It is therefore submitted that none of these authorities establish that combinations to invade legal rights are in themselves criminal, but that in each case there must be something more. And that something more has been differently regarded by different authorities, some holding that there must be not only a private wrong but a public mischief, others that the governing motive must be a malicious intent to injure; and others that there must as a general rule be nothing short of an intent to commit a criminal or fraudulent act.

The authorities in favour of the necessity of the last of these conditions are strangely disregarded by Mr. Butcher 1. The value of Mr. Wright's analysis of all previous decisions has been generally recognised in England and America; but is only referred to by Mr. Butcher with the somewhat double-edged remark that it was 'published in 1873. Still more strange is his estimate of the comparative unimportance of the omission of any such class of criminal conspiracies from the enumeration of criminal conspiracies known to English law in the Report of the Criminal Code Commission of 1878. It is as well to state how this matter stands.

Sir J. Stephen's Digest of the Criminal Law was published in 1877. In that exhaustive account of all crimes known to the law we find mention of conspiracy to commit crime, conspiracy to defraud, conspiracy to carry out purposes which the judges have regarded as injurious to the public, but no such class as is now alleged to be the outcome of English decisions. The great value of the Digest induced the then Attorney-General to request Sir J. Stephen to draft a Criminal Code 2. The code contained clauses dealing with the law of conspiracy substantially in accordance with the view taken in the Digest. It was brought into Parliament in the form of a Bill in 1878; the Bill was read a second time, and then referred to a Royal Commission. The Commissioners, Lord Blackburn, Justices Lush, Barry, and Stephen, devoted the whole of their time for many months to the preparation of their report, and of an amended draft of the Criminal Code. The subject of conspiracy is specially commented on by the Commissioners. They mention certain classes of conspiracies, but there is no class which includes conspiracies to injure otherwise than by crime or fraud. The list was given in my former article 3. They say that there is not perhaps any distinct authority for the proposition that there are at common law any criminal conspiracies other than those referred to.' There is however 'some degree of obscurity' on the subject, arising from

1 See his question to me, p. 255. What follows is my answer.

2 See speech of Sir J. Holker, May 14, 1878, Hansard, vol. 239, p. 1936.

3 Above, p. 134. See the passage of the Report set out in extenso. word 'perhaps' was omitted.

By an error the

the use, in current definitions of the crime, of the ambiguous word 'unlawful.' They propose to sweep away the common law, and to turn all conspiracies which had previously been distinctly recognised as crimes into statutory offences.

In 1879 and 1880 Bills were brought into the House of Commons by the then Home Secretary and Law Officers for the purpose of passing into law the code as drawn by the Commissioners, including the conspiracy clauses. Each of these Bills reached a second reading. Throughout the treatment of the law of conspiracy proposed by the Commissioners was adopted in the Bills, and so far as I know it was never suggested in any discussion on the subject that the conspiracy clauses did not, as the Commissioners intended, accurately represent the state of the common law 1.

This treatment of the subject of conspiracy at the time when the question distinctly arose what the law relating to it had been in the past, and what it should be in the future, appears to supply an authority worthy of more notice than it has received from Mr. Butcher, that, with the exceptions specifically provided for in the clauses of the code, the common law had never distinctly recognised as criminal any combination 'to invade legal rights' otherwise than by means of criminal or fraudulent acts. If any of the Bills brought in in 1878, 1879, and 1880 had passed into law, the question would have been settled, and the present controversy could not have arisen. A comparison of what the law would certainly have been in that case, with what it is now asserted to be by Mr. Butcher, will afford some measure of the increased width of area which the law of conspiracy is now thought to cover.

But Mr. Butcher finds fault with me not only for minimising the effect of the English authorities, but also for exaggerating the effect of some recent rulings and decisions in the Irish courts. I said (p. 139) that it had been in effect declared that an agreement to break a contract was in itself an indictable offence.' Mr. Butcher says that there is no trace of any such wide general proposition. As I have tried to show, this proposition is a necessary part of the general principle for which Mr. Butcher himself contends, and I do not understand why he should shrink from accepting it as good law. However, the immediate question is whether or not this is the principle on which it has been held that a combination to incite tenants not to pay their rents is criminal.

Mr. Butcher is of course right in saying that Lord Fitzgerald's charge in R. v. Parnell 2 should be read in extenso. Taken as

No point of the kind appears to be made in the detailed and hostile criticism of Cockburn C.J. contained in his letter to the Attorney-General, dated June 12, 1879. 2 14 Cox, 508.

a whole I cannot find from the report in Cox that any question was left to the jury on the part of the case in question as to the intent or motives of the defendants. If the defendants actually in concert incited tenants not to pay rents the crime was regarded as complete, because it was a combination to violate the legal rights of the landlord. But those legal rights are nothing more than his rights to have his contracts to pay the rent kept. It is mere tautology to say that the combination was not 'merely to break the contracts,' but 'involved also damage to the landlords and a violation of their legal rights.' So does every combination to break every kind of contract. There is nothing peculiarly sacred in the contract to pay rent to distinguish it from other contracts. It is true there may be moral differences depending on the circumstances of the particular cases affecting on the one hand the moral obligation of the tenant to pay, and on the other the moral right of the landlord to enforce the legal duty of paying rent, as may be illustrated by the hypothetical cases given above; and, in one of the views taken of the law of conspiracy, these moral differences may be of the utmost importance in determining whether or not the combination to refuse to pay rent is criminal; but it does not appear from the reports that considerations of this kind were taken into account in the rulings in question. Combinations not to pay or to incite others not to pay their rents were condemned as criminal, on the simple ground apparently that they are combinations to violate legal rights, or in other words to break contracts. It seems therefore that after these cases it would be difficult now to maintain in Sir J. Stephen's words that no case goes so far as to decide that a combination to commit a breach of contract is a conspiracy 1.'

