Commonwealth vs.
John Hunt & others.
45
Shaw, C. J. Considerable time has elapsed since the
argument of this case. It has been retained long under advisement, partly
because we were desirous of examining, with some attention, the great number of
cases cited at the argument, and others which have presented themselves in course,
and partly because we considered it a question of great importance to the
Commonwealth, and one which had been much examined and considered by the
learned judge of the municipal court.
We have no doubt, that by the
operation of the constitution of this Commonwealth, the general rules of the
common law, making conspiracy an indictable offence, are in force here, and
that this is included in the description of laws which had, before the adoption
of the constitution, been used and approved in the Province, Colony, or State
of Massachusetts Bay, and usually practised in the
courts of law. Const. of
* See a statement of these cases, in 3 Law Reporter
295, 296.
But the rule of law, that an
illegal conspiracy, whatever may be the facts which constitute it, is an
offence punishable by the laws of this Commonwealth, is established as well by
legislative as by judicial authority. Like many other cases, that of murder, [*123]
for instance, it leaves the definition or description of the offence to
the common law, and provides modes for its prosecution and punishment. The
Revised Statutes, [**20] c. 82, § 28, and c 86, § 10, allowed an appeal from the court of common
pleas and the municipal court, respectively, in cases of a conviction for
conspiracy, and thereby recognized it as one of the class of offences, so
difficult of investigation, or so aggravated in their nature and punishment, as
to render it fit that the party accused should have the benefit of a trial
before the highest court of the Commonwealth. And though this right of appeal
is since taken away, by
But the great difficulty is, in
framing any definition or description, to be drawn from the decided cases,
which shall specifically identify this offence--a description broad enough to
include all cases punishable under this description, without including acts
which are not punishable. Without attempting to review and reconcile all the
cases, we are of opinion, that as a general description, though perhaps not a
precise and accurate definition, a conspiracy must be a combination of two or
more persons, by some concerted action,
[**21] 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 terms 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. Of this character was a conspiracy to
cheat by false pretences, without false tokens, when a cheat by false pretences
only, by a single person, was not a punishable offence. Commonwealth v. Boynton,
before referred to. So a combination to destroy the reputation of an
individual, by verbal calumny which is not indictable. So a conspiracy to
induce and persuade a young female, by false representations, to leave the
protection of her parent's house, with a view to facilitate her prostitution. Rex
v. Lord Grey, 3 Hargrave's State Trials, 519.
[*124]
But yet it is clear, that it is not every combination to do unlawful
acts, to the prejudice of another by a concerted action, which is punishable as
conspiracy. Such was the case [**22] of The
King v. Turner, 13 East, 228, which was a combination to commit a
trespass on the land of another, though alleged to be with force, and by
striking terror by carrying offensive weapons in the night. The conclusion to
which Mr. Chitty comes, in his elaborate work on Criminal Law, Vol. III. p.
1140, after an enumeration of the leading authorities, is, that "we can
rest, therefore, only on the individual cases decided, which depend, in
general, on particular circumstances, and which are not to be extended."
The American cases are not much
more satisfactory. The leading one is that of Lambert v. People of
New York, 9 Cow. 578. On the principal point, the court of errors were
equally divided, and the case was decided in favor of the plaintiff in error,
who had been convicted before the supreme court, by the casting vote of the
president. The principal question was, whether an indictment, charging that
several persons, intending unlawfully, by indirect means, to cheat and defraud
an incorporated company, and divers others unknown, of their effects did
fraudulently and unlawfully conspire together, injuriously and unjustly, by
wrongful and indirect means, to cheat [**23]
and defraud the company and others of divers effects, and that, in
execution thereof, they did, by certain undue, indirect and unlawful means,
cheat and defraud the company, &c. was a good and valid indictment. As two
distinguished senators, and members of the court of errors, took different
sides of this question, the subject was fully and elaborately discussed; the
authorities were all reviewed; and the case may be referred to, as a full and
able exposition of the learning on the subject.
Let us, then, first consider how
the subject of criminal conspiracy is treated by elementary writers. The
position cited by Chitty from Hawkins, by way of summing up the result of the
cases, is this: "In a word, all confederacies wrongfully to prejudice
another are misdemeanors at common law, whether the intention is to injure his
property, his person, or his character."
