State v. Buchanan

5 H. & J. 317

Opinion

Buchawust, J.

delivered the opinion of the court. This case was brought up by a writ of error directed to the judges of Hárjórd county court; and it has been strongly urged, that a writ of error will not He at the instance of the state, in a criminal prosecution, and therefore that the writ in this cáse was improvidently sued out, and ought to be quashed. But it is said in 2 Hale’s P. C.¡ 24'7, the authority of which it is difficult to question, and; indeed we require none higher, “that if A be indicted of murder, or other felony, and plead non cut, and a special; verdict found, and the court do erroneously adjudge it to; be no felony; yet so long as that judgment stands unreversed by writ of error, if the prisoner be indicted de , novo, he may plead auterfoits acquit, and shall be discharged; but if the judgment be reversed, the party may be indicted de novo.” And this is not a loose :dictum, but it is laid down and repeated as text law; for in page 2481 it is stated, that “in the case of the special verdict above, where an erroneous judgment of acquittal is given, yet it' is conclusive to the King till it be reversed by error.” So in page 394, speaking of the ancient form of a judgment of acquittal, he says “and if the entry were such, I do not think the prisoner could ever be arraigned again, notwithstanding the insufficiency of the indictment, till that judgment of acquittal were reversed. ” And again in page 395 of the same book, “and if in Value’s case the judgment had been so entered (that is, quod eat hide quietus,) he could never again have been indicted for the same offence, notwithstanding the defect of the indictment, till that judgment reversed by writ of error. ” Hence it is manifest that, in the opinion of Lord Hale, the King might Iiave a writ of error in a criminal case; since it would be absurd to say that a man who had obtained a judgment of acquittal for a defect in the indictment, or on a special verdict, could never again be indicted for the same offence, until that judgment was reversed by writ of error, if s writ of error would not liei Fortified by such authority-alone, in the absence of any legislative provision in this state on the subje'ct', we think we might safely say, without further inquiry, that the writ of error in this case was properly sued out. But instances arc not wanting of writs of error being prosecuted by this state, in criminal cases; as in The State vs. Messersmith & Askew, The State vs. Forney, The State vs. Brown, Ami The State vs. Durham, in the court of oyer and terminer &c. for Baltimore county; In each of those cases there was a demurrer to the indictment, and judgment on the demurrer for the defendant, in the court below. They were all taken to the late general court on writs of error by the state, Luther Martin, attorney general; and in each case the judgment was reversed. And there is no sufficient reason why the state should not be entitled to a writ of error in a criminal case. It is perhaps a right that should be seldom exercised, and never for the purpose of oppression, or without necessity; which can rarely, and it is supposed would never happen, and would not be tolerated by public feeling. But as the state has no interest in the punishment of an offender, except for the purpose of general justice connected with the public welfare, no such abuse is to be apprehended; and as the power of revision is calculated to produce a uniformity of decision, it is right and proper that the writ should lie for the state, in the same proportion as it is essential to' the dire administration of justice, that the criminal law of the land should be certain and known, as well for the government of courts and information to the people, as for a guide to juries; who though (by the laws and practice of the state) they have a right to judge both of the law and of the fact, in criminal prosecutions, should, and usually do, respect the opinions &nd advice of judges, on questions of .law, and would seldom be found to put themselves in opposition to the decisions oí the supreme judicial tribunal of the state.

It has also been contended, that the return of the writ of error in this case, supposing the writ to have been properly sued out, is defective in this, that it is not under the hand and seal of the chief judge, but that there is only a transcript of the record sent up, under the hand of the clerk and the seal of the court, with the writ of error an- nexed. But there is nothing in the objection. By the fifth, section of the act of 1713, ch. 4, “for regulating writs of error, and granting appeals from and to the courts of common law within this, province,” it is enacted, “that,the method and rule of the prosecution of appeals and writs of error, shall for the future. b.e in manner and form .as is. hereinafter mentioned and. expressed; that is to say, the. party appealing or suing out such writ of error as. aforesaid, shall procure a transcript of the full- proceedings of the said court, from which .such appeals shall be made, or against whose judgment the writ of error shall be brought as aforesaid, under the hand-of the clerk of the said court and,seal thereof, and shall cause the same to be .transmitted to the court before whom such appeal or writ, of error is or ought to be heard, tried and determined,” S¿c. The preamble sets out that “forasmuch as the liberty of appeals,and,vyrits of error, from the judgment, o.f the provincial and county courts of this province, is found to be of great use and he-, Xie&t to the good of the people thereof;” and the second .section provides under what circumstances alone, an appeal or writ of-ct-rpr .shall operate as. a supersedeas. The .act is silept on the subject of the return of, the writ of.,error, and only, directs that, the transcript of the proceedings shall be under the, hand of the clerk and seal of the court, without dispensing with the signature of the judge to the return of the writ; yet from that time to the present, the uniform practice under that act has.jbeen, for the .clerk to send up the transcripi,of> the,proceedings under his, hand only, and' the seal of the court, together with .the writ of error, as is done in this case, unaccompanied by the. signature of the, judge to the return of the writ. And .if it should be admitted that it originated, in error, it is.now.too late to shake a practice so long settled. It may perhaps be dpubted whether that act of the general .assembly ought not to be understood as being applicable to writs, of. error in civjl causes only; and it has been urged, that no practice growing out.of it in relation to.such cases, con.be broughtinaid of a defective return in a criminal case. But whatever may have been the construction originally given to it in that particular, whether it was held to extend as well to criminal as to civil cases, or whether the returning of writs error in the same manner in criminal as in civil pases, had its birth in the circumstance, that .the mandate of the writ being the same in each, no good reason could be perceived why the manner of the return should be different; or from whatever other cause it may have arisen, the practice is found on examination to have been the same. That was the form of the return in the cases of The State vs. Messersmith & Askew,—The State vs. Forney,—The State vs. Brown,—and The State vs. Durham; the cases before alluded to for a different purpose. The same return was. made in Burk’s case, an indictment for a Rape, which was tried before me in Washington county court in the year 1809, and was brought up by writ of error to this court, by the present attorney general, (Luther Martin,) who defended him with great zeal and ability in the court below, and it is presumed looked well into the subject. And so in every criminal case removed by writ of error, that is to be found among the records of the late general court, of ' which there are many. The return therefore in this case , has the sanction of the same authority on which a similar return in a civil case would rest—tlie authority of a settled practice for more than an hundred years, with which we are content without seeking to support it on any other; nor is it pretended that such a return would be insufficient a civil i and there is no sensible difference between a criminal and a civil case in that respect, or any sound reason why the return should not be the same in one as in the other. ■ But there is no uniform rule for the return of writs of error; and if the object of the writ, which is that a true and perfect transcript of the proceedings shall be brought up, is substantially gratified, it is all tfiat courts do or need look to, If a writ of error be brought in parliament on a judgment in the court of King’s Bench, the chief justice goes in person to the House of Lords, with the record itself, and a transcript, which is examined and left there, and then the record is brought back again intq the King’s Bench. 2 Tidcl’s Practice, 1092. In the court of common pleas the practice is different. There on a writ of error returnable in the King’s Bench, it is usual for the chief justice to sign the return. Ibid, (note.) But that is not absolutely necessary, for the court of King’s Bench will not stay the proceedings for want of his signature; and tho’ the writ of error requires the record to be sent sub sigillo, yet til's is never practised. Blackwood vs. The South Sea Company, 2 Strange, 1068. And if the seal cun be fiispensed with, why may not tlieUlgnature also? snce the omission of either, is equally a departure from the mandate of the writ, and both are dispensed with in the case, of a writ of error returnable from the King’s Bench to the House of Lords. Besides, in England, a writ of error must be directed to him, who has the custody of the re-4 pord wherein any judgment is given; and for that reason it is, that a writ of error brought on a judgment in the court of common pleas, for instance, is always directed to the chief justice of that court, who has the custody of the record. But in this state, tho’ the form cf the writ as used in England, and introduced here at a very early period, is still retained, yet the clerk of the court in which the judgment is rendered, has a much greater control over the record than in England, and hence probably arose the practice, that appears to have prevailed here at least from the year 1713, for the clerk to send up a full transcript of the proceedings under his hand only, and the seal of the court, with the writ of error annexed, lotdeh sufficiently gratifies the object of the writ; as much so as the practice in the Court of King’s Bench on a writ of error brought in parliament; and afiords as much certainty of a full and perfect transcript of the proceedings, as a return of the writ under the signature of the chief justice;—the course usually pursued in the Court of Common Pleas, in relation to writs of error returnable in the King’s Bench.

These preliminary questions being thus disposed of, the Xjext presented for consideration, is whether the facts stated in the indictment, amount to an offence punishable, by the laws of Maryland. This is denied on the part of the defendants in error, and much reliance is placed on the statute 33 Edward I. de conspiraioribus, on the supposition that the offence of conspiracy, was originally created by that statute; or if it was a common law offence, that the statute cither contained a definition of all the conspiracies that were before indictable at common law, or annulled .the common law, and rendered dispunishable all conspiracies but such as it defines. And if either position be correct there is an end to this prosecution, since’the matter charged in the indictment is clearly not embraced by tiie statute; and if it was, the statute being considered as not in force here, the case would not be helped; and there would be no law in this state, for the punishment of conspiracies7 of any description, the A. being no legislative provision on the subject. But neither branch oí the proposition, will oq examination' be found to be true. The statute is in these words: “Conspirators be they that do confeder or bind themselves by oath, covenant,. 03 other alliance, that every of theni shall aid ant} bear the other falsely and maliciously to indite, or cause to indite, or falsely to move or maintain pleas; and also such as cause children within age to appeal men of felony, whereby they are imprisoned and sore grieved; and such as retain men in the country with liveries or fees to maintain their malicious enterprises; and-this extendeth as well to the takers, as to the givers. And stewards and bailiffs of great lords, which by their seignoyy, office, or power, undertake to Ijear or maintain quarrels, pleas, or debates, that concern qther parties than such as touch the estate of their lords or themselves.”