It is quite true, as Mr. Butcher points out, that the indictment in R. v. Parnell charged something more than a mere breach of contract. It charged also an intent to impoverish. If the defendants had been convicted and the question had gone to the House of Lords by writ of error on the sufficiency of the indictment, the extremely interesting question would have arisen, whether the malicious intent having been found as a fact by the jury, the combination to commit a breach of contract was or was not criminal. This would have directly raised the question of the accuracy of the view taken by the Cockburn Commission, and Iwould have decided whether or not the Criminal Code Commissioners should have added another class to their enumeration of conspiracies known to English law.

Mr. Butcher asks me to say whether or not an English judge 1 Roscoe's Criminal Evidence, p. 417, ed. 1877.

would have ruled in the same way as Lord Fitzgerald. That is a question which it is impossible to answer, and which is not relevant to the issue between us. Lord Fitzgerald's ruling, confirmed as it was by the full Court, is a binding authority in Ireland, and of the greatest weight in England. The question is not whether it is right or wrong, but whether or not it carries the law of conspiracy a step further than had previously been reached. Whenever the question arises in the English courts whether or not it is criminal to combine to break contracts, Lord Fitzgerald's ruling will be a formidable authority in the way of those who have to maintain the negative.

Another important question on which Mr. Butcher differs from me is whether or not the Crimes Act of 1887, as judicially interpreted, has carried the law of conspiracy to a point not previously attained. In endeavouring to answer this question Mr. Butcher says that I have fallen into some 'confusion.' I will endeavour to clear it up.

acts.

The Act brings a certain class of conspiracies 'now punishable by law' within the summary jurisdiction of magistrates, instead of being as they were before the Act cognizable by indictment only. These are conspiracies now punishable by law' to induce or compel persons to do or abstain from doing certain specified The doing or abstaining from doing the specified acts is not by itself criminal1. All are agreed that the criminal element lies in the words' compel or induce.' The first question in applying the Act which a tribunal must solve is whether any proved state of facts establishes a conspiracy punishable by law at the date of the passing of the Act to 'compel or induce.' The practical solution of this question, which the Criminal Code Commissioners found involved in some obscurity,' was entrusted by the Legislature to the Resident Magistrates.

If the examination already attempted of the authorities is accurate, the question would be answered in different ways by different authorities. If the view of the Criminal Code Commissioners be accepted, and conspiracies are confined to those classes only as to the existence of which there was in the opinion of the Commissioners in 1878 distinct authority,' the proper equivalent for the words 'now punishable by law' would be 'conspiracies to compel or induce by means of criminal or fraudulent acts.' If the wider view of the law taken by the Cockburn Commission be accepted, it would be necessary to add

See the judgment of the Lord Chief Baron in Ex parte Stephens, in the collection to which Mr. Butcher has usefully called attention; Judgments, p. 307.

words such as 'or by wrongful (actionable) acts with malicious intent to injure.'

But in fact a wider view still has been taken of the acts denoted by the words 'criminal conspiracies now punishable by law.' In R. v. Druitt Lord Bramwell said, 'if any set of men agreed among themselves to coerce that liberty of mind and thought,' (that is, the liberty of a man's mind and will to say how he should bestow himself, his means, his talents and his industry,') 'by coercion and restraint, they would be guilty of a criminal offence, namely that of conspiracy against the liberty of mind and freedom of will of those towards whom they so conducted themselves.' Lord Bramwell was dealing with a combination to interfere with the free course of trade and labour, and says immediately after that 'the public have an interest in the way in which a man disposes of his labour and his capital.'

These expressions had not till recently been generally accepted as laying down a general rule of law. They were used in a tradesunion case, at a time when there was strong authority, as yet unaffected by the legislation of 1871, 1875, and 1876, as to the legal consequences of the public mischief thought to be occasioned by combinations to influence the rate of wages and the freedom of labour. Lord Justice Lush appears to have thought that the expressions ought to be confined to the circumstances of the particular case in which they were used, where there was evidence of violence and intimidation 2. Mr. Justice Stephen considered that if correctly reported the law was laid down far too widely on that occasion3. Taken in their widest sense the expressions are inconsistent with if not expressly dissented from in the Report of the Cockburn Commission, for Lord Bramwell does not appear to confine himself to the case where the means contemplated are such as would give rise to a civil action. A fortiori the language is irreconcileable with the view of the Criminal Code Commissioners.

These expressions however have recently been adopted as affording a measure or test of the criminality of the inducement which is by the statute brought within the jurisdiction of the magistrates. In In re Heaphy, after quoting the passage from R. v. Druitt above referred to, the Lord Chief Baron proceeds: That is the principle attempted to be carried out by the use of the word "induce," in connexion with the criminal law. I therefore hold that the inducement must be such as unduly to affect or control the mind of the person against whom it is exercised.' Exactly the same interpretation of

1 10 Cox, 592.

2 R. v. Shepherd, 11 Cox, 325.

3 History of Criminal Law, iii. p. 222.

* See passage quoted, p. 135, and compare Lord Bramwell's words, quoted p. 134. 5 22 L. R. I. 525.