Case (1663), the "illegal thing" proposed was the commission of a crime of conspiracy, properly so called. So in Thorp's Case (1697) (if that can be regarded a case of conspiracy), the question made by the court was whether any act indictable in itself had been done. (Cp. as to the sense in which "unlawful purpose " and "unlawful act" were used in the older law of murder-1701. Plummer, Kel. 109: 1696. Keite, 1 Ld. Raym. 138 (correcting Coke, 3 Inst., 56, 57): 1727. Oneby, 2 Ld. Raym. 1485: Fost. P. C. 258, 259.) It is believed that the only early authority for a more extended doctrine is the expression in the Termes de la Ley, tit. Confederacy, where it is said that "confederacy est quant deux ou plusors luy mesmes confederent de faire ascune male ou damage al auter, ou de faire ascune chose illoyal." But that this passage has no authority, in so far as it goes beyond the Poulterers' Case, appears from the fact that every other expression in the title is taken directly from the Poulterers' Case. See the note at foot of p. 7, 1, sup., as to the earlier editions of the book.

See, in modern times, 1856, Hilton v. Eckersley, by Lord Campbell, C. J., and Sir W. Erle's Memorandum on the Law of Trades Unions: Rep. of Comm., App. p. lxxvi., for disapproval of the general expressions used in some of the cases since the 17th century. Some dicta of almost equal generality will be found in later cases; e. g. by Crompton, J., in 1861, Walsby v. Anley; but most of them will be found, as has been already stated, to have been used, as in Kenrick's Case (1843), with reference to questions of pleading, especially in cases of cheats. Nor perhaps does the law depend on the balancing of expressions of this kind.

1

SECTION III.

THE ACT OF COMBINATION.

§ 15. The Act of Combination.

EVERY crime consists of a state of intentionality-some form of intention or of carelessness-and an overt act or an omission to perform a duty. The kinds of intention, a combination for which may be criminal, have now been discussed, and it remains to consider what overt act will suffice.

In the earlier periods of the history of English law it was thought essential for conspiracy (properly so called) that the purposes of the combination should have been so far executed as that the person against whom the conspiracy was directed should have been actually indicted and put in peril. But it was held in 1354 (Anon.) in a case of combination for maintenance, that it was not essential that any suit should have been actually maintained; and in 1574 (Sydenham), in a case of conspiracy proper, that indictment would lie, although the grand jury had ignored the bill against the prosecutor; and the Poulterers' Case established or gave rise to the doctrine that the combination for any crime was punishable, although the purpose had not been commenced to be put in execution otherwise than by the act of agreement itself; and although this rule was at first occasionally doubted (e. g. Daniell, 1704: Spragg, 1760), it has long been established that no overt act is in general necessary in conspiracy beyond the agreement itself. This doctrine was applied to treason-felony in Mulcahy's Case (1868), which contains a history of the growth of the rule in its application to treason.

Little is to be found in the books with respect to what conduct will amount to an act of agreement for the purposes of the law of conspiracy. It is clear that, generally speaking, there need not be any actual meeting or consultation, and that the agreement is to be inferred from acts furnishing a presumption of a common design. In Cope's Case (1719) it was ruled that an agreement between members of a cardmaker's family to procure a rival's apprentice to spoil his master's cards might be inferred from proof that each had separately given money to the apprentice in order to bribe him to spoil the cards; but stress seems to have been laid

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on the fact of the defendants "being all of a family and concerned In Parson's Case (1763) it was held in the making of cards." that "there was no occasion to prove the actual fact of conspiring, but that it might be collected from collateral circumstances." Leigh's Case (1775) it was ruled that an agreement to hiss an actor (or rather, perhaps, to raise a riot in a theatre) might be inferred from the acts done at one time and place, and that it was not necessary that the defendants should have come together for that purpose or have previously consulted together. So in a case of prison-breach (1793), it was ruled that concurrence in doing the act sufficed without previous acquaintance. So in Brisacs' Case (1803), it was held that "conspiracy is a matter of inference, deduced from certain ciminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them." In Pollman's Case (1809), it was ruled that a banker with whom money was deposited, for a criminal purpose of which he was aware, might be implicated. In Murphy's Case (1837), Coleridge, J., told the jury—

