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defendants are guilty generally, that five of them are guilty of conspiring to effect some, and not guilty as to the residue of these objects, is bad in law and repugnant; inasmuch as the finding that the three were guilty was a finding that they were guilty of conspiring with the other five to effect all the objects of the conspiracy, whereas by the same finding it appears that the otiier five were guilty of conspiring to effect only some of the objects. Id.
A count charging the defendants with conspiring to cause and procure divers subjects to meet together in large numbers for the unlawful and seditious purpose of obtaining, by means of the intimidation to be thereby caused, and by means of the exhibition and demonstration of great physical force at t;uch meetings, changes in the government, laws, and constitutions of the realm, is bad; first, because "intimidation" is not a technical word, having a necessary meaning in a bad sense; and secondly, because it is not distinctly shown what species of intimidation is intended to be produced, or on whom it is intended to operate. Id.
A conspiracy to enable G. to obtain goods on credit, the object being that G. might re-sell them below their value to the conspirators, is indictable. R. v. Orman, 14 Cox, C. C. 381.
♦Particulars of the conspiracy. Where the counts of an r*^og indictment for conspiracy were framed in a general form, Lit- L tledale, J., (after consulting several other judges), ordered the prosecutor to furnish the defendants with a particular of the charges, and that the particular should give the same information to the defendants that would be given by a special count. But the learned judge refused to compel the prosecutor to state in his particular the specific acts with which the defendants were charged, and the times and places at which those acts were alleged to have occurred. R. v. Hamilton, 7 C. & P. 448, 32 E. C. L. See further as to particulars, ante, p. 194. If particulars have not been delivered as directed, the evidence will not thereby be excluded. See p. 195. R. t;. Esdaile, 1 F. & F. 213, 228.
Form of indictment. It is not uncommon to set out in the indictment the overt acts by which the object of the conspiracy was sought to be attained. But an indictment is good which charges a conspiracy to do an unlawful act without alleging any overt acts whatever; R. v. Kinnersley, Str. 193; R. v. Gill, 2 B. & Aid. 204; R. v. Kenrick, 5 Q. B. 49, 48 E. C. L.1
Where the indictment alleged a conspiracy to fraudulently remove goods of one Moritz Heymann contrary to the Debtors Act, he being a trader and liable to become a bankrupt; but did not allege that the parties conspired in contemplation of or with a view to a bankruptcy; the court said tliat, although no overt act was necessary, yet they were
1 It is not necessary that the character of the relation between the act and the conspiracy should be detailed in the indictment. See U. S. v. Donan, 11 Blatch. 168; V. 8. t7. Ulrici, 3 Dill. 532; contra, State v. Clarey, 64 Me. 369; State v. McKinstry, 50 Ind. 465; U. S. t>. Cruikshank, 92 U. S. 542.
not prepared to say that the indictment ought not to have alleged the agreement or conspiracy to be in contemplation of or with a view to bankruptcy. But they held that the objection, if good on demurrer, was cured by the verdict. Heymann v. The Queen, L. E. 8 Q. B. 102. See also R. v. Aspinall, supra, p. 427, as to the last point.
Venue. The gist of the offence in conspiracy being the act of conspiring together, and not the act done in pursuance of such combination, the venue in principle ought to be laid in the county in which the conspiracy took place, and not where, in the result, the conspiracy was put into execution. R. v. Best, 1 Salk. 174; 3 Russ. Cri. 142, 5th ed., and see R. v. Kohn, ante, p. 257. But it has been said, by the Court of King's Bench, that there seems to be no reason why the crime of conspiracy, amounting only to a misdemeanor, ought not to be tried wherever one distinct overt act of conspiracy was in fact committed, as well as the crime of high treason, in compassing and imagining the death of the king, or in conspiring to levy war. R. r. Brisac, 4 East, 164. So where the conspiracy, as against all the defendants, having been proved, by showing a community of criminal purpose, and by the joint co-operation of the defendants in forwarding the objects of it in different counties and places, the locality required for the purpose of trial was held to be satisfied by overt acts done by some of the defendants in the county where the trial was had in prosecution of the conspiracy. R. v. Bowes, cited in R. v. Brisac, supra.