Without looking beyond the statute itself, there may be,, found sufficient evidence on the face of it, to show that conspiracies were known to the law before. “Conspirators be they,” &c. Now why should they have been declared to. be. conspirators, who should confederate for any of the,purposes mentioned in the statute, if they. were, ¿odiable to punishment for such combinations? And if they were, it was for the conspiracy that they were so liable to be punish - cdas without the offence of conspiracy, there could have, been no punishable conspirators. The statute does n,ot prohibit conspiracies or combinations of any kind, it does not declare combinations or conspiracies of any description to be unlawful, nor does it impose a penalty, or inflict any punishment upon conspirators. And if combina-, tlons for any of-the purposes mentioned in the statute, were punishable at all,, it could only •havp.'becn on the ground, that both the offence of conspiracy (eo nomine), and the. punishment, were known to thq,}aw anterior to the enactment of the statute; and that the declaring those to be conspirators, who should be engaged i,n certain combinations, subjected them to the law of conspiracy as it then existed*. And it has never been pretended, that the .combinations enumerated in the statute were-not indictable conspiracies.. The statute, therefore,-which had for-its object .the prevention of the combinations it enumerates, carries with it.internal .evidence, that conspiracy was. an indictable offence -before, But the question, whether conspiracies ,weyp indictable or not at common law, anterior to the statute S3 Edward /, does not depend, alone upon the construction of that statute. . In 3 Colic’s Institutes 143, and 1 Hawk. P. C. 193. ch. 72, sec. 9, it is said, that the villenuus judgment is given by the common law, and not by any statute, against those convicted of a conspiracy. Now this judgment, called the villenous judgment, which was known only to the common law, could never have been given, unless conspira* cy was an offence punishable at common law. In the 20tli year of the reign of Edward I, a civil remedy, was provided against conspirators, &c. by the writ of conspiracy; and the statute 28 Edw&rd I, ch. 10, entitled, “The remedy against conspirators, false informers and embracers of juries,” makes this further provision: “In right of conspirators, false informers, and evil procurers of dozens, assises and juries, the king hath provided remedy for the plaintiffs by writ out of the chancery; notwithstanding, he willeth that his justices of the one bench and of the other, and justices assigned to take assises, when they come into the country to do their office, shall upon every plaint made unto them, award inquests thereupon without writ, and shall do right unto the plaintiffs without delay.” It must be the provision in the 20th of Edward I, for the writ of conspiracy, to which the first clause of this statute has reference, as there does not appear to he any other, and which according to 2 Institutes 563, was but in affirmance of the common law; and these provisions for private remedies against conspirators, clearly demonstrate the existence of, the offence of conspiracy. It is equally clear, that the statute does not embrace all the ground covered by the common law. Who doubts, or was it ever questioned, that a conspiracy to commit any felony is an indictable offence; as tó rob or murder, to commit a rape, burglary or arson, &c. or a misdemeanor, as to cheat by false public tokens, &c? Indeed this has been conceded throughout the whole of the argument in this case, and the ground mainly relied upon; on the part of the defendants in error is, that the object of the conspiracy charged in the indictment, is not of itself an indictable offence. Yet such cases of Conspiracy are not made punishable by any statute, and are only indictable at common law; which could not be, if the statute 33 Edward I, either furnished a definition of all the conspiracies indictable at common latv, or restricted and abridged the latter, by rendering dispunishable, all such as it does not define. This statute is not prohibito'-4 ry, not is thé existence of other punishable' conspiracies,than those which it enumerates, at all repugnant to, or inconsistent with any of its provisions; and according to any known rule of construction, the common law of conspiracy such as it was before, may well stand together with the statute; for surely the. merely declaring one act to he an of-fence, Which act as Well as others, was so before in contemplation of law, cannot render those others dispunishable.' nor will one act, which in law amounts to a particularoffence, cease to be so, because another act is merely declared by statute (without any negative words) to amount ’to the same olfence. ,The statute, therefore, must be considered either as declaratory of the common law only, so far as it goes, for the purpose of removing doubts and difficulties which may have existed in relation to the conspiracies it enumerates, bj' giving to them a particular and definite description; or as superadding them to other classes of conspiracy already known to the law, leaving the common law, in possession of all the ground it occupied beyond the provisions of the statute. And so it has been uniformly understood in England, from the earliest down, to the latest decision that is to be found on the subject; otherwise the judges could not have sustained a great proportion of the prosecutions for conspiracy, with which the books are crowded; in some of which, the objection, that .the matter charged was not within the statute 33 Edward I, was made and overruled,- as will be hereafter shdwn.In the Book of Assises, 27 Edward. III, ch. 44, it is said, that “inquiry shall be made concerning conspirators and confederates, whp bind themselves by oath, cove-' nant or other agreement, that each will support the enter-prizes- of the other, whether true or false;” and in the same-book we find this notice of a criminal prosecution:'-“and note that two were indicted- for a confederacy, each of them, to maintain the other, whether the matter was-true or false; and notwithstanding, that nothing was alleged to have1 been actually done, the parties were put to answer, because it was a thing forbidden by law.” If this falls within either of the provisions of the statute 33 Edward I, it can only be that, which relates to the moving and maintaining pleas, and that does not embrace it; for if the indictment had been under the statute, for a confederacy “falsely to move snd maintain pleas,” which can only have reference to proceedings in courts of justice, it is very clear that the parties must have been acquitted, as the conspiracy was not to do that specific act, otherwise they might have been punished for what they did not contemplate, since nothing being alleged to have been done, non constat, that they had any intention to move and maintain pleas within the purview of the statute; and the intention enterá into the essence of every offence. The indictment, however, was not under the statute, for either of the specific acts mentioned in it, but at common law for the conspiracy, which was considered per se a substantive offence, no act in furtherance of it being alleged, and this after, and notwithstanding the statute. , The position, that “a confederacy each'to maintain the other, whether the matter be true or false,” is a common law offence, is distinctly adopted in 1 Hawk. P. C. 190, ch. 72, and 9 Coke’s Pep. (the Poulterer’s case) 56; and the principle of the case noted in the Book of As-sises, to wit, that conspiracies are punishable at common law, though nothing be put in execution, is fully recognized in the Poulterer’s case, in which that book is referred to; and this further principle also laid down, that the law punishes the conspiracy, “to the end to prevent the unlawful act;” and in the same case, speaking of another, article 19, also in the Book of Assises, 138, relative to combinations among merchants to regulate the price of wool, it is said, “and in these cases, the conspiracy or confederacy (not the false conspiracy or confederacy) is punishable, although the conspiracy or confederacy be not executed.” Hence it is manifest, that the “noted’ at the end of the case, which seems to be relied on to show, that both malice and falsehood are indispensable ingredients of a punishable conspiracy, and must be united in the same case, was not intended by Lord Coke as applicable to all confederacies, but to such false conspiracies only, as are of the character of tliose, of which he had treated immediately preceding the nota; for he does not speak of the case of a conspiracy between merchants to fix the price of wool, as a false conspiracy, nor does either falsehood or malice, necessarily enter into such a combination-And these combinations among merchants, (which are not within the statute 33 Edward I.) were, and remained punishable at common law, and were not first made so by the statute staple, 27 Edward III. ch. ÍK as has been supposed in argument. That statute does indeed prohibit the exportation of wool under a very severe penalty, but neither creates, nor provides a punishment for, the offence by merchants, of combining to fix a price beyond which they would not go. All that is said in relation to the purchasihg of that article is, that “all merchants, as well subjects as foreigners, may purchase wool-folk, &c. throughout the whole of our kingdom and territories, without covin or collusion to lower the price of the said merchandizes, so nevertheless as they bring them to the. staple;” from which it would seem that all covin and collusion to lower the price of merchandize was before unlawful, and that the statute meant to leave the law as it was. In the Poulterer's case, it was clearly considered as an offence at common law; and in A Blk. Com. 154, the exportation of wool, which, as has been before observed, was prohibited by the statute staple, under a very heavy penalty, is said to have been forbidden at common law, but more particularly by that statute; and if that, which it was the principal object of the statute to prevent and to punish, was before, an offence at common law, it may readily be supposed, that no new offence was intended to be created; but that a conspiracy to fix the price of wool, was an offence at common law. Moreover, the words of the statute are “without covin or collusion to lower the price,” &c. and a combination to “fix a price, beyond which they would not go,” might not necessarily be to “lowei'” the price. On an information against Breerton, Townsend and others, Noy’s Pep. 1.03, for the suppression of a will, to the prejudice of Egerton, the relator, whose wife was thereby disinherited, all the defendants but one were convicted and fined. This was a case of fraud effected by a confederacy, and the injury was to an individual; the suppression of a will by one was not an indictable offence, though a fraud highly injurious to the party affected by it. It was the confederacy alone which rendered it criminal, and therefore, the information was against the offenders conjointly. In Timberly and Childe, Siderfin 68, the indictment was for a conspiracy to charge one with being the father of a bastard child, with intent to extort money from him; and on motion to quash the indictment, it was held by the court to be good. In Child vs. North and Timber iy, 1 Keble 203, the indictment was for a conspiracy to| deprive tjie prosecutor of his fame, and to extort money, from him, by falsely charging him with being the father .of a bastard child. There was a motion to quash the indict^ went, because the conspiracy as laid, was to charge the prosecutor with matter that the court had no cognizance of; which was overruled, on the ground that it might be a loss to the prosecutor; and it was held that the conspiracy was punishable, though the court had no,cognizance of the matter of it. And in the same case in 1 Keble 254, it was moved after verdict in arrest of judgment, that the indictment only charged the parties with ak conspiracy to deprive the prosecutor of his fame, and to extort money from him* and not with a conspiracy to charge him before any tribunal having cognizance of the matter of bastardy. But the motion was overruled, and judgment rendered for the king, on the two grounds distinctly taken, that it was a conspiracy for lucre and gain, to charge and disgrace a) man with having a bastard, and that the crime was the/ conspiracy, which whether it was to defame or disgrace a* naan, or to charge him with heresy, was punishable at' common law. In The Queen vs. Armstrongs, Harrison and others, 1 Ventres .304, the defendants were' indicted for conspiring to charge (or burden) one with the keeping of a bastard child, and thereby to bring him to disgrace. After verdict there was a motion in arrest of judgment, on the ground that it did not appear that the party was actually burdened with the keeping of a child; but on the contrary that it was alleged to be only a pretended child; and also, that the party was not stated to have been brought before a justice of the peace on that account; but only that the defendants went and affirmed it to' himself, intending to obtain money from him, that it might be no further disclosed; and that a bare unexecuted conspiracy was not a subject of indictment. The objection was overruled and the parties were punished by line. The princi-. pie of this case cannot well be misunderstood. It was a. conspiracy to extort money from an individual, by going to him, and affirming that he was the father of a bastard child, with a.view of inducing him to pay them to say .no. more about it. And it was decided on the ground (expressly taken' by the court) that it was a contrivance by conspiracy , to defame the person, and cheat him of his money, which was an indictable crime of a very heinous nature.’ In The Queen vs. Best and others, 2 Ld. Raym. 1167, the indictment was for a conspiracy, falsely to charge (he prosecutor with being the father of a bastard child, with, which one Elizabeth Carter was pretended to be ensient, in order to defraud him of his money, and destroy his reputation. On demurrer it was among other things objected to the indictment, that it was not alleged that the child was likely to become chargeable to the parish, and-that it did not appear, that the prosecutor was by the accusation put in danger of being subjected to any penalty* but that it amounted only to a charge, that the defendants conspired to tell the prosecutor that he was the father of the child the woman was big with, and that a bare conspiracy to do an ill act, was not indictable. But the demurrer was overruled, on the principle broadly laid down by the court, that the defendants being charged at least with a conspiracy, to charge the prosecutor with fornication, though that-was only a spiritual defamation, yet the conspiracy was the gist of the indictment, ai^d was a temporal offence, and punishable as such. The King vs. Kinnersty Moore, 1 Strange 193, was a case "of conspiracy to extort money from Lord Sunderland, by charging' him with an attempt to commit sodomy with one of the defendants. It was not charged as a conspiracy to accuse him in a course of justice, but only in pais. The object was to extort money, by-means of a verbal slander, for which the party injured had' his civil remedy, and the mere verbal slander by one only, would not have been indictable. And in The King us. Martham Bryan, 2 Strange, 866, the court in speaking with reference to The King vs. Armstrong Sr Harrison, s y, “there the conspiracy was the crime; and an indictment will lie for that, though it be to do a lawful act.” In this class of conspiracies, the meditated end was not accomplished in either of the cases. The object in each was to defame and extort money from an individual; and the indirect or wrongful means, by which that object was intended to be effected, was verbal slander—a combination to do that, which if actually done by one alone, would not be the subject of an indictment; for if one verbally defames another, or extorts money from him, not under colour of office, it is not an indictable offence. The conspiracy therefore for a corrupt purpose, was the offence for which they Were punished; and there is no pretence for supposing, as has been urged in argument, that the prosecutions in the bastardy ca.ses were sustained on the ground, that the conspirators contemplated an abuse of judicial autho.ity, by falsely accusing, or causing the parties to be accused, of having bastard children, before justices of the peace having cognizance of such matters. A conspiracy of that character, would there is no doubt have been an indictable offence, having for its object, the subjecting the party accused, to the provisions of the statutes in relation to bastardy. But that is not the nature of the conspiracy charged in either of the cases referred to. In every case the defendants were indicted for a conspiracy to defame and extort money from the prosecutor, by charging him with being the father of a bastard child, not before justices of the peace, but the charge is laid as having been made in pais; and in The King vs. Timberly & North, one of the objections to the indictment was, that it did not lay the conspiracy to be, to charge the prosecutor before any that had jurisdiction of the matter; and in The Queen vs. Armstrong, Harrison, and others, the same objection was raised, and also, that the defendants only went and affirmed it to the prosecutor himself; and so in The Queen vs. Best, and others, which with the exception also taken in The King vs. Timberly & North, that it was not within the statute S3 Edward I. was disregarded by the judges. “Every indictment must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation, lest.the grand jury should find a bill tor one offence, and the party be put upon his trial for anolher, without any authority.” 1 Chitty’s Criminal Law, 169. And “the charge must be sufficiently explicit to explain itself, for no latitude of intention can be allowed, to include any thing more than is expressed.”—Ibid 172. The King vs. Wheatly, 2 Burr. 1127. And the accused is put upon his trial only for that, with which he is charged, and against which alone he is called on to defend himself. The prosecutions therefore in the cases referred to, could not have been supported on the ground, that the defendants contemplated an abuse of judicial power, by falsely accusing the prosecutors before justices of the peace; for no matter what they contemplated, that was not what they were charged with, and if they were only punishable on that ground, as the judges e.ould not by intendment, have supplied what was not expressed,, the indictments roust have been quashed,, or the judgments arrested for want of sufficient matter in law,, (which was Brought fully under the consideration of the courts,) otherwise it would have been, to punish the defendants for what they were not convicted of, for they could roily have been convicted of what was alleged against them in the indictments. And thus the singular picture would have-been exhibited in criminal jurisprudence, of men comicted of what was no offence in Law, and punished for what they were neither convicted nor accused of, and for any thing appearing might never have contemplated; but such a stain is not to be found on any page of juridical history. These remarks equally apply to the case of The King vs. Kinnersly & Moore; and it is not possible that in either of the cases, the judges went on the ground, that the defendants had accused, or meditated the accusation of the prosecutor before those- who had jurisdiction of the matter; on the contrary the idea is expressly negatived by the proceedings, themselves. The absence of the allegation was urged in each case, as an objection to¡ the- indictment, and the court decided, not that it might he inferred from what wa&alleged, but that it was not necessary, and that the conspiracy alone to defame and extort money from an individual, without any abuse, or meditated abuse of judicial power, was per se an indictable offence at common law. If they had not stated the grounds on which they acted, then indeed ahy legal principle that could be extracted from the cases, might, in support of the decisions, properly be assumed as the ground on which they were given. But the ground that is here attempted to be assumed, as that on which the conspirators were punishable, is not only different foojpi that, on which the judges expressly place their decisions, but is an illegal ground, and one on which the indictments could not have been supported. Illegal, not because a conspiracy to accuse a man of being the father of a bastard, child, or of an attempt to commit sodomy, before those who had cognizance of such matters, was not an indictable offence, but because it was, what was not charged in the indictments, and could not legally be inferred from what was expressed. To say therefore, that those conspiracies were indictable, or that the prosecutions were sustained tenly on the ground, that the conspirators meditated the abuse of judicial power, by falsely accusing the prosecu* tors before a tribunal having cognizance of such offences, Would be to overturn altogether the authority of the cases, which has not been attempted; on the contrary their authority seems to be admitted, and their application only to the case under consideration is resisted, on the hypothesis, that they were decided on grounds not appearing in the indictments, and entirely different from those on which the judges professed to act. But the fallacy of the argument becomes obvious, when it is seen, that without a violation of the principle, that “every indictment must contain a certain description of the crime of which the defendant is accused, anda statement of the facts by which it is constituted,” the indictments in those cases could .not have been sustained upon the grounds on which the decisions are attempted to be placed. Those cases therefore must stand or fall on the grounds upon which they are placed by the judges who decided them, not the reasoning of the judges, but the principles on which their decisions are made' to rest. The King vs. Parsons, and others, 1 Blk. Rep. 392, was®, conspiracy to take away the character of an individual, and accuse him of murder, by means of a mere phantom, which could have no reality-—pretended communications with a ghost; and the actual fact of conspiring, was left to the -jury to be collected from all the circumstances. The enly object of the conspiracy in that case, was to injure the man’s-reputation. And in The King vs. Rispal, 1 Blk. Rep. 868, 3 Burr. 1320, which was a prosecution for a conspiracy to extort money from an individual, by charging him generally with having taken a quantity of human hair out of a bag; on the objection being raised to the indictment, that the defendants were not charged with having conspir - ed to fix any crime on the party, but only generally with taking the hair, which might be lawful, it was said by Lord Mansfield, the other judges concurring, “the crime laid, is an unlawful conspiracy; this, whether it be to charge a man with criminal acts, or such only as may affect his reputation, is fully sufficient.” That case, if received as authority, settles this principle, that a conspiracy to defraud another by verbal scandal is equally indictable, whether it be to charge the party with a crime, or only to injure his standing in society, and is a full answer to the argument that the principle of the cases last referred to, is not applicable to this, because they are of conspiracies to fix punishable offences upon the parties. In The King vs. Skirret, and others, 1 Siderfin 312, the defendants were prosecuted for reading a release to an illiterate man, in other words than those in which it was written, by which he was induced to sign it. It does not appear by the short report of the case, what the form of the indictment was, but as it was against them conjointly, they must have been charged either with conspiracy or combination. The fraud was practised upon an individual, and if it had been perpetrated by one only, would not have been an indictable cheat. It was the combination therefore alone which made it criminal, and that too is a case not within the statute 33 Edward I In The Queen vs. Mackarty and Fordenbourgh, 2 Ld. Raym, 1179, 2 East’s C. L. 823, the defendants were conjointly indicted, for falsely and deceitfully bargaining and exchanging with another, a quantity of pretended wine, alleging it to be good new Lisbon wine, for a certain quantity of hats, which were exchanged and delivered by the party practised upon, on the faith of their false representations, when in fact the pretended Lisbon wine, was not Lisbon wine. The indictment in this case was not under the'statute 33 Henry VIII. eh. 1, which prohibits cheating by “means of false .privy tokens, and counterfeit letters in other men’s namesj” nor the statute 30 Geo. II. ch. 24, which provides, under heavy penalties, against cheating by “false pretences,” (and which was passed long afterwards,) but was for a cheat at common law, and though it did not charge the defendants with a conspiracy eo nomine, yet it charged, that they together did the act imputed to them; and as there were no false public tokens, which were necessary at common law, to constitute a cheat effected by one, an indictable offence, it was the combination alone on which the prosecution could have been sustained. A cheat perpetrated by the use of false public tokens, such as false weights and measures, is an indictable crime at common law, only because they are means calculated to deceive, and are such, as common care and prudence are not sufficient to guard against; and so as ordinary care and prudence are no safeguard against the machinations of conspirators, cheats effected by conspiracy are punishable at common law, for ‘■pari ratione, eadem est lex.”, And in The King vs. Wheatly, 2 Burr. 1127, cheats effect-e'd by conspiracy, are expressly placed ón the same footing with cheats effected by false weights and measures. In The Queen vs. Orbell, 6 Mod. 42, the indictment was for a combination to cheat one J. S. of his money, by getting him to bet a certain sum on á foot rácc, and prevailing on the party to run booty; and the court sustained the indictment on the ground as they said, that “being a cheat, though it was private in the particular, yet it was public in its consequence.” That was a case emphatically of individual injury, and as little connected with any public concernment, as Kkny private transaction could well be, and it was the combination alone on which the prosecution rested; for such a cheat practised by one was clearly not an indictable of-fence. In The King vs. Edwards and others, 8 Mod. 320, the parties were indicted for giving money to a man, to marry a poor helpless woman who was an inhabitant of the •parish of B, and incapable of marriage, on purpose to gain a settlement for her in the parish of A, where the than was settled. In that case thér'e was a motion to quash the indictment, on the ground that it was not unlawful to marry a woman and give her a portion; But the object of the conspiracy, being to impose a pauper on á parish to which she did not belong, it was held by the court to be an indictable offence at common law; for that a bare conspiracy to do a lawful act to an unlaibful end, was a crime, though no act should be done in consequence thereof. The conspirators certainly meditated a fraud on the inhabitants of a particular