inserted, and in another case that he did not think the phrase 'very correct1.' It is pointed out, both by Mr. Wright 2 and Mr. Justice Stephen 3, that as a definition of conspiracy the phrase is clearly inaccurate. The word 'unlawful' is ambiguous. If by 'unlawful' is meant criminal, the definition is too narrow, since, as has been shown above, there may in some cases be a criminal combination without the contemplation of the doing of any individual criminal act; if by unlawful' is meant wrongful,' a violation of a private right, the definition is too wide, because, in England at all events, it has never been judicially decided that a combination merely to commit a breach of contract or a tort is criminal.

4

If indeed it were law that an agreement to commit a breach of contract is itself criminal, it is difficult to see why two or more partners who determine to repudiate an onerous contract and to run the risk of whatever civil remedy there may be, are not also criminally responsible, although the design may never have been carried into effect. And yet who ever heard of such a prosecution? Could the Directors of the Great Western Railway have been indicted when they endeavoured to get rid of the obligation contracted in the infancy of the railway that every train should stop for ten minutes at Swindon?

The questions which, as has been shown, are left undecided by the English Courts, appear in Ireland not to be considered as any longer open. The social condition of that country since 1879 has been extremely favourable to the growth of the law of conspiracy. Just as in England during the period when the power of tradesunions was growing, and was generally considered a source of social danger, there are distinct symptoms of a tendency on the part of judges to adopt a wider definition of criminal conspiracy than had previously been recognised, so in Ireland, where combinations of various kinds have been formed, having for their object the aiding of agricultural tenants to resist payment of the full amount of rent legally due to the landlords, the Courts have shown a disposition to condemn as criminal combinations which they regard as formed for unlawful though not necessarily criminal purposes, and thus to lay down a definite rule having the effect of bringing these combinations within the pale of the criminal law. The rule which, as Mr. Justice Stephen states, no English Court has ever laid down, that a combination to break contracts is

3 Roscoe on Criminal Evidence, p. 417 (ed. 1877).

Nor again does any case go so far as to decide that a combination to commit a breach of contract is a conspiracy.' Stephen, in Roscoe's Criminal Evidence, p. 417. And in Bunn's case, upon the counts charging conspiracy to break contracts upon which the defendants were convicted, Lord Esher was careful to point out that the breach of the contracts in question was by statute a criminal offence.

criminal, seems to have been adopted by the late Lord Fitzgerald and Mr. Justice Barry upon the trial at bar of Mr. Parnell and others for a criminal conspiracy in 18811. The question was raised by the frame of certain counts of the indictment, which in substance charged that the defendants, intending to impoverish and injure the owners of farins, solicited large numbers of tenants, in breach of their contracts of tenancy, to refuse to pay and not to pay the rents which they were lawfully bound to pay. In summing up the case to the jury the late Lord Fitzgerald adopted C.J. Tindal's quotation of Lord Denman's words, before noticed, in the broadest sense of the ambiguous word 'unlawful.' He told the jury that the law was 'plain and clear;' that an agreement of two or more persons to commit any wrongful act was a criminal offence. He said, ‘If a tenant withholds his rent, that is a violation of the right of the landlord to receive it; but it would not be a criminal act in the tenant, though it would be in the violation of a right; but if two or more incite him to do that act, their agreement so to incite him is by the law of the land an offence.' 'And, gentlemen, I have to declare to you that it is a criminal offence where two or more agree to do an injury to a third party, or class, though that injury if done by one alone of his own motion would not be in him a crime or an offence, but would be simply an injury carrying with it a civil remedy.' The counsel for the defendants appears to have excepted to these rulings, and to have cited some of the authorities above referred to in support of his contention that an agreement merely to commit a civil injury is not criminal. The judges however adhered to Lord Fitzgerald's ruling. Mr. Justice Barry, in giving judgment, did not deal with the authorities cited, but contented himself with quoting the statement of the law contained in the Report of Chief Justice Cockburn's Commission mentioned above. This however appears hardly to support Lord Fitzgerald's ruling to its full extent, which omits or throws into the background the important qualification stated by the Commissioners, that the wrongful act must be accompanied with the 'malicious intent to do an injury.'

