Apart from cases falling within one or other of these two classes, there appear to be great theoretical objections to any general rule that agreement may make punishable that which ought not to be punished in the absence of agreement; for if the act is one which can be done by a person acting alone, and when so done ought not to be punished, it is difficult to see at what point and on what ground criminality can be generally introduced by the fact that two or more persons concur in the act. No such rule seems to have been admitted by the framers of the Indian Code in any case or by the framers of the continental codes which have been examined, except in some cases of agreements by traders, employers or workmen. Nor does it seem possible to frame such a rule, at all general in its scope, which would not include large classes of acts that could not properly be made criminal. With respect to agreements, other than agreements for damage to the interest of individuals, no general test has been suggested. With respect to agreements for damage to the interests of individuals, the only tests which have been suggested are those of civil injury and of "malice." But it could not be seriously proposed to make agreement in doing a civil injury generally criminal; and it has long been recognized that the only general meaning which can be attached to "malice," for legal purposes, is that of intention to produce a result, and to do so without or not in pursuance of an excuse or just cause: and the legal value of malice depends on the nature of the result which is intended to be produced, and not on the malice itself, which is merely a condition of guilt in certain cases. If two persons agree to walk in a park without leave, or to break a contract which they could perform, their mental state displays every element of malice in the only distinct legal sense in which that term can be used. On the other hand, it cannot be doubted but that there may be exceptional cases in which acts, unnecessary to be punished when done by persons acting individually, may become proper objects of penal law when they are done by several or many persons. Such, in the laws of several countries, are certain kinds of combined conduct by traders, employers, or workmen in respect of the prices of goods or labour. Into the policy of penal legislation on these questions it is not proposed to enter. But it is to be observed that, even in these cases, the tendency of modern legislative change has been to abandon the general forms of enactment and to substitute provisions containing definite criteria of criminality, such as the use of violence or of threats of violence. Nor can it be doubted but that this course ought to be followed in all cases, at least so far as to make clear before hand, both to the legislature and to those whom the law will affect, what it is that is forbidden (b). (b) For instance, there may be much to be said for punishing workmen who should agree to tell an employer in a dictatory manner that he must discharge an obnoxious person or that they will strike on the termination of their exist On the whole it seems that the uses in criminal law of the doctrine of the criminality of agreement are of the following kinds and subject to the following limitations, viz : 1. Its principal function is that of a general auxiliary to laws creating particular crimes. Four modes have been specified in which it may be so auxiliary. 2. In some cases it may be proper to treat the agreement for a minor offence as so altering its quality and mischief as to make it a fit object for punishment as a crime. But these cases are probably few, and they ought to be specified in the written law. 3. There are some mischievous conditions of things, such as an unlawful assembly, which ought to be punished as crimes, and which cannot be brought about except by the concurrence of more persons than one. 4. There may be cases in which acts done by several persons in agreement ought to be punished, although the same acts ought not to be punished if done without agreement. But these ought to be specified and carefully defined (c.) 5. In an imperfect system of criminal law the doctrine of criminal agreements for acts not criminal may be of great practical value for the punishment of persons for acts which ought to be made punishable irrespectively of agreement, and especially for some kinds of fraud; but this use of the doctrine involves an important delegation of a legislative power in a matter in which the exercise of such power ought to be carefully guarded, since the legislature admits its own inability to discover the principles on which legislation ought to proceed. ing engagements. But it appears to be now lawful for workmen to agree among themselves not to return to work where an obnoxious person continues to be employed; and a law which should prohibit them from informing the employer of their resolution would leave them no course but that of striking without reason given, as a means of suggesting to the employer that there is a grievance about which he will do well to inquire. Such a law would be more likely to embitter differences than to benefit the public or either of the parties. Then if the dictation in fact by simultaneous cessation of labour is lawful, and if the dictation in words by a civil intimation of the object is lawful, can they be properly made criminal by reason of a bad or offensive manner, which possibly formed no part of the design? It (c) Perhaps the most difficult case will be found to be that of sedition. seems to be a question rather of policy than of jurisprudence what conduct should be punishable on this ground, and some vagueness may here be a necessary condition of efficiency. Still propositions so general as some which occur or are involved in O'Connell's Case (1844, inf. App. II.) could hardly be embodied in a written law. APPENDICES. I. LIST OF STATUTES. APPENDIX I. LIST OF STATUTES Now in force relating to Conspiracies aud Criminal Combinations (except for Treason, Treason-Felony or Riot). Statutum de Conspiratoribus Ordinatio de Conspiratoribus. Unlawful Societies. Jurisdiction of Quarter Sessions. Proceedings for Penalties under the Acts of 1799 and 1817 must be commenced in the Hard Labour may be inflicted for Conspiracy to Murder. Amends the Vexatious Indictments Act. Relates to strikes among workmen, Amer. Ed. The son of W. de J. sued in K. B. by leave of the king, to reverse a judgment given against him on circuit at Derby on a presentment of conspiracy; and he assigned as error that the presentment showed