parish; by burdening them with the support of a pauper belonging to a different parish, and so far perhaps it niay be viewed as a case of contemplated, private fraud, as the inhabitants of a parish are not the community at large* But whether the principle laid down by the court, was on the point of meditated individual injury or violation of public police, does not appear from the report of the case. In 3 Chitty on Criminal Law, it is treated as a conspiracy to violate public police; but the principle equally applies to both. In The King vs. Cope and others, 1 Strange, 1-14, the prosecution was for a conspiracy to ruin the trade of the prosecutor, who was a card-maker to the king, by bribing his apprentices to put grease into the paste, by which the cards were spoiled. The putting grease into the paste, and thereby spoiling the cards, if done by one, would have been no crime in law, btit a Plava^u *nj ury, for which the party would have been left to his civil remedy; ánd it was the conspiracy alone which con- . J ■ 1 J . stituted the offence: And m The King vs. Eccles, 1 Leach’s Crown Cases, 274, the indictment was for a conspiracy, by wrongful and indirect means, to impoverish one Booth, a tailor, and to deprive and hinder him from following and exercising his trade. Iii the first count in the indictment, the object of the conspirators was alleged to have been accomplished, and in the second count the conspiracy only, was charged; It was not denied that, the conspiracy was an indictable offence, and the only objection on the part of the defendant was, that the acts done to impoverish Booth, ought to have been set out in the indictment. But it .vas decided by the whole court, that it was sufficient to allege, the conspiracy and the object of it, the illegal combination being the gist of the offence; and that it was not necessary to state the means, by which the intended mischief was effected; fo>- that the offence, did not consist in doing the acts by which the end was accomplished, (for they might be perfectly indifferent,) but in the conspiring with a view to hffeet the intended mischief by any means; and by Butter, justice; that “the means were only matters of evidence to prove the charge,.' ánd not the crime' itself.” It has beer! contended that these \ last cases were conspiracies to injure public trade; tlidfl distinguished judges before whom they were tried have not said so, nor could they have so considered them.They were not so laid in the indictments, but were distinctly cases, in which the meditated injuries were level-led against particular individuals, unconnected' with any matter of public concernment, and do not fall within the principles of any of the enumerated offences against pub ■ lie trade, which are offences committed by traders or dealers themselves, such as cheating, forestalling, regrating, &c. So in The King vs. Leigh and others, (Macklin’s Case,) 2 Macklin’s Life 217, in which' it was held, that an indictment would lie for a conspiracy to impoverish an actor, by driving or hissing him off the stage’: and in' Clifford vs. Brandon, 2 Campb. 858, it was said by Sir' James Mansfield, that “though the’ audience had a right to express by applause or hisses their sensations at the' moment, yet if a body of men were to1 go to the' theatre, with a settled intention pf- hissing an actor, or even of damning a piece, th.ere could be no doubt that such a deliberate preconcerted• scheme;, would amount to a conspiracy, and that the persona cpncerned in it might be brought to punishment.” There the preconcerted scheme alone, the unexecuted conspiracy, was held' to, be indictable; but if put into execution, according to circumstances, it would be a riot. In The King vs. Robinson and Taylor, 1 Leach’s Crown Cases, 37, the. defendants were indicted for a conspiracy to raise a specious title in Mary■ Robinson to the estate, of Richard Holland, by marrying. Taylor, under .the assumed name of Richard Holland, The, only evidence in the case was of the marriage, and that - she lived with Holland as a kind of servant. It was. distinctly admitted, that a conspiracy, to do an injury to the.person or estate of another was an indictable offence, and so held ly the court, Wittes, Foster and Reynolds, presiding; and it ivas also ruled, there being no positive proof, of an intention^ to injure , J/oi/awd, that it was not necessary to prove any- direct or. immediate injury, or even to show any specific overt act of conspiracy,, but that it was the pro vince. qf the* jury to collect from all the circumstances of the case, whether there was not an intention or design, in the parties to do. a future injury to Holland. And that case, would seem to .cover all .the ground necessary to support this prosecution. The conspiracy was levelled at the property qr estate .qf another, and the object was to defraud an.individual, but the act by which the fraud was. intended to be accomplished, (q marriage under an assumed name) was nofcin itself unlawful.. It has been ingeniously argued here, but not ventured on by those who conducted fiie defence, of.Robinson and- Taylor, that they, me-* ditated a perversion, of the. course of justice, as her rightto Holland’s estate-could only have, been established by judicial proceedings. Itwas not so charged in the indictment, and. without.it, the prosecution must have failed,fif it had beep deemed at all necessary tp constitute the offence; for “no, latitude of intention can be allowed, to include any thing more .than is expressed in an indictment,” as has been before observed on the,authority of Lord Mansfield, in the case of The King vs. Wheatly, 2 Burr. 1127, and 1 Chitty’s Criminal Law, 172. In The King vs. Lara, 6 T R. 565, it was admitted by counsel in argument, that a ftaud .up on an individual by conspiracy was indictable, and tin} laid down by the judges in The King vs. Wheatly, was re?°§n'z,e^ an^ adopted-by Lord Kenyon; that is, that a cheat effected by a conspiracy, was an indictable offence.' The case of The King vs. Berenger, 3 Maule & Selwyn, 68, as it is understood by the court, is a very, strong one. The indictment was for a conspiracy by false rumours to raise the price of the public government funds, yvith intent to injure such of the King’s subjects as should purchase on a particular day. It was broadly admitted in argument, that if the indictment had stated, “that the defendants conspired to raise, the price of the funds in order to cheat or prejudice particular individuals by name, or to benefit themselves at their expense, or that the pub-lie were concerned in the purchases- of that day, and the defendants conspired, &c. to the prejudice of the public, it would have exhibited a complete offence.” But it wag contended, that the allegation, that it was with intent to injure “such of the King’s subjects as should purchase on. that day,” was too general, and for that reason only, the indictment was objected to. But the objection was overruled by the court, not on the ground, as supposed in argument, that to constitute an indictable conspiracy, it should be levelled either at the public in its aggregate capacity, or at a class or portion, of the subjects, as distinguished from an. individual, and that the case fell within one of those classes of conspiracies; for it was treated throughout as perfectly clear, that if it had been laid with intent to prejudice or defraud either the public, or an individual or individuals by name, it would have been good; and the only difficulty on that part of the case was, whether, being laid with intent to injure those ivho might become purchasers, and not either, an individual by name, or the public in its ag-: gregate capacity, the generality of the charge did not vitiate the indictment. But they sustained the indictment ex necessitate rei, on the ground, that as it was impossible the defendants could haye known who would be the purchasers on that day, the charge could not have been more specific. And though it was conceded, that to raise or lower the price of the public funds, was not per se a crime, yet it wag held to be an offence for- a number of persons^ to conspire to raise them by false rumours; and that the crime was not in raising the funds, but in' the act of conspiracy and combination to do s'o, and would be complete, though it should llot be pursued to its consequences. It was. plearly therefore on the point of individual injury that the court went. And so in The King vs. Gill & Henry, 2 Barnwell & Alderson, 204, the defendants were, indicted and convicted pf a conspiracy by divers falsa pretences, and subtle means and devices, to cheat 'several individuals by name. The prosecution in that case could not have been sustained, on the ground, as has been supposed, that it was for a conspiracy to commit an offence, indictable pf itself under the statute SO George II, against cheating by false pretences; for it is well settled, that in pn indictment framed upon that statute, it is not enough to allege generally, that the cheat was effected by divers ■false pretences, &c.'but the particular false pretences must ]ie stated, that the party may know against what he is to defend himself,- and that the court may see that there is an indictable offence cliarged, as there are some pretences which are not within the statute. 2 T. R. 586: East’s Crown Law, 837. So in an indictment at co.mmon law for cheating by false public tokens, and so also in an indictment on the statute 33 Henry VIII, against cheating by false privy tokens, &c. 3 Chitty’s Criminal Law^ 999.2 Strange ¡127. If then the conspiracy in that case was only indictable, because it was to commit the statutory offence of cheating by false pretences, as they would form the principal ingredient of the offepce, it would have beep necessary to set put the particular false pretences by which the. cheat wasr intended to be effected, in order to show that it was the statutory offence which the conspirators intended to commit—on the acknowledged principle, that every, indictment must contain a certain description of the’crime of which the defendant is accused, and a statement of the facts by which it is constituted. But it was there, ruled by the court, that when several persons have oiice agreed to cheat a particular individual of his money, although they may pot at the time have fixed on any particular means for that purpose, the offence_ of conspiracy is coin- ’ píete, and that it was sufficient to state the conspiracy and the object of it in the indictment, without setting out the means by which it was,intended to be accomplished; and per Lord Mansfield, in the case, of The King vs. Eccles, i‘they may be perfectly indifferent.” It is evident therefore that the indictment was not supported on the ground.,. that it was a conspiracy to commit an- indictable offence; for if it had not been for a conspiracy to cheat, but against an individual, for the actual coipmission of the offence, it ■would have been bad for the generality of the allegation/ and the principles of that case embrace every thing that is necessary to the support of the indictment against these, defendants. The case of The King vs. Mawbry and others, 6 T. R. 619, was a conspiracy to.pervert the course of justice, which is of itself an indictable offence. That case has no other bearing on the present, than as it shows that all indictable conspiracies are not embraced by the statute S3 Edward I, but that at common law a conspiracy todo any thing which the law forbids is indictable. In The King vs. The Journeymen Tailors of Cambridge, 8 Mod. 10, recognized in The King vs. Mawbry and others, 6 T. R. 636, the defendants were indicted, at common law, and not on the statute of George, for a conspiracy to .raise their wages; and it was held, that the conspiracy was indictable at common law, though it would have been lawful • for cither of them to raise his wages if he could. So in The King vs. Delaval, 3 Burr. 1434, which was a. conspiracy to place a girl by her own consent in the hands of Delaval for the purpose of prostitution. The act of seduction was not of itself an indictable offence, but it was the end, the immoral object of the conspiracy, whichgave.it its criminal character. And the case of The King vs. Lord Grey, is of a similar description. In 1 Hawk. P. C. 190, ch. 72, it is said, “there can be no doubt, that all combinations whatsoever, wrongfully to prejudice a third person, are highly criminal at common law.” This is literally adopted and transcribed into 1 Burn's Justice 378, and S Wilson's Works 118. Chitty in his 3 Vol. on Criminal L.aio, 1139, says, “in a wrord all confederacies wrongfully to prejudice another, are misdemeanors at common law, Whether the intention, is to injure his property, his person, or his character;” and in 4 Bile. Com. 137, (.Christian's note 4,) “every confederacy to injure individuals, or to do. acts which are unlawful, or prejudicial to the community, is a conspiracy. ” The concurring testimony of these writers, that, all conspiracies wrongfully to. injure a third person are indictable offences, is not lightly to be received, though the positions laid down are not assumed as full and definite descriptions of the crime of conspiracy; yet they go quite far enough for all the purposes of this prosecution. Indeed the four first were only treating of conspiracies levelled against individuals. And such is the character of conspiracy, so ramified is it in its nature, the object and teiidency of it being that, from which it derives its criminality, that it would be exceedingly difficult to give a single specific definition of the Offence. But by a course of decisions funning through a space of niore than four hundred years,' from the reign of Edward III, td the 59 of George HI, ■without a single conflicting adjudication, these points áre Clearly settled:—-

