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ground of the public injury supposed to be caused by them. These are combinations in so-called restraint of trade. Upon this ground many of the rules of trades-unions have been regarded as evidence of a combination 'to put unlawful coercion upon the will of an individual in disposing of his labour and capital, and consequently in restraint of trade, and a criminal conspiracy!!

As regards trade combinations the question has been set at rest by the Conspiracy and Protection of Property Act of 1875, to be presently mentioned ; and unless a recent judgment ? of the majority of the Court of Appeal, to the effect that an agreement in restraint of trade is merely void but not illegal in any other sense, is reversed or overruled, it would seem that the doctrine that combinations in restraint of trade are criminal is finally exploded, and that such an agreement no more involves criminality than an agreement to make a bet.

A second class of combinations which have in some cases been held criminal, though no criminal act apart from combination is contemplated, are conspiracies to pervert justice; and a third class is found in combinations to commit or procure certain acts of indecency or immorality. Neither of these require further notice.

A fourth class is more important for the purpose of this paper. There seems to be no doubt that a combination to cheat or defraud may be criminal though the act which is the object of the conspiracy may not be in itself criminal. It must however apparently be such an act as would if done by a single person give the person defrauded a civil remedy against the perpetrator of the act. The remedy must, it is conceived, be one for fraud properly so called, where actual deception has been used. Many instances might be given where convictions for conspiracy to defraud have been sustained, although the act contemplated by the conspiring parties was one for which only a civil remedy was available against the wrong. doer. In one case 3 indeed the expressions of Chief Justice Cockburn go further; and appear to recognise the principle that a conspiracy to commit a civil injury is in every case indictable. The case in question however was a conspiracy to defraud, and as Mr. Justice Stephen remarks 4, these expressions must probably be limited to the particular class of conspiracies to defraud.

Whether or not there is a still more comprehensive class of criminal conspiracies than any of those which have been above

| Sir W. Erle on Trades Unions, p. 19. See too the observations of Grose J. in R. v. Mowbray, 6 Term. Reports at p. 636. Cf. Crompton J. in Hilton v. Eckersley, 6 E. & B. 47, 24 Law Journal, Queen's Bench, 355.

Mogul Steamship Co. v. M°Gregor, Gow & Co., 23 Q. B. D. 598. 3 R. v. Warburton, L. R. 1 C. C. R. 274.

Roscoe on Criminal Evidence, p. 418.

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enumerated, is a question which must be regarded as unsettled by authority in England. The question may be put thus—Is a combination to injure, an individual or a class otherwise than by a criminal or fraudulent act indictable? If so, must the contemplated injury be one for which if done by an individual there would be a civil remedy, or may a combination be criminal if in the view of the jury there is the intention to cause undue annoyance or restraint, or control of the freedom of the will, irrespective of the question whether such annoyance or restraint would give rise to a criminal or civil remedy against the person causing it?

This question is elaborately investigated by Mr. Wright', who after a careful analysis of every reported decision from 1611 to 1873, when his work was published, thus sums up the result of the authorities which appear to be opposed to such an extension of the criminal law: These authorities on the whole strongly favour the view that a combination to injure a private person (otherwise than by fraud) is not as a rule criminal unless criminal means are used.' And after reviewing such authorities as appear to lead to the opposite conclusion, he says 2 : 'It is conceived that these expressions, for the most part amounting only to a question or doubt, are not sufficient to establish exceptions to the principles involved in the decisions set out in the earlier part of this sub-section. Exceptions may perhaps be established by future decisions, but in the mean time it seems impossible to discover any clear rule by which it can be known beforehand what the nature of these exceptions may be. This difficulty presses on the law of conspiracy whenever it goes beyond the plain lines of the ordinary law, and may perhaps be greatest in the case of any such extension at this point.'

