50. The nature of a criminal conspiracy at common law is described in the following well-known passage from the opinion of the judges delivered by Willes, J., in Mulcahy v. Reg. 1868 L. R. 3 H. L. 317:

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or 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, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object, or for the use of criminal means.

A more definite statement of the law is to be found in the Report of the Royal Commission of 1874, of which L. C. J. Cockburn, Sir Montague Smith, and Mr. Russell Gurney were members:

Conspiracy may be divided into three classes. First, where the end to be accomplished would be a crime in each of the conspiring parties, a class which offers no difficulty. Secondly, where the purpose of the conspiracy is lawful, but the means to be resorted to are criminal, as where the conspiracy is to support a cause believed to be just by perjured evidence. Here, the proximate or immediate intention of the parties being to commit a crime, the conspiracy is to do something criminal, and here, again, the case is consequently free from difficulty. The third and last case is, where, with a malicious design to do an injury, the purpose is to effect a wrong, though not such a wrong as, when perpetrated by a single individual, would amount to an offence under the criminal law. Thus, an attempt to destroy a man's credit and effect his ruin by spreading reports of his insolvency would be a wrongful act, which would entitle the party whose credit was thus attacked to bring an action as for a civil wrong; but it would not be an indictable offence. If it be asked on what principle a combination of several to effect the like wrongful purpose becomes an offence, the answer is upon the same principle that any other civil wrong, when it assumes a more aggravated and formidable character, is constituted an offence, and becomes transferred from the domain of the civil to that of the criminal law. All offences, it need hardly be observed, are either in their nature offences against the community, or are primarily offences against individuals. As regards the latter class every offence against person or property or other individual right involves a civil wrong, which would have entitled the person injured to civil redress, were it not that, owing to the aggravated nature of the wrong, and the general insecurity to society which would ensue from such act if

allowed to go unpunished, the State steps in and, merging the wrong done to the party immediately interested in the larger wrong done to the community, converts the wrong done by the infraction of individual right into a crime, and subjects the wrong-doer to punishment, to prevent, as far as possible, the recurrence of the offence. Thus the dividing line between private wrongs, as entitling the party injured to civil remedies, and private wrongs thus converted into public wrongs, in other words, into offences or crimes, is to be found in the more aggravated and formidable character which the violation of individual rights under given circumstances assumes. It is upon this principle that the law of conspiracy, by which the violation of private right, which if done by one would only be the subject of a civil remedy, when done by several is constituted a crime, can be vindicated as necessary and just. It is obvious that a wrongful violation of another man's right committed by many assumes a far more formidable and offensive character than when committed by a single individual. The party assailed may be able by recourse to the ordinary civil remedies to defend himself against the attacks of one. It becomes a very different thing when he has to defend himself against many combined to do him injury. To take the case, put by way of illustration, that of false representations made to ruin a man's business by raising a belief of his insolvency. Such an attempt made by one might be met and repelled. It would obviously assume very different proportions and a far more formidable character if made by a number of persons confederated together for the purpose, and who should simultaneously, and in a variety of directions, take measures to effect the common purpose. A variety of other instances illustrative of the principle might be put. The law has, therefore, and, as it seems to us, wisely and justly established that a combination of persons to commit a wrongful act with a view to injure another shall be an offence, though the act, if done by one would amount to no more than a civil wrong. We see no reason to question the propriety of the law as thus established, nor have we any reason to believe that in its general application it operates otherwise than beneficially. Whether there are cases in which, on a correct view of the law, parties may be held liable on a charge of conspiracy, where the end is not wrongful, or the means to be used criminal, is a matter into which we do not think it necessary to enquire, as, if such be the law, which we greatly doubt, we are prepared, as we shall state further on, to recommend that as respects the contract of hiring and service, and the relation of master and servant, the law should be amended.

51. Previous to 1871 the courts had in certain cases (of which R. v. Rowlands is an example) in applying the law of conspiracy, treated, as criminal combinations, ordinary strike pro

ceedings which did not involve the commission of anything, which, if done by one person, would be forbidden by either the criminal or the civil law. Such proceedings, workmen represented, ought not to be considered criminal. Parliament, accepting this view of the workmen, endeavored to meet it by the Criminal Law Amendment Act of 1871, but this expedient failed, as is shown by the Gas Stokers Case, R. v. Bunn.