1st. That the offence of conspiracy is of common law origin, and not restricted of abridged by the statute 33 Edward I.

2d. That a conspiracy to do any act that is criminal per se, is an indictable offence at common lav/,- for which it can scarcely be necessary to offer any authority.

3d. That an indictment will lie at common law—-f st. For a conspiracy tó do an act not illegal, nor punishable if done by an individual, but imnidral only—as in The King vs. Lord Grey and others, and the case of Sir Francis Blake Belaval. 2d. For a conspiracy to do an act neither illegal iior immoral in an individual, but to effect a purpose, which .has á tendency to prejudice the public—as in The King vs. The Journeymen Tailors of Cambridge, for a conspiracy io raise their wages, either of whom might legally have done so, and The King vs. Edwards and others. 3d. For a conspiracy to extort money from another, or to injure his reputation by means not indictable if practised by ail itidividual, as by verbal defamation, and that, whether it toe to charge him with an indictable offence or not—-as in Timberly and Childe; Child vs. North Timberly; The Queen vs. Armstrong, Harrison and others; The Queen vs. Best and others; The King vs. Kinnersly & Moore; The Queen vs. Martham Brian; The King vs. Parsons andothers, and The King vs. Rispal. 4th. For a conspiracy io cheat and defraud a third person, accomplished by means of an act which would not in law amount to an indictable cheat, if effected by an individual—as in Breerton & Townsend; The King vs Skirrett and others; The Queen vs. Macarty & Fordenbourgh; The Queen vs. Orbell; The King vs. Wheatly, and The King vs. Lara. 5th. For a malicious conspiracy, to impoverish or ruin a third person in his trade or profession—as in The King vs. Cope and others; The King vs. Eccles; The King vs. Leigh and others, (Macklin’s case,) and the case of Clifford vs. Brandon. 6th. Fór a conspiracy to defraud a third person by means of an act hot per se unlawful, and though no person be thereby injured—as in The King vs. Robinson & Taylor; The King vs. Berenger and others, and The King vs. Edwards, and others. 7th. For a bare conspiracy to cheat or defraud a third person, though the means of effecting it Should not be determined on at the time—as in The King vs. Gill & Henry. 8th. That a conspiracy is a substantive offence arid punishable at common law, though nothing be done in execution of it—;as in the Book of Assises, ch. 44; the Poulterer’s case; The King vs. Edwards and others; The King vs. Eccles; The King vs. Berenger dud others, and The King vs. Gill & Henry; arid all the authorities that the conspiracy is the gist of the offence; And 9th. That in a prosecution for a conspiracy, it is sufficient to state in the indictrherit, tlie conspiracy and the object of it; and that the means by which it wás intended to be accomplished need not' be set out, being only matters of evidence to prove the charge, and not the crime itself, and may be perfectly indifferent—as ia The King vs. Eccles, and The King vs. Gill Henry.

