the indictment. I am of opinion the indictment in this case ought not to be quashed; but the defendants must be left to demur or plead to it, as they think fit." But on demurrer, "it was held not an indictable offence." In another report the determination reported is, "and on demurer judicium pro defendente, because not an offence indictable." 1752, Chetwynd v. Lindon. Here Lord Hardwicke thought that a combination to set up a supposititious child as a legitimate one, so as to impede the course of descent in law, and defeat the heir-at-law, might perhaps be indictable; but that where the combination was to set up a child as the illigitimate child of a man who desired to have a child by the woman whom he kept, the object was a merely private grievance, and the combination was therefore not criminal. 66 66 1775. Leigh. Here the combination was by hissing and riot to prevent the actor Macklin from playing. The defendants were convicted, but the matter being settled, no judgment was passed; and therefore, as the learned reporters of Manning & Grainger's Reports (6 M. & G. 217, n.) observe, the defendants had no opportunity, if they had been so advised, of questioning the sufficiency of the indictment by a motion in arrest of judgment." Moreover it is doubtful whether the indictment (which is set out in 4 Wentw. Pl. 443) in this case was for a conspiracy. The charge laid in each count is riot and obstruction of the play. Words of conspiracy do not appear in any count but the first, and there only in the inducements. So the reporters in 1 C. & K. (28, n.) observe that, "although this case is commonly cited as one of indictment for conspiracy, there was no count in which a conspiracy is charged as the corpus delicti," and that "the first count is the only one in which anything at all touching on conspiracy occurs." In a civil action of assault in 1809 (Clifford v. Brandon), Sir J. Mansfield is reported to have said, that "if any body of men were to go to the theatre with the settled intention of hissing an actor, or even of damning a piece, there can be no doubt that such a deliberate and preconcerted scheme would amount to conspiracy:" but it is not unreasonable to suppose that this opinion (which was not necessary for the decision of the case) was founded on some statements (by counsel arguendo in Mawbey, 1796) as to the effect of this case, which were anterior to the publication of any report of it. In Gregory v. The Duke of Brunswick (1843), the action was for damages for a combination to hiss an actor; and nothing appears to have been suggested by the court at nisi prius or in banc as to the criminality of such a combination. 1783. Eccles. See this case below, 13, cases on trade. 1783. Compton. The expression of opinion in this case was inconsistent with the decision in Edward's Case (sup.), and must be taken to be overruled by the cases of Fowler (1788) and Seward (1834), inf. 1788. Fowler. Here the combination was to burden a parish by bribing a poor man there, who had got a poor woman of another parish with a child, to marry the woman. Buller, J., ruled that it was essential that there should have been " some violence, threat or contrivance," or "some sinister means," and further that the marriage should have been forced on the parties against their will:-a rule which clearly brings the case within the decisions that it is indictable, independently of combination, to make persons marry by force or threats or fraud. (1670. Parris, 1 Sid. 431; 1732. Parkins, 1 Sess. Ca. 176, p. 213.) 1792. Parkhouse. It was ruled that upon an indictment for combination to charge a parish by forcing paupers to marry by threats and menaces against the peace, although it need not be averred that the marriage was against their will, this must be proved. 1811. Turner. Here the combination was to trespass with arms by night in pursuit of hares. This case occurred before the passing of the first Night Poaching Act (1817, 57 Geo. 3, c. 90), and the K. B. (Lord Ellenborough, C. J., Le Blanc, Bayley and Grose, JJ.) held that this combination was not indictable, inasmuch as it was merely for a civil trespass. (See the case in App. II.) The decision was wrong, because the combination was for acts amount ing in law to the crime of unlawful assembly with intent to resist apprehension, and in terrorrem (1816. Brodribb); but the principle of the decision has approved (1834. Seward, by Taunton, J.; 1843. Kenrick, by Lord Denmon C. J., pro cur.) even by the judges who questioned the particular application of it, and the disapproval expressed by Lord Campbell in Rowland's Case been (1851) dictable offence. was expressly put on the ground that the combination was for an in1826. Cooke. This case is here mentioned because the indictment contained averments of an intent to disquiet and disturb a person in the possession of his estates. But it also averred an intent to obtain money by false pretences. The case is reported only for a point of procedure, and no observations were made upon the nature of the offence. 66 66 1834. Seward. Here the combination was to burden a parish by bribing a poor man settled there to marry a poor woman with child. The K. B. arrested judgment and affirmed the ruling in Fowler's Case. Lord Campbell, C. J., said, An indictment for a conspiracy ought to show, either that it was for an unlawful purpose, or to effect a lawful purpose by unlawful means: that is not done here. When it is said that such a proceeding is a conspiracy, because it is to be carried into effect by unlawful means, we must see in the means stated something which amounts to an offence." Taunton, J.: Merely persuading an unmarried man and woman in poor circumstances to contract matrimony is not an offence. If indeed it were done by unfair and undue means, it might be unlawful; but that is not stated. There is no averment that the parties were unwilling, or that the marriage was brought about by any fraud, stratagem, or concealment, or by duress or threat. No unlawful means are stated, and the thing in itself is not an offence." (See sup. in 1788. Fowler.) 