force contracts and agreements upon which they are founded or in which they are interested. 340. Definition of conspiracy restated.— The definition of conspiracy herein before given' may very properly be restated in this connection: Conspiracy is the combination of two or more persons to do (a) something that is unlawful, oppressive or immoral; or (b) something that is not unlawful, oppressive or immoral, by unlawful, oppressive or immoral means; (c) something that is unlawful, oppressive or immoral, by unlawful, oppressive or immoral means. This definition is comprehensive in its nature, and includes both civil and criminal conspiracies. While many of the decisions go so far as to either hold or intimate that parties are subject to indictment and conviction for combining together to do something that is simply oppressive, but which is not in any sense criminal, these decisions are extreme in their nature and do not command the approval of the sober judgment of the disinterested legal mind. The civil court may award damages to parties injured by a conspiracy to oppress, but it violates the sense of justice to say that a man shall be punished criminally for doing that which is neither directly nor indirectly a violation of any provision of the criminal law. Furthermore, the civil courts will give full effect to the doctrine of public policy, and will refuse to enforce any agreement lying at the foundation of a combination to do something contrary to public policy; but it will not do to say that the parties to a combination, which is illegal because in its objects it contemplates doing something contrary to public policy, are subject to prosecution and conviction when at no time did they intend doing anything of a criminal character. (B) THE LAW OF CRIMINAL CONSPIRACY. § 341. Criminal conspiracy defined.— A criminal conspiracy is a combination of two or more persons to do something which is criminal, or to do something which is not criminal by criminal means, or something which is criminal by criminal means. The foregoing is a strict and logical definition of a criminal 1See § 171. conspiracy. It excludes from the category of criminal conspiracies all conspiracies which contemplate neither as a means nor an object some criminal purpose. Under this strict definition a conspiracy is not criminal unless in either the means or the object contemplated the criminal element appears. 342. Chief Justice Shaw's definition.- The well-known definition of Chief Justice Shaw is as follows: "Without attempting to review or reconcile all the cases, we are of opinion that as a general description, though perhaps not a precise or accurate definition, a conspiracy must be a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means. We use the term 'criminal or unlawful' because it is manifest that many acts are unlawful which are not punishable by indictment or other public prosecution; and yet there is no doubt, we think, that a combination by numbers to do them would be an unlawful conspiracy and punishable by indictment;" and he adds, "but yet it is clear that it is not every combination to do unlawful acts to the prejudice of another which is punishable as conspiracy." This definition has been frequently approved, but it is broader than the definition suggested, in that it makes criminal a combination to do things which may lawfully be done by individuals. The combination in itself is treated as criminal, although its purposes include no criminal act. § 343. Lord Denman's antithesis.- Lord Denman's famous dictum that "the indictment ought to charge a conspiracy either to do an unlawful act, or a lawful act by unlawful ,"3 is quite as broad as the definition suggested by Chief means, 1 Com. v. Hunt (1842), 4 Met. 111. 2 Pettibone v. United States (1893), 148 U. S. 197, 13 Sup. Ct. 542; The Mussel-Slough Case (1880), (C. C.), 5 Fed. R. 680; United States v. Sacia (1880), (D. C.), 2 Fed. R. 754; United States v. Wooten (1887), (D. C.), 29 Fed. R. 702; United States v. Cassidy (1895), (D. C.), 67 Fed. R. 698; State v. Rowley (1837), 12 Conn. 101; Smith v. People (1860), 25 Ill. (15 Peck), 17, 76 Am. Dec. 780; Spies v. People (1887), 122 III. 1, 12 N. E. R. 865; State v. Mayberry (1859), 48 Me. 218; Com. v. Hunt (1842), 45 Mass. (4 Met.) 111, 38 Am. Dec. 346; Alderman v. People (1857), 4 Mich. 414, 69 Am. Dec. 321; People v. Melvin (1810), 2 Wheeler Cr. Cas. 262; People v. Trequier (1823), 1 Wheeler Cr. Cas. 142; State v. Snell (1893) 2 Ohio N. P. 55; Com. v. Tack (1868), 1 Brewst. 511. 