^ From all which it results, that every conspiracy to’ do an- unlawful act, or to do a lawful act for ari illegal, fraudulent; iriaiicious or corrupt purpose, or for a purpose which has a tendency to prejudice the public in general; is at common law an indictable offence; though nothing be done in execution of it, and no matter by, what means thd conspiracy was intended to be effected; which may be perfectly indifferent, and makes no ingredient of the crime,- and therefore need not be stated in the indictment.- In 1 Tremaine’s P. C. 82; S3, there is an information against Turner and others, for a conspiracy to destroy the reputation of one Geoige Green, and falsely to charge him with, adultery with the wife of one of the conspirators, for’ the purpose of extorting money from him. In 86, agaiust Record and others, fora cheat practised on Lady Dorothea ■Beymour, in prevailing on her by means of a falsehood to advance large sums of money to them. In 91, against Wilcox and others, for cheating by conspiracy one John Button of a quantity of cloth, under pretence of buying them. In 94, against Taydler and others, for a cheat by conspiracy, in drawing an absolute conveyance to †1 em-selves of the estates of two women, and persuading ‘.hem to execute it, pretending it was only in trust for the women, &c. And in 97, against Mlibone and others for cheating by conspiracy one Hilliard, in obtaining divers bonds From him for the payment .of money to themselves and others, as a consideration for procuring a marriage between him and an indigent woman, whom they represented as being rich. In neither of those cases, could an indictment have been sustained for the same injury practised by an individual, without the aid of conspiracy or combination^ and as Tremaine gives the terms, the reigns, and the names of the respective parties, théi’e can be little doubt, that they, are precedents of informations in adjudicated cases, and that they were held to be good; and they go far to shew how the common law was understood in England in the reigns of Charles and James II. And the law1 of conspiracy, as settled by .the uniform tenor of the decisions of the courts in England, has been recognized and adopted as the common law, by the courts of several of .the sister states; ás in The Commonwealth vs. Ward and others, 1 Mass. Rep. 473. The Commonwealth vs. Judd and others, 2 Mass. Rep. 329; and The Commonwealth vs. Tibbitts & Tibbitts, ibid 536; and thé cases of The Journeymen Cordwainers in New-Fork and Pennsylvania; and also in a similar case in this stáfe, by the Court of oyer and terminer; &c. for Baltimore county, which has it. is believed been entirely acquiesced in. In 2 East’s C. L. title Cheat—cheats by conspiracy are treated of, as being on the satrie footing with cheats effected by the use of false public tokens, as false, weights and measures. Chitty in Ids 3 vol. title Conspiracy, after speaking of indictable conspiracies levelled at individuals, says; ‘‘but the object of conspiracy, is ftot confined to an immediate wrong td particular 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.” Thus taking a clear distinction between indictable combinations to injure individuals, and such as have for their object an injury to the public at large, or the commission of acts which are in themselves illegal. And in page 1140 lie says, “that to constitute a conspira cy, it is not necessary that the act intended should be in itself illegal', ór eveh immoral; that it should affect the public at large) or that it should 'be accomplished by false pretences.” Conspiracies ate odious id law, and are always taken mala parte, and properly. , In The King vs. Rispal, it was said by Lord Mansfield in delivering the opinion of the court', tliat “they tended to a breach of the peace, as much as cheats or libels.” That is the only reason assigned iii tlie bóolcá why libels aré punishable by indictment) and whether they have in fact a more direct tendency to a breach of tlié peace, than verbal slanders, which are not per se so punishable, it is noAv too late to inquire—the law is settle'd; whether the reason be good or bad. There is however a greater malignity of spirit displayed, and a deepfer and more lasting mischief contemplated by a deliberately written libel, than by a mere verbal slander; which is often repented of almost as soon as it is uttered. Libels therefore furnish evidence óf a disposition, more dangerous to the social order, than verbal slanders, against the effect of which) the law has interposed itself, as a necessary safeguard. So at common law, a cheat effected by false public tokens,' as “false weights abd measures,” is punished criminaliter not because the party cheated is more injured in that way, than by ft mere private cheat accomplished by ari individual in any other manner, which is not indictable; but because it is that, against which ordinary care am! prudence áre not sufficient to guard, and the use of which' ■ évincéS a disposition to practice tipori the whole community. And for thé samé reason fraudulent, false or malicious conspiracies, to cheat Or Otherwise injure a third person, are indictable offences'; for that ordinary cave and prudence, which would be a sufficient guard against the' evil designs of an individual, furnish no protection against thé Machinations of a band of conspirators'.' The King vs. Turner and others, 18 East’s Rep. 228, has been much' relied upon by the counsel for the defendants in error,’ but the case itself is not at all in hostility with this principle, or with any of the adjudications to' which we have1 had occasion to advert. It was an agreement only, (ur the words of Lord Ellenborough by whom it was decided) “tu go and sport upon another’s ground;” not tinctured5 either with malice, falsehood' or fraud; And an agreement to, commit a civil trespass,, (for every unauthorised entry upon the possessions, of another, though it only be for the purpose of innocent amusement, is in law a trespass) may not, according to circumstances, amount to an indictable offence. But fraud, falsehood and malice, strike at the-very root of the social order, as the well being of a community greatly depends on the honesty, truth, and properly regulated passions of those who compose it; and therefore it is necessary that the law should punish them whenever they assume a shape, against the effect of which ordinary care and prudence are not sufficient to

There is nothing in the objection that to punish a conspiracy where the end is not accomplished, would be to, punish a mere unexecuted intention. ’ It is not the bare intention that the law punishes, but the act of conspiring, which is made a substantive offence, by the nature of the object inteffded to be effected. And iff that respect, conspiracies are analogous to unlawful assemblies. An unlawful assembly, is the assembling of three or more together to do an unlawful act, as to pull down enclosures5,and departing without doing it, or making any motion towards, it. In that-case it is not the bare nncxecuted intention which the law punishes, but it is the act of meeting, connected with the object of that meeting, which constitutes, the offence; and for that act of meeting alone, though it should be to do, what if actually done by one, (as the pulling down of another’s enclosures,) would be buf á civil trespass, the parties are liable to be punished by fine and imprisonment. And why should the law favour the act of conspiring together, falsely to injure the reputation of another, maliciously to ruin him in his occupation, pr fraudulently to cheat him of his property, (no matter by what means,) and yet punish the act of meeting together to pull down another’s fence, without making any motion towards it?

But it is contended, that if our ancestors brought with them the common law of the mother country, or any part of it, it was the common law so far only as. it had been established by judicial precedents, at the time of their emigration, and not as it has since been expanded in England by judicial decisions. That our ancestors did bring with them the laws of the mother country, so far at least as they were applicable to their situation, and the conditidh of an infant colony, cannot be seriously questioned. The rule that “in conquered or ceded countries that have laws of. their own, those, laws continue in force, until actually altered,” &c. is for the benefit and convenience of the conquered, who submit to the government of the conquerors, or in the case of cession, for the benefit of the people, who' by treaty submit to the government of those to whom their country is ceded, and was not applicable to the condition of our ancestors, as the Indians did not submit to their government, but withdrew themselves from the territory they acquired. They were therefore in the predicament of a people discovering and planting an uninhabited country; and as they brought with them all the rights and privileges of native Englishmen, they consequently brought with them also, as their birthright, all the laws of England, which were necessary to the preservation and protection of those rights and privileges. And it would be difficult to show, that the law of conspiracy was' not, at the time of their emigration, quite as necessary to them here in their new and colonial condition as it was in England, unless it can also be shown,’that there was less necessity here, than there, for the preservation of life, liberty, reputation and property, or protection against false-' hood,, malice and fraud. If then they did bring wi.tb them the common law of,'conspiracy, which is assumed as undeniable, (though it may have existed potentially only,) they broúght it as it is now settled and known in England; for what it is now, if was then, if any reliance can be had' on ancient authorities; and it is to judicial decisions, that we are to look, not tor the common law itself, which is no where to be found, but for the evidences of it., It appears, as has been seen by a note of a case in the Booh of Assizes, 9,7 Edvjard HI, that an indictment was sustained at common law for a conspiracy, though nothing was done in execution of it. The same principle is recognized and adopted in 9 Coke’s liep, 56, (The Poulterer’s case,) in its' fullest extent; and that is the great principle funning through the cases so much objected to in argument,' that conspiracies are substantive punishable offences, though they be not executed; and the rest, that it is sufficient to state in the indictment the conspiracy arid the object of it, that the means by which' it was intended to be effected, ave but matters of evidence to prove the charge, and no part of the crime itself, and may be perfectly indifferent, and need not therefore be set out, are but consequences. And in the case of Breerton §' Townsend, Abiy’s Rep. 108, (12 James I\) an indictment was held to lie, as has been seen, for a conspiracy to defraud another by means of an act, which if it had been effected by an individual, would not have been indictable. The case in Ncy, in which the parties \\ ere punished by fine, also shows, tliat the viilenous judgment was not given in all cases' of conspiracy, but that there were at common law, different degrees of punishment, and consequently of crime; and in 1 iiawltl P, C. 193, eh. 72, s. 9, it is said, that it has never been settled to be the proper judgment upon any conviction of conspiracy, except such as threatened the life of the party, which' obviates any argument . drawn from the viilenous judgment, against there being any other conspiracies at common law than those enumerated in the statute 33 Edward L 'These cases were before the colonization, the charter being in the eighth year of the reign of Charles I, ar,d they furnish the leading principles of the doctrine of conspiracy, of which the subsequent decisions are but practical applications, and must be received as expositions of the law as it before existed, and not as creating a new law, or' altering the old one,'which could only be done by legislative cnáctment; arid cannot be assimilated to occasional alterations, or changes in the practice of courts, in relation to the forms of proceeding, which are only creatures of courts, and often go on mere fiction. Arid it is a mistake to suppose, that'they are expansions of the common law, which is a system of principles not capable of expansion, but always existing, arid attaching to whatever particular matter or circumstances may arise and come ' within the one or the other of them; not that this or that' combination, is by the eomriion law in terms declared ‘to be an indictable conspiracy, but that it falls within those principles of the common law, which have for their object the preservation of the social order, hi the punishing such combinations as are calculated to threaten its well being. Precedents'therefore do not constitute the common law, but serve only to illustrate principles. And if there were ao other adjudications on the subject to be found, the ju-. dicial decisions since the colonization, furnish conclusive evidence, not only of what is now understood to be the law of conspiracy in England, so far as those decisions go, but of what were always the principles on which that law rests. A.nd if the political connexion between this an<j the mother country had never been dissolved, the expression of a doubt would not now be hazarded on the question, whether the same law was in force here. And unlike a positive or statute law, the occasion or necessity for which may long since have passed away, if there has been no necessity before, for instituting a prosecution for Conspiracy,1 no argument can be drawn from the non user for resting on principles which canpot become obsolete, jt has always potentially existed, to be applied as occasion should arise. If there had never been in Maryland, since the original settlement of the colony by our ancestors, a prosecution for murder, arson, assault and battery, libel, with many other common law offences, and consequently no judicial adoption of either of those branches of the common law, could it therefore be contended, that, there was now no law in the state for the punishment of such offences? The third section of the Bill of Rights, which declares “that the inhabitants of Maryland are entitled to the common law of England, and the trial by jury according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which by experience have been found applicable to their local and other circumstances, and of such others as have been since made in England or Great Britain, and have been introduced, used and practised by the courts of law or equity,” has no reference to adjudications in England anterior to the colonization, or to judicial adoptions here, of any part of the common law, during the continuance of the colonial government, but to the common, law in mass, as it existed here, either potentially, or practically, and as it prevailed in England at the time, except such portions of it as are inconsistent with the spirit of that instrument, and the nature of our new political institutions. And surely it cannot be inconsistent with, or repugnant to the spirit and principles of republican institutions, whose strength lies in the virtue and integrity of the citizen, to- correct the morals and protect the reputation, rights and property of individuals, by punishing corrupt Combinations, falsely to rob another of his reputation, ma« liciously to ruin him in his business, or fraudulently to *f . .. 5 , J cheat him of his property. If it is, the law of libel, and V. . * 1 ^ . . for punishing cheats effected by false public tokens, should also be rejected; for the one is not more inconsistent with the personal liberty of the citizen than the other, or at all more necessary to the preservation of the social order, and they all rest upon the same principle. And that clause in, the third section of the Bill of Rights, which declares the inhabitants of Maryland to be entitled to the benefit of such British statutes made since the emigration, as had Seen introduced, used and practised by the courts of law ór equity, and thus virtually inhibits the use of all such as had not beeii so introduced, furnishes a clear exposition of the whole section, and shows, that it was hot the intention of the framers of that instrument to exclude any part of the common law, merely because it had not been introduced and used in the courts here, and strongly implies, that there were portions of that valuable system which had Hot been actually practised upon. And the judicial proceedings of our courts furnish no evidence of any prosecution before tile revolution, fo? a cheat effected by false public tokens; and yet it is not pretended, that from thé non user, it is not now an indictable offence.

