the words is adopted in Ex parte Conners1, R. v. Farrelly 2, R. v. M'Cormack 3, and Ex parte Stephens. The statute therefore thus interpreted declares that it is a criminal conspiracy punishable on summary conviction by magistrates to combine 'unduly to affect or control the free will' of other persons and so induce them to do or not to do any of the specified acts. This interpretation of the Act makes the question, as I argued in my former article, ' almost entirely one of fact' whether or not there has been undue inducement applied to other persons to cause them not to deal, &c. I find that I was unconsciously using nearly the very words of the Chief Baron in R. v. Farrelly. He there explains undue inducement as meaning 'the use of influence of such a character, and so exercised as to entitle the magistrates, as a tribunal of fact, to say that it was calculated to unduly affect the freedom of action of the persons against whom it was exercised 5.' I said further that this view of the law of conspiracy leaves the tribunal practically without a check, except by way of appeal on the question of fact, when the sentence is sufficiently severe- never a very efficient remedy.' Mr. Butcher severely criticises this observation, and says that besides the appeal on the question of fact, where the sentence exceeds a month, there are two other modes of checking the decisions of the magistrates, by case stated or mandamus to state one, and by an application for a habeas corpus. Mr. Butcher strangely misses the whole point of my observation. A case can only be stated upon a question of law; and an application for the writ of habeas corpus can only be made upon the ground that there is no evidence on which the magistrates might lawfully act, which is a question of law, and not upon the ground whether the magistrates were right in convicting upon the evidence, which is a question of fact. The distinction is repeatedly pointed out in the volume of Judgments", and examples occur every day in the Queen's Bench Division. The point of my observation was that, with so vague a definition of the crime as combining to unduly affect freedom of action, it is impossible to set any limits in point of law to what may or may not be considered in fact undue inducement. If indeed, as in Heaphy's case, there is no evidence of inducement at all, no evidence that the action of all the persons. 1 Judgments, p. 157. 4 Ibid. p. 297. 2 Ibid. p. 228. 5 Ibid. p. 225. 3 Ibid. p. 244. 6 See for instance Andrews J., Judgments, p. 155: 'On habeas corpus the Court both can and ought to refer to the evidence to ascertain, not whether there was a preponderance of evidence on one side or the other, but whether there was any evidence at all to sustain the conviction.' See too the statement of the question which the Court has to decide by the Chief Baron, p. 136. concerned is not completely free and voluntary, there then is no evidence that any crime within the section has been committed, -and the Court will interfere; but once have any real evidence of inducement, whether by a look, a gesture, a word, a threat, or an act, it becomes a question of fact for the magistrates whether or not that inducement was 'undue;' and that is a question of fact which cannot be made the subject of a case stated, or of an application for a writ of habeas corpus. I ventured to suggest that the time had come when the precedent of the Act of 18751 might with advantage be followed, and a statutory limitation upon the present views of the common law doctrine of conspiracy, probably on the lines of the draft code and bills of 1879 and 1880, similar to that which combinations in furtherance of trade disputes now enjoy, might be made of general application. Mr. Butcher does not agree with this suggestion, and recommends a study of the Act to those who suggest that the freedom of workmen to combine is widely different from that of agricultural tenants. I cannot follow the observations which Mr. Butcher makes on the Act of 1875. He appears to argue as if the criminal provisions contained in section 7 of that statute were intended as a sort of set-off to the limitation in the 3rd section of the definition of conspiracy. He says that combinations of workmen which involve any modes of compulsion or undue influence specified in the Act of 1875 are criminal, although they do not involve what are generally known as criminal acts.' But Mr. Butcher seems to forget that while the restriction of the law of conspiracy by the 3rd section of the Act is confined to conspiracies in furtherance of trade disputes, the provisions of the 7th section extending the criminal law are general, and apply as much to combinations of agricultural tenants or any other persons as to trades unionists. This was shown in the recent conviction under the statute of boycotters in Liverpool before Mr. Justice Grantham 2. It is idle to say that the acts made punishable as crimes by the statute are not 'generally known as 1 The Conspiracy and Protection of Property Act, 1875, 38 & 39 Vict. c. 86. 2 R. v. Bellew & Fitzgerald, Times, Dec. 20, 1889. To judge from the comments on this case in the press and in Parliament it seems to have been much misunderstood. The seventh section of the Act of 1875 makes it an offence punishable with three months' imprisonment with hard labour 'to persistently follow a person about from place to place,' 'with intent to compel him to abstain from doing any act which that person has a legal right to do.' The defendants were charged with committing the acts prohibited by this section, and also with conspiring to commit the crime thereby defined. There was abundant evidence that they were acting in concert to prevent the sale of cattle from the Massereene estate in Ireland, and that for this purpose they persistently followed about the persons charged with the sale. Upon a general verdict of guilty, they were sentenced to three months' hard labour as the statute warrants. The case appears to present no legal difficulty or anomaly whatever. criminal acts.' They are as much crimes as any acts prohibited by any other portion of the English criminal law. If they were not crimes at common law they are now expressly made so by statute. The result is that while agricultural tenants and all other persons have been placed under the criminal provisions of the Act of 1875, the benefit of the enactment