P. in their trade and occupation as manufacturers of, &c., and to prevent the workmen of R. P. and G. P. from continuing to work for R. P. and G. P. in their said trade and occupation. 17th. By divers subtle means and devices and wicked arts and practices, to injure and oppress R. P. and G. P. in their trade, business and occupation of manufacturers of, &c., and to induce the workmen of R. P. and G. P. to depart from their hiring, employment and work with R. P. and G. P. before the period of their agreement with R. P. and G. P. was completed. 19th. Unlawfully to intimidate, prejudice and oppress R. P. and G. P. in their trade and occupation of manufacturers of, &c., and to entice and seduce away the workmen of R. P. and G. P. from the employment of R. P. and G. P., and thereby to injure and oppress R. P. and G. P. in their said trade and occupation. After consideration, Lord Campbell, C. J., pro cur., said, "With respect to the indictment, we all agree in thinking that the 16th, 17th and 19th counts are open to objection as being too vague. We give no final opinion; but on these counts there will be a rule nisi to arrest judgment, unless a nolle prosequi be entered." The other counts were directly framed either on the 4 Geo. 4, c. 34, or on the 6 Geo. 4, c, 129. And the opinion of the court seems to have been partly founded on the rule for which the cases of Daniel (1704) and Callingwood (1705) are commonly cited, that indictment does not lie against one for enticing away a servant or apprentice. (Cp. 1853, Lumley v. Gye. There is a precedent in West, 2, 269, of an indictment against one for being a common procurer of servants to depart from their services.) The following are cases on the subjects of this and of the preceding subsection: 1354. Art. of Inq.: recital of a statute against combination by merchants. 27 Edw. 3, stat. 2, c. 3. 1369. The Lumbard: indictment of one (not by way of conspiracy) for disturbing prices. 3 Edw. 3, stat. 2, c. 3; 37 Edw. 3, c. 5. 1597. Anon.: Combination for forestalling. 37 Edw. 3, c. 5; 25 Hen. 8, c. 2. 1636. Midwinter: Disturbance of markets. 37 Edw. 3, c. 5, &c. 1721. Journeymen Tailors of Cambridge: to raise wages. 2 & 3 Edw. 1758. Norris: to raise prices of salt. 37 Edw. 3, c. 5; 25 Hen. 8, c. 2; 2 & 3 Edw. 6, c. 15. 1783. Eccles: to prevent a tailor from carrying on his trade. (Qu.) 1796. Mawbey: Dict. of Grose, J. 1799. Hammond: to raise wages. Geo. 3, c. 17. 2 & 3 Edw. 6, c. 15; 5 Eliz. c. 4; 8 1802. Marks: unlawful oath by trades unionists. 37 Geo. 3, c. 123; 2 & 3 Edw. 6, c. 15. 1804. Salter: combination to prevent master from employing a workman. 39 & 40 Geo. 3, c. 106. 1805. Nield: summary conviction. 39 & 40 Geo. 3, c. 106. 1818. Hilbers: combination to engross, raise prices, &c. 25 Edw. 3, stat. 3; 37 Edw. 3, c. 5. 1819. Ferguson: to strike in breach of contract against apprentices. 39 & 40 Geo. 3, c. 106. 1822. Ridgway: summary conviction. 39 & 40 Geo. 3, c. 106. 1832. Bykerdike: combination to compel discharge of workmen by threat of strike. (Qu. on 6 Geo. 4, c. 129.) 1834. Ball: unlawful oath by trades unionists. Geo. 3, c. 79. 37 Geo. 3, c. 123; 39 1834. Lovelass: unlawful oath by trades unionists. 1834. Dixon: S. P. 37 Geo. 3, c. 123, 1842. Harris: charge of Tindal, C. J. 6 Geo. 4, c. 129. 1847. Selsby: combination against apprentices and non-unionists and for picketing. 6 Geo. 4, c. 129. 1851. Hewitt: Strike against a workman. 6 Geo. 4, c. 129. 1851. Rowlands: strike in breach of contract to raise wages. 4 Geo. 1856. Hilton v. Eckersley: bond in restraint of trade. 6 Geo. 6 Geo. 4, c. 1863. O'Neill v. Longman: summary conviction for threat. 1866. Shelbourne v. Oliver: summary conviction for threat of strike. 6 Geo. 4, c. 129. 1866. Wood v. Bowron: summary conviction for threat. 6 Geo. 4, c. 129. 129. Malins, V.C. 6 Geo. 4, c. 6 Geo. 4, c. 129. 1868. Sheridan: combination to enforce rules. 1872. Bunn: combination to coerce a master in his business. § 14. Summary of this Section-Lord Denman's Antithesis. It is conceived that on a review of all the decisions there is a great preponderance of authority in favour of the proposition that, as a rule, an agreement or combination is not criminal unless it be for acts or omissions (whether as "ends" or as "means ") which would be criminal apart from agreement (see esp. 1725. Edwards; 1788. Fowler; 1811. Turner; 1834. Seward); and that the modern law of conspiracy is in truth merely an extension of the law of attempts, the act of agreement for the criminal purpose being substi tuted for an actual attempt as the overt act. It has been seen by what steps a beneficial exception has established itself in the case of agreements to defraud, and how the ancient crime