[*125] And Chitty adds, that
"the object of conspiracy is not confined to an immediate wrong to
individuals; it may be to injure public trade, to affect public health, to
violate public police, to insult public justice, or to do any act in itself
illegal." 3 Chit. Cr. Law 1139.
Several rules upon the subject
seem to be well [**24] established, to
wit, that the unlawful agreement constitutes the gist of the offence, and
therefore that it is not necessary to charge the execution of the unlawful
agreement. Commonwealth v. Judd,
2 Mass. 329. And when such execution is charged, it is to be regarded as proof
of the intent, or as an aggravation of the criminality of the unlawful
combination.
Another rule is a necessary
consequence of the former, which is, that the crime is consummate and complete
by the fact of unlawful combination, and, therefore, that if the execution of
the unlawful purpose is averred, it is by way of aggravation, and proof of it
is not necessary to conviction; and therefore the jury may find the conspiracy,
and negative the execution, and it will be good conviction.
And it follows, as another
necessary legal consequence, from the same principle, that the indictment
must--by averring the unlawful purpose of the conspiracy, or the unlawful means
by which it is contemplated and agreed to accomplish a lawful purpose, or a
purpose not of itself criminally punishable--set out an offence complete in
itself, without the aid of any averment of illegal acts done in pursuance of such
an agreement; [**25] and that an illegal combination, imperfectly
and insufficiently set out in the indictment, will not be aided by averments of
acts done in pursuance of it.
From this view of the law
respecting conspiracy, we think it an offence which especially demands the
application of that wise and humane rule of the common law, that an indictment
shall state, with as much certainty as the nature of the case will admit, the
facts which constitute the crime intended to be charged. This is required, to
enable the defendant to meet the charge and prepare for his defence,
and, in case of acquittal or conviction, to show by the record the identity of
the charge, so [*126] that he may not be indicted a second time for
the same offence. It is also necessary, in order that a person, charged by the
grand jury for one offence, may not substantially be convicted, on his trial,
of another. This fundamental rule is confirmed by the Declaration of Rights,
which declares that no subject shall be held to answer for any crime or
offence, until the same is fully and plainly, substantially and formally
described to him.
From these views of the rules of
criminal pleading, it appears to us to follow, as a necessary [**26] legal conclusion, that when the criminality
of a conspiracy consists in an unlawful agreement of two or more persons to
compass or promote some criminal or illegal purpose, that purpose must be fully
and clearly stated in the indictment; and if the criminality of the offence,
which is intended to be charged, consists in the agreement to compass or
promote some purpose, not of itself criminal or unlawful, by the use of fraud,
force, falsehood, or other criminal or unlawful means, such intended use of
fraud, force, falsehood, or other criminal or unlawful means, must be set out
in the indictment. Such, we think, is, on the whole, the result of the English
authorities, although they are not quite uniform. 1 East P.C. 461. 1 Stark. Crim.
Pl. (2d ed.) 156. Opinion of Spencer,
Senator, 9 Cow. 586, & seq.
In the case of a conspiracy to
induce a person to marry a pauper, in order to change the burden of her support
from one parish to another, it was held by Buller, J.
that, as the marriage itself was not unlawful, some violence, fraud or
falsehood, or some artful or sinister contrivance must be averred, as the means
intended to be employed to effect the marriage, in order to make the
[**27] agreement indictable as a
conspiracy. Rex v. Fowler, 2 Russell on Crimes, (1st ed.)
1812. S. C. 1 East P.C. 461.
Perhaps the cases of The King
v. Eccles, 3 Doug. 337, and The King v. Gill, 2 Barn.
& Ald. 204, cited and relied on as having a
contrary tendency, may be reconciled with the current of cases, and the
principle on which they are founded, by the fact, that the court did consider
that the indictment set forth a criminal, or at least an unlawful purpose, and
so rendered it unnecessary to set forth the means; because a confederacy to
accomplish [*127] such purpose, by any means, must be
considered an indictable conspiracy, and so the averment of any intended means
was not necessary.