3 Jones' Case (1832), 4 B. & Ad. 345; Justice Shaw. In later cases' Lord Denman expressed himself somewhat differently. § 344. The objections to these and all similar definitions lie in the ambiguous meaning of the terms "unlawful" and "illegal." These terms are comprehensive, and include acts which are criminal and acts which are not criminal. All objects and acts which are criminal are, of course, unlawful, but all objects and acts which are unlawful are by no means necessarily criminal.2 Richardson's Case (1834), 1 M. & Rob. 402; King v. Seward (1834), 1 A. & E. 706. 1 Queen v. Peck (1839), 9 A. & E. 686, and Queen v. King (1844), 7 Q. B. 782. 2 The casuistry in which one is involved by attempting to make criminal a combination which contemplates unlawful but not criminal objects is illustrated by the following discussion of the meaning of the word "unlawful" used in connection with criminal conspiracies. Referring to a paragraph from the opinion of Willes, J., in the House of Lords in the case of Mulcahy (1868), L. R. 3 E. & L. 306, Mr. Wright, in his able little monograph on the law of criminal conspiracies, quotes the paragraph as follows: "A conspiracy consists not merely in the intention of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself . . . punishable, if for a criminal object or for the use of criminal means." And comments thereon: "An example which, in its use of both unlawful' and 'criminal,' shows that the antithesis has not, in the most modern times and in the highest court, been understood to involve the doctrine for which the antithesis has been sometimes cited. Nor is it difficult to show that the antithesis cannot be and cannot have been intended to be a complete definition of criminal combination. In order that a phrase may be such a definition, its own terms must be used in a definite sense with reference to the purpose for which the definition is to be used. Therefore, if this phrase is a definition for legal purposes, the word 'unlawful' or 'illegal' (these words are used interchangeably throughout the cases) must be used in a definite legal sense. But there seem to be only three definite legal senses of the word 'unlawful.' It may mean criminal, i. e., prohibited by way of a criminal sanction or penalty; or it may mean wrongful, i. e., prohibited by way of a civil sanction or remedy; or it may be used in that peculiar sense in which it is applied to certain contracts, such as some contracts in restraint of trade and contracts in furtherance of immorality, which the law refuses to enforce. Moreover, in which ever of these senses the word 'unlawful' is used, it must, if it is to be the defining word in the definition of criminal combination, mean unlawful with reference to the conduct of an individual; for if it meant unlawful with reference to combination, it would do nothing for defining the meaning of 'unlawful' as applied to combinations, and it would be merely a restatement and not a definition. Now it is plain that, if the phrase in question is the complete definition of a § 345. Meaning of the word "unlawful" in connection with criminal conspiracy.—It was not until the end of the seventeenth century that the term "unlawful" or "illegal" as describing the purpose of a conspiracy was used by the courts in any other sense than that of "criminal.”1 criminal combination, the word 'unlawful' does not now denote what would be criminal in an individual; for it is well established that, in the case of cheats and perhaps in some other cases, it may be criminal to combine to do what is not criminal for one man to do. Nor does it mean whatever would be wrongful in an individual, so as to subject him to a liability to a civil remedy, for not only is there the express authority of Turner's Case (1811), 13 East, 228, which has never been questioned on this point, to the contrary effect, but it would be against common sense to hold criminal an agreement be tween two persons to walk in a park without leave, or to dishonor a bill. Nor does it mean unlawful in the third or neutral sense, for this would exclude combinations to commit crimes, and would include many agreements which may be innocent or even laudable apart from public policy. Nor, since the word when applied to criminal combinations is narrower than it is when used in either of the two latter senses, can it mean unlawful' in a sense co-extensive with an aggregate composed of all three or any two of these senses. The truth is that the word 'unlaw ful,' when it is used as co-extensive with criminal