holding the crime of conspiracy as an offense, although it contemplated the violation of no express statute. The danger that an innocent man will be punished criminally for a conspiracy, because the act he, with others, contemplated was not forbidden by statute, cannot be admitted as existing. It cannot be supposed that a prosecution will be instituted and sustained by the court and jury, unless the acts done or contemplated are clearly illegal and morally wrong; so much so that as to leave little or no room for a right minded man to doubt. Thus such a person could not doubt the criminality of a combination corruptly or maliciously to deprive another of his liberty or property. An expansion of the law of conspiracy will only be indulged as a correction of disorder which would else be without cure, or as a curb to the immoderate power to do mischief which is gained by a combination of means. "Lex non exacte definit, sed arbitrio boni viri permittit."

A conspiracy to defraud individuals or a corporation of their property, real or personal, may in itself constitute an indictable offense, though the act done or proposed to be done in pursuance of the conspiracy be not in itself indictable."

Conspirators to secure a debt under pretense of official authority, if not entitled to the security, are liable to prosecution. But a combination to secure payment of a just debt by false pretense is not indictable."

'State v. Glidden, 3 New Eng. Rep. 849, 55 Conn. 46.

Com. v. Mifflin, 5 Watts & S. 461.

Reg. v. MacKarty, 2 Ld. Raym. 1179; Reg. v. Orbell, 6 Mod. 42; Rex v. Wheatly, 2 Burr. 1127; Rex v. Cope, 1 Strange, 144; Rex v. Mawbey, 6 T. R. 619; Rex v. Best, 6 Mod. 185; Rex v. De Berenger, 3 Maule & S. 67; Rex v. Roberts, 1 Campb. 399; Reg. v. Best, 2 Ld. Raym. 1167; Syd serf v. Reg. 11 Q. B. 245; Reg. v. Gompertz, 9 Q. B. 824; Reg. v. Kenrick, 5 Q. B. 49; Reg. v. Button, 11 Q. B. N. S. 929; Com. v. Judd, 2 Mass. 329; State v. Buchanan, 5 Harr. & J. 317; 3 Chitt. Cr. Law, 1138; Arch. Cr. Law, 390; 2 Russ. Cr. 553; Dougherty, Cr. Cons. 118, 129, 134, 140; Stubbs, Cr. Cons. 237, 243, 245, 249, 252; State v. Norton, 23 N. J. L. 33, rejecting the dicta in State v. Rickey, 9 N. J. L. 364; Lambert v. People, 7 Cow. 166, 9 Cow. 578; Levi v. Levi, 6 Car. & P. 239; Tompkins v. State, 17 Ga. 356; Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 173; Twitchell v. Com. 9 Pa. 211; Patten v. Gurney, 17 Mass. 182; State v. Younger, 12 N. C. 357; State v. Shooter, 8 Rich. L. 72; State v. Simons, 4 Strobh. L. 266; Reg. v. Wilson, 8 Car. & P. 111; Bean v. Bean, 12 Mass. 20; State v. Jackson, 7 S. C. 283; State v. Trammell, 24 N. C. 379; Com. v. Ward, 1 Mass, 473.

Bloomfield v. Blake, 6 Car. & P. 75.

People v. Bradford, 1 Wheel. Crim. Cas. 219.

So a conspiracy to defraud a third person by means of an act not per se unlawful, and though no person be thereby injured.'

There is no difference between a conspiracy to commit an act which is unlawful at common law and one to commit an act declared to be unlawful by statute; and hence a conspiracy to defraud, being indictable at common law, is properly governed by How. (Mich.) Stat. § 9434, providing a punishment for offenses indictable at common law and not expressly provided for by statute.'

An indictment will lie for a bare conspiracy to cheat or defraud a third person though the means of effecting it should not be determined at the time."

The United States has declared it a criminal offense to use the mails for the purpose of defrauding. The offense consists: 1st. In devising or intending to devise a scheme or artifice to defraud. 2d. In opening or intending to open correspondence or communication with some other person, or inciting such person to open correspondence by means of the post-office with the person devising the scheme. 3d. In pursuance of the scheme putting a letter or packet in the mail or taking one from the mail."

