seems never 
 to have been suggested, after the 6 George IV, C. 129, that 
 a combination among workmen to secure an increase in their 
 wages by a concerted refusal to work was a criminal con- 
 spiracy. It was never even urged in argument that the 
 damage thus inflicted upon the employer might amount to 
 an obstruction or molestation within the meaning of the act. 
 This, however, is not surprising. The statute plainly con- 
 templated the use of the strike as a means of making effect- 
 ive the combination to raise wages. The matter was 
 regarded as too obvious for comment, as appears in the 
 language of Rolfe, B. (afterwards Lord Cranworth), in 
 Reg. vs. Selsby et al.^° (1847) : " It is doubtless lawful for 
 people to agree among themselves not to work except upon 
 certain terms." 
 
 Up to this point the law was clear. But a strike cannot 
 succeed if the employer is allowed to engage new workmen 
 in the strikers' places and to carry on his business unham- 
 
 "5 Cox C. C. 495 (note), 498. 
 
132 Development of the English Law of Conspiracy. [264 
 
 pered. Hence, the courts were soon called upon to decide 
 whether a concerted eflfort on the part of the ex-employees 
 to procure a cessation of labor by the strike-breakers was 
 lawful under the statute. 
 
 This point w£ts first raised in Reg. vs. Selsby et al." 
 (1847), the case just spoken of. There the strikers' at- 
 tempts, by means of pickets, persuasion, handbills, etc., to 
 induce the new workmen to quit work caused them to be 
 indicted for a conspiracy to impoverish the employers. The 
 court ruled that the question was as to the character of the 
 methods utilized. If the strikers or the pickets had used 
 threats or intimidation, they were guilty of conspiracy: 
 these are " illegal means." But as to persuasion and peace- 
 able inducement, he said: " It is doubtless lawful for people 
 to agree among themselves not to work except upon certain 
 terms; that being so, I am not aware of any illegality in 
 their peaceably trying to persuade others to adopt the same 
 view. . . . My opinion is, that if there was no other object 
 than to persuade people that it was their interest not to 
 work except for certain wages, and not to work under cer- 
 tain regulations complied with in a peaceable way, that it 
 was not illegal. If I am wrong, I am sorry for it, but my 
 opinion is, that this is the law." 
 
 Doubts, however, were cast upon this doctrine by the 
 language of Erie, J., in Reg. vs. Dufifield" (1851), and in 
 Reg. vs. Rowlands (1851), both of which cases arose out 
 of the same events. In the Duffield case, after conceding 
 the right of workmen to combine to fix their wages by 
 refusing to work, he said (p. 431) : " But ... I think it 
 would be most dangerous ... to suppose that workmen, 
 who think that a certain rate of wages ought to be obtained, 
 have a right to combine together to induce men, already in 
 the employ of their masters, [to leave] for the purpose of 
 compelling those masters to raise their wages. ... I take 
 it for granted that if a manufacturer has got a manufac- 
 tory, and his capital embarked in it for the purpose of 
 
 "S Cox C. C. 495 (note). 
 "S Cox C. C. 404; Q. B. 436. 
 
26s] Combinations of Labor. 133 
 
 producing articles in that manufactory, if persons conspire 
 together to take away all his workmen, that would neces- 
 sarily be a molesting of him in his manufactory. . . . That 
 . . . would certainly be a conspiracy for an unlawful pur- 
 pose." This principle was reaffirmed in Rex vs. Rowlands. 
 If, he instructed the jury (p. 462), "the combination was 
 for the purpose of obstructing Messrs. Perry in carrying 
 on their business, and so to force them to consent to this 
 book of prices, and in pursuance of that concert, they per- 
 suaded the free men and gave money to the free men to 
 leave the employ of Messrs. Perry, the purpose being to 
 obstruct him in his manufacture, and so to force his con- 
 sent, I am of opinion that that also would be a violation in 
 point of law." The defendants were convicted of con- 
 spiracy, and the conviction was sustained by the Court of 
 Queen's Bench upon appeal.^' 
 
 The uncertainty created by these conflicting opinions, 
 together with the caution uttered by Erie, J., to outsiders 
 joining with workmen to aid the latter to secure an increase 
 of wages, led to the enactment of the Statute 22 Victoria, 
 C. 34 (1859). Reciting that " different decisions have been 
 given on the construction " of 6 George IV, C. 129, it de- 
 clared that no person, " whether actually in employment or 
 not," who should endeavor " peaceably and in a reasonable 
 manner, and without threat or intimidation, direct or in- 
 direct, to persuade others to cease or abstain from work" 
 to obtain an increase of wages or to improve the conditions 
 of labor, " shall be deemed or taken to be guilty of ' molesta- 
 tion ' or ' obstruction,' within the meaning of the said act, 
 and shall not therefore be subject or liable to any prosecu- 
 tion or indictment for conspiracy." The above provision, 
 however, was not to apply if the strikers or the strike- 
 breakers were bound by contracts of service. 
 
 In several subsequent cases^* it was decided that the 
 Statute 22 Victoria, C. 34, had legalized peaceable per- 
 
 "2 Den. C. C. R. 364. 
 
 "Reg. vs. Druitt (1867), 10 Cox C. C. 592; Reg. vs. Hibbert 
 (187s). 13 Cox C. C. 82. 
 
134 Development of the English Law of Conspiracy. [266 
 
 suasion to quit work, "no matter what the consequences 
 were.""" It was also announced, as a corollary to this 
 proposition, that a peaceful picket system, whose purpose 
 was merely persuasion and inducement to quit work, was 
 lawful. The courts were careful to state, however, that 
 such pickets would be allowed to resort to no manner of 
 threat or intimidation. 
 
 The attitude of the courts toward even peaceful picketing 
 changed after the passage of the Acts of 1871 and 1875. 
 Both of these statutes endeavored to define what should be 
 considered "molestation and obstruction" upon the part 
 of the workmen. The Act of 1871 declared that a person 
 should be deemed to molest or obstruct another person. 
 "... (3) If he watch or beset the house or other place 
 where such person resides or works, or carries on business, 
 or happens to be, or the approach to such house or place." 
 Section 7 then repeals the 6 George IV, C. 129, and the 22 
 Victoria, C. 34. But the instruction of Cleasby, B., in Reg. 
 vs. Hibbert et al."^ (1875), showed clearly that the court 
 still regarded peaceful picketing as lawful, and did not con- 
 sider a combination so to picket as a criminal conspiracy, not- 
 withstanding the passage of the Act of 1871 and the repeal 
 of the 22 Victoria, C. 34. The Act of 1876, accordingly, 
 was somewhat differently worded in this respect. Section 
 7 imposed a penalty of fine and imprisonment upon " every 
 person who, with a view to compel any other person to 
 abstain from doing or to do any act which such other per- 
 son has a legal right to do or abstain from doing, wrong- 
 fully and without legal authority. ... (4) Watches or 
 besets the house or other place where such other person 
 resides, or works, or carries on business, or happens to be, 
 or the approach to such house or place." Then a subse- 
 quent clause of the same section said that " attending at 
 or near the house or place where a person resides, or works, 
 or carries on business, or happens to be, or the approach to 
 such house or place, in order merely to obtain or communi- 
 
 "•Reg. vs. Shepherd, 11 Cox C. C. 325 (1869). 
 °I3 Cox C. C. 82, 87. 
 
267] Combinations of Labor. 135 
 
 cate information, shall not be deemed a watching or beset- 
 ting within the meaning of this section." 
 