"If 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 were pursuing, you will be at liberty to draw the conclusion that they have been engaged in conspiracy to effect that object. The question you have to ask yourselves is: Had they this common design, It is not necessary and did they purpose it by these common means? 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 in it afterwards, 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 M. and D. doing each particular act, as after the fact of a conspiracy is once established in your minds, whatever is either said or done by either of the defendants in pursuance of the common design is, both in law and in common sense, to be considered as the act of both."

On the other hand, in Pywell's Case (1816), Lord Ellenborough ruled (so far as can be gathered from the report), that where one person put a fraud in course of execution, and another, who knew of his design, but who acted without any concert with or assent by the first person, aided the fraud, the two could not be convicted of conspiracy, In Barry's Case (1865) it was ruled to be not enough to effect a defendant that he knew of the fraud after it was done: "the parties must put their heads together to do it."

For the rest, there seems to be no reason to suppose that, unless perhaps in some forms of treason, the kind of conduct necessary for making a man a party to a conspiracy differs in any respect from that which would be necessary for making a man a party to any other sort of criminal design. If he procures, counsels, commands or abets a design of felony, he is involved in the guilt of the principal felon, though in a lower degree, if the felony is not actually committed. If he procures, counsels, commands or abets

a misdemeanor, he is guilty of a misdemeanor at common law. So there can be no doubt but that a person may involve himself in the guilt of a conspiracy by his mere assent to an encouragement of the design, although nothing` may have been assigned or intended to be executed by him personally. If he joins a conspiracy already formed, he cannot in general be affected by what has been already done, except in so far as this may, in conjunction with more specific proof, indicate the nature of the purpose in which he joined; though a different rule may apply in treason, and perhaps in a conspiracy in pursuance of which a felony has been committed. If he quits a conspiracy, there is no reason to suppose that he is in general affected by any act done after he has severed himself from it, except in so far as that act may have been done in execution of the design as it stood when he was a party to it.

So with respect to evidence. There is no ground to suppose that, unless in cases of treason, there are any special principles of evidence applicable to conspiracy (1820. Hunt); though the application of those principles may be affected by the fact that in ordinary crimes a participation in an act has to be proved, whereas in conspiracy the question is of participation in a design. What was done before he joined, or what is done or said in his absence by other parties to the design in furtherance of the common object, may, as in the case of any other joint criminal design, be evidence of the general character of the design, subject to proof to be given for affecting him with a participation in it. But acts done or admissions made by other parties after he has ceased to have any connection with the design, or for some purpose ultra the common design, may be evidence against them, but will not be evidence as against him, even of the general nature of the design; unless perhaps where it can be shown that the act was done in pursuance of instructions given or arrangements made while he was a party; and even so, it is rather the instruction or arrangement which affects him, than the act done in pursuance of it. The facts in issue are, whether there was an agreement for the alleged purposes, and whether the defendant was a party to it. Evidence in support of either fact may be given first, subject to the conditions laid down in the Queen's Case (1820) for preventing unfair prejudice to a defendant. If evidence is allowed to be first given of the general matter, that is only provisionally relevant as against a particular defendant, until evidence of the second kind is given. If evidence is first given of the acts of a particular defendant, that is only provisionally relevant as against other defendants, until it is shown either from the manner in which those acts were done or otherwise, that the acts were done in pursuance of a design common to him and them.

See Rosc. Cr. Ev. by Stephen, tit. Consp.; 3 Russ. by Gr. 161, 295; 1794. Hardy; Horne Tooke; 1796. Stone; 1799. Hammond; 1803. Brisac ; 1817. Waston; 1820. The Queen's Case; 1820. Hunt; 1837. Murphy; 1839. Frost;