It is not necessary, as lias been contended on the part df the defendants in error, that every one should in fact’ know what the law is, before he can be punished for what the law forbids. Such a doctrine would be fraught witli the most mischievous consequences to society: it is enough that the offence was known to the law before, and if it be malum in se, there is an inward monitor, always present, to warn, advise and instruct. Nor is it any argument against the law of conspiracy, as contended for on the part of the prosecution, that under the English decisions, the act of conspiring is not required to be proved by positive testimony, but may be inferred by the j ury from all the circumstances of the cases. It has nothing to do with the question of what is; or is not an indictable’ conspiracy; and if it be an objection at all, it is one that arises upon the law of evidence, arid is equally applicable' to every description of conspiracy. But we cannot perceive what there is in it to quarrel with. It is not confined to the offence of conspiracy~Murder, which reaches the life of the offender, and various other crimes, may be proved by circumstantial evidence; and there does not seem to be any thing in the crime of conspiracy, that ■ ' • • ’ 1 0 . should-exempt it from being proved by the same species of evidence. On the contrary, as conspiracies from their very nature, are usually entered into in secret, and are consequently difficult to be readied by positive testimony, it would appeal’ to be peculiarly necessary and proper to permit them to be inferred .from circumstances, otherwise the most dangerous and injurious conspiracies would often go unpunished. . ...

. I have endeavoured to. avoid bringing any thing into this case, which does not strictly belong.to it, or assuming any prmciple.that is not well settled. The indictment has two counts, the first charges the defendants with an executed conspiracy, falsely, fraudulently and unlawfully, by wrongful and indirect means, to cheat, defraud and impoverish The President, Directors and Company of the Bank of the United States; grid the second, charges them with a conspiracy only, falsely, fraudulently^ and unlawfully, by wrongful and indirect means, to cheat, defraud and impoverish The President, Directors and Company of the Bank of the United States. James A. Buchanan, one of the defendants, was the President of the office of discount and deposit of the mother bank, duly established in Baltimore; James W.. M-Culloh, another of the defendants, was the Cashier of that office^ and George Williams, the other defendant, was a Director of the mother bank in the city of Philadelphia; and it has been contended, that as an impi-oper use,,or embezzlement of the funds of the bank, by either the President or Cashier of the office, would inlaw be only b breach of trust, a combination to effect, the same purpose cannot amount to an indictable offence. But however ingeniously urged, there does not appear to be any tiling in the argument, when stripned of the dazzling attire in which it was clothed. Seeing, as has been shown, that to constitute ah indictable conspiracy, it is not necessary that the act conspired tobe done, should, if effected by an individual, be such, as would per se amount to an indictable offence. It seems therefore to be perfectly clear, both on principle and authority, that the matter charged in each count in the indictment, constitutes a punishable conspiracy at common law, and that that portion of the common law is in force in this state.

‘Í'líe only question remaining to be examined, that IS, whether under the constitution and laws of the United States, the county court of Harford had jurisdiction of the offence in this particular case, (the Bank of the United States being chartered by an act of congress,) requires but little to be said, and will be disposed of in a few words. A conspiracy to cheat or defraud the bank, is not declared to be an offence against the United States by any act of 'congress, and in the case of The United States vs. Hudson & Goodwin, 7 Cranch, 32, it was decided by the supreme court, that the courts of the United States had no common law jurisdiction in 'criminal cases-. The authority of which case is recognized in the case of The United States vs. Coolidge and others, 1 Wheaton, 415, and until it shall be overruled by the same tribunal, the principle must be considered as settled. The matter therefore charged in the'indictment is not an offence against the United Slates, nor cognizable in any of their courts; but a comfnon law offence against the state of Maryland•—the act of congress creating the bank, and the establishment of the Office of discount and deposit in the city of Baltimore within the territorial jurisdiction of the state, furnishing only the occasion for the offence, by bringing into existence the thing, upon which the fraud is charged to have been committed. And as the previously vested jurisdiction of the state, cannot be supposed to be taken away, by the mere potential right of congress (supposing it to exist) to makfe 'a conspiracy to cheat the bank, an offence against the United Slates, and to give exclusive jurisdiction thereof to th'e * United States courts, without any exercise of that right, the original common law jurisdiction of the courts of the state, in relation to this subject, remains as it was before the adoption of the federal constitution, and will so continue to remain, until that right shall be exercised by congress to its exclusion. Whether a concurrent jurisdiction would be denied to the courts of the state, if congress had in fact vested jurisdiction of this matter in the courts of the United States, it is not now necessary to inquire, the 'exclusive jurisdiction being in the courts of the state. It will be time enough to examine that question when it shall be regularly presented to us.

It has been urged on the part of the defendants in error, as an objection to the jurisdiction .of the courts of the state, in such a case as this, that the principle would lid dangerous to the well being of the bank, as it might lead to the passing of laws by the state legislature, calculated to destroy the institution, under pretence of protecting its interests. It maybe admitted, that the legislature of the state lias ño right to pass laws calculated to control or impede the operations of the bank. But it is difficult to imagine, how a general power in the judicial tribunals of the state, to punish an offence against the State] can be considered as an unconstitutional interference with the concerns of the Bank of the United States, or as in any manlier endangering its security, only because its officers happen to be the objects of the prosecution, and the offence is charged to be, to the prejudice of that institution; which for the purpose of the prosecution is considered as an individual*

Chase, Ch. J.

Footnotes

•

(a.) In this case four questions have been, Submitted to the court for their consideration—

1. Whether the state has the right to issue a writ of er ■ ror in this casé?

2. Whether the record has been legally and properly transmitted?

8. Whether the court has jurisdiction over this- case?

4: Whether the facts charged in the indictment constitute the offence of conspiracy at the common law?

1. As to the first. This is a question which arises on demurrer to the indictment, and is solely arid exclusively á question for the court to decide on the legal sufficiency of the indictment.

If the facts charged constitute the crime of conspiracy at the common law, it is a misdemeanor, and is punishable by fine and imprisonment. Supposing, for argument sake, the court below had determined the indictment was sufficient, and the offence a conspiracy at the common law, there cannot be a question but that the defendants would have had a right to a writ of error, to have the judgment of the court below reviewed, and the law settled. Where the offence is a misdemeanor, it is the right of the party to have a writ of error ex debito justitia—the allowance of the attorney general in England is a matter of course, and never refused. In this state the allowance of the attorney-general is not necessary, and never applied for. What good reason can be assigned why the state should not have u writ of error? The right ought to be reciprocal, at least in the case of a misdemeanor. In the Marquis of Win-. Chester’s case, reported in Sir William Jones and Croke Charles, the right of the king to a. writ of error was not questioned. The right of the party accused to bring a writ of error was taken away by the words of the statute of James /, ch., 3; hut the right of the. king remained—the king not being named in the statute.. The offence charged, was recusancy and a misdemeanor, which, subjected the pavty to a fine.. This case unequivocally establishes the right of the King to bring a writ of error in the case of % misdemeanor; the court of King’s Bench acted on the record returned under it, and pronounced a judgment of reversal. The defect- in the judgment in the court below, was the want of the ideo capiedur. The motives which induced the king, or the attorney-general, to issue the writ of error, could not have been-a subject of inquiry in the superior court.

2. As to the question, whether the record has been legally and properly transmitted?

I am of opinion that the record has been legally transmitted, and is properly before the court. The act of 1713, ch. 4, provides fully for the transmission of records in all cases civil and criminal, and the mode prescribed by that, act has been, fully, and strictly pursued.. The fourth section of that act directs, that the party appealing, or suing; out such, writ of' error, shall procure a transcript of the-full proceedings of the said court, &c. under the- hand of-the clerk of the said court, and the seal thereof, and shall cause the same to be transmitted to the court, &c., upon-which transcript the said court shall proceed to give judgment. The transmission of the record in this case has been made pursuant to the fourth section of the act of 1713, ch. 4. and.in strict conformity to it, and the previous order of the court below is by no means necessary.