Lord Fitzgerald's ruling in this case appears to have settled the question as regards Ireland; and a combination to break a contract, or not to pay rent, has apparently since been regarded as a criminal conspiracy. Accordingly, after the promulgation of the Plan of Campaign in 1886, Mr. Justice Murphy, in Reg. v. Dillon 2, is reported to have said that 'it was clearly and manifestly an offence for two or more persons to urge tenants not to pay the rents they had contracted to pay.' 'In looking at the Plan of Campaign, it was for 1 14 Cox, 508. 2 Times, Feb. 25, 1887.

the jury to say whether it advised tenants to combine among themselves not to pay the rents they had contracted to pay. If they did, they committed the offence charged, in seeking to frustrate the landlord's claim.' Thus the step was taken in Ireland which, as has been shown, had never been taken by any English Court, and it was in effect declared that an agreement to break a contract was in itself an indictable offence 1.

6

A further development of the law of Criminal Conspiracy, either as a distinct addition to the law or as a statutory declaration of what had previously been undefined and uncertain, is probably to be found in the construction which has been placed upon the second section of the Criminal Law and Procedure (Ireland) Act, 1887. The section, so far as it relates to the matter in question, is in the following terms: Any person who shall commit any of the following offences in a proclaimed district may be prosecuted before a court of summary jurisdiction:-(1) Any person who shall take part in any criminal conspiracy now punishable by law to compel or induce any person or persons either not to fulfil his or their legal obligations, or not to let, hire, use or occupy any land, or not to deal with, work for or hire any person or persons in the ordinary course of trade, business or occupation, or to interfere with the administration of the law. (2) Any person who shall incite any other person to commit any of the offences hereinbefore mentioned.'

It will be observed that this section appears to deal only with a limited class of conspiracies 'already punishable by law;' that the conspiracies in question are conspiracies to compel or induce' other persons to do or abstain from doing certain specified acts. The section does not strike directly at conspiracies not to fulfil legal obligations, or not to deal with, work for or hire other persons, etc., but only at conspiracies to compel or induce,' etc. The party protected is not the landlord or the boycotted person, but the person who is subject to the compulsion or inducement 2. The criminal element of the combination must therefore, it would seem, be

1 There appears to be no statement in the recent Report of the Special Commission as to the view taken by the Commissioners of the law of conspiracy. But the terms of their finding upon the second charge (Report, p. 54) appear to lead to the inference that the Commissioners acted upon a view of the law substantially similar to that expressed in the Report of the Commission presided over by Chief Justice Cockburn. In in re Heaphy, 22 Law Reports, Ireland, p. 500, Palles C.B., adopting Lord Bramwell's view of the law, says 'that there was evidence that the refusal on the part of the defendants to supply the police with bread, was in pursuance of a common action with a view of injuring the police. Thus there was evidence of a conspiracy punishable at common law by indictment. That however is not sufficient to sustain this summary conviction. To do so there should be also evidence that this refusal should be effected either by compulsion or by undue influence.' And after commenting upon evidence which tended to show that Barry, a defendant, refused under the influence of fear, says that to convict upon evidence showing that Barry was intimidated but not that he was intimidating others, 'would be to mistake the injured party for the criminal.'

found in the words 'compel or induce;' the means of compulsion or inducement must be unlawful in the sense that if two or more persons agree to employ them they are guilty of a crime. What then amounts to criminal compulsion or criminal inducement within the meaning of the section?