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 general rule criminal unless criminal means are to be used. At the same time expressions are to be found in some cases which imply a doubt as to the universality of the rule. In Stratton's Case (1809); where the indictment was for a combination for false and malicious prosecution, the indictment also alleged an intent to deprive the prosecutor of his office. In Kenrick's Case in 1843, Lord Denman said, "If in the case of R. v. Turner, the meditated injury, instead of ending: with the trespass, had been planned for the purpose of seizing the landowner,. or driving him from the country, we have no reason to think that the learned judge would have condemned an indictment for a conspiracy to effect that object." In Rowlands' Case (1851), during the argument it was asked whether a combination to entice away workmen was indictable. Lord Campbell said, "Would it not be indictable, if it were done for the purpose of ruining a tradesman ?" In Duffield's Case (1851), Erle, J., is represented to have said during the argument, with reference to Turner's Case, "A conspiracy to injure a man in his private property; a conspiracy to prevent all customers coming to his shop-what is that but a civil injury? A conspiracy to injure— two men combining to interfere with a man's civil right-is indictable." In Rowlands' Case (1851), the same judge, after stating that it was lawful for persons to combine for their own benefit, added, "But I consider the law to be clear so far only as while the purpose of the combination is to obtain a benefit for the parties who combine, a benefit which by law they can claim. I make that remark, because a combination for the purpose of injuring another is a combination of a different nature, directed personally against the party to be injured; and the law allowing them to combine for the purpose of obtaining a lawful benefit to themselves, gives no sanction to combinations which have for their immediate purpose the hurt of another." Lastly, in Lumley v.. Gye (1853), where the question was, whether an action lay for maliciously inducing a singer to break her contract, Crompton, J., said: "Suppose a trader, 3 LAW OF CRIM. CON. (4715) with a malicious intent to ruin a rival trader, goes to a banker or other party who owes money to his rival, and begs him not to pay the money which he owes him, and by that means ruins or greatly prejudices the party, I am by no means prepared to say that an action could not be maintained, and that damages beyond the amount of the debt, if the injury were great, or much less than such amount if the injury were less serious, might not be recovered. Where two or more parties were concerned in inflicting such an injury, an indictment or a writ of conspiracy at common law might perhaps be maintained." In Wentworth's Precedents (vol. 4, p. 105), there is a precedent of an indictment (A. D. 1788-9) for a combination to impoverish R. Meux, and to ruin him in his trade of a common brewer, by persuading his customers to leave him. In the same book (vol. 6, p. 439) there is an indictment for a combination to ruin a gun-manufacturer by raising riots, and by seducing away his workmen, and by violence to his servants. The latter indictment is clearly good on the grounds of the riot and violence, though probably not so on the ground of seduction of workmen (see 1704. Best; 1851. Rowlands). The former precedent may well be questioned. Had a case of so much importance been tried, it would probably have been reported; and the old books of precedents include many indictments which modern decisions have deprived of such authority as they may once have had. It is conceived that these expressions for the most part amounting only to a question or a doubt-are not sufficient to establish exceptions to the principles involved in the decisions set out in the earlier part of this subsection. Exceptions may perhaps be established by future decisions, but in the meantime it seems impossible to discover any clear rule by which it can be known beforehand what the nature of those exceptions may be. This difficulty presses on the law of conspiracy wherever it goes beyond the plain lines of the ordinary criminal law, and would perhaps be greatest in the case of any such extension at this point. The late Serjeant Talfourd, in his edition of Dick. Q. S., at p. 335, makes the following observations on this subject:-"It is not easy to understand on what principle conspiracies have been holden indictable, where neither the end nor the means are in themselves regarded by the law as criminal, however reprehensible in point or morals. Mere concert is not in itself a crime; for associations to prosecute felons, and even to put the law in force against political offenders, have been holden legal (1823. Murray, at Guildhall, Abbott C. J.) If then there be no indictable offence in the object, no indictable offence in the means, and no indictable offence in the concert, in what part of the conduct of the conspirators is the offence to be found? Can several circumstances, each perfectly lawful, make up an unlawful act? And yet such