THE JUDGE-MADE LAW OF CONSPIRACY. It has become in recent years quite the fashion in this country, where two or more are suspected of some crime, for public prosecutors to have them indicted for conspiracy. The courts have made it delightfully easy to secure a conviction by relaxing the rules of pleading and enlarging the scope of testimony. Thus a great mass of decisions has accumulated, each court apparently vying with all the others to make new law, until now almost any sort of an agreement may be styled a conspiracy; any indictment containing the magic words "combined and conspired, subtilely and craftily" make a good indictment; and any old evidence will prove the crime; so that we have reached the point, with many courts, where it is a crime for two or more to agree to do a thing not criminal if done by one, and by means not in themselves criminal; though no act be done pursuant to the agreement. All that is necessary is that either the object or the means be unlawful or illegal or immoral, but not attaining the gravity of criminal, and your conspiracy is ready to hand. Thus though one man may refuse to pay his rent and be well within the limits of safety as regards the criminal law; yet if two agree, each not to pay his several rent, even though afterwards they pay up, the jail is ready for them both.1 How far this is departure from the common law is the object of this paper to show. The legal concept that it is a crime for two or more to combine to commit some act, though the object of the agreement is never carried out, or, as the old books say, "tho' nothing be put in ure," originated, I believe, in the Anglo-Saxon jurisprudence. It is not found in the ancient laws of Normandy, where one would naturally seek its origin. It is not in the Grecian nor Roman systems; nor in the Brehon laws; nor in the early 1 Reg v. Parnell, 14 Cox, 508. Germanic nor Salic; nor in any system of jurisprudence in ancient or medieval times, so far as I have been able, after diligent search, to ascertain. Beginning with the Norman Conquest, we find no trace of it in England in the period covered by Dr. Bigelow's admirable collection of cases," Placita Anglo-Normanica," from A. D. 1066 to A. D. 1195; nor in Leges Henrici, circ. 1118. There is no hint of it in the Select Pleas of the Crown, Selden Soc., A. D. 1200 to A. D. 1225; nor in the 2,000 cases in Bracton's Note Book, from A. D. 1200 to circa A. D. 1240; 1 nor in Glanville, who wrote between 1187 and 1189; nor in Bracton's treatise," the crown and flower of English medieval jurisprudence," written about 1250 to 1258; nor yet in Britton nor Fleta,both about 1290. It is a strong presumption that no such offense existed at common law, that, in all the materials now at hand covering the period of more than two centuries after the Conquest, we find no single suggestion of it until we come to the statutes hereinafter examined. The presumption becomes well-nigh indisputable when we see numerous cases touching accessories in the same and earlier periods. "Anglo-Saxon law knows the slayer by rede, as well as the slayer by deed." 3 In Bracton's time, he who advised the killing was a slayer himself; but Bracton also gives another maxim, that unless the party has acted on the advice or command there is no crime. "Ubi factum nullum, ibi forcia nulla.”♦ It is hard to reconcile this common law maxim with the doctrine of 27 Ass. 34, 44, where the conspirators were punished, though nothing was put in execution; unless indeed the law of conspiracy was something which came after Bracton's time by way of a statute; as, for example, 33 Edw. I., in which case the whole matter becomes luminous. The case No. 479, indexed under "conspiracy," in Prof. Maitland's Ed. is not a conspiracy. 206. 2 1 Pollock & M. Hist. Eng. Law, 2 Pollock & M. 509. Brackton, ff. 142, 139. The rule in Bracton's time in cases where a party of men under a leader committed a crime, such as murder, robbery or the like, was for the leader to be first tried, and, if acquitted, his associates went free. These latter were called his "alia." See illustrations in 1 Select P. C. (Seld. Soc.), cases, 4, 9, 76, 84, 155, 164, 197. A word as to the situation of that period, disclosed by our histories, will, I think, strengthen the argument. After Edward I. had become accustomed to his throne, he undertook numerous judicial reforms. It was not until then that the great courts are becoming definitely separated; and from that time dates the sharp struggle between the king's courts and the local courts for jurisdiction. The barons resented the ever increasing interference with their own tribunals. "This is my warrant, my masters," said Earl De Warrenne, throwing down his sword in the face of the King's Bench. When Edward proved too strong for open resistance, fraud, chicanery, maintenance were used to evade or to bring into contempt the new courts. At this time also the ordeal was passing, and the jury had arrived. For a time its struggle for existence was precarious. The new process by indictment was just devised, and crime was becoming to be recognized as an offense against the king, not merely a private wrong. The situation was critical. We can now to some extent appreciate why Edward and his immediate successors passed statute after statute defining and punishing maintenance, champerty and conspiracy, and providing civil remedies therefor. They were necessary to prevent the