neither day, year, nor place; and also that the matter alleged, which was imprisonment of a man until he should pay a fine, sounded rather in the nature of oppression of the people than in conspiracy. It was answered that he had been arraigned and pleaded not guilty, and so had waived the irregularity; and also, that since his father, who had been indicted with the complainant as his only co-conspirator, was dead, a reversal of the judgment against the complainant would leave a judgment on record against the father, which the reversal in the complainant's case would show to have been erroneous; and so there would be inconsistent records. But the court held that the court in eyre ought not to have required the complainant to surrender on such a presentment, from which it could not be gathered whence the visne were to come; and they said, "It will be a strong "thing if the death of his neighbour or his companion shall bar his remedy. And because neither year, nor day, nor place was averred, and in conspiracy "it shall be said that they at such a place, &c.; and moreover because the principal matter of the conspiracy alleged is not conspiracy, but rather damage and oppression of the people. Wherefore we reverse and annul the judgment." 66 66 Anon. 1354. 27 Ass. p. 138 b, pl. 44. Note that two were indicted of confederacy, each to maintain the other, whether his cause should be true or false, and notwithstanding that nothing was suggested to have been put in ure, the parties were put to answer, because this thing is forbidden by the law (defendu en la ley). (See the Act, 33, Edw. 1, &c.) 1611. The Poulterers' Case, 9 Rep. 55 Moore, 814. Mich. 8 Jac. Regis. (In the Star Chamber. See Moore, 814; 1 Bulst. 150.) "The case between Stone, plaintiff, and Ralph Waters, Henry Bate, J. Woodbridge, and many others, Poulterers of London, defendants, for a combination, confederacy, and agreement betwixt them falsely and maliciously to charge the plaintiff (who had married the widow of a poulterer in Gracechurch Street) with the robbery of the said Ralph Waters, supposed to be committed in the county of Essex, and to procure him to be indicted, arraigned, adjudged and hanged, and in execution of this false conspiracy, they procured divers warrants of justices of peace by force whereof Stone was apprehended, examined and bound to appear at the assizes in Essex; at which assizes the defendants did appear, and preferred a bill of indictment of robbery against the said plaintiff'; and the justices of assize hearing the evidence to the grand jury openly in court, they perceived great malice in the defendants in the prosecution of the cause, and upon the whole matter it appeared, that the plaintiff the whole day that Waters was robbed was in London, so that it was impossible that he committed the robbery, and thereupon the grand inquest found-Ignoramus. And it was moved and strongly urged by the defendant's counsel, that admitting this combination, confederacy and agreement between them to indict the plaintiff to be false and malicious, that yet no action lies for it in this court or elsewhere, for divers reasons,-1. Because no writ of conspiracy for the party grieved, or indictment or other suit for the king lies, but where the party grieved is indicted, and legitimo modo acquietatus, as the books are [F. N. B. 114, &c]. 2. Every one who knows himself guilty may, to cover their offences and to terrify or discourage those who would prosecute the cause against them, and surmise a confederacy, combination, or agreement betwixt them, and by such means notorious offenders will escape unpunished, or, at least, justice will be in danger of being perverted, and great offences smothered, and therefore they said, that there was no precedent or warrant in law to maintain such a bill as this is. But upon good consideration it was resolved that the bill was maintainable; and in this case divers points were resolved. * * And it is true, that a writ of conspiracy lies not unless the party is indicted, and legitimo modo acquietatus, for so are the words of the writ; but that a false conspiracy betwixt divers persons shall be punished, although nothing be put in execution, is full and manifest in our books; and therefore in 27 Ass. p. 44, in the Articles of the charge of Enquiry by the Enquest in the King's Bench, there is a Nota, that two were indicted of confederacy, each of them to maintain the other, whether their matter be true or false, and notwithstanding that nothing was supposed to be put in execution, the parties were forced to answer to it, because the thing is forbidden by the law, which are the very words of the book; which proves that such false confederacy is forbidden by the law, although it was not put in use or executed. So there in the next articles in the same book, inquiry shall be of conspirators and confederates, who agree amongst themselves, &c. falsely, to indict, or acquit, &c. the manner of agreement and betwixt whom; which proves also, that confederacy to indict or acquit, although nothing is executed, is punishable by law: and there is another article concerning conspiracy betwixt merchants (a), and in these cases the conspiracy or confederacy is punishable although the conspiracy or confederacy be not executed; and it is held in 19 R. 2, Brief 926, a man shall have a writ of conspiracy, although they do nothing but conspire together, and he shall recover damages, and they may be also indicted thereof. Also the usual commission of oyer and terminer gives power to the commissioners to enquire, &c. de omnibus coadunationibus, confœderationibus, et falsis alliganciis; and coadunatio is a uniting of themselves together, confœderatio is a combination amongst them, and falsa alligantia is a false binding each to the other, by bond or promise, to execute some unlawful act. In these cases before the unlawful act executed the law punishes the coadnunation, confederacy or false alliance, to the end to prevent the unlawful act, quia quando aliquid prohibetur, prohibetur et id per quod pervenitur ad illud: et affectus punitur licet non sequatur effectus; and in these cases the common law is a law of mercy, for it prevents the malignant from doing mischief, and the innocent from suffering it. *** And afterwards upon the hearing of the case, and upon pregnant proofs, the defendants were sentenced for the said false conspiracy by fine and imprisonment. Nota reader, these confederacies, punishable by law, before they are executed, ought to have (a) This was on the statute 27 Edw. 3, st. 2, c. 3, and followed its words. |