Conspiracy to murder persons whether her Majesty's subjects or not. By the 24 & 25 Vict. c. 100, s. 4, "all persons who shall conspire, confederate, and agree to murder any person, whether he be a subject of her Majesty or not, and whether he be within the queen's dominions *4*}71 *or not> an<^ whosoever shall solicit, encourage, persuade, or J endeavor to persuade, or sliall propose to any person to murder any other person, whether he be a subject of her Majesty or not, and whether he be within the queen's dominions or not, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not more than ten and not less three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor." The prisoner, who was editor of a newspaper with a circulation of twelve hundred copies was convicted of publishing an article intending to encourage and encouraging persons to commit murder, and it was held that the conviction was right although the encouragement was not addressed to any person in particular. R. v. Most, 7 Q. B. D. 244; 50 L. J., M. C. 113.
•CONSPIRACIES IN RESTRAINT OF TRADE. [*438
The law relating to conspiracies in restraint of trade is regulated partly by the common law and partly by statutes. Stated broadly, the result of the authorities appears to be that at common law all / • combinations to effect alterations in the rate of wages are illegal conspiracies, those only being excepted which are protected by the express words of certain statutes. Of these statutes there have been four, namely, 5 Geo. 4, c. 96; 6 Geo. 4, c. 129; 34 & 35 Vict, c. 32; and 38 & 39 Vict. c. 86; which last is now in force. The exceptions made to the common law doctrine by the 6 Geo. 4, c. 129, were narrower than those subsequently made, but certain decisions as to the extent of the common law have practically narrowed considerably the importance of the exceptions. The subject will, accordingly, be treated in the following order:—
1. The common law as to combinations with relation to wages as it was before the statute 6 Geo. 4, c. 129.
2. The decisions as to the extent to which the common law has been modified by the statute 34 & 35 Vict, c. 32.
3. The statute 38 & 39 Vict. c. 86.
Many decisions took place upon the statute 6 Geo. 4, c. 129, but as they turned for the most part upon the words of the Act, which is now repealed, they are here only referred to. The principal decisions under the repealed statute are R. v. Rowlands, R. v. Duffield, R. r. Selsby, R. v. Hewitt, 5 Cox, C. C. 162, 404, 436 495; Walsby v. Anley, 30 L. J., M. C. 120; O'Neil v. Longman, 32 L. J., M. G 259; Skinner v. Kitch, L. R. 2 Q. B. 393; Wood v. Bowron, Id. 21; R. ». Shepherd, 11 Cox, C. C. 325.
1. At common law. The common law appears to be that a purpose to raise or indeed to affect in any way the rate of wages, is one of those purposes which it is unlawful for people to try to effect by combination, though they may lawfully be effected by individual efforts, and that therefore a combination on the part of workmen to raise their wages is an indictable conspiracy.
This doctrine is no doubt harsh, and its prevalence can be explained only by reference to the considerations already stated upon the law of conspiracy. It affords a case in which the judges have availed themselves of the power which that branch of the law confers upon them, of holding that the intent to raise or affect the rate of wages artificially is so mischievous to the public, that a combination for that purpose is a crime. They were no doubt countenanced in this opinion by views of political economy now obsolete, and by the character of a great mass of legislation now repealed. The doctrine in question rests upon the following authorities:
In 1721, Wise and several other journeyman tailors of Cambridge were indicted for a conspiracy to raise their wages, and were convicted. f^QI arres* °f judgment it was urged that no crime appeared J upon the face of the indictment, as it only charged a conspiracy and refusal to work at so much per diem, whereas the defendants were not obliged to work at all by the day, but by the year by 5 Eliz. c 4 (repealed). The court said, "The indictment, it is true, sets forth that the defendants refused to work under the wages which they demanded; but although these might be more than is directed by the statute, yet it is not for the refusing to work but for conspiring that they are indicted, and a conspiracy of any kind is illegal, although the matter about which they conspired might have been lawful for them or any of them to do, if they had not conspired to do it." R. v. Tailors of Cambridge, 8 Mod. 11.