is the general language held on this subject, that at one time the immorality of the object is relied on; at another the evidence of the means; while at all times, the concert is stated to be the essence of the charge; and yet that concert, independent of an illegal object, or illegal means, is admitted to be blameless. "The utmost limit of the modern doctrine of conspiracy seems to be reached in the decisions respecting concerted disapprobation of a performer or a piece at the theatre." [He then cites Sir J. Mansfield's observation in Clifford v. Brandon, and continues:-] "In this case the act is lawful; the means are lawful; the motive may be even laudable; as if a notoriously immoral piece were announced, and the parties determined to oppose it; and yet the concert alone makes the crime. It is extremely difficult to understand this, unless concert be a crime; and still more difficult to reconcile it, or many other of the cases, to the decision of the King's Bench in 1811 (Turner)." See as to combinations to break contracts, inf. § 13. § 12. Examination of Cases on Combination relating to Trade and Labour.-(1) Restraint of Trade and Disturbance of Markets. it Some traces may be found in the ancient books of a doctrine that may be criminal, independently of combination, for one man to oblige another (by bond or otherwise) to abstain from the exercise of his proper craft or employment (Yearb. 2 Hen. 5, 5 b, 22, set out in 11 Rep. p. 53 b, and in 1 Sm. L. C., Mitchell v. Reynolds; Anon. 2 Leon. 210, on the authority of the former case); and if this was the law it would follow that a combination for the like purpose might be criminal. A more general doctrine was several, times suggested by Crompton, J. (e. g. 1856. Hilton v. Eckersley), that all "agreements tending directly to impede and interfere with the free course of trade and manufacture" were not only illegal in the sense that they could not be enforced, but criminal combinations. It does not appear that this doctrine ever received the assent of other judges. Lord Campbell, C. J. and Erle, J. in the case cited disapproved it. The Exchequer Chamber in the same case, and the Q. B. in Hornby v. Close (1867) declined to express an opinion upon it; in the numerous cases of indictments of workmen for combinations of various prohibited kinds, no suggestion appears ever to have been made that it could be applied; and it has been usual to admit the right of workmen to strike and of employers to lock out in combination. The question is now concluded by the 34 & 35 Vict. cc. 31, 32, as to combinations of employers and workmen, and it is not likely to occur in any other case. Should it become necessary to determine the question, it is conceived that it must be held that up to the present time the doctrine has not been established by any binding authority. Moreover the civil courts have in modern times gone very far in holding that agreements between individuals in restraint of the trade of one of them may be not only not criminal but legal and enforceable; and a rule which is so vague and subject to such wide and undefined exceptions does not appear to be properly the matter of criminal law. Disturbances of the public markets, of prices of goods and of labour, have in like manner been sometimes regarded as criminal independently of combination, and of the numerous statutes for prohibiting them (Cp. 1369. Lumbard's Case; 1636. Midwinter, where nothing seems to have been said of the combination; 1818. Hilbers; Cp. 1800. Waddington, 1 East, Rep. 143; 1814. De Berenger); and there are some cases of indictments for combinations expressly prohibited by statutes as combinations for these purposes. (1698. Anon.; 1758. Norris). All the ancient acts have now been repealed; but the 7 & 8 Vict. c. 24, which repealed the statutes relating to forestalling, engrossing and regrating, and also extinguished their criminality at common law, enacted by sect. 4, There is a case of some importance (1783. Eccles), which seems to have proceeded partly on the ground suggested by the ancient cases on restraint of trade, partly on the ground of disturbance of the markets or prices. Several defendants (apparently master tailors) were indicted for combining to impoverish and prevent the prosecutor (apparently a rival master tailor) from trading. The indictment did not set out the proposed means; and the question was, whether it was sufficient. The K. B. held that it was sufficient; but on what ground, does not clearly appear. Lord Mansfield is reported to have said, "The illegal combination is the git of the offence. Persons in possession of any articles of trade may sell them at such prices as they 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 combination not to work under certain prices is an indictable offence." Lord Ellenborough, in Turner's Case (1811), said that this case seemed to have been determined on the ground of restraint of trade. It may, however, be doubted whether the language of the court does not show that it proceeded on the ground of an assumed combination to disturb prices. If it proceeded on the ground of the intent to "impoverish," it is opposed to Starling's Case (1665), and apparently also to Rowland's Case (1851), and since the last case the decision on the sufficiency of the declaration seems questionable. § 13. Examination of Cases as to Trade and Labour continued. (2) Coercion of Individuals. The last special group consists of the cases on combinations by workmen to regulate the conditions of their labour. These cases, In so with few (if any) exceptions, have been instances either of combi- |