 The courts, quite properly it would seem, took the view 
 that the language in which section 7 of the later act was 
 couched manifested an intention to forbid picketing for any 
 purpose other than the gathering and communication of 
 information. This point is well brought out in a bit of 
 dialogue which occurred in Reg. vs. Bauld^^ (1876). 
 Parry, Serjeant, argued : " As to the charge of ' watching ' 
 and ' besetting ' your Lordship is aware that there are two 
 views which may be taken. If it were merely done for the 
 purpose of persuading the men to quit their employment it 
 would not be illegal. 
 
 " Huddlestone, B. — I cannot assent to that view of the 
 law. The statute allows watching or attending near a place 
 for the purpose of obtaining or communicating information, 
 but this is the only exception. 
 
 " Parry, Serjt. — I accept your Lordship's correction, and 
 I am sure that the men will accept your Lordship's exposi- 
 tion of the law now that they have heard it." 
 
 The Act of 1876 was similarly construed in the later 
 cases. In Lyons vs. Wilkins^' (1898) an injunction was 
 granted to restrain the defendants " from watching or beset- 
 ting the plaintiffs' works for the purpose of persuading or 
 otherwise preventing persons from working for them or 
 for any purpose except merely to obtain or communicate 
 information." The decree of the lower court was con- 
 firmed by the Court of Appeal.^* During the following 
 year (1899) two injunctions were issued forbidding the 
 strikers to attend at steamboat landings and railroad sta- 
 tions to persuade incoming strike-breakers to go away.^' 
 The theory embodied in all these cases was simply that 
 such acts constituted a " watching and besetting " for pur- 
 
 "13 Cox C. C. 282, 283. ~ 
 
 ==65 L. J. Ch. 601, 604. 
 ="68 L. J. 146. 
 
 '"Charnock vs. Court, 2 Ch. (1899), 35. Walters vs. Green, 68 
 L. J. 730. 
 
136 Development of the English Law of Conspiracy. [268 
 
 poses other than the gathering and communication of infor- 
 mation, and were therefore in violation of the Act of 1875.^' 
 
 It is clear that the decisions of the courts in respect to 
 combinations for the above purposes do not in any way 
 modify or extend the general conception of criminal con- 
 spiracy. In each case the question was whether the acts 
 complained of amounted to violations of the statutes. If 
 this question were answered in the affirmative, the combi- 
 nation then had for its object the commission of a statutory 
 crime. The illegal character of its design was thus mani- 
 fest, and the agreement clearly fell within Lord Denman's 
 definition of conspiracy. That this was the view taken by 
 the courts appears from the language sometimes employed, 
 and it is also evidenced by the fact that in many — particu- 
 larly the later — cases individuals were often punished for 
 persuading others to strike, for picketing, and the like, with- 
 out reference to the element of combination which might be 
 present. And when the injunction began to take the place 
 of criminal prosecutions in such cases, all mention of com- 
 bination as a constituent of the offense practically ceased. 
 
 What has just been said applies all the more fully to com- 
 binations to advance the interests of workmen or masters 
 by acts or threats of physical violence and intimidation. 
 
 ^This principle endured until changed by statute. The Trades 
 Disputes Act, 1906, provides (sec. 2) : " It shall be lawful for one 
 or more persons acting on their own behalf or on behalf of a trade 
 union or of an individual employer or firm in contemplation or 
 furtherance of a trade dispute, to attend at or near a house or 
 place where a person resides or works or carries on business or 
 happens to be if they so attend merely for the purpose of peacefully 
 obtaining or communicating information, or of peacefully persuading 
 any person to work or abstain from working." Section 7 of the 
 Act of 187s is repealed from "attending at or near" to the end 
 of the section. 
 
 The latest case upon the subject of picketing is Ward, Lock & Co. 
 vs. Operative Printers' Assistants' Society (1906), 22 T. L. R. 327. 
 Here the court held that a picket for the purpose of requesting 
 workmen to become members of the union was not an offense with- 
 in the Act of 1875. It, was said that the object of section 7, sub- 
 section 4 of that act was to give a summary criminal remedy in 
 respect to certain specified classes of acts for which there had pre- 
 viously been only a civil remedy. In other words, picketing was not 
 criminal under the act unless it was of such character as to amount 
 fo a civil wrong at common law. 
 
269] Combinations of Labor. i37 
 
 Such methods are mala in se as well as mala prohibita, and 
 render punishable the individual who employs them as well 
 as the several individuals who combine to employ them. 
 The same is, of course, true if the acts to be performed are 
 violatory of the statute, although not mala in se. These 
 are criminally cognizable, whether done by a single person 
 or by a combination ;" and in recent years the practice has 
 arisen of restraining them in proper cases by injunction.^* 
 A more difficult question is raised by combinations among 
 workmen to force their master, by threatening to strike, to 
 discharge certain persons already in his service ; or to com- 
 pel satisfied employees, by threats of expulsion from the 
 
 " See Reg. vs. Harris et al, (1842), C. & M. 661 (note) ; Reg. vs. 
 Selsby et aL (1847), 5 Cox C. C. 404; Reg. vs. Duffield et al. 
 (1851), S Cox C. C. 404; Reg. vs. Rowlands (1851), S Cox 
 C. C. 436; 2 Den. C. C. R. 364; Reg. vs.. Druitt et al. (1867), 
 ID Cox C. C. 592; Springhead Spinning Co. vs. Riley (1868), L. R. 
 6 Eq. SSI (this is the first case in which an injunction was issued 
 in a labor dispute); Reg. vs. Shepherd (1869), 11 Cox C. C. 325; 
 Reg. vs. Hibbert et al. (1875), 13 Cox C. C. 82; Judge vs. Bennett 
 (1888), S2 J. P. 247 (held, that the character of the picket, as 
 coercive and minatory or not, must be determined with reference to 
 the effect actually produced by it); Smith vs. Thomasson (1890), 
 16 Cox C. C. 740 (a case of "persistent following" within the Act of 
 187s); Kennedy vs. Cowie (1891), 60 L. J. M. C. 170; Reg. vs. 
 Kennedy (1892 )j 61 L. J. M. C. 181; Reg. vs. Edmondes (1895), 
 S9 J. P. 776; Ex Parte Wilkins et al. (1895), 64 L. J. M. C. 221; 
 Smith vs. Moody (1902), 72 L. J. K. B. 43. 
 
 ""The first case arising out of a trade dispute in which an in- 
 junction was issued seems to be Springhead Spinning Co. vs. Riley 
 (1868), L. R. 6 Eq. SSI, in which the court enjoined a trade libel 
 which was part of an unlawful ' scheme of coercion and intimida- 
 tion. We do not find another such case until 1892, when two in- 
 junctions were granted against the distribution of false and malicious 
 
 ■^ circulars: CoUard vs. Marshall, i Ch. (1892), S7i; Pink vs. Federa- 
 
 ^ tion of Trades and Labor Unions, 67 L. T. 2S8. 
 
 From this time on injunctions become quite common. See Trol- 
 
 ^lope vs. London Building Trades Federation, 72 L. T. 342 (189s) ; 
 
 ■^ Lyons vs. Wilkins, 6s L. J. Ch. 601 (1898); Chamock vs. Court, 
 
 ^>/(i899) 2 Ch. 3S; Walters vs. Green, 68 L. J. Ch. 730 (1899) ; Taff 
 
 Vale Ry. Co. vs. Amalgamated Society of Railway Servants, 70 L. 
 