3. As to the third question, whether the courts of Maryland have jurisdiction over this case?

It is the duty of this court to refrain from, and.restrain the inferior courts of this state-from the exercise of any jurisdiction and power which exclusively belong to the tribunals of the United Slates. In considering this question, it will be necessary to ascertain the power and jurisdiction. of the courts of the United States, and to fix, with preci sien, the line of division between them and the state courts,.

By the third article, and first section of the constitution of the general government, the judicial power of, the United States shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. By the second section, the judicial power shall extend to all cases in law and equity, arising under the said- constitution, the laws of the United States, cj’c* These sections of the third aiticle comprehend all the powers vested in the judiciary of the United States, so far as respects the question under the consideration of the court.

This is not a question or case arising under the constitution of the United States, nor under the laws of the United States. The law of the United Slates, establishing the Bank of the United Slates, does not create any offence against the Dnited States; and it has been determined by the supreme court, that the common law of England is not a part of the laws of the United States; and that decision has been since recognized and sanctioned, although some of, the judges expressed a willingness to hear an argument on the question.

It is a position, not to he controverted, f think, that all power not granted by the constitution to the general government, is still resident in the states, or the people, and. is to be exercised, in the manner and way the constitutions and laws of the several, states respectively prescribe. If. the offence charged had been committed prior to the establishment of the constitution of the general government, and during the existence of.the first hank of the United.. Slates, there cannot be á doubt but what it would have been cognizable by the courts of the state in which the of-fence was committed, and punishable according to the laws of such state. I therefore am of opinion, that the courts of this state have jurisdiction over the offence charged in the indictment. "

4. Having disposed, of the’preliminary questions, and all impediments being removed which were supposed to prevent the con side- ation of the fourth and last question, I shall now endeavour to express my opinion upon it, and shall do it in as concise and .plain a manner as possible, consistent with perspicuity.

The question is important as it concerns the state, and. Hie individuals accused, and has undergone a very full and elaborate discussion, and nothing has been omitted which splendid talents could urge, or ingenuity invent, to elucidate the subject, and place the question in every view of ■which it is susceptible; but as it appears to me, it lies within a small compass.

The indictment, after stating the establishment of the. Bank of the United States by an act of congress, and the relative situation of the accused to the bank and the stockholders thereof, charges “that,” &c. {Here the Chief Judge stated the indictment as herein before set forth.1

To this indictment there is a general demurrer, by which the facts set forth in the indictment are confessed and admitted by the accused to be true, for the purpose of submitting the question to the decision of the court, whether the facts charged constitute any offence indictable and. punishable according to the common law of England?

In order to determine this question, it becomes necessary to consider what is the common law of England as respects this case, and whether the common law of England is the law of this state?

The common law of England is derived from immemorial usage and custom, originating from acts of parliament not recorded, or which are lost, or have been destroyed. It is a system of jurisprudence founded on the immutable principles of justice, and denominated by the great luminary of the law of England, the perfection of reason. The evidence of it are treatises of the sages of the law, the judicial records and adjudications of the courts of justice of England.

The people of Maryland have not only recognized the common law of England as the law of the state, but by the declaration of rights made by them in convention in 1776, claimed and asserted a right to the common law of' England as it was then understood in Maryland, and had been transmitted to us by the reports of adjudged cases, decided by the courts of England, and understood by learned men of the profession, who had written on that subject. The common law of England was adopted by the people of Maryland', as it was understood at the time of the declaration of. rights, without restraint or modification. Whether particular parts of the common law are, applicable to our local circumstances and situation, and o.ur. general code of laws and jurisprudence, is a question that comes within the province of the courts of justice, and is ke bedded by them. The common law, like our acts of assembly, are subject to the control and modification of the legislature, and may be abrogated or changed as the general assembly may think most conducive to.the general welfare; so that no great inconvenience, if any, can result from, the power being deposited with the judiciary to. decide what the common law is, and its applicability to the circumstances of the state, and what part has become obsolete from non, user or other cause.

I think it may be assumed as a position which cannot be-controverted, and is free from doubt, that the common law of England, as it was understood at the time of the de- . duration of rights, was the law of Marylandand I think the position is equally clear, that it must be ascertained by the writings of learned men of the profession, by the judicial records and adjudged cases of the courts of England.

The questions now occur, Do the facts contained in the. indictment constitute the crime or offence of conspiracy? And is conspiracy au offence at common law, indictable and punishable as such?

Sergeant Ilautkins, in his Pleas of the Crown, ch. 72, in defining conspiracy at common law, makes use of strong and explicit language* and says these can be no doubt but that all confederacies whatsoever, wrongfully to prejudice a third person, are highly criminal at common law, as where divers persons confederate together by iiidirect means to impoverish a third person. This definition is corroborated and supported by adjudged cases in the courts m England,. and especially in the courts of King’s. Dench.

In 1 Lev. 125, 1 Burn’s Justice, 355, The King vs. Sterling and others, Brewers of London—Information for unlawfully conspiring to impoverish the excisemen by making orde’-s that no small beer, called gallon beer* sfiould be made for a certain time, &c. The whole court concurred in the opinion, and gave judgment for the King.

The statute S3 Edw. 1, de conspiratoribm, was made in affirmance of the common, law, and is a final definition of ■ the instances or cases of conspiracy mentioned in it; but certainly it does not comprehend all the cases of conspiracy at the common law, which is most apparent from the adjudged cases of the courts of England'on that subject,

1 consider the adjudications of the courts of England, prior to the era of the independence of Jimerica. as authority to show tfhat the common law of England was in the J ° opinion of .the judges of the tribunals of that country, and since that time, to be respected as the opinions of enlightened judges of the jurisprudence of England.

The better opinion appears to be, that a conspiracy to do an unlawful act is an indictable offence, although the object of the conspiracy is not executed. In this case the conspiracy to cheat, defraud and impoverish, the Bank of the United Slates, by appropriating the monies, promissory notes, and funds of the bank, to the use of the accused, has been proved by the admission and confession of the defendants, and a consummation of all the overt acts has been fully established.

The Poulterer’s case, 9 Colee, 56,57—The falsa alligantia is a false binding, each to the other, by bond or promise to execute some unlawful act. Before the unlawful act executed, the law punishes the coadjunction, confederacy or false alliance, to the end to prevent the unlawful act—> quia quando aliquid prohibetur, prohibetur et id per quod pervenitur ad Mud. Et effectus punitur licet non sequatur qffcctus; and in these cases the common law is a law of mercy, for it prevents the malignant from doing mischief, and the innocent from suffering it. The defendants were punished by fine and imprisonment.

I think it is established by the decisions of the courts of England, that a conspiracy to cheat is an offence indictable and punishable at common law—Rex vs. Wheatly, 2 Burr. 1125. A cheat or imposition by one person only is not indictable at common law, but a conspiracy to cheat by two or more is indictable at common law, because ordinary care and caution is no guard against it. Indictment against Macarty and others, for a combination to cheat in imposing on the prosecutor stale beer mixed with vinegar, for port wine—6 Mod. 301. Indictment against Cope and others, for a conspiracy to ruin the trade of the prosecutor by bribing his apprentices to put grease into the paste which had spoiled his cards—1 Strange 144. Indictment against Kinncrsley and Moore, for a conspiracy to charge Lord Sunderland with endeavouring to commit sodomy with said Moore, in order to extort money from Lord Sunderland. The whole court gave judgment in support of the indictment, and punished Kinnersley by fine, imprisonment; &c. and sentenced Moore to stand in ™e P“lory, suffer a year’s imprisonment, and to give security for his good behaviour—1 Stra. 193, 196. Indictment against Hispid, 3 Burr. 1320—The indictment sets forth, that Hispal, find two others; did wickedly and unlawfully conspire among themselves, falsely to accuse John Chilton with having taken a quantity of human hair out of a bag; &c. for the purpose of exacting and extorting money from the said John Chiltom The court were of opinion, that the indictment was well laid, and that the gist of the offence is the unlawful conspiring to injure Chilton by this false charge.

A combination among labourers dr mechanics to raise their wages, is a conspiracy at common law; and indictable (8 Modi 10,) although lawful for each separately to raise his wages.

I consider the doctrine so firmly established by the decisions of the courts of England, prior to the era of our independence, that a combination or confederacy to do an unlawful act, is a conspiracy indictable and punishable at common law, that I have deemed it unnecessary to refer to all the cases relative to this question, and therefore have contented myself with citing some of those which appear to me most apposite.

The opinion of Lord Ellenborough in The King vs. Turner and others, 13 East, 230, does not impugn, but strongly sanctions and confirms this doctrine. He says the cases of conspiracy have gone far enough, he should be sorry to push them still further. The charge in the indictment was for committing a civil trespass. He also says, all the cases in conspiracy proceed on the ground that the object of the conspiracy is to be effected by some falsity.

I am of opinion that the judgment be reversed, and the demurrer overruled.

judgment reversed.

The counsel on the part of the state moved the court for a writ of procedendo to Harfonl county court, directing that court to proceed to a new trial of the prosecution. This was resisted by the counsel of the defendants in cr-^ ror; but the Court awarded a writ of procedendo.

Owing to'indisposition the Chief Judge did not atttenti when the opinion of the court was delivered in this case.