With these general views of the
law, it becomes necessary to consider the circumstances of the present case, as
they appear from the indictment itself, and from the bill of exceptions filed
and allowed.
One of the exceptions, though not
the first in the order of time, yet by far the most important, was this:
The counsel for the defendants
contended, and requested the court to instruct the jury, that the indictment
did not set forth any agreement to do a criminal [**28] act, or to do any lawful act by any specified
criminal means, and that the agreements therein set forth did not constitute a
conspiracy indictable by any law of this Commonwealth. But the judge refused so
to do, and instructed the jury, that the indictment did, in his opinion,
describe a confederacy among the defendants to do an unlawful act, and to
effect the same by unlawful means; that the society, organized and associated
for the purposes described in the indictment, was an unlawful conspiracy,
against the laws of this Commonwealth; and that if the jury believed, from the
evidence in the case, that the defendants, or any of them, had engaged in such
a confederacy, they were bound to find such of them guilty.
We are here carefully to
distinguish between the confederacy set forth in the indictment, and the
confederacy or association contained in the constitution of the Boston
Journeymen Bootmakers' Society, as stated in the
little printed book, which was admitted as evidence on the trial. Because,
though it was thus admitted as evidence, it would not warrant a conviction for
anything not stated in the indictment. It was proof, as far as it went to
support the averments in the indictment.
[**29] If it contained any criminal
matter not set forth in the indictment, it is of no avail. The question then
presents itself in the same form as on a motion in arrest of judgment.
The first count set forth, that
the defendants, with divers others unknown, on the day and at the place named,
being [*128] workmen, and journeymen, in the art and
occupation of bootmakers, unlawfully, perniciously
and deceitfully designing and intending to continue, keep up, form, and unite
themselves, into an unlawful club, society and combination, and make unlawful
by-laws, rules and orders among themselves, and thereby govern themselves and
other workmen, in the said art, and unlawfully and unjustly to extort great
sums of money by means thereof, did unlawfully assemble and meet together, and
being so assembled, did unjustly and corruptly conspire, combine, confederate
and agree together, that none of them should thereafter, and that none of them
would, work for any master or person whatsoever, in the said art, mystery and
occupation, who should employ any workman or journeyman, or other person, in
the said art, who was not a member of said club, society or combination, after
notice given him to discharge [**30]
such workman, from the employ of such master; to the great damage and
oppression, &c.
Now it is to be considered, that
the preamble and introductory matter in the indictment--such as unlawfully and
deceitfully designing and intending unjustly to extort great sums, &c.--is
mere recital, and not traversable, and therefore cannot aid an imperfect averment
of the facts constituting the description of the offence. The same may be said
of the concluding matter, which follows the averment, as to the great damage
and oppression not only of their said masters, employing them in said art and
occupation, but also of divers other workmen in the same art, mystery and
occupation, to the evil example, &c. If the facts averred constitute the
crime, these are properly stated as the legal inferences to be drawn from them.
If they do not constitute the charge of such an offence, they cannot be aided
by these alleged consequences.
Stripped then of these
introductory recitals and alleged injurious consequences, and of the qualifying
epithets attached to the facts, the averment is this; that the defendants and
others formed themselves into a society, and agreed not to work for any person,
who should employ [**31] any journeyman
or other person, not a member of such society, after notice given him to
discharge such workman.
[*129]
The manifest intent of the association is, to induce all those engaged
in the same occupation to become members of it. Such a purpose is not unlawful.
It would give them a power which might be exerted for useful and honorable
purposes, or for dangerous and pernicious ones. If the latter were the real and
actual object, and susceptible of proof, it should have been specially charged.