On the other hand, in the final Report of the Royal Commission on the Labour Laws in 1875, presided over by the late Lord Chief Justice Cockburn, it is stated to be the law that a conspiracy exists 3 • where with a malicious design to do an injury the purpose is to effect a wrong, though not such a wrong as when perpetrated by a single individual would amount to an offence under the criminal law. The wrong may be no more than a civil injury. In the view of the Commission it is the malicious intent to injure, the wrongful purpose of the combining parties, which constitutes the essence of the crime. But against this authority must be set that of the Criminal Code Commissioners, Lord Blackburn, Justices Barry, Lush, and Stephen, appointed in 1878. It can hardly be disputed that when the composition and purpose of this Commission is borne in mind the statements of law contained in the Report are entitled to greater weight than those of the mixed Com1 Law of Criminal Conspiracies, pp. 37-43. ? p. 42.

3 p. 25.

mission of lawyers and laymen presided over by Chief Justice Cockburn. The Criminal Code Commissioners, in the draft code appended to their Report, dealt with treasonable and seditious conspiracies (clauses 77, 162), conspiracies to bring false accusations and to pervert justice (126, 127), to defile (149), to murder (with a view to increase of punishment, 180), to defraud (284), to commit indictable offences (419, 420), to prevent collection of rates and taxes (421). In the Report, after enumerating the above-mentioned classes, they say !, .There is not any distinct authority for the proposition that there are at law any criminal conspiracies other than those referred to; but some degree of obscurity exists on the subject. An agreement to do an “unlawful” act has been said to be a conspiracy, but as no definition is to be found of what constitutes “unlawfulness,” it seems to us unsatisfactory that there should be any indictable offence of which the elements are left in uncertainty and doubt.' And in Mr. Justice Stephen's Digest of the Criminal Law, conspiracy to injure otherwise than by fraud finds no place amongst crimes known to the law.

The history of the law of conspiracy appears to show that from time to time, especially when social questions become prominent, there is a tendency to extend the area of the law of criminal conspiracy. The prevailing sentiments of the time find almost unconsciously an echo upon the judicial bench ; and new combinations designed to effect objects which are generally regarded as unjust or pernicious, are at first looked upon as criminal conspiracies. Thus it was with the rules of trades unions. The views of some judges have already been alluded to. Probably the ruling which has carried to the furthest extent the legal conception of a conspiracy, is that of the present Lord Bramwell in Druitt's case in 1867?, and of Lord Esher in Bunn's case in 1872 3.

Lord Bramwell is reported in the case referred to to have told the jury that combinations to restrain liberty of mind and thought and freedom of will by coercion and compulsion-something that was unpleasant and annoying to the mind operated on'—were undoubtedly criminal. He said that if the action of the picket' was calculated to have a deterring effect on the minds of ordinary persons by exposing them to have their motions watched and to encounter black looks, that would not be permitted by the law of the land 4.'

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p. 16.

1o Cox, 592.

9 12 Cox, 316. * Mr. Justice Stephen (Hist. of Criminal Law, iii. 222) observes on this ruling, 'If this is correctly reported and is good law, it would follow that if two brothers having a sister who was about to contract a marriage which they disliked agreed together to exclude her from their society if she did so, in order by the threat of so doing to prevent the marriage, they would be guilty of an indictable conspiracy. This seems to me to show that the law was laid down far too widely on the occasion in question.'

In Bunn's case Lord Esher told the jury that they ought to convict if they were satisfied that there was an agreement to force the Gas Company to conduct the business of the Company contrary to their own will by improper threat or improper molestation ; ‘and I tell you that there is improper molestation if there is anything done with improper intent which you shall think is an annoyance or unjustifiable interference, and which in your judgment would have the effect of annoying or interfering with the minds of persons carrying on such a business as this Gas Company is conducting

According therefore to the rulings of Lord Bramwell and Lord Esher, annoyance and interference by means not only not criminal, but not even necessarily actionable, if committed by an individual, may and ought to expose the parties combining to use such means to an indictment for a conspiracy. This appears to go considerably beyond the law as stated in the Report of Chief Justice Cockburn's Commission. It is there considered essential for a criminal conspiracy that there should be a malicious intent to injure, and that the means contemplated should be such as, if carried into effect by an individual, would expose him to a civil action. It is probably in reference to the rulings in question that the Commissioners observe: • Whether there are cases in which, upon a correct view of the law, parties may be held liable on a charge of conspiracy where the end is not wrongful or the means criminal, is a matter into which we do not think it necessary to enquire, as if such be the law, which we greatly doubt, we are prepared . to recommend ... that the law should be amended 3.'

