droit international privé (Surville)-De la compétence des tribunaux à l'égard des souverains et des états étrangers (Gabba)—De la propriété intellectuelle internationale d'après la législation anglaise (Rolt)-La naturalisation et la renonciation à la nationalité d'après la législation suisse (Estoppey). Zeitschrift für das Privat- und Öffentliche Recht der Gegenwart. Vol. XVII, Part I. Vienna Alfred Hölder.

Zwei Streitfragen aus dem Bereiche des Liquidationsverfahrens im Concurse (Ott)-Zwei Beiträge zur Quellenexegese (Mitteis)-Zur Theorie des Anklageprocesses (Friedmann)-Zur Lehre von der persönlichen Haftung des Käufers einer belasteten Liegenschaft f. d. Hypothekarschulden (v. Czoernig)—Legislative Erörterungen, etc. (Jacoby).

Archiv für Oeffentliches Recht. Vol. IV, Part 4. Vol. V, Part 1. Freiburg i. B.: J. C. B. Mohr.

Der Begriff der Selbstverwaltung im Rechtssinne (Schluss) (Neukamp)— Die Grundzüge der Verwaltungsorganisation der französischen Colonialgebiete (Lucas and Blondel)-Ueber den Begriff der Polizei u. insbesondere der Sicherheitspolizei nach preussischem Rechte (Gerland) Das Veto d. deutschen Kaisers (Kolbow)-Zur Lehre v. d. ewigen Neutralität (Rettich). Zeitschrift für die gesamte Strafrechtswissenschaft. Vol. IX, No. 6. Vol. X, No. 1. Berlin: J. Guttentag.

Kriminalpolitische Aufgaben (Liszt)- Der Strafvollzug in Preussen (Koblinski)-Wider die Polizeiaufsicht! (Braune)-Zwei Fragen aus dem Militärstrafrecht (Delius)-Breslaus Strafrechtspflege im 14. bis 16. Jahrhundert (Frauenstädt) Über individuelle Faktoren des Verbrechens (Sichart) Zur Reform in schöffengerichtlichen Strafsachen (Lewald)-Über Zeugenbeweisanträge im Strafverfahren (Ditzen).

Archiv für Bürgerliches Recht. Vol. III, No. 1. Berlin: Carl Heymann. Passivenübergang bei Geschäftsübernahme (Adler) - Dinglichkeit der Miethe in der Zwangsvollstreckung (Lippmann).

Beiträge zur Erläuterung des Deutschen Rechts. Vol. XXXIII, No. 6. Franz Vahlen.

Consequences of refusal to perform ecclesiastical marriage ceremony in Prussia (von Brünneck)—Reciprocal effects of civil and criminal judgments (Brettner)-Kostenentscheidung bei Theilurtheilen (Jastrow)-The Juristentag on the Draft Civil Code (Klöppel).

Zeitschrift für Deutschen Civilprozess. Vol. XIV, Part 3. Berlin: Carl Heymann.

Beweis der Vollmacht (Pfizer)-Versäumnissurtheil gegen den Beklagten (Gensel).

Archivio Giuridico. Vol. XLIII, Nos. 1-3. Pisa.

Dei mediatori (Grego)-Ricerche sulla natura dell' appello incidente (Pistoni)-Della rappresentanza nella conclusione dei contratti (Tartufari)Studio sull' origine e sullo sviluppo storico del colonato romano (Segrè)— Appleton's Histoire de la propriété prétorienne et de l'action publicienne' (Buonamici)-Riassunti di opere germaniche di diritto romano e comune (Serafini)-Review of penal law (Castori).

Bulletino dell' Istituto di Diritto Romano. Anno II, Nos. 3-5. Rome.

Sopra una iscrizione scoperta in Frisia: editto costantiniano de accusa

tionibus (Mommsen)-Nerone e la libertà Ellenica (Gatti)—Sulla prima metà del fragmentum, etc. (Lenel)-Dell' azione che davasi secondo l'antico diritto romano contro i curatori (Alibrandi)—Due interpretazioni in materia di servitù (Scialoja)-Appunti sulla dottrina della specificazione (Ferrini) -A Plutarco Romolo c. 22' (Trincheri).

Rivista Italiana per le Scienze Giuridiche. Vol. VIII, No. 1. Rome : Ermanno Loescher & Co.

Su l'imitazione bizantina negli scritti dei glossatori (La Mantia)-Della personalità giuridica (Giorgi).

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Mixed marriages (Haas)-Revision of the Civil Code (van den Biesen) -The ius offerendi in Roman law (Sutro).

Rechtsgeleerd Magazijn. Vol. VIII, No. 6. Haarlem: F. Bohn.

Tweeërlei rechtsbeschouwing (van der Wijck)-Hoenderpacht (Tellegen) -Par manière de dire: Antwoord aan P. van Bemmelen (Naber)-Exposé de la jurisprudence française en matière de droit commercial international (Dramard).

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LAW QUARTERLY

REVIEW.

No. XXII. April, 1890.

THE LAW OF CRIMINAL CONSPIRACY IN ENGLAND AND IRELAND.