 ^J. Q. B. 90s (1901) ; Chamberlain's Wharf Ltd. vs. Smith (1900), 
 2 Ch. 60s. 
 After the Taff Vale Case (supra), both damages and an injunction 
 
 ^ were sometimes asked and granted. See Quinn vs. Leathern, 70 
 
 ■yj-,. J. R. C. 76 (1901) ; Giblan vs. National Amalgamated Laborers' 
 Union of Great Britain and Ireland (1903), 2 K. B. 600; South 
 Wales Miners' Federation vs. Glamorgan Coal Co., 74 L. J. K. B. S2S 
 (ipoS). 
 
138 Development of the English Law of Conspiracy. [270 
 
 union, boycotting, etc., to quit work. These cases are at 
 first perplexing, but upon closer examination they are seen 
 to present no real exception to the principle that a criminal 
 conspiracy must have an illegal object or make use of 
 illegal means. 
 
 The cases in which the defendants were indicted for a 
 combination of the kind just described are few. The first 
 was Rex vs. Bykerdyke^' (1832). The charge was a con- 
 spiracy to compel the discharge of certain workmen by 
 threat of a strike. It was argued in behalf of the defend- 
 ants that the men had a right to combine not to work by 
 virtue of the Act of 6 George IV, C. 129. The prosecu- 
 tion replied that the statute would not protect a combination 
 of the present character, but only a combination to obtain 
 higher wages, to regulate hours of work, etc. The court 
 took this view, and instructed the jury "that the statute 
 never meant to empower workmen to meet and combine for 
 the purpose of dictating to the master whom he should 
 employ; and that this compulsion was clearly illegal." 
 
 The only other case in which the indictment was 
 grounded upon a conspiracy for the above purpose was 
 Reg. vs. Hewitt et al.*" (1851). Here was an indictment 
 for " a combination by workmen, contrary to 6 George IV, 
 C. 129, and for a conspiracy." The defendants were offi- 
 cers and members of the Philanthropic Society of Coopers, 
 a benefit society providing sick and funeral benefits. The 
 society, in accordance with its rules, had inflicted upon 
 Charles Evans, a member, a fine of £10 for working in a 
 yard in which steam machinery was used. Upon his re- 
 fusal to pay, the other members struck against him, and he 
 was in consequence deprived of his employment. Lord 
 Campbell said that the society was legal and beneficial, " but 
 it cannot be permitted that, under the guise of such laud- 
 able objects, the members shall enter into a combination or 
 conspiracy to injure others. By law every man's labor is 
 his own property, and he may make what bargain he pleases 
 
 "^ I Moo. & R. 179. 
 '°S Cox. C. C. 162. 
 
271] Combinations of Labor. 139 
 
 for his own employment ; not only so — masters or men may 
 associate together ; but they must not, by their association, 
 violate the law ; they must not injure their neighbor ; they 
 must not do that which may prejudice another man. The 
 men may take care not to enter into engagements of which 
 they do not approve, but they must not prevent another 
 from doing so. . . . They cannot be permitted to injure 
 their neighbors in carrying out that which they may con- 
 sider to be a protection to themselves." The defendants 
 were accordingly found guilty. 
 
 Beginning with In Re Perham=^ (1859), however, the 
 element of combination in offenses of this nature ceases to 
 be of primary importance. Perham had told certain work- 
 men that if they dared to work for a certain employer, " we 
 shall consider you as blacks, and when we go in we shall 
 strike against you, and strike against you all over London." 
 He was convicted of endeavoring by threats to compel an 
 employee to leave his services, contrary to 6 George IV, 
 C. 129, Sec. 3, and the conviction was affirmed by the Court 
 of Exchequer. 
 
 In the two following cases of Walsby vs. Anley'^ (1861), 
 and O'Neill et al. vs. Longman'^' (1863), the element of 
 combination was invested with a secondary importance 
 which should be noted. The first of these cases grew out 
 of a threat by Walsby and thirty others to quit work unless 
 the respondent discharged several men who had signed a 
 " declaration " that they were not and would not become 
 members of a trade union. Walsby was accordingly con- 
 victed under 6 George IV, C. 129, Sec. 3, of endeavoring 
 by threats to force the respondent to limit the description 
 of his workmen. The Court of Queen's Bench upheld the 
 conviction. They said that, although a single person might 
 refuse to work unless an obnoxious companion were dis- 
 charged, yet if a number of employees combined to coerce 
 the master, by the threat of quitting work in a body, to 
 
 ""S H. & N. 30. 
 "3 El. & El. S16. 
 ■"4 B. & S. 376. 
 
140 Development of the English Law of Conspiracy. [272 
 
 dismiss the others, such combination would be " illegal," 
 and those taking part in it would be guilty of a threat and 
 a molestation within the statute. In O'Neill vs. Longman 
 the appellants, officers of the United Boilermakers and 
 Iron Shipbuilders' Society, told Longman that unless he left 
 the service of Kruger, Dannott & Co., who were permitting 
 " encroachments," he would be expelled from the union, his 
 name would be published in the list of expelled members 
 and sent all around the country, and he would be despised 
 and "put to all sorts of inconveniences." The appellants 
 were convicted under 6 George IV, C. 129, Sec. 3, of " by 
 threats and intimidation endeavoring to force Longman to 
 depart from his employment." The Court of Queen's 
 Bench confirmed the conviction, upon the authority of 
 Walsby vs. Anley. The defendants, said the court, had 
 been guilty of a threat to form an " illegal combination " 
 against Longman : " The society as a body were confeder- 
 ate and agreeing to make a combination to deprive him of 
 his work." 
 
 The defendants in these cases had been prosecuted for 
 the statutory offense of endeavoring by threats to coerce 
 the masters, and not for a combination to do anything. 
 The court, nevertheless, having no doubt as to the illegality 
 of the combination in which the defendants were engaged, 
 attributed to it the unlawful character of the threats made. 
 The holding was, in effect, that intimidation under the 
 statute consists in the threat to do something unlawful ; and 
 here the unlawful thing contemplated was the formation of 
 an illegal combination. Thus, although the prosecution 
 was for acts done, it was in reality grounded upon the sup- 
 posed illegality of the combination present. In subsequent 
 cases, however, this theory was abandoned. The effect 
 produced upon the mind of the person threatened with loss 
 was regarded as the essence of the coercion; and the legal 
 or illegal character of any agreement among the persons- 
 guilty of the threats was entirely disregarded. This point 
 of view is well illustrated by the case of Skinner vs. Kitch^* 
 
 " 10 Cox C. C. 493- 
 
2/3] Combinations of Labor. 141 
 
 (1867). The secretary of the local lodge of the General 
 Union of Carpenters and Joiners sent a letter to Kitch say- 
 ing that the committee of the society would call his men out 
 unless he would discharge one James Jordan, a non-union 
 man. This was held an offense within the statute, namely, 
 an endeavor by threats to compel Kitch to limit the descrip- 
 tion of his workmen. Citing the preamble of the statute, 
 Blackburn, J., said: "Now one object of the section is 
 plainly to protect the masters, as in the previous part the 
 Legislature endeavored to protect the workmen. In the 
 second part, I think the great object the Legislature had in 
 view was to protect the masters where it was sought to 
 compel them to limit the description of the workmen they 
 employed to union men; and probably this was the princi- 
 pal object. I certainly think that it is within the words 
 of the act, and plainly within the spirit. It is impossible 
 to read these two clauses without seeing that it is a very 
 beneficial provision, for a greater piece of tyranny than to 
 insist that a master shall have his work stopped unless he 
 consent to punish the men who are his journeymen for 
 refusing to belong to a union cannot well be."^^ Evidently 
 the legality vel non of the combination was not regarded 
 as an issue in the case. 
 
