Part 236

There is another case, in Salkeld, 174, The King v. Best. The judgment of the Court in that case is, that several persons may lawfully meet and consult to prosecute a guilty person; otherwise, to charge a person who is innocent, right or wrong, would be indictable. The inference is, that upon a charge of conspiracy to do an act which in itself is perfectly innocent, which is not indictable, you must state something upon the face of the record, shewing a mischief connected with it, to make it indictable. I submit to your Lordships, there is nothing upon the face of this record, which does shew any mischief connected with the act which is made the subject of charge. In conspiracy as in every other offence, the means may be lawful; but in conspiracy, the end must be unlawful. It is this which constitutes the only distinction between cases of conspiracy and of any other crime; that although the means may be lawful, the end must necessarily be unlawful and mischievous. I say, it is impossible for your Lordships to collect from any part of this record, that the end sought to be obtained by these defendants was unlawful, as against any Act of Parliament or the positive decision of any Court; or unlawful, as generally mischievous to the public.

It is stated indeed upon these counts, that the act was mischievous to certain individuals; and if the individuals had been named, that would have answered my objection. But I submit to your Lordships, in support of the second proposition which I stated, that this offence, if it be any, is alleged in too general a way to convict any of the defendants. It would have been otherwise, if it had appeared that they were actuated by any malicious motive against those individuals, or had any clear intention of benefiting themselves at the expense of those individuals; and I may with safety to my client concede this, though I am not driven to it. On the contrary, I beg to state, it does not appear on this record, that the defendants could possibly gain any thing by what they are accused of having done; for it is not stated upon any of the counts, nor is it the fact, that they possessed one sixpenny worth of stock from the sale of which they could derive an advantage: they were therefore doing mischief without any purpose to answer by it.

Lord Ellenborough. Brother Best, was it possible to state that their purpose was to injure certain individual persons who should purchase stock, when by no possibility could they know who the persons were that would become purchasers? If that could have been stated, can you suggest any name which in any way might have been inserted?

Mr. Serjeant Best. I submit to your Lordship it might have been stated; and the evidence in the cause helps me to suggest an answer to your Lordship's question. Your Lordship will remember, that evidence was given of the accountant-general of the Court of Chancery having made purchases of stock on this day; it might have been stated on the face of this record, that it was known the accountant-general of the Court of Chancery would purchase stock on the day in question, for he purchased most days, and that the offence was committed with a view to injure the said accountant-general, or the persons in whose behalf he purchases.

Lord Ellenborough. I do not know, that in the course of his office he is directed to purchase on account of certain named individuals, on a given day; if he is not, even so the allegation could not be precise.

Mr. Serjeant Best. The stock is purchased, my Lord, to the credit of a particular cause, the accountant-general being the agent in the transaction for the suitors in that cause. Therefore the allegation might have been, that it was to injure the accountant-general, in his character of agent for those persons on whose behalf he purchased stock on the particular day. And this brings us to the true character of conspiracy. I submit to your Lordship, this act could only be made conspiracy, by shewing that the defendants possessed stock, and by stating on the indictment, that possessing stock, they conspired to raise the price of the funds on a particular day, and that when raised, they sold their stock to certain persons specified. Suppose they knew of persons who were going to purchase on this day, and with a view to make those persons pay more than they otherwise would, they did that which is charged upon this indictment; that would clearly be an indictable offence. It is not the difficulty of bringing the case within the law that furnishes an answer to the objection; if the law is defective, your Lordship would recommend it to the Legislature to remedy the defect, by making a new law.

Lord Ellenborough. Impossibility is some answer in point of law.

Mr. Serjeant Best. Your Lordships may be protecting gamblers as infamous as any of these defendants; you may be giving your support to prosecutions instituted by one set of gamblers against another, if this indictment is supported. A fair holder of stock could have no difficulty in coming by indictment, and stating, I was compelled by circumstances to lay out a sum of money in the public funds on a given day, the day on which this transaction took place, and I paid so much per cent. more for what I bought. If it is necessary to constitute conspiracy, that the intent be to injure that person who in the event is injured, then it is impossible to support this indictment. I put it most strongly against my clients when I say, they meditated a fraud upon all who should purchase stock on this day; but to use the criminal law of this country, for the protection of those who honestly purchase stock, and not to support a prosecution brought by one set of gamblers against another, your Lordships will require it to be stated on the face of the indictment, who they were that were injured.