In 1799, two journeymen shoemakers were indicted for a conspiracy to raise their wages. Evidence was given that a plan for a combination of the journeymen shoemakers had been formed and printed in 1792, regulating their meetings, the subscriptions for their mutual support, and other matters for their mutual government in forwarding their designs. Evidence of this was allowed to be given before the defendants were connected with it, and it seems that .upon proof of tiieir being members of the society they were convicted. In the course of the evidence it was stated that the demands of the journeymen had been occasioned by one of the masters giving wages beyond what was usual in the trade, and Lord Kenyon said that the masters ehould be cautious of conducting themselves in that way, as they were as liable to an indictment for conspiracy as the journeymen. R. v. Hammond and AVelch, 2Esp. 719.
In 1783, seven persons were indicted for conspiring to impoverish one Booth, and to deprive and hinder him from using and exercising the trade of a tailor. The means are not set out in the indictment. Lord Mansfield said on delivering judgment, on a motion in arrest of judgment, "The illegal combination is the gist 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 an indictable offence." R. v. Eccles, 1 Lea. 274.
Several magistrates being indicted for a conspiracy to pervert the course of justice, by conspiring to produce in evidence a false certificate, the nature of the crime of conspiracy was much discussed, and a great number of authorities were cited to show that it might be a crime to conspire to do acts which if done by individuals would be lawful. In delivering judgment, Grose, J., said, " In many cases an agreement to do a certain thing has been considered as the subject of an indictment for a conspiracy, though the same act, if done separately by each individual, without any agreement among themselves, would not have been illegal. As in the case of journeymen conspiring to raise their wages: each may insist on raising his wages if he can, but if several meet for the same purpose, it is illegal, and the parties may be indicted for a conspiracy." R. v. Mawbey, 6 T. R. 636.
It must be borne in mind that when these cases were decided, a great number of statutes, collectively known as the combination laws, were in force. Many of them forbad, in express terms, combinations of workmen in particular trades to raise their wages. Others forbad all combinations in general terms and under severe penalties. The first of these was 2 & 3 Edw. 6, c. 15, and the last *39 & 40 Geo. 3, c. 106 (repealed). Others again authorized r*44Q magistrates in quarter sessions to fix the rate of wages (see 5 Eliz. c. 4, and 1 Jac. 1, c. 6, repealed statutes). Thus the decisions above referred to were in strict uniformity, at the time when they were pronounced, both with the spirit and with the practice of the statute law.
Against this is to be set the language of Lord Campbell in Hilton v. Eckersley, 6 E. & B. 62, 88 E. C. L. In that case the defendant was sued on a bond which he and seven other obligors had executed, by which the obligors agreed to cany on their business on certain terms which were said to be illegal and void, as being in restraint of trade. In giving judgment that the bond was void (which was afterwards affirmed in the Exchequer Chamber), Crompton, J., referred to the language of Grose, J., in R. v. Mawbey, supra, as a proof that at common law such conditions were illegal. Lord Campbell agreed that the bond was void, but said: "I am not prepared to say that the combination which has been entered into between the parties to this bond would be illegal at common law, so as to render them liable to an indictment for a conspiracy. Such a doctrine may be deduced from the dictum of Grose, J., in R. v. Mawbey. Other loose expressions may be found in the books to the same effect, and if the matter were doubtful, an argument might be drawn from some of the language of the statutes respecting combinations. But I cannot bring myself to believe, without authority much more cogent, that if two workmen who sincerely believe their wages to be inadequate should meet and agree that they would not work unless their wages were raised, without designing or contemplating violence or any illegal means for gaining their object, they would be guilty of a misdemeanor, and liable to be punished by fine and imprisonment. The object is not illegal, and therefore if no illegal means are to be used, there is no indictable conspiracy. Wages may be unreasonably low or unreasonably high; and I cannot understand why, in the one case, workmen can be considered as guilty of a crime in trying by lawful means to raise them, or masters, in the other, can be considered guilty of a crime in trying by lawful means to lower them."
It is difficult to answer this reasoning upon general grounds, but the authorities quoted above appear to prove that the opinion of Lord Campbell's predecessors as to what sort of conduct was highly injurious to the public interests differed from those of Lord Campbell himself. Surely the judgments referred to above are not adequately d&