 It may be noted at this point that the last case in which 
 a combination among workmen was indicted as a conspiracy 
 was Reg. vs. Hibbert et al.'° (1875). From that time pun- 
 ishment has been inflicted for acts done in contravention 
 of the statutes. After 1867 it was generally considered 
 that the threat to strike, or to order a strike, for the pur- 
 pose of forcing the discharge of non-union men, etc., was 
 an unlawful threat within the meaning of the Act 6 George 
 IV, C. 129, Sec. 3. It was held in Gibson vs. Lawson and 
 in Curran vs. Treleaven,^' decided in i89i,that the Act of 
 187s, C. 86, had changed the law in this respect. In the 
 first of these cases the respondent had been summoned for 
 
 "See also Shelbourne vs. Oliver (1866), 13 L. T. N. S. 630. 
 "13 Cox C. C. 82. 
 "61 L. J. M. C. 9. 
 
142 Development of the English Law of Conspiracy. [274 
 
 an offense under section 7 of the act. As a shop delegate 
 of the Amalgamated Society of Engineers he had informed 
 Palmer & Co., in pursuance of a resolution of the Society, 
 that all members would quit work unless the appellant 
 (also an employee of Palmer & Co.) would give up his 
 membership in the National Society of Engineers and join 
 the Amalgamated. As a result, the appellant was dis- 
 charged. Similarly, in Curran vs. Treleaven, the appellant, 
 as secretary of the National Union of Gasworkers and 
 General Laborers, had called a strike to compel Treleaven 
 to discharge certain non-union men. The Supreme Court 
 of Judicature held that these acts did not constitute " in- 
 timidation " in the sense in which the term is employed in 
 section 7 of the Act of 1875. In Gibson vs. Lawsbn, Cole- 
 ridge, C. J., said that acts not indictable under that statute 
 " are not now, if indeed they ever were, indictable at com- 
 mon law." In both cases the court intimated that " in- 
 timidation " means " a threat of personal violence." 
 
 As we review this series of decisions, in the endeavor to 
 determine whether they broaden the scope of the crime of 
 conspiracy, we find that Reg. vs. Hewitt et al. alone raises 
 any real question. In that case Lord Campbell apparently 
 based the illegality of the combination squarely upon the 
 fact that its purpose was to inflict damage upon a third 
 person. As no illegal means were contemplated. Lord 
 Campbell evidently regarded the object as illegal because 
 it was oppressive and hurtful in its actual effect upon that 
 person. Such a conclusion was not supported by the pre- 
 ceding authorities. 
 
 In respect to Reg. vs. Hewitt, however, we may point 
 out that it was never followed in the later decisions. On 
 the contrary, as has been shown, the element of combina- 
 tion in similar cases was first relegated to a subordinate 
 position, and was shortly afterward eliminated altogether. 
 The courts soon came to observe that the acts done might 
 be construed as violations of the statute. Naturally the 
 judges chose this method of protecting masters and non- 
 union men in preference to stretching out of all semblance 
 
275] Combinations of Labor. I43 
 
 of certainty the already too shadowy principles relating to 
 criminal conspiracy. Lord Campbell, therefore, correctly 
 voiced the judicial policy of the period in declaring crim- 
 inal the actions charged, but the reasons which he adduced 
 in support of his decision were different from those sub- 
 sequently adopted, 
 
 Walsby vs. Anley and O'Neill vs. Longman are seen, 
 upon close examination, not to be in conflict with the gen- 
 eral law of conspiracy. In the first place, the statements 
 by the court that these combinations were " illegal " were 
 really not necessary. The indictments had charged, not 
 conspiracies, but the statutory crime of having attempted 
 by threats to coerce. The courts needed only to have held 
 broadly, as was done in subsequent cases, that the acts 
 proved constituted intimidation. But even if the judges 
 had said that the same acts done by a single individual 
 would not amount to a threat, they would not thereby have 
 enlarged the legal conception of conspiracy. Such a state- 
 ment would only mean that the intimation of an intention 
 to employ concerted action would have a coercive effect 
 which the threat of individual action could not produce. 
 But this undoubted truth does not necessarily involve the 
 assertion that the mere combination to effect the particular 
 purpose in view is in itself a criminal act. 
 
 Again, the combinations were said to be " illegal." But 
 they might be " illegal " without being at the same time 
 " criminal." 
 
 In Rex vs. Bykerdyke, however, such a combination ap- 
 pears to have been held indictable. Remembering this, and 
 assuming also that the courts in Walsby vs. Anley and in 
 the later cases intended to declare that these combinations 
 were still criminal, let us inquire whether the latter really 
 fall outside of Lord Denman's antithesis. 
 
 The Anti-Combination Laws of George III were cur- 
 rently regarded as being in affirmance of the common law 
 of conspiracy, and it was generally thought that the com- 
 binations thereby prohibited were criminal quite apart from 
 the statute declaring them so. The Acts of 5 and 6 George 
 
144 Development of the English Law of Conspiracy. [276 
 
 IV testify to a change of Parliamentary policy in respect 
 to labor combinations. But the courts still looked with 
 unfriendly eyes upon agreements among workmen in fur- 
 therance of trade disputes. This feeling of hostility was 
 reflected in the judicial interpretations of the Act of 6 
 George IV, C. 129. It was repeatedly declared that this 
 act, by repealing former statutes, had revived the common 
 law relating to combinations of labor. But at common law, 
 the judges said, all such combinations were illegal and crim- 
 inal. Hence, a special statutory exemption was necessary 
 to legalize any combination among workmen to advance 
 their interests by the peculiar methods usually employed 
 by them for that purpose. Now the Act of 6 George IV, 
 C. 129, expressly legalized only combinations to advance 
 wages, etc. Combinations for any other object, therefore, 
 remained criminal by the common law; and since combina- 
 tions to compel by threat of strike the discharge of other 
 workmen, etc., were not in terms declared lawful, they 
 were still regarded as criminal, in spite of the Act of 6 
 George IV. 
 
 The above view plainly inspired the decision of Patteson, 
 J., in Rex vs. Bykerdyke'* (1832). It was expressly an- 
 nounced by Crompton, J., in Hilton vs. Eckersley^* (1855) ; 
 and although Lord Campbell in the same case expressed 
 the opinion that combinations to raise wages were not crim- 
 inal at common law, the later cases proceeded upon the 
 other theory. Thus, Crompton, J., in Walsby vs. Anley,*" 
 said : " Statute 6 George IV, C. 129, by repealing all the 
 previous statutes on the subject, appears to me to have 
 reestablished the common law as affecting combinations of 
 masters or workmen. I adhere to the opinion that, at com- 
 mon law, all such combinations are illegal. . . . That being 
 so, it was necessary, by sections 4 and 5 of the statute, to 
 render legal the combinations therein referred to respec- 
 tively, and which would, at common law, have been illegal." 
 
 »" I Moo. & R. 179. 
 "6 El. & El. 47. 
 "3 El. &E1. S16. 
 