Such an association might be used to afford each other assistance in times of
poverty, sickness and distress; or to raise their intellectual, moral and
social condition; or to make improvement in their art; or for other proper
purposes. Or the association might be designed for purposes of oppression and
injustice. But in order to charge all those, who become members of an
association, with the guilt of a criminal conspiracy, it must be averred and
proved that the actual, if not the avowed object of the association, was
criminal. An association may be formed, the declared objects of which are
innocent and laudable, and yet they may have secret articles, or an agreement communicated
[**32] only to the members, by which
they are banded together for purposes injurious to the peace of society or the
rights of its members. Such would undoubtedly be a criminal conspiracy, on
proof of the fact, however meritorious and praiseworthy the declared objects
might be. The law is not to be hoodwinked by colorable pretences. It looks at
truth and reality, through whatever disguise it may assume. But to make such an
association, ostensibly innocent, the subject of prosecution as a criminal
conspiracy, the secret agreement, which makes it so, is to be averred and
proved as the gist of the offence. But when an association is formed for
purposes actually innocent, and afterwards its powers are abused, by those who
have the control and management of it, to purposes of oppression and injustice,
it will be criminal in those who thus misuse it, or give consent thereto, but
not in the other members of the association. In this case, no such secret
agreement, varying the objects of the association from those avowed, is set
forth in this count of the indictment.
Nor can we perceive that the
objects of this association, whatever they may have been, were to be attained
by criminal [*130] [**33]
means. The means which they proposed to employ, as averred in this
count, and which, as we are now to presume, were established by the proof,
were, that they would not work for a person, who, after due notice, should
employ a journeyman not a member of their society. Supposing the object of the
association to be laudable and lawful, or at least not unlawful, are these
means criminal? The case supposes that these persons are not bound by contract,
but free to work for whom they please, or not to work, if they so prefer. In
this state of things, we cannot perceive, that it is criminal for men to agree
together to exercise their own acknowledged rights, in such a manner as best to
subserve their own interests. One way to test this
is, to consider the effect of such an agreement, where the object of the
association is acknowledged on all hands to be a laudable one. Suppose a class
of workmen, impressed with the manifold evils of intemperance, should agree
with each other not to work in a shop in which ardent spirit was furnished, or
not to work in a shop with any one who used it, or not to work for an employer,
who should, after notice, employ a journeyman who habitually used it. The
consequences [**34] might be the same. A
workman, who should still persist in the use of ardent spirit, would find it
more difficult to get employment; a master employing such an one might, at
times, experience inconvenience in his work, in losing the services of a
skilful but intemperate workman. Still it seems to us, that as the object would
be lawful, and the means not unlawful, such an agreement could not be
pronounced a criminal conspiracy.
From this count in the indictment,
we do not understand that the agreement was, that the defendants would refuse
to work for an employer, to whom they were bound by contract for a certain
time, in violation of that contract; nor that they would insist that an
employer should discharge a workman engaged by contract for a certain time, in
violation of such contract. It is perfectly consistent with every thing stated
in this count, that the effect of the agreement was, that when they were free
to act, they would not engage with an employer, or continue in his employment,
if such employer, when free to act, should
[*131] engage with a workman, or
continue a workman in his employment, not a member of the association. If a
large number of men, engaged for a certain [**35] time, should combine together to violate
their contract, and quit their employment together, it would present a very
different question. Suppose a farmer, employing a large number of men, engaged
for the year, at fair monthly wages, and suppose that just at the moment that
his crops were ready to harvest, they should all combine to quit his service,
unless he would advance their wages, at a time when other laborers could not be
obtained. It would surely be a conspiracy to do an unlawful act, though of such
a character, that if done by an individual, it would lay the foundation of a
civil action only, and not of a criminal prosecution. It would be a case very
different from that stated in this count.
The second count, omitting the
recital of unlawful intent and evil disposition, and omitting the direct
averment of an unlawful club or society, alleges that the defendants, with
others unknown, did assemble, conspire, confederate and agree together, not to
work for any master or person who should employ any workman not being a member
of a certain club, society or combination, called the Boston Journeymen Bootmaker's Society, or who should break any of their
by-laws, unless such workmen [**36]
should pay to said club, such sum as should be agreed upon as a penalty
for the breach of such unlawful rules, &c; and that by means of said
conspiracy they did compel one Isaac B. Wait, a master cordwainer,
to turn out of his employ one Jeremiah Horne, a journeyman boot-maker, &c.