judicial reforms from being swept away. We can see, too, from the historical standpoint why it is an anachronism to say that the offenses named were, before that time, known to the common law. How could a jury be embraced before there were any juries? Were a man's compurgators, conspirators? How could there be maintenance in a trial by witnesses? In truth these offenses grew out of the trial by jury, and beyond doubt the writ of conspiracy was invented to be used against persons abusing the new process of indictment.1 The statutory enactments clearly reflect the situation as we know it historically. By 3 Edw. I., C. 25 (West. 1, 1275) champerty by the king's officers was prohibited; and by C. 28 of the same act any "clerk of any justicer, or sheriff" was forbidden to maintain " quarrels of matters" depending "in the King's Court.' 1 See 3 Stubbs Const. Hist. 575 et seq.; 1 Pollock & M., Ch. VII. ; 2 Id. 539; Thayer Prelim. Treat on Ev., Ch. 1; 2 2 Social England, 32; 2 Reeves' Hist. 22 Inst. 207, 211. In West. 2, C. 49 (1284, 13 Ed. 1) champerty and simony by the chancellor, treasurer, justices, any of the King's Council, clerks of chancery and of the exchequer, any justice or other officer, or any of the king's house, clerk or lay, were prohibited, and offenders "punished at the king's pleasure, as well he that purchaseth as he that doth sell." 1 This Coke said was merely an extension of West. 1, C. 25 (supra), because it was doubted whether the words " king's officers" (nul ministre le roy) would include persons of such eminence as those named in West. 2, without special mention. By Cap. 12, West. 2 (13 Ed. I., 1284) it was recited that inasmuch as many persons maliciously procure false appeals to be made by appellors who are pecuniarily irresponsible, it is therefore provided that if the appellee be acquitted in any case, and the appellor be found unable to respond in damages, then the justices shall inquire by whose abetment or malice the appeal was commenced; and if it be found by the same inquest that any man is abettor through malice," he shall be distrained and mulcted at suit of the acquitted party and imprisoned.2 66 In the twentieth year of this reign (1292) a statute entitled Statutum de Conspiratoribus prohibited champerty and maintenance and provided that such as were attainted of such emprises" should be imprisoned for three years and fined at the king's pleasure. A civil writ was also provided and the form thereof given. This writ ran to any who would " complain himself of conspirators, inventors and maintainers of false quarrels and brokers thereof and brokers of debates;" while the form of the writ given provided that anyone who would give surety for prosecution" of a plea of conspiracy and trespass according "to our ordinance" should have the writ.3 In C. 10 of Articuli super Chartas in the twenty-eighth year of this reign (1300) it was enacted that, in addition to the writ of chancery theretofore provided for plaintiffs against "conspira 1 2 Inst. 283. 2 2 Inst. 383, 384. 3 There seems to be some controversy as to its date whether 33 or 20 Edw. I., and also as to whether the second part providing the writproperly belongs to the first part and makes with it one statute. See the note in 1 the Rev. Stat. (Fr. H. 3 to Jac. 2) 127. Coke, however, asserts both parts are one statute, and assigns them to 21 Edw. 1, See 2 Inst. 561, note 5. tors, false informers, and evil procurers of dozens, assizes, inquests and juries" such writ should run from either court and from the justices of the assizes on circuit. This statute, so far as conspirators were concerned, merely facilitated the getting of the civil writ, and gave jurisdiction thereof to King's Bench and the justices in eyre in addition to the chancery. By the next chapter (28 Ed. I., C. 11) the offense of maintenance was extended to embrace all persons whatsoever, whether officers of the king or not, excepting of course attorneys and next friends.1 In 33 Edw. I., A. D. 1305, we find the famous "Ordinance concerning Conspirators," as follows: "Conspirators be they that do confeder or bind themselves by oath, covenant or other alliance, (1) that every of them shall aid and (bear) the other falsely and maliciously to indite (or cause to indite); or (2) falsely to move or maintain pleas; (3) and also such as cause children within age to appeal men of felony whereby they are imprisoned and sore grieved; (4) and such as retain men in the country with liveries or fees for to maintain their malicious enterprises; and this extendeth as well to the takers as to the givers; (5) and stewards and bailiffs of great lords, which by their seignory, office or power undertake (to bear or maintain quarrels, pleas or debates that concern other parties) than such as touch the estate of their lords or themselves. This ordinance and final definition of conspirators was made and accorded by the King and his Council (in his Parliament in the thirty-third year of his reign." "Champertors be they that move pleas and suits, or cause to be moved, either by their own procurement, or by others, and sue them at their proper costs, for to have part of the land in variance or part of the gains." By 1 Edw. 3, S. 2, c. 14 (1327), it is provided that “because the King desireth that common right be administered to all persons he commandeth and defendeth" that no persons high or low," shall take upon them to maintain 12 Inst. 562. |