277J Combinations of Labor. 14S 
 
 Whence it followed that since the combination then before 
 him did not fall within the protection of those sections, it 
 remained illegal. Likewise, Brett, J., in Reg. vs. Bunn*^ 
 (1872), ruled that the Act of 1871 had not aflfected the 
 common law of conspiracy, except as to matters expressly 
 provided for. This case was criticized by Coleridge, C. J., 
 in Gibson vs. Lawson*^ (1891), who laid down the prin- 
 ciple in respect to the Act of 1875 that acts not indictable 
 under that statute " are not now, if indeed they ever were, 
 indictable at common law." But the former view recurred 
 in Lyons vs. Wilkins*^ (1898). Smith, L. J., stated that 
 the Acts of 1871 and 1875 had legaUzed certain otherwise 
 illegal acts, and that as the acts complained of did not come 
 within the statutes, they remained illegal. 
 
 Thus it appears that the weight of authority is upon the 
 side of the principle that combinations among workmen to 
 dictate to their master whom he should employ were illegal 
 and criminal at common law, and had not been rendered 
 legal by the Act of 6 George IV, C. 129. 
 
 This brings us to the essential point in our inquiry. 
 Why were combinations of the above character illegal at 
 common law? There is some evidence of a judicial opinion 
 that the means — ^namely, strikes — to be employed for ac- 
 complishing the purpose of the combination should be re- 
 garded as unlawful. For example, Blackburn, J., in Horn- 
 by vs. Close" (1867), said: "Further, I think this society 
 is constituted for an illegal purpose. . . . The Justices have 
 found, and were justified in finding, that the object of this so- 
 ciety was to encourage strikes." This view recurs as late 
 as 1898. In Lyons vs. Wilkins, decided by the Court of 
 Appeal, Smith, L. J., said, " Prior to that date [1871] I do 
 not think there can be a doubt that a strike or a picket 
 would have been illegal." Kay, L. J., expressed the same 
 opinion, and then added, " The combination of a number 
 
 • 12 Cox C. C, 316. 
 '61 L. J. M. C. 9, 16. 
 '6s L. J. Ch. 601, 611. 
 *8 B. & S. 175, 183. 
 
146 Development of the English Law of Conspiracy. [278 
 
 of persons to induce and encourage and bring about a strike 
 would also have been an illegal act." 
 
 But the real reason for this hostility on the part of the 
 courts was more fundamental. We find little difficulty 
 in attributing the illegality of combinations to strike or 
 otherwise to advance the interests of labor, not to the ma- 
 terial loss inflicted upon the employer concerned, but to 
 the harm supposed to result from their activities to the public 
 at large. The theory that such combinations worked injury 
 to the community as a whole was thoroughly in accord with 
 the trend of political and economic thought until the end 
 of the first third of the nineteenth century. Old Toryism 
 regarded all combinations with a dread springing from a 
 lively remembrance of the Reign of Terror in France." At 
 a later period economic thought confirmed this vague dis- 
 trust of combinations of workmen by adducing the Wage 
 Fund Theory, which taught that labor could not, by any 
 effort of its own, secure a larger share of the fruits of pro- 
 duction than the natural play of industrial forces would 
 automatically set aside as a fund for its recompense. From 
 this it would follow that the disturbance and loss caused 
 by strikes were unmitigated evils, since not even the work- 
 men themselves were benefited by the ruin which they 
 brought upon the business community. 
 
 The change in the legislative policy of England toward 
 industrial combinations did not, as we have seen, procure 
 for organized labor the favor of the courts ; and their enmity, 
 based largely upon the above elements, found modern ex- 
 pression in the doctrine that such combinations were " il- 
 legal " because in " restraint of trade." This principle re- 
 ceived its first explicit statement in Rex vs. Marks et al.,*' 
 decided in 1802. Comparing combinations to promote mu- 
 tiny and sedition with an association of workmen formed 
 for the purposes of regulating wages and of compelling 
 other journeymen to join it, Lawrence, J., said: " Combina- 
 tions formed for such purposes are undoubtedly highly prej- 
 
 " Dicey, " Law and Opinion in England," p. 100. 
 "3 East 157. 
 
279] Combinations of Labor. I47 
 
 udicial to the State, and might be the primary object of the 
 attention of the legislature; but I cannot say that combina- 
 tions like this, which strike at the root of the trade of the 
 kingdom, may not be, though not so immediately, yet ulti- 
 mately, as mischievous in their consequences, and in the 
 event beget a danger to the State itself, to an extent beyond 
 the power of the government to repress." 
 
 As long as the courts assumed that labor combinations 
 were economically harmful, the restraint of trade doctrine 
 so announced was never judicially questioned. But as time 
 went on, the arguments of those who contended that trade 
 unions had a sound economic justification began to attract 
 attention and gain support. The result was the introduc- 
 tion of an element of doubt into the minds of the judges as 
 to the validity of the restraint of trade doctrine in its ap- 
 plication to trade unions ; a doubt which divided the Court 
 of Queen's Bench in 1869, and led to the annulment of the 
 doctrine, in so far as it raised a criminal liability, by act of 
 Parliament. This line of development can be traced through 
 a trio of leading cases, covering the period from 1855 to 
 1869, and culminating in the Act of 34 and 35 Victoria, C. 
 31, passed in 1871. 
 
 The first of these cases was Hilton vs. Eckersley." The 
 question was as to the legality of a bond entered into by a 
 number of mill-owners providing for concerted action 
 against certain combinations of workmen. The Court of 
 Queen's Bench held the bond void as against public policy. 
 Crompton, J., said (p. 52) : " I think that combinations 
 like those disclosed in the pleadings in this case were illegal 
 and indictable at common law, as tending directly to impede 
 and interfere with the free course of trade and manufacture. 
 . . . Combinations of this nature, whether on the part of 
 workmen to increase or of masters to lower wages were 
 equally illegal." The words of Lord Campbell, however, 
 show the influence of advancing economic thought : " I 
 enter upon such consideration with much reluctance and 
 
 "6 El. and El. 47 (1855). 
 
148 Development of the English Law of Conspiracy. [280 
 
 with great apprehension, when I think how different genera- 
 tions of Judges, and different Judges of the same generation, 
 have differed in opinion upon questions of poHtical economy, 
 and other topics connected with the adjudication of such 
 cases." But he finally said : " When I look at this bond, 
 I have no hesitation in concluding that the association which 
 it establishes ought not to be permitted, and that the enforc- 
 ing of the bond will produce public mischief. I, therefore, 
 feel compelled, as a Judge, to declare that it is void." The 
 / Court of Exchequer Chamber affirmed the judgment that the 
 bond was illegal as in restraint of trade. 
 
 So much of this opinion as applied to labor combinations 
 was, of course, obiter dictum. But the views therein ex- 
 pressed were approved a dozen years later in the case of 
 Hornby vs. Close,* which was directly in point. The de- 
 fendant had been accused of embezzling the funds of the 
 Bradford Branch of the United Order of Boilermakers and 
 Iron Shipbuilders. The facts were proved, but the de- 
 fendant urged that he should not be punished for the reason 
 that the Order was not entitled to protection as a friendly 
 society under Stat. 18 and 19 Victoria, C. 63, and for the 
 further reason that it was illegal and in restraint of trade. 
 The Court of Queen's Bench unanimously accepted this 
 view, holding that the objects of the Society, as disclosed 
 by its rules, were those of a trade union. Cockburn, C. J., 
 cited at length Hilton vs. Eckersley, and concluded, " So 
 the rules of this Society are in restraint of trade, and con- 
 sequently illegal by the law of the land." Blackburn, J., 
 thought that " this Society is constituted for an illegal pur- 
 pose," namely, " to encourage strikes." Mellor and Lush, 
 JJ., concurred, holding that the Society was in effect a trade 
 union, and hence illegal. All expressly declined to state 
 whether the combination could be prosecuted as a criminal 
 conspiracy. 
 