Nil-defined than the law of Criminal Conspiracy. It is

O branch of the law of England is more uncertain and

distinctly of modern growth, and its area has from time to time been extended or curtailed by the views divergent or even conflicting of the judges on whom the duty has been cast of directing juries as to the nature of the crime. In no department of English law is the want of a Court of Criminal Appeal more conspicuous. The law has in a great measure to be gathered from the charges of judges, often imperfectly reported, which have never stood the test of argument or review before a Court of Appeal.

6

The expression 'conspirators' as a legal term appears to have its origin in the ordinance of 33 Edward I, entitled A Definition of Conspirators.' This ordinance is directed against confederacy and alliance for the false and malicious promotion of indictments and pleas and various forms of 'maintenance.' Even Blackstone only mentions conspiracy' as the crime 'where two or more conspire to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted. All these ingredients were necessary for the crime of conspiracy. It had however been held in the Star Chamber in the Poulterer's case 2 in 1611 that an agreement for a conspiracy, still using the term in a strict sense, was itself indictable, whether the conspiracy was actually carried into effect or not.

After the decision in the Poulterer's case the doctrine that a combination to commit a crime was itself criminal was extended to other cases than that of 'conspiracy' properly so called, and the agreement or combination itself received the name of conspiracy. During the seventeenth century the Star Chamber, and after its abolition the Courts of Exchequer and King's Bench, assumed 1 Com. iv. 136. 9 Coke's Reports, 55. VOL. VI.

K

2

a wide jurisdiction to inflict punishment for wrong-doing1. Thus practically the area of the criminal law was greatly extended, and the law of conspiracy kept pace with the extension of the criminal law.

It would serve no good purpose to trace the history of the law of conspiracy since the Poulterer's case, if it were possible satisfactorily to do so. What is more material for the purpose of the present paper is to ascertain as far as possible what was the state of the common law as to the necessary elements of the crime of conspiracy at the time of the passing of the Criminal Law and Procedure (Ireland) Act, 1887 2.

The principal class of acts which undoubtedly are punishable as conspiracies afford little difficulty. An agreement of two or more persons to commit a crime is itself criminal, whether or no the crime be actually committed. The criminality consists in the intention, which must be proved by evidence of agreement or combination with the criminal purpose. Proof of these facts justifies a conviction.

The crime which is the subject-matter of the agreement may either be the final end and purpose of the agreement, or may be the means by which an innocent or non-criminal purpose is to be effected. The only question which presents any difficulty in reference to this class of combinations appears to be where the object of the combination is or may be merely a minor offence. The criminal act contemplated must probably be an offence of sufficient gravity. An agreement between two boys to violate the Park regulations by fishing in the Serpentine, could hardly be the subject of an indictment for conspiracy. The Conspiracy Act of 1875, dealing with combination in furtherance of trade disputes, limits the word 'criminal' to indictable offences, and offences punishable on summary conviction by imprisonment. Probably some analogous limitation would be applied by the Courts if and when the necessity should arise.

In considering the practical application of the law of conspiracy it is of the utmost importance to keep clearly distinct the questions of law and the questions of fact-the province of the judge and the province of the jury. In the class of combinations under consideration-combinations to commit crime-these provinces are easily distinguished. The direction of the judge to the jury is simply that they must be satisfied that the parties combined to commit crime. If crime was the natural and probable result of the combination, the jury would be justified in inferring a criminal

1 Wright's Law of Criminal Conspiracies and Agreements, 1873, p. 8.

2

50 & 51 Vict. c. 20.

intention, but the question of the existence of this intention is a question entirely of fact, to be decided by the jury.

The great difficulty of the inquiry as to the necessary elements of the crime of conspiracy begins when there is no act intended by the parties combining which would be criminal if done by an individual. Beyond all question there are, as the law now stands, some cases where an indictment for a criminal conspiracy may be maintained, although if the purpose of the conspiracy were carried into effect, no indictment would lie against any individual for anything done in pursuance of the combination. The cases in which such combinations are criminal may perhaps be arranged under the following classes :—

Combinations to do acts which are injurious to the public or the government have, in some cases at all events, been dealt with by the Courts as criminal. This class of crimes was introduced by the decision in Starling's case1 in 1665, in which certain Brewers of London were convicted for a conspiracy to 'depauperate' the farmers of excise. On a motion to quash the indictment it was held, after much doubt, that inasmuch as the 'depauperating' the farmers of excise must have the effect of making them incapable of rendering the king his revenue, the offence was directly of a public nature and levelled at the Government, and the gist of the offence was its influence on the public. Another instance of a conspiracy which has been suggested or held to be indictable on this ground is a combination of officers to throw up their commissions in time of danger 3, and another is a combination to disturb the price of the funds by false rumours 4.

There is however very little authority beyond a few dicta as to the extent of the rule that combinations to do acts injurious to the public are in themselves criminal. Mr. Wright has shown 5 that in most, if not all, the reported cases where combinations have been held to be criminal on this ground, the acts which were contemplated would, according to the views prevailing at the time, have been considered criminal apart from the combination; and it seems impossible to describe this class of conspiracies in terms more precise than those used by Mr. Justice Stephen, 'Agreements between more persons than one to carry out purposes which the judges regarded as injurious to the public ".'

There is a class of combinations which at one time were regarded by many high authorities as criminal, apparently on the

6 Digest of the Criminal Law, Art. 160.