52. We refer to what we have already said upon the history of the repeal of the combination laws, and the enactment by the Legislature of specific offences summarily punishable. In 1875 the Government of the day resolved in framing the Act of that year to deal with the law of conspiracy so far as it affected trade unions, and to apply a more drastic remedy than that which had failed in 1871, by declaring that a combination to do, or procure to be done, any act in contemplation or furtherance of a trade dispute between employers and workmen should not be indictable as a conspiracy, if such act committed by one person would not be a crime punishable with imprisonment. This policy of the Act of 1875 was explained by the responsible promoters of the measure in terms which are unmistakable. Earl Cairns, who was then Lord Chancellor, in the debate which took place on the Act of 1875, Conspiracy and Protection of Property Act, 38 and 39 Vic. c. 86, when it was in Committee in the House of Lords, is reported in "Hansard," Vol. 226, p. 164, to have said:

The bill did make a change in the existing law, and the clause now under consideration was in harmony with the other parts of the measure. Taken in connection with the following clauses, the bill attempted to define what acts connected with trade disputes were criminal and what were not therefore it recited all acts relating to trade disputes which were intended to be treated criminally, and it sets those acts out. On the other hand it declared by this clause that an agreement by two or more persons to do what would not be a crime if done by one person was not to be punished as a crime; but by the next clause intimidation and annoyance by violence were struck at, and it was declared that every person who, with a view to compel any other person to abstain from doing, or to do, any act which such other person had a legal right to do or to abstain from doing, should use violence or intimidation either to his person, or his wife or children, or his property, should be liable on conviction to a pecuniary penalty or to imprisonment. By

this clause, then, intimidation was struck at, and combined action to carry out such intimidation would therefore be struck at. It was true that, under the existing law, if one man broke his contract that would not be a crime, while if say - fifty - broke their contract, that at common law might be regarded as a conspiracy. Under this bill it would not be a conspiracy. The principle upon which the bill was framed was that the offences in relation to trade disputes should be thoroughly known and understood, and that persons should not be subjected to the indirect and deluding action of the old law of conspiracy.

53. There can, therefore, be no doubt as to the evils at which the Act of 1875 was aimed. It was considered that the common law relating to criminal conspiracies was in many respects vague and uncertain, and that workmen were justified in demanding that the law as to their liability in connection with strikes and disputes should be made clear, precise, and definite. Such being the object of the Legislature, it was deemed expedient to enact, as is done in the third section, that:

An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime.

This enactment has made it perfectly clear in what cases combinations to do acts in furtherance or contemplation of trade disputes between employers and workmen involve criminal responsibility. It is clear that, subject to certain exceptions specified in the Statute, no combination to commit any act, which, if done by one person, would not be an offence punishable by imprisonment, can be the foundation of criminal proceedings.

54. The civil action of conspiracy differs in this respect from the criminal, that the conspiracy is not complete by mere agreement, but must result in something being done from which damage results in order that the action may lie.

55. For the reasons which we gave in our treatment of branch A, no one was, during the discussion of the bill of 1875, thinking of the civil action. It is, however, evident that the authoritative exposition of the law in the Taff Vale case makes the subject of the civil action of supreme importance.

56. The importance of the subject was brought to the front by the decision in the House of Lords of the case of Quinn v. Leathem, L. R. 1901 A. C. 495. The facts of that case were as follows:

The plaintiff, Leathem, master butcher, sued the defendants, trade unionist officials (Craig being the president, Quinn the treasurer) for damages for procuring persons to break contracts and not to enter into contract with him; and for procuring workmen in the employment of such persons to leave the service of their employers and to break their contracts of service, with intent to injure the plaintiff and to prevent such persons from carrying out their contracts with the plaintiff and from entering into other contracts with him; and for intimidating such servants and coercing them to leave the service of their employers to the injury of the plaintiff; and for unlawfully conspiring together with others to do the acts aforesaid with intent to injure the plaintiff. The plaintiff was a butcher at Lisburn, about eight miles from Belfast; he employed non-unionists only. He had for foreman a man who had been with him ten years, and he himself had for twenty years been in the habit of supplying meat to Munce, a butcher in Belfast, to the value of £30 a week on the average. Munce employed unionists. The defendants were butchers' assistants in Lisburn and Belfast. In the spring of 1895, the defendants formed themselves into a trade union, and one of the rules was that they would not work with non-union men or cut up meat that came from a place where non-union men were employed. In July of the same year the defendants required the plaintiff to dismiss his foreman. The plaintiff negotiated on behalf of his foreman and his men, and offered to pay all fines against them and asked to have them admitted to the society. The defendants rejected this proposal, saying that the plaintiff's men should be punished and should be put to walk the streets for twelve months. The plaintiff refused to comply with defendants' demand, thereupon the defendants called on some of his men to leave him, but as they were non-unionists the union could do no more than induce one of them to leave. This, however, was in breach of contract. They then demanded of Munce to discontinue taking meat from plaintiff, with "threat" of a strike against him (in the nature of a secondary strike). Munce complied, to the great loss of the plaintiff. The threats' which the unionists sent during the negotiations were, to the plaintiff, "If you continue as at present our Society will be obliged to adopt extreme measures in your case," and to Munce: "We have endeavored to make satisfactory arrangements (with Leathem), but have failed, so therefore have no other alternative but to instruct your employees to cease work immediately Leathem's beef arrives."

66

The case began in 1896, when the decision of the Court of Appeal in "Flood v. Jackson" had not yet been reversed on appeal (as "Allen v.