The attempt by an insolvent person to secure credit, or the ordering of goods without present means to pay for them, or the concocting a scheme after ordering goods to avoid paying for them, does not come within the statute.*

1 Rex v. Robinson (1744) 1 Leach, C. C. 37; Rex v. De Berenger, 3 Maule & S. 68; Rex v. Edwards (1725) 1 Strange, 707, 1 Sess. Cas. 836, 8 Mod. 320; Twitchell v. Com. 9 Pa. 211.

People v. Watson, 75 Mich. 582.

3 Rex v. Gill (1818) 2 Barn. & Ald. 204.

U. S. Rev. Stat. § 5480; United States v. Wootten, 29 Fed. Rep. 702.

• United States v. Wootten, 29 Fed. Rep. 702.

CHAPTER XIV.

CONSPIRACY AT COMMON LAW-CONTINUED.

§ 71. Conspiracy to Extort Anything of Value from an Individual. 72. Conspiracy to Slander.

73. Conspiracies Relating to Trade and Labor.

74. Development of the Doctrine of Conspiracy in Trade Combina

tions.

75. Statutes in England and the United States Regarding Combinations among Workmen.

§ 71. Conspiracy to Extort Anything of Value from an Individual. Conspiracies to extort anything of value from an individual or corporation or company or class, by threats or intimidation, are in themselves criminal.' Thus a conspiracy to obtain security for a debt, if the party for whose benefit the security is sought is not entitled to it, under pretense of judicial authority for making the demand, is indictable.' So a conspiracy to induce one to bring a charge of theft against another falsely, to force a payment of money to avoid prosecution or through fear of disgrace is punishable.' So a false charge of obtaining goods by fraud, sustained by an oath of one of the conspirators for the purpose of extortion, is indictable. And if the purpose be extortion, the truth of the charge will not relieve from the criminality, and whether it be of a criminal act or not is immaterial."

§ 72. Conspiracy to Slander.-Conspiracies are odious in law, and are always taken mala parte, and properly so. In Rex v. Rispal, 3 Burr. 1320, 1 W. Bl. 368, Lord Mansfield declared of verbal slanders that "they tended to a breach of the peace as

'State v. Shooter, 8 Rich. L: 72; State v. Stewart, 59 Vt. 273; Rex v. Hollingberry, 4 Barn. & C. 329, 1 Hawk, P. C. 72, § 7; Bloomfield v. Blake, 6 Car, & P. 75.

Bloomfield v. Blake, 6 Car. & P. 75.

State v. Cawood, 2 Stew. (Ala.) 360.
Raleigh v. Cook, 60 Tex. 438.

Rex v. Hollingberry, 4 Barn. & C. 329.
Rex v. Rispal, 3 Burr. 1320.

much as cheats and libels." That is the only reason assigned in the books why libels are punishable by indictment; and whether they have in fact a more direct tendency to a breach of the peace than verbal slanders, which are not per se so punishable, it is now too late to inquire as it is thus settled. Undoubtedly a written libel displays more settled malignity of spirit, and intends and inflicts more lasting and irritating wounds than a verbal slander, which perhaps in utterance exhaled all the heat which engendered it. The written libel therefore is the most dangerous to the public peace and good order.

But the law recognizes that a conspiracy to utter a verbal slander involves the same deliberation and malice as a written libel, and the union of numbers in such a purpose is as dangerous as in other combinations for evil.' An indictment may therefore be sustained for a conspiracy to slander a person to extort money from another or to injure his reputation by means not indictable if practiced by an individual, as by verbal defamation, and that whether it charge him with an indictable offense or not, or whether intended to institute a prosecution."

In a recent case decided by the Supreme Court of Pennsylvania at Pittsburg, on appeal, the Cigarmakers' International Union No. 126 of Ephrata, Lancaster County, by bill in equity had restrained cigar manufacturer John H. Brendle, from using the Cigarmakers' International Union label on his goods. The county court sustained the master's report in behalf of this injunction. Brendle is a union manufacturer who had incurred the ill will of local officials and refused to use their labels. He issued similar labels or trade marks of his own, and appealed to the Supreme Court from the injunction.