 The practical hardship worked by the principle laid down 
 in this celebrated case lent added force to the unionists' 
 
 "8 B. & S. 175 (1867). 
 
28 1 J Combinations of Labor. 149 
 
 arguments, and the influence exerted upon the minds of the 
 judges by economic discussion upon the subject of labor 
 combinations is strikingly shown by the language used in the 
 case of Farrer vs. Close," decided in 1869. The facts were 
 identical with those in Hornby vs. Close. The defendant, 
 charged with the embezzlement of the funds of the Amal- 
 gamated Society of Carpenters and Joiners, had been re- 
 leased by the justices of the peace because they considered 
 that the Society was a trade union and illegal. Its rules, 
 proved in evidence, made provision for strikes and strike 
 benefits. Upon appeal to the Court of Queen's Bench, 
 Cockburn, C. J., with whom Mellor, J., concurred, took the 
 narrow ground that this case came within the principle of 
 Hilton vs. Eckersley and Hornby vs. Close. He held that 
 as the purposes of the Society were those of a union it was 
 not entitled to protection. The policy of the law laid down 
 in these cases he declined to discuss. He admitted that the 
 unions had found defenders, but added : " It must not, how- 
 ever, be forgotten that while some strikes may be perfectly 
 justifiable to enforce honest and just demands, others may 
 be resorted to in order to extort unreasonable exactions or 
 enforce tyrannical rules, and the only corrective against such 
 attempts is to be found in the freedom of the labor market, 
 which it is the purpose of these combinations to prevent." 
 Hannen, J., warmly disagreed with the Chief Justice. He 
 denied that either the rules or the interpretation put upon 
 them in practice showed an illegal object on the part of the 
 Society, unless it were held that a strike is always illegal; 
 and this he would not allow. Of the rule providing that 
 striking members should be sent to other localities, he said : 
 " The tendency of this undoubtedly is to support and main- 
 tain the strike for a longer time, and so to increase the 
 chance of the men obtaining the object of the strike. This, 
 it is alleged, is in restraint of trade, that is, it disturbs the 
 course and postpones the effect of competition among the 
 men, which, if left to itself, might sooner compel them to 
 
 " 10 B. & S. SS3. 
 
150 Development of the English Law of Conspiracy. [28.2 
 
 return to work; and, therefore, it is contended, is contrary 
 to public policy. I think that our judgment ought not to be 
 based on this line of argument. By the expression contrary 
 to public policy, I understand it is meant that it is opposed 
 to the welfare of the community at large. I can see that 
 the maintenance of strikes may be against the interests of 
 employers, because they may be thereby forced to yield at 
 their own expense a larger share of profits or other ad- 
 vantages to the employed, but I have no means of judicially 
 determining that it is contrary to the interests of the whole 
 community, and I think that, in deciding that it is, ai;id there- 
 fore that any act done in its furtherance is illegal, we 
 should be basing our judgment not on recognized legal prin- 
 ciples, but on the opinion of one of the contending schools 
 of political economists." Hayes, J., " without professing to 
 know much of what is public policy on this subject at the 
 present time," agreed, with Hannen; so, the court being 
 equally divided, the appeal dropped. 
 
 Here the court broke away from its former position that 
 trade unions are obviously without economic justification. 
 The doctrine of restraint of trade as formerly applied was 
 sharply attacked by two of the judges; and those who up- 
 held it made little attempt to justify it, being content with 
 saying merely that they were bound by the law as laid down 
 in former cases. Under these circumstances we need feel 
 no surprise at the provision in the Act of 1871 (C. 31, Sec. 
 2) already referred to: " The purposes of any trade union 
 shall not, by reason merely that they are in restraint of 
 trade, be deemed to be unlawful so as to render any mem- 
 ber of such trade union liable to criminal prosecution for 
 conspiracy or otherwise." 
 
 The foregoing history of the doctrine of restraint of trade 
 enables us to see very clearly that in holding illegal all labor 
 combinations not legalized by statute the courts were but 
 applying the old principle that a combination to do that 
 which amounts to a public injury is a conspiracy. From 
 this it would follow that combinations to compel an employer 
 
.283] Combinations of Labor, 151 
 
 by strike to limit the description of his employees fell within 
 the terms of Lord Denman's antithesis. 
 
 The above facts, therefore, warrant the conclusion that 
 at no time has the law of England ever denounced as a crim- 
 inal conspiracy any combination whose purpose, remote or 
 primary, was not considered as being in itself clearly unlaw- 
 ful. 
 
 But this conclusion standing alone is not a complete de- 
 scription of the legal status of combinations among work- 
 men in England. The attitude of the criminal courts to- 
 ward them can be easily accounted for by a reference to 
 the statutes, especially the Act of 1875. This act, by pro- 
 viding that a combination to do any act in furtherance of a 
 trade dispute shall not be punishable as a conspiracy " if the 
 same act committed by one person would not be punishable 
 as a crime," clearly renders impossible any expansion by the 
 courts of the orthodox definition of criminal conspiracy in 
 connection with industrial combinations. At the same time, 
 the statute forbade the employment, by single persons or by 
 combinations, of a number of the more violent and op- 
 pressive methods usually resorted to by striking workmen. 
 Thus ample criminal remedies against labor combinations 
 have been supplied through ordinary channels, and the courts 
 have consequently been relieved of the necessity of extending 
 the scope of conspiracy in order to restrain the more flagrant 
 acts of labor unions. 
 
 It seems certain, however, that the courts in England 
 as elsewhere would be inclined to take all needful measures 
 to protect employers and non-union men against undue op- 
 pressions whatever might be the nature of the specific acts 
 done for the purpose. No amount of theorizing in regard to 
 the inconsistency of punishing two men for agreeing to do 
 that which a single individual may do with impunity will 
 avail so long as public opinion refuses to tolerate the inflic- 
 tion upon a third person without just excuse of the peculiar 
 hurt which only a number of persons acting in combination 
 can inflict. The current morality brands such conduct as 
 
152 Development of the English Law of Conspiracy. [284 
 
 wrong; and its judgment cannot be warped by lengthy dis- 
 cussions as to the legality or illegality per se of the meth- 
 ods employed. In defending the weaker person against ag- 
 gression on the part of combinations of persons the courts 
 have preferred, where possible, to do so without express 
 reference to the element of combination present. When it 
 has appeared necessary, however, they have not feared to 
 assert openly that in some cases the fact of combination 
 raises a Uability where before, perhaps, no liability existed. 
 
 The above statements find ample confirmation in the his- 
 tory of the element of combination in civil cases. This is 
 closely bound up with certain doctrines relating to malice 
 and justification, a brief account of which must first be 
 given. 
 
 After the passage of the Act of 6 George IV, C. 129, 
 legalizing agreements to strike for certain enumerated 
 purposes, the opinion began to find currency that the lawful- 
 ness vel non of combinations of labor in general depended 
 upon their real object. This view first appeared in Reg. 
 vs. Rowlands'" (1851). Speaking of a combination among 
 workmen and others to obtain an increase of wages, Erie, J., 
 said : " I consider the law to be clear only to that point — 
 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 at once a combination of 
 an entirely personal nature, and the law allowing them to 
 combine for the purpose of obtaining a lawful benefit to 
 themselves, gives no sanction to combinations which have 
 for their immediate purpose the injury or hurt of another." 
 The same principle was stated, though without mention of 
 the element of combination, in Farrer vs. Close" (1869). 
 Hannen, J., said that the legality or illegality of a strike 
 " must depend on the means by which it is enforced, and 
 on its objects." It may be criminal, or illegal, " or it may 
 be perfectly innocent, as if it be the result of the voluntary 
 
 "S Cox C. C. 436, 460. 
 "10 B. & S. SS3. 566. 
 