Mr. Justice Bayley. Suppose the conspiracy had been stated in the way it is, but the allegation had gone on; that by reason of the said conspiracy, A. B. and C. who on that day were obliged to purchase stock, were obliged to pay a larger sum than they otherwise would have paid?

Mr. Serjeant Best. That would have answered my objection, and that is the way in which it should have been stated; because then your Lordships would see, you were raising the arm of criminal justice to protect those who were the objects of its protection.

Lord Ellenborough. Your argument goes upon this supposition, that the description of persons to be affected by a criminal act, may lessen its criminality, which it does not.

Mr. Serjeant Best. But I submit to your Lordship, there must be something to be gained on the part of the actors, moving them to injure those who are capable of being injured by the act which is done. No such thing is stated upon any part of the indictment. A conspiracy may be complete without any act, but there must be an intention. I say, the intention here, is too generally stated; strike out all but the words, "conspired to raise the price of the public funds," and I ask your Lordships whether it would be possible to pronounce any judgment upon it.

Mr. Justice Dampier. How could the object have been stated with more particularity, with reference to a future event, than that it was to raise the price of the public funds?

Mr. Serjeant Best. I do not state it to be necessary that any damage should actually follow, but damage must be meditated by the conspirators, either a damage which aims at the public at large, or at some individual. It could not have been stated, nor is it stated, that any damage was aimed at the public at large; was any meditated against a part of the public? they must be individuals.

Mr. Justice Dampier. All the public could not be named; and individuals could not be named, because of the impossibility of knowing the individuals.

Mr. Serjeant Best. I submit to your Lordship there could be no difficulty in that. If the indictment had been preferred before the 21st February, your Lordship's observation would be unanswerable; but after that period, the prosecutors could have no difficulty in obtaining the names of individual purchasers from the books of the Stock Exchange.

Mr. Justice Dampier. The crime was complete before the 21st of February.

Mr. Justice Le Blanc. If the conspiracy was, by false rumours to raise the price of the public funds on a certain day, with a view to oblige persons who should purchase into the funds on that day to pay an increased price, the crime would be complete if the funds were raised on that day, though no person should purchase a halfpenny-worth of stock; in like manner as conspiring to raise the price of commodities in a market, though no person should purchase, would still be a crime.

Mr. Serjeant Best. The commodities in a market are articles of necessity, which, I apprehend, makes a distinction.

Lord Ellenborough. Whether it be an article of necessity, or if universal sale, comes to the same thing. Besides, as to not stating the multitude, one would think we had forgotten the number of cases which have been decided on charges which are in their nature multitudinous; as for instance in barratry, or the inciting persons to institute and maintain suits; in those instances you need not state the individuals injured.

Mr. Serjeant Best. The instances of barratry and of common scolds, I believe, are the only exceptions.

Lord Ellenborough. By no means; I remember a case in which it was held, that where the circumstances cannot be conveniently specified upon the record, the necessity forms the exception.

Mr. Serjeant Best. But in all those cases your Lordship will find the excuse is stated upon the record; as ignotum, where an unknown person has been murdered.

Lord Ellenborough. In this case the nature and reason of the thing suggest the excuse, or one must reject one's common sense. The nature and reason of the thing form an exception, if it could be necessary to state the name of an individual, as having suffered from an act of this kind; but it is the tendency of the act, not the success of it, that constitutes the crime. If there had been an apprehension of pestilence or commotion, which made it unsafe to resort to the Stock Exchange on the day on which the fraud was practised, the crime would have been as complete by the conspiracy, as it was by the damage sustained by individuals who suffered under it.

Mr. Serjeant Best. In whatever way your Lordships dispose of these objections, I shall be satisfied. I am sure your Lordships will excuse my mentioning, in a case of this sort, The King v. Robe, 2d Strange, p. 999, though it is not a case of conspiracy.

Lord Ellenborough. No doubt they ought in that case to have specified the persons, they had the means of stating every one of them. The offence did not consist in the combination, but in doing the very act they combined to do.

Mr. Serjeant Best. Another objection which applies to all the counts is, that it is stated, the intention was to produce a great rise in the Government funds of this kingdom. It appears clearly on the face of this record that the intention was very different; in fact there are no general Government funds belonging to the United Kingdom of Great Britain and Ireland.

Mr. Justice Bayley. But there are British and Irish funds?