of conspiracy, properly so called, has been extended to charges of any kind of crime made for purposes of extortion. Probably also in the case of agreements "directly of a public nature and leveled at the government," and perhaps in the case of agreements to pervert or defeat justice, the law of criminal combination has gone somewhat beyond the bounds of the ordinary criminal law. In the case of agreements to injure private persons, the balance of decisions seems to incline against any such extension, though expressions of opinion occur in favour of the possibility of such an extension in cases still to be defined. In the case of agreements to coerce a master or workmen in the conduct of his business or in the disposal of his industry, there seems to be recent authority in favour of such an extension, but it has not yet been placed beyond doubt by number of cases or by the authority of the court of appeal; and it has been seen that there is much difficulty in finding authority for such an extension in the common law before the present century. Expressions of great apparent generality, as to the criminality of combinations in cases not within any of these particular lines of extension, occur in some of the reports; but they will be found nearly always to have been used with reference either to cheats or to the perpetually recurring question, what is the gist of a conspiracy for purposes of pleading, and to have had for the most part a totally different meaning from that which they seem to import when they are cited apart from their context. Especially is this true of the so-called definition of conspiracy, that it consists in the combination for accomplishing an unlawful end, or a lawful end by unlawful means. That antithesis was invented by Lord Denman, in Jones' Case (1832) (m), to express the very opposite of that for which it is sometimes cited. The indictment was for a combination to cheat by removing the goods of a person against whom a commission of bankruptcy had issued; but it did not show that the commission was valid. It was contended for the crown that the mere purpose to defraud sufficed; but the K. B. held that even in the case of a combination to defraud, in which it is admitted to be unnecessary to show a purpose to effect an object or to use means which would be criminal apart from combination, it was yet necessary that there should have been an intention to do some act amounting to at least a civil wrong:-" the indictment ought to charge a conspiracy either to do an unlawful act or a lawful act by 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." So in Richardson's Case (1834), where the same question occurred, with the substitution of an order for immediate execution instead of the commission of bankrupt, the same point was ruled in the same sense by the same judge. The antithesis is next used in Seward's Case (1834) by the same judge in the K. B. for the same purpose, and in this instance "unlawful" seems to be used in the sense of "criminal." In 1839 (Peck), when Lord Denman's own phrase was attempted to be used (m) Some earlier traces of a similar mode of expression may be found, e. g. in 1814. De Berenger, and 1 East, P. C. 462 (where East's observations must be separated from the case to which they are appended). * before him in a more general sense, as containing not a limitation but a definition of what combinations are criminal, he said, "I do not think the antithesis very correct ;" and again in 1844 (King), where the attempt was repeated, he clearly explained the meaning of the phrase as being a limitation and not a definition, by the "the words at least' should accompany that." observation, In 1839 (Vincent, Alderson, B.) and in O'Connell's Case (1844. by Tindal, C. J., in D. P.) the phrase was used with reference to a combination to effect changes in the government by means of physical force, and to excite disaffection. Where the phrase is not used as a limitation, it is commonly used with the emphasis on the word "combination," for the purpose merely of enforcing the established doctrine that the gist of a conspiracy, considered as an act, is neither in the mere formation of a criminal purpose nor in its execution but in the agreement of its execution. An excellent example is to be found in the expression used by Willes, J.,in delivering the opinion of the judges in the House of Lords in 1868 (Mulcahy), that "A conspiracy consists not merely in the intention of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself * punishable, if for a criminal object or for the use of criminal means :" an example which, in its use of both "unlawful" and "criminal," shows that the antithesis has not, in the most modern times and