28s] Combinations of Labor. i53 
 
 combination of the men for the purpose only of benefiting 
 themselves by raising their wages, or for the purpose of com- 
 pelling the fulfillment of an engagement entered into be- 
 tween employers and employed, or any other lawful pur- 
 pose.'"' 
 
 Now when cases grounded upon acts done or threatened 
 by combinations of labor began to find their way into the 
 civil courts, the doctrine of justification was called upon to 
 play an important part in fixing the liability of the defend- 
 ants. The doctrine began to develop that certain acts caus- 
 ing damage would be actionable if done for a purely ma- 
 licious purpose, whereas the same acts would not give rise 
 to liability if a legal justification could be shown. The most 
 influential cases upon this point were Temperton vs. Rus- 
 seir (1893) and the Mogul Steamship Co. vs. McGregor" 
 (1892). The views therein expressed took root, and for a 
 time seemed destined to attain prominence in the field of 
 labor law. Thus in Curran vs. Trealeaven''^ (1891), where- 
 in it was held that a strike to cause the discharge of non- 
 union men was not intimidation within the terms of the Act 
 of 1875, section 7, it was intimated that had the proof 
 shown a " malicious conspiracy " to injure, or " malice in 
 fact," the acts of the defendants might have been indictable 
 and actionable. In TroUope vs. London Building Trades 
 Federation^* (1895) an injunction was granted against the 
 black-listing of certain non-union men and non-strikers, 
 upon the authority of the Mogul Case. Kekewich, J., said: 
 " Their own benefit was, of course, one of the objects of 
 their action, and it was to some extent — to use a philosoph- 
 ical expression — the ' final cause ' of their action. But it was 
 not the only cause, and I have no doubt from the evidence 
 before me that another motive and the principal and primary 
 motive, was to injure the workmen mentioned in the ' Black- 
 
 """See also Swaine vs. Wilson, 24 Q. B. D. 252 (1889) ; Sheridan's 
 Case (1868), Wright on Conspiracy, 38. 
 "62 L. J. Q. B. 412; (1893) I Q- B. 71S. 
 "61 L. J. Q. B. 29s; 58 L. J. Q. B. 46s; (1892) A. C. 25. 
 "61 L. J. M. C. 9. 
 "72 L. T. 342. 
 
J 54 Development of the English Law of Conspiracy. [286 
 
 List' and also Messrs. TroUope and Sons, and to prevent 
 them from carrying on their lawful trade or business with 
 that freedom which is the privilege of Englishmen. That 
 seems to me to be the direct object of the defendants' pro- 
 cedure, and is therefore, according to Lord Field, action- 
 able." In Lyons vs. Wilkins" (1898), North, J., granted a 
 preliminary injunction restraining the defendants " from 
 maliciously inducing or conspiring to induce persons not 
 to enter into contracts with the plaintiffs." He said, " If 
 you have to forward your own interest by destroying the 
 rights of others, it seems to me that that is express malice." 
 This portion of the injunction, however, was stricken out 
 after the decision of Allen vs. Flood'* (1898), the reason, 
 as stated by Byrne, J.,°° being that " it was conceded by the 
 plaintiffs that they could not succeed unless they could show 
 malice ; and it is the law, as finally determined by the House 
 of Lords, that the existence of a malicious motive cannot 
 in such a case as this render unlawful an act or acts other- 
 wise lawful." 
 
 The above doctrines were such as to enable the courts to 
 interfere upon the ground of malice with many acts deriving 
 their formidable character from the numbers engaged in 
 them, without express reference to the element of combina- 
 tion itself. But the decision in Allen vs. Flood that a ma- 
 licious motive cannot transform an otherwise legal act into 
 an actionable wrong closed this avenue of redress. The 
 result was the unanimous holding by the House of Lords 
 in Quinn vs. Leathem that the wrongful and malicious in- 
 ducement, by persons acting in concert, of the plaintiff's 
 customers and servants to cease dealing with him, was ac- 
 tionable, in spite of the decision of Allen vs. Flood. One of 
 the distinctions drawn between the two cases was the fact 
 that the present case was characterized by the element of 
 conspiracy, which had been lacking in the earlier case. Sev- 
 eral of the judges expressly stated that an individual may do 
 
 "65 L. J. Ch. 601, 604. 
 "77 L. T. Rep. N. S. 717. 
 "67 L. J. Ch. 383. 38s. 
 
287] Combinations of Labor. 155 
 
 certain acts which a combination may not do, because the 
 effects of concerted action are much more dangerous, coer- 
 cive, and alarming than those of individual action. A grain 
 of gunpowder is harmless, whereas a pound is destructive. 
 
 This principle was approved in the later cases. In Giblan 
 vs. National Amalgamated Laborers' Union of Great Britain 
 and Ireland"" (1903) it was applied to a combination among 
 trade-union officials to prevent, by calling strikes, a person 
 from obtaining employment. In South Wales Miners' Fed- 
 eration vs. Glamorgan Coal Co." (1905), Lord Lindley 
 expressly said : " It is useless to try to conceal the fact that 
 an organized body of men working together can produce 
 results very different from those which can be produced 
 by any individual without assistance. Moreover, laws 
 adapted to individuals not acting in concert with others re- 
 quire modification and extension if they are to be applied 
 with effect to large bodies of persons acting in concert. The 
 English law of conspiracy is based upon and justified by 
 this undeniable truth." The House of Lords, in Sweeney 
 vs. Coote™' (1907), the latest case involving combination 
 brought before it, was careful to decide only that the evi- 
 dence was not sufficient to support the allegation of a con- 
 spiracy to injure the appellant in her business and employ- 
 ment. The Earl of Halsbury went so far as to intimate that 
 the case might be otherwise with a combination to procure 
 her dismissal on account of personal objections, ill-will or 
 spite. 
 
 The result of these and other cases'" was an agitation by 
 
 "Court of Appeal (1903), 2 K. B. 600. 
 
 "74 L. J. K. B. 525. House of Lords. 
 
 °' (1907) A. C. 221. 
 
 "It had been decided in Lumley vs. Gye, 22 L. J. Q. B. 463 (1853), 
 that maliciously inducing a breach of contract was actionable. This 
 case was approved in Quinn vs. Leathern, in Read vs. Friendly So- 
 ciety of Operative Stone Masons, 71 L. J. K. B. 994 (1902), and in 
 South Wales Miners' Federation vs. Glamorgan Coal Co., 74 L. J. K. 
 B. 525 (1905), in which it was also said that the absence of ill-will 
 was no justification. The matter is dealt with in the Trades Dis- 
 putes Act, 1906, in these words (sec. 3) : " An act done by a person 
 in contemplation or furtherance of a trade dispute shall not be ac- 
 tionable on the ground only that it -induces some other person to 
 
156 Development of the English Law of Conspiracy. [288 
 
 trade unionists which led to the passage of the Trades Dis- 
 putes Act, 1906, 6 Edward VII, C. 47. In this act the at- 
 tempt is made to reverse the principles laid down by the 
 courts in a number of previous decisions in which they had 
 endeavored to protect non-union men and employers from 
 undue interference by the unions. That liability should arise 
 from concerted action is negatived in these words (sec. i) : 
 " An act done in pursuance of an agreement or combination 
 by two or more persons shall, if done in contemplation or 
 furtherance of a trade dispute, not be actionable unless the 
 act, if done without any such agreement or combination, 
 would be actionable." 
 