of the 3rd section, which limits a criminal conspiracy to combinations to commit crime, is confined to combinations in furtherance of trade disputes 1. I have now touched upon the principal points in difference between Mr. Butcher and myself. After carefully considering his elaborate criticism, I cannot find that there is any part of my former article which I desire to retract or modify. KENELM E. DIGBY. NOTE ON THE CASE OF R. v. DOYLE AND OTHERS. FREEMAN'S JOURNAL, The most recent and important exposition of the view of the Lord Chief Baron of the law of conspiracy was given in the above-mentioned case, which was tried at Wicklow in July last. I have had access to no other report than that in the Freeman's Journal, and though it appears to be fairly full and complete the following observations must be taken with the qualification that they are based only upon a newspaper report. They are offered with great submission, and with no other object than to attempt to help to clear up by discussion a most important and difficult question. In this case some tenants having been evicted from their holdings, four persons took the vacant farms. The defendants were accused of a conspiracy to prevent these persons obtaining supplies of goods. Two distinct charges. were made: (1) That some of the defendants combined to refuse to sell their own goods to the 'planters,' as the new tenants were called, with intent to injure them. (2) That some of the defendants conspired to induce other persons not to sell to the planters with the like intent. At the close of the evidence the Chief Baron called on the Counsel for the Crown to show how the first of these charges could be established in point of law, saying that he was inclined to tell the jury that such a conspiracy would not be an indictable conspiracy. The material part of the report is as follows: 'Mr. Carson, Q.C., said that a conspiracy to impoverish a trader was illegal. The Chief Baron. By wrongful means. Mr. Carson, Q.C. By any means. If this conspiracy was a conspiracy to 1 See Judgments, p. 258. impoverish these persons and prevent them carrying on their business as farmers, and the methods used were these particular refusals to supply them with goods, there would be such a case as the jury might convict upon. The object of the conspiracy was not for the purpose of refusing to supply goods, but to impoverish these people. The Chief Baron said that in such a case as the present, in order to render a conspiracy indictable it must be to commit a wrong with intent to injure. He thought that wrong in this sense meant a civil wrong, and an actionable wrong. He held therefore that in such a case as the present there must be evidence that the defendant did or was a party to doing an act which at least constituted a civil wrong and could be made the subject of an action; and secondly that he did that act in combination with others. On the one hand one might lawfully refuse to deal or trade with another without assigning any reason, and so he should also hold that many might agree to refuse to deal with another person without assigning any reason. On the other hand no one could break a civil contract without involving a civil wrong, and he would hold that in every case where there was a breach of contract there was the element of wrong that he had referred to in the first instance.' This expression of the Lord Chief Baron's opinion indicates apparently a more restricted view of the law of conspiracy than had been taken in previous cases. In R. v. Heaphy, in a passage quoted both by Mr. Butcher and myself (pp. 139 and 254), it had been said that a concerted refusal to supply the police with bread with a view to injure them amounted to a criminal conspiracy. The same doctrine was emphatically laid down in R. v. Farrelly (Judgments, at p. 226), in a passage which draws a broad distinction between the refusal of a single person to deal which is lawful, and the combined refusal of several, which is said to be criminal if proved as a fact to be done with intent to injure. These rulings were previous to the decision of the Mogul case by the Court of Appeal: and it is apparently on that authority that the Chief Baron held, if correctly reported, in R. v. Doyle that a voluntary agreement to refuse to supply to other persons the goods of the combining parties, though with intent to impoverish, does not, taken alone, amount to a criminal conspiracy, because the parties collectively agree to do no more than each of them had a right to do separately. The Chief Baron distinguishes the case where A, B, and C voluntarily agree to refuse to supply their own goods to D, from the case where C was willing to supply goods to D but was induced by A and B, acting in concert, not to do so. In that case it would be a question for the jury whether the inducement was ' undue.' On this part of the case he laid down the law in terms similar to those which have been already discussed. But is not this part of the case too affected by the principle which the Chief Baron recognised as governing the first point? Does not the necessity of the existence of an intention to do a wrongful act, limit the range within which the jury may properly find that the inducement was ' undue '? If A and B had said to C, 'If you deal with D we will never again invite you to dinner,' would this be any evidence of 'undue' inducement? I should suppose not on the principle laid down by the Chief Baron. Would not the same principle apply if they said 'If you deal with D, we will cease to deal with you'? On the other hand, if A and B had said 'If you deal with D we will not pay you the money which we owe you,' there would be evidence of an intention to adopt wrongful means of inducement, and the element of unlawfulness, if that be sufficient, would be present. No such distinction, however, appears to be drawn in the summing up in this case, nor does it appear in any of the reported cases to have been in practice applied. The contention in the foregoing articles has been that the authorities are not unanimous as to the existence of evidence of a criminal conspiracy, unless a further element be added, namely evidence of an agreement to employ crime or fraud as a means of inducement, as for instance if A and B had by words or conduct intimated to C, 'If you deal with D, we will break your head, or maim your cattle.' K. E. D. |