in the highest court, been understood to involve the doctrine for which the antithesis has been sometimes cited. Nor is it difficult to show that the antithesis cannot be and cannot have been intended to be a complete definition of criminal combination. In order that a phrase may be such a definition, its own terms must be used in a definite sense with reference to the purpose for which the definition is to be used. Therefore, if this phrase is a definition for legal purposes, the word "unlawful" or "illegal" (these words are used interchangeably throughout the cases) must be used in a definite legal sense. But there seem to be only three definite legal senses of the word "unlawful." It may mean criminal, i. e. prohibited by way of a criminal sanction or penalty; or it may mean wrongful, i. e. prohibited by way of a civil sanction or remedy; or it may be used in that peculiar sense in which it is applied to certain contracts, such as some contracts in restraint of trade and contracts in furtherance of immorality, which the law refuses to enforce. Moreover, in which ever of these senses the word "unlawful" is used, it must, if it is to be the defining word in the definition of criminal combination, mean unlawful with reference to the conduct of an individual; for if it meant unlawful with reference to combination, it would do nothing for defining the meaning of "unlawful" as applied to combinations, and it would be merely a re-statement and not a definition. Now it is plain that, if the phrase in question is the complete definition of a criminal combination, the word "unlawful" does not now denote what would be criminal in an individual; for it is well established that, in the case of cheats and perhaps in some other cases, it may be criminal to combine to do what it is not criminal for one man to do. Nor does it mean whatever would be wrongful in an individual, so as to subject him to a liability to a civil remedy, for not only is there the express authority of Turner's Case (1811), which has never been questioned on this point, to the contrary effect; but it would be against common sense to hold criminal an agreement between two persons to walk in a park without leave, or to dishonour a bill. Nor does it mean unlawful in the third or neutral sense, for this would exclude combinations to commit crimes, and would include many agreements which may be innocent or even laudable apart from public policy. Nor, since the word when applied to criminal combinations is narrower than it is when used in either of the two latter senses, can it mean unlawful" in a sense coextensive with an aggregate composed of all three or any two of these senses. The truth is that the word "unlawful," when it is used as coextensive with criminal combination, now includes all criminal purposes and some purposes wrongful but not criminal apart from combination; and it has been made a question whether it does not include some purposes of the third or neutral kind. An expression cannot be the definition of conspiracy, the defining part of which is itself so devoid of definiteness for the purposes for which a definition is required. Nevertheless, there is much value in the phrase for the purposes to which it has commonly been applied by the judges, viz. to indicate a. On the one hand, that mere combination is not in itself criminal, but must, if it is to be regarded as criminal, at least be for purposes (as "ends" or as "means") which are in themselves in some sense unlawful independently of combination; b. On the other hand, that, assuming purposes sufficiently “unlawful” in themselves, the gist of the crime of criminal combination consists in the agreement for such purposes, and not in their execution. 66 Down to the end of the 17th century there appears to be no reason to suppose that, apart from the determination in Starling's Case (1665)—a determination which was recognized by Lord Holt in 1704 (Best) as exceptional-the word 66 unlawful" or 66 illegal," as used to describe the purposes, a combination for which is an indictable offence, was ever used by the Courts in any other sense than that of criminal," or at most "punishable." This is plainly the sense of the phrase “defendu en la ley," used in the Anonymous Case in 1354, which referred to the prohibition contained in 33 Edw. 1. It is also plainly the sense in which Coke uses the expressions "unlawful” and “defendu en la ley " ("prohibited by the law" in the translations) in the Poulterers' Case (1611), as appears both from his reference to the case in 1354 and from his recommendation of the rule for punishment of the combination without any act completed, as being a doctrine of mercy to the intending offender. So in Timberley's |