Other judges appear in similar cases of trades-union prosecutions to have adopted a rule far less wide than that laid down by Lord Bramwell and Lord Esher, or even than that stated in the Commissioners' Report. In 1847 Lord Cranworth, then Baron Rolfe, laid down that there must be molestation by threats or violence contemplated by the combining parties to make the combination criminal 4; and in 1868 and 1869 the late Lord Justice Lush appears to have stated the law in the same sense notwithstanding the ruling in Druitt's case 5.

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1 "This decision caused great dissatisfaction amongst those who were principally affected by it, and was perhaps the principal occasion of the repeal of the Act of 1871, and the enactment in its place of the Conspiracy and Protection of Property Act, 1875. Stephen, Hist. of Criminal Law, iii. 225.

2 Parliamentary Papers, 1875, Report, p. 26.

* Earlier in the Report the Commissioners say: 'Conspiracy in the form which we have here to deal with always presupposes an act or an end in itself criminal or wrongful, or which if done by a single individual would give a right of action or other civil remedy as being a violation of another's right.'

4 R. v. Selsby, 5 Cox, 495.
5 R. v. Sheridan, R. v. Shepherd. See Wright, p. 50.

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It thus appears that at the date of the passing of the Conspiracy Act of 1875 there were three principal views as to the necessary elements of a criminal conspiracy at Common Law. First, there was that deduced by Mr. Wright from the whole of the authorities, and strongly supported by the Report of the Criminal Code Commission, that as a general rule combinations to injure an individual otherwise than by fraud are not criminal unless criminal means are used. Secondly, that of Chief Justice Cockburn's Commission, that a combination to commit a civil wrong with malicious intent to injure is criminal. Thirdly, that of Lord Bramwell, that a combination to restrain freedom of will and action by means which the jury think improper is criminal.

This conflict of authority was put an end to as regards tradecombinations by the Legislature, which enacted in 1875that 'an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime.'

In England the restriction of the doctrine of conspiracy by this enactment, whether or not it be merely declaratory of the common law, has greatly diminished the practical importance of the law relating to illegal combinations. But the unprecedented activity with which the law or supposed law of conspiracy has been enforced in Ireland as regards combinations of agricultural tenants, combinations which do not fall within the above-mentioned enactment, renders the enquiry as to the limits of the common law of criminal conspiracy of great importance at the present time.

No phrase has been more constantly repeated, and that by judges of the highest eminence ?, as if it contained an adequate definition of the law of conspiracy, than Lord Denman's dictum that 'the indictment ought to charge a conspiracy either to do an unlawful act or a lawful act by unlawful means.' This expression was used in a case 3 where the question was whether an indictment could be maintained for a conspiracy to conceal a part of the personal property of the bankrupt. In holding the indictment bad as not sufficiently averring a valid bankruptcy, on the ground that it was consistent with the indictment that the removal of the goods was perfectly legal, Lord Denman used the expression quoted. He subsequently stated 4 that the words at least' ought to have been 1 The Conspiracy and Protection of Property Act, 1875, 38 & 39 Vict. c. 86.

e.g. C.J. Tindal in O'Connell's case, u Clerk & Finnelly, 155 ; Willes J. in Mulcahy's case, Law Reports, 3 House of Lords at p. 317; and Bowen L.J. in M'Gregor, Goue & Co. v. Mogul Steamship Co., 23 Q. B. D. at

R. v. Jones, 4 Barnewall & Adolphus, 345. See Wright, p. 63.
R. v. King, 7 Queen's Bench, 788.

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p. 616.

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