in evil example, &c. So far as the averment of a conspiracy is concerned,
all the remarks made in reference to the first count are equally applicable to
this. It is simply an averment of an agreement amongst themselves not to work
for a person, who should employ any person not a member of a certain
association. It sets forth no illegal or criminal purpose to be accomplished,
nor any illegal or criminal means to be adopted for the accomplishment of any
purpose. It was an agreement, as to the manner in which they would exercise an
acknowledged right to contract with others for their labor. It does not aver a
conspiracy or even an intention
[*132] to raise their wages; and
it appears by the bill of exceptions, that the case was not put upon the
footing of a conspiracy to raise their wages. Such an agreement, as set forth
in this count, would be perfectly justifiable under the recent English statute,
by [**37] which this subject is
regulated.
As to the latter part of this count,
which avers that by means of said conspiracy, the defendants did compel one
Wait to turn out of his employ one Jeremiah Horne, we remark, in the first
place, that as the acts done in pursuance of a conspiracy, as we have before
seen, are stated by way of aggravation, and not as a substantive charge; if no
criminal or unlawful conspiracy is stated, it cannot be aided and made good by
mere matter of aggravation. If the principal charge falls, the aggravation
falls with it. State v. Rickey,
4 Halst. 293.
But further; if this is to be
considered as a substantive charge, it would depend altogether upon the force
of the word "compel," which may be used in the sense of coercion, or
duress, by force or fraud. It would therefore depend upon the context and the connexion with other words, to determine the sense in which
it was used in the indictment. If, for instance, the indictment had averred a
conspiracy, by the defendants, to compel Wait to turn Horne out of his
employment, and to accomplish that object by the use of force or fraud, [**38]
it would have been a very different case; especially if it might be
fairly construed, as perhaps in that case it might have been, that Wait was
under obligation, by contract, for an unexpired term of time, to employ and pay
Horne. As before remarked, it would have been a conspiracy to do an unlawful,
though not a criminal act, to induce Wait to violate his engagement, to the
actual injury of Horne. To mark the difference between the case of a journeyman
or a servant and master, mutually bound by contract, and the same parties when
free to engage anew, I should have before cited the case of the Boston Glass
Co. v. Binney, 4 Pick. 425. In that case,
it was held actionable to entice another person's hired servant to quit his employment,
during the time for which he was engaged; but not actionable to treat [*133]
with such hired servant, whilst actually hired and employed by another,
to leave his service, and engage in the employment of the person making the
proposal, when the term for which he is engaged shall expire. It acknowledges
the established principle, that every free man, whether skilled laborer,
mechanic, farmer or domestic servant, may work or not work, or work [**39] or refuse to work with any company or
individual, at his own option, except so far as he is bound by contract. But
whatever might be the force of the word "compel," unexplained by its connexion, it is disarmed and rendered harmless by the
precise statement of the means, by which such compulsion was to be effected. It
was the agreement not to work for him, by which they compelled Wait to decline
employing Horne longer. On both of these grounds, we are of opinion that the
statement made in this second count, that the unlawful agreement was carried
into execution, makes no essential difference between this and the first count.
The third count, reciting a wicked
and unlawful intent to impoverish one Jeremiah Horne, and hinder him from
following his trade as a boot-maker, charges the defendants, with others unknown,
with an unlawful conspiracy, by wrongful and indirect means, to impoverish said
Horne and to deprive and hinder him, from his said art and trade and getting
his support thereby, and that, in pursuance of said unlawful combination, they
did unlawfully and indirectly hinder and prevent, &c. and greatly
impoverish him.
If the fact of depriving Jeremiah
Horne of the profits of [**40] his
business, by whatever means it might be done, would be unlawful and criminal, a
combination to compass that object would be an unlawful conspiracy, and it
would be unnecessary to state the means. Such seems to have been the view of
the court in The King v. Eccles, 3 Doug. 337, though the case is
so briefly reported, that the reasons, on which it rests, are not very obvious.
The case seems to have gone on the ground, that the means were matter of
evidence, and not of averment; and that after verdict, it was to be presumed,
that the means contemplated and used were such as to render the combination
unlawful and constitute a conspiracy.