This question was dealt with in 1887 by the Irish Exchequer Division in the case of In re Heaphy. The magistrates had convicted the defendants, who were shopkeepers, on a charge of conspiracy. The evidence showed a contemporaneous refusal to supply the police with bread. The defendants having been sentenced were released by the Exchequer Division by the issue of a writ of habeas corpus; the majority of the Court being of opinion that, upon an application for a writ of habeas corpus, the Court had jurisdiction to examine the depositions to ascertain whether or no the evidence justified the conviction. The jurisdiction having been established, there appears to have been no difference of opinion that the conviction was wrong, inasmuch as there was no evidence of compelling or inducing' within the meaning of the section, although there was evidence on which an indictment might have been sustained. Chief Baron Palles, in delivering the principal judgment, said, 'A conspiracy not to deal with another person is not per se within the Act. To bring it within the Act the conspiracy must be to compel or induce persons not to deal with. "Compel' involves the exercise of some force or restraint either upon the body or will of the person affected, and it cannot be contended that if "induce" were not in this section the offence contemplated by it would not be essentially one of intimidation.' But how as to the word 'induce'? The Chief Baron held that to make an inducement criminal, at all events where as in the case in question the act which it was the object of the conspiracy to accomplish was not criminal, it must be such as 'to unduly affect or control the free will of the person against whom it is exercised;' and he quotes with approval Lord Bramwell's language in Druitt's case above referred to. The question of fact therefore, according to the Chief Baron, in cases falling within the statute is-Was there an agreement unduly to affect or control the free will of the person against whom it was directed? If so, there is a criminal inducement within the meaning of the section 1.

1 Most of the forms of summonses under the section in question which have come under my notice charge a conspiracy to induce to do or not to do one or more of the specified acts, but do not specify the nature of the act or acts of inducement. The following form may be taken as typical: Whereas a complaint has been made to me that you etc. on etc. at etc., being a district proclaimed etc., did with other person or persons whose names are unknown unlawfully take part in a criminal conspiracy punishable by law at the time of the passing of the said Act, to wit-To induce certain persons whose names are unknown, to wit certain shopkeepers, mechanics,

If the interpretation thus put upon this statute by Chief Baron Palles is correct, it would seem that the section marks another step in the progress of the law of conspiracy, at all events in a proclaimed district.

The statute as interpreted by the Chief Baron seems to assume, or rather to declare, that an agreement by two or more persons to commit an act, which if done by an individual is not a criminal offence or a civil injury, may itself be criminal. The criminality lies in the agreement to compel or induce. It is true that the Chief Baron says that the words in the earlier part of the section render it necessary that the word 'unduly' should be introduced to qualify the word induce.' But he does not go so far as to say that the means of inducement must amount to a criminal act or even to a civil injury. On the contrary, he adopts Lord Bramwell's view of what may amount to undue inducement. It appears therefore that, if this be the correct interpretation of the statute, the Legislature has adopted the view of those judges who have laid down in the broadest terms the definition of undue coercion or inducement, in preference to the view of those who think no coercion or inducement criminal unless criminal means are contemplated; and has even gone further than the wider view taken of the law of conspiracy by Chief Justice Cockburn's Commission.

No one who reads Lord Bramwell's summing up in Druitt's case, or Lord Esher's in Bunn's case, or the judgment in Chief Baron Palles in Heaphy's case, can help being struck with the indefiniteness of the expressions used to define the crime of conspiracy. What is that 'compulsion or restraint' which it is criminal to agree to use in order to 'coerce liberty of mind and thought'? What is ' unjustifiable annoyance and interference with persons in the conduct of their business'? What acts amount to unduly affecting or controlling the free will of the person against whom they are exercised'? It is obvious that language so vague leaves an almost boundless latitude to juries, or to the magistrates who under the statute are substituted for juries as judges of fact.

The question indeed becomes almost entirely one of fact, and for the first time in the history of the law of conspiracy the question of fact has to be decided by the same members of the tribunal who artizans and labourers who were or might be desirous to deal with or work for in the ordinary course at their trade, business or occupation, persons who had used or occupied or should use or occupy farms of land in Ireland from which tenants had been or might be evicted in due course of law, not to deal with or work for such persons as aforesaid.' It might be a question whether an indictment in the form of such a summons would not be bad as being too general. See R. v. Rowlands, 17 Q. B. 671.

In one case the essential words 'compel or induce' were omitted in the summons, but supplied by amendment on appeal from the conviction by the County Court Judge. In re Russell, 22 Law Reports, Ireland, p. 487.