'Reg. v. Rowlands, 2 Den. C. C. 364.

Timberley v. Child (1663) 1 Sid. 68; Rex v. Kimberty, 1 Lev. 62, 1 Keb. 254; Childe v. North, 1 Keb. 203; Rex v. Armstrong, (1678) 1 Vent. 304; Reg. v. Mackarty (1705), 2 Ld. Raym. 1179; Reg. v. Best (1705) 2 Ld. Raym. 1167, 1 Valk, 174, 6 Mod. 185; Rex v. Kinnersley (1719), 1 Strange, 193; Rex v. Bryan (1730), 2 Strange, 866; Rex v. Parsons (1763), 1 W. Bl. 392; Rex v. Rispal (1762), 3 Burr. 1320, 1 W. Bl. 368; Rex v. Hollingberry (1825), 4 Barn. & C. 329; Reg. v. Kenrick, 5 Q. B. 49; Johnson v. State, 26 N. J. L. 313; Reg. v. Gompertz, 9 Q. B. 825; Reg. v. Button, 12 Jur. 1017; State v. Burlingame, 15 Me. 104; State v. Stevens, 30 Iowa, 391; State v. Cawood, 2 Stew. (Ala.) 360; Com. v. Tibbetts, 2 Mass. 536; Leggett v. Postley, 2 Paige, 599, 2 L. ed. 1046; Com. v. Warren, 6 Mass. 74; Lambert v. People, 7 Cow. 166; Com. v. Ward, 1 Mass. 473; State v. Buchanan, 5 Harr. & J. 317; State v. Rowley, 12 Conn. 101; State v. Hickley, 41 N. J. L. 208.

The court in refusing to continue the injunction, reverses the lower court's decision on the ground that the cigarmakers' union, formed for the "mental, moral, and physical welfare of its members," is a personal and social organization, not a commercial one, and under the law of Congress, therefore, cannot own a trademark. An especially interesting feature of the decision is its discussion of the social claim, set forth in terms upon the union cigar label, to the exclusive right not only to the use thereof, but stigmatizing all workmen not permitted to use the trade-mark as inferior men. The label describes the cigars it accompanies as being made by first-class workmen, and adds that all cigars not having the label are of "inferior, rat shop, cooley, prison, or filthy tenement house workmanship," and has a note therefore "recommending these union cigars to all smokers throughout the world."

The opinion says: "This is an attempt to use the public as a means of coercion in order to find a market for their goods or labor. A first-class workman is one who does first-class work, whether his name is on the rolls of any given society or not. Filthiness and criminality of character depend on conduct, not on membership of the union. Legitimate competition rests on superiority of workmanship and business methods, not on the use of vulgar epithets and personal denunciations.

"The International Union in this case has an avowed purpose to do harm to non-union men, to prevent the sale of their work, to cover them with opprobrium, and they ask a court of equity to say they have a right to do so. We decline to say so."

§ 73. Conspiracies Relating to Trade and Labor.-The recognized rule' that contracts in restraint of trade, and depriving the public of the avails of labor, are illegal, carries with it the result, that all combinations and conspiracies to accomplish the same results are criminal, as they are aimed at an illegal object.'

Mitchel, v. Reynolds, 1 P. Wms. 181; Lumbard's Case (1369) 43 As. 276; Midwinter v. Scroggs (1636). 1 Keb. 636; Rex v. Eccles (1783), 1 Leach, C. C. 274; Rex v. Waddington (1800), 1 East, 143; Rex v. De Berenger (1814) 3 Maule & S. 67; Grose, J., in Rex v. Mawbery (1796), 6 T. R. 619; Rex v. Hammond (1799) 2 Esp. 719.

Compton, J., in Hilton v. Eckersley, 6 El. & Bl. 47, 25 L. J. Q. B. 199, and Compton and Hill, JJ., in Walsby v. Anley (1861), 3 El. & El. 516, 30 L. J. M. C. 121, and authorities cited under Conspiracy Defined,” supra, section 65.