[*134]
Suppose a baker in a small village had the exclusive custom of his
neighborhood, and was making large profits by the sale of his bread. Supposing
a number of those neighbors, believing the price of his bread too high, should
propose to him to reduce his prices, or if he did not, that they would
introduce another baker; and on his refusal, such other baker should, under
their encouragement, set up a rival establishment, and sell his bread at lower
prices; the effect would be to diminish the profit of the former baker, and to
the [**41] same extent to impoverish
him. And it might be said and proved, that the purpose of the associates was to
diminish his profits, and thus impoverish him, though the ultimate and laudable
object of the combination was to reduce the cost of bread to themselves and
their neighbors. The same thing may be said of all competition in every branch
of trade and industry; and yet it is through that competition, that the best
interests of trade and industry are promoted. It is scarcely necessary to
allude to the familiar instances of opposition lines of conveyance, rival
hotels, and the thousand other instances, where each strives to gain custom to
himself, by ingenious improvements, by increased industry, and by all the means
by which he may lessen the price of commodities, and thereby diminish the
profits of others.
We think, therefore, that
associations may be entered into, the object of which is to adopt measures that
may have a tendency to impoverish another, that is, to diminish his gains and
profits, and yet so far from being criminal or unlawful, the object may be
highly meritorious and public spirited. The legality of such an association
will therefore depend upon the means to be used [**42] for its accomplishment. If it is to be
carried into effect by fair or honorable and lawful means, it is, to say the
least, innocent; if by falsehood or force, it may be stamped with the character
of conspiracy. It follows as a necessary consequence, that if criminal and indictable,
it is so by reason of the criminal means intended to be employed for its
accomplishment; and as a further legal consequence, that as the criminality
will depend on the means, those means must be stated in the indictment. If the
same rule were to prevail in criminal,
[*135] which holds in civil
proceedings--that a case defectively stated may be aided by a verdict--then a
court might presume, after verdict, that the indictment was supported by proof
of criminal or unlawful means to effect the object. But it is an established
rule in criminal cases, that the indictment must state a complete indictable
offence, and cannot be aided by the proof offered at the trial.
The fourth count avers a
conspiracy to impoverish Jeremiah Horne, without stating any means; and the
fifth alleges a conspiracy to impoverish employers, by preventing and hindering
them from employing persons, not members of the Bootmakers' [**43]
Society; and these require no remarks, which have not been already made
in reference to the other counts.
One case was cited, which was
supposed to be much in point, and which is certainly deserving of great
respect. The People v. Fisher,
14 Wend. 1. But it is obvious, that this decision was founded on the
construction of the revised statutes of
A caution on this subject,
suggested by the commissioners for revising the statutes of
It appears by the bill of
exceptions, that it was contended on the part of the defendants, that this
indictment did not set forth any agreement to do a criminal act, or to do any
lawful act by criminal means, and that the [**45] agreement therein set forth did not
constitute a conspiracy indictable by the law of this State, and that the court
was requested so to instruct the jury. This the court declined doing, but
instructed the jury that the indictment did describe a confederacy among the defendants
to do an unlawful act, and to effect the same by unlawful means--that the
society, organized and associated for the purposes described in the indictment,
was an unlawful conspiracy against the laws of this State, and that if the jury
believed, from the evidence, that the defendants or any of them had engaged in
such confederacy, they were bound to find such of them guilty.
In this opinion of the learned
judge, this court, for the reasons stated, cannot concur. Whatever illegal
purpose can be found in the constitution of the Bootmakers'
Society, it not being clearly set forth in the indictment, cannot be relied
upon to support this conviction. So if any facts were disclosed at the trial,
which, if properly averred, would have given a different character to the
indictment, they do not appear in the bill of exceptions, nor could they, after
verdict, aid the indictment. But looking solely at the indictment, disregarding
[**46] the qualifying epithets, recitals
and immaterial allegations, and confining ourselves to facts so averred as to
be capable of being traversed and put in issue, we cannot perceive that it
charges a criminal conspiracy punishable by law. The exceptions must,
therefore, be sustained, and the judgment arrested.
Several other exceptions were
taken and have been argued; but this decision on the main question has rendered
it unnecessary to consider them.