 This statute is the culmination of the attempts made by 
 the legislature in England to deal with acts done in the 
 course of the struggle between capital and labor, without 
 regard to the element of combination. How it will be 
 judicially interpreted cannot be foretold, as no case of the 
 proper character has as yet come before the courts. We 
 may venture the opinion, however, that even this act need 
 not have the effect of removing all safeguards against op- 
 pressive measures which derive their efiScacy from the num- 
 ber of the persons cooperating to employ them. The 
 
 break a contract of employment or that it is an interference with the 
 trade, business, or employment of some other person, or with the 
 right of some other person to dispose of his capital or his labor 
 as he wills." 
 
 The latter part of the section is intended to negative certain 
 statements in Quinn vs. Leathem and in other cases; especially the 
 decision in Giblan vs. National Amalgamated Laborers' Union of 
 Great Britain and Ireland (1903), 2 K. B. 600. 
 
 The Taff Vale Ry. Co. vs. Amalgamated Society of Ry. Servants, 
 70 L. J. Q. B. 90s (1901;, Giblan vs. National Amalgamated Labor- 
 ers' Union, etc. (supra). South Wales Miners' Federation vs. Gla- 
 morgan Coal Co. (supra), Denaby & Cadeby Main Collieries vs. 
 Yorkshire Miners' Assn., (1906) A. C. 384, and Ward, Lock & 
 Co. vs. Operative Printers' Assistants' Society, 22 T. L. R. 327 
 (1906), had established that a registered trade union might be held 
 liable like a corporation for its collective acts and for the acts of 
 its officers within the scope of their authority. The Trades Disputes 
 Act, igo6, changed the law in this particular: "Sec. 4— An action 
 against a frade union, whether of workmen or masters, or against 
 any members or officials thereof on behalf of themselves and all 
 other members of the trade union in respect of any tortious act 
 alleged to have been committed by or on behalf of the trade union, 
 shall not be entertained by any court." 
 
289] Combinations of Labor. IS7 
 
 courts in the more recent cases have shown a disposition to 
 regard chiefly the nature and effects of the acts done in 
 concert, and to notice the combination only in so far as it 
 invests certain acts with quahties which individual acts do 
 not possess. From this it would follow that if a single 
 person were placed in a position which enabled him to wield 
 the combined powers of a multitude he should be subjected 
 to a proper degree of legal responsibility for his acts. And 
 evidences are not wanting that the courts may take this 
 view. In Quinn vs. Leathern'* (1902) Lord Robertson 
 said in terms that if one man could have done what the 
 combination did in that case, he would be civilly liable. So 
 in Giblan vs. National Amalgamated Laborers' Union of 
 Great Britain and Ireland'^ ( 1903), Romer, L. J., expressed 
 the opinion that if one person had the peculiar power and 
 influence to prevent a man from getting work, his conduct 
 in so doing without justification would be an actionable 
 wrong, " such an unjustifiable molestation of the man, 
 such an improper and inexcusable interference with the 
 man's ordinary rights of citizenship as to make that person 
 liable in an action." Now this principle in substance means 
 nothing more than that certain acts of a harmful and coer- 
 cive character may not be performed without justification 
 either by one person or by a combination of persons. As 
 long as only the results of specific acts are regarded, this 
 position would not be in any way affected by Section i of 
 the Trades Disputes Act, 1906, in spite of the undeniable 
 truth that the acts complained of derive their peculiar 
 qualities from the number of the persons who perform 
 them. 
 
 It would seem, therefore, that in future trade unionists 
 will be able to secure greater freedom of action against their 
 opponents only by means of statutes expressly legalizing 
 their acts regardless of certain effects produced by them 
 upon other persons. The element of injuria must be ex- 
 tracted from the damages inflicted. But this will prove 
 
 ■"70 L. J. P. C. 9S. 
 
 " (1903) 2 K. B. 600, 618. 
 
1 58 Development of the English Law of Conspiracy. [290 
 
 a difficult task as long as the courts are inclined to place 
 restrictions upon the activities of the unions. The judges 
 show a willingness to create new rights in behalf of indi- 
 viduals which may not be infringed by the acts of their 
 enemies in an industrial dispute. Thus, in the Trades Dis- 
 putes Act, Parliament has been induced to declare that an 
 act done in furtherance of such disputes shall not be action- 
 able " on the ground only that it induces some other person 
 to break a contract of employment or that it is an inter- 
 ference with the trade, business or employment of some 
 other person, or with the right of some other person to dis- 
 pose of his capital or his labor as he will." Unless the 
 courts change their attitude, however, even this declaration 
 may not be sufficient. They may hold that the acts com- 
 plained of violate other rights so fundamental (e. g., the 
 " ordinary rights of citizenship ") that Parliament might 
 hesitate long before giving to trade unions free leave to 
 disregard them. It appears, therefore, that until the policies 
 and methods of the unions shall have secured a fuller en- 
 dorsement by public opinion, non-union men and others 
 will continue to enjoy a tolerable degree of protection from 
 at least the more flagrant varieties of interference and 
 oppression on the part of organized labor. 
 
ABBREVIATIONS FOR AUTHORITIES CITED. 
 
 A. & E. Adolphus & Ellis's Reports, King's Bench. 
 
 Ad. & E. N. S Adolphus & Ellis's Reports, King's Bench 
 
 (New Series). 
 
 A. C. Appeal Cases, House of Lords. 
 
 B. & A. Barnewall & Alderson's Reports, King's 
 
 Bench. 
 B. & C. Barnewall' & Cresswell's Reports, King's 
 
 Bench. 
 Bell C. C. Bell's Crown Cases. 
 
 B. & S. Best & Smith's Reports, Queen's Bench. 
 
 B. & B. Broderip & Bingham's Reports, Common 
 
 Pleas. 
 Bulst. Bulstrode's Reports, King's Bench. 
 
 Burn's J. Burn's "Justice of the Peace." 
 
 Burr. Burrow's Reports, King's Bench. 
 
 Cald. Caldecott's Reports, King's Bench. 
 
 Camp. Campbell's Reports, Nisi Prius. 
 
 Car. & M. Carrington & Marshman's Reports. 
 
 Car. & P. Carrington & Payne's Reports, Nisi Prius. 
 
 Ch. Chancery Division. 
 
 Chitty. Chitty's Reports, Bail Court. 
 
 CI. & F. Clarke & Finnelly's Reports, House of Lords. 
 
 Co. Coke's Reports. 
 
 Comyn. Comyn's Reports, King's Bench and Com- 
 
 mon Pleas. 
 Cox C. C. Cox's Criminal Cases. 
 
 Cro. Car. Croke's Reports, Temp. Charles I, King's 
 
 Bench and Common Pleas. 
 Cro. El. Croke's Reports, Temp. Elizabeth, King's 
 
 Bench and Common Pleas. 
 Cro. Jac. Croke's Reports, Temp. James I, King's 
 
 Bench and Common Pleas. 
 D. & M. Davison & Merivale's Reports, Queen's 
 
 Bench. 
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293] Abbreviations for Authorities Cited. i6i 
 
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THE AMERICAN WORKMAN 
 
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 AN AMERICAN TRANSLATION BY THOMAS S. ADAMS 
 
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 THE ADOPTION OF THE 
 
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A REPRINT OF 
 
 ECONOMIC TRACTS 
 
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 Money answers all Things: or an essay to make money sufficiently plenti- 
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