combination, now in cludes all criminal purposes and some purposes wrongful but not criminal apart from combination; and it has been made a question whether it does not include some purposes of the third or neutral kind. An expression cannot be the definition of conspiracy, the defining part of which is itself so devoid of definiteness for the purposes for which a definition is required. "Nevertheless, there is much value in the phrase for the purposes to which it has commonly been applied by the judges, viz., to indicate: "(a) On the one hand, that mere combination is not in itself criminal, but must, if it is to be regarded as criminal, at least be for purposes (as 'ends' or as 'means') which are in themselves in some sense unlawful, independently of combination. "(b) On the other hand, that, assuming purposes sufficiently 'unlawful' in themselves, the gist of the crime of criminal combination consists in the agreement for such purposes, and not in their execution." 1This is plainly the sense of the phrase 'defendu en la ley,' used in the Anonymous case (27 Edw. 3), 1354, art. Of Inq., 27 Ass. p. 138 b, pl. 44, in 1354, which referred to the prohibition contained in 33 Edw. 1. It is also plainly the sense in which Coke uses the expressions ‘unlawful' and 'defendu en la ley' ('prohibited by the law' in the translations) in the Poulterers' Case (1611, 9 Rep. 55, Moore, 814), as appears both from his reference to the case in 1354 and from his recommendation of the rule for punishment of the combination without any act completed, as being a doctrine of mercy to the intending offender. So in Timberley's Case (1663; Timberley and Childe, 1663 (or Kimberty), 1 Sid. 68, 1 Lev. 62, 1 Keb. 203, 1 Keb. 254), the illegal thing' proposed was the commission of a crime of conspiracy, properly so called. So in Thorp's Case (1697, 5 Mod. 221), (if that can be regarded a 8 346. Development of the law of criminal conspiracy.— Prior to the sixteenth century the only crime of conspiracy which seems to have been known to the law was that defined by the Ordinance of Conspirators, and the crime consisted of confederacy for the malicious promotion of indictments and pleas, and for embracery and maintenance of various kinds. Later various statutes were enacted - some of which have already been referred to against combinations for treasonable purposes, for breaches of the peace by merchants to disturb the market and control prices, and against combinations by masons and carpenters and laborers to raise wages or control the hours of employment, against combinations of victualers to raise prices. All these combinations contemplated purposes specifically condemned as criminal. § 347. The modern law of conspiracy.- The modern law of conspiracy, as traced by Mr. Wright, grew "out of the application to cases of conspiracy, properly so called and as defined by the 33 Edw. I., of the early doctrine that since the gist of crime was in the intent, a criminal intent manifested by any act done in furtherance of it might be punishable, although the act did not amount in law to an actual attempt.3 In accordance with this view it was determined in 1354, and again in 1574, and finally settled on the authority of the former of those cases by the Star Chamber in 1611,5 that although the case of conspiracy), the question made by the court was whether any act indictable in itself had been done. (Cf. as to the sense in which 'unlawful purpose' and 'unlawful act' were used in the older law of murder: 1701, Plummer, Kel. 109; Keite, 1 Ld. Raym. 138 (correcting Coke, 3 Inst. 56, 57); 1727, Oneby, 2 Ld. Raym. 1485; Fost. P. C. 258, 259.) It is believed that the only early authority for a more extended doctrine is the expression in the Termes de la Ley, title Confederacy, where it is said that, 'confederacy est quant deux ou plusors luy mesmes confederent de faire ascune male ou damage al auter, ou de faire ascune chose illoyal.' But that this passage has no authority, in so far as it goes beyond the Poulterers' Case, appears from the fact that every other expression in the title is taken directly from the Poulterers' Case." Wright, Crim. Consp., pp. 51, 52. 1 For the history of the law of criminal conspiracy we are largely indebted to the valuable little book on criminal conspiracies and agreements by Mr. Wright (American edition by Mr. Hampton L. Carson of Philadelphia). 233 Edw. 1. See Wright, Crim. Consp., p. 5. 3 Cp. by Mr. Greaves, in Cox's C. L. Cons. Acts, p. lxxxiv. 4 Sidenham v. Keylway, Cro. Jac. 407. 5 Poulterers' Case. |