in the common gaol or house of correction, for any term not exceeding two years, and it shall not be necessary to prove whether the child died before, at, or after its birth. Indictment for a Misdemeanour upon 9 G. IV. c. 31, s. 14 (z), against a Mother for endeavouring to conceal Birth of Child. Berkshire, to wit. The jurors for our Lady the Queen upon their oath present, that A. S., late of the parish of in the county of Berks, single woman, on, &c. at, &c. being then and there big with a male child, was then and there delivered of the said child alive, which said male child then and there instantly died, and that the said A. S. being so delivered of the said male child as aforesaid, did then and there unlawfully endeavour to conceal the birth of the said child by secretly burying [as the case may require; “otherwise disposing of," the dead body of the said child, against the form of the statute in such case made and provided, and against the peace of our said Lady the Queen, her crown and dignity. [A second count should state the child to have been born dead.] Both counts should state the mode of concealment of the body specially, where it was not secretly buried, when the fact of birth is denied. The act of throwing a child down a privy is evidence of endeavouring to conceal its birth, though the probability of its having been still-born appeared, and another person besides the mother was present at the birth (a). The secret disposal of a child's body, as by throwing it down a privy, if it takes place not from inability to procure Christian burial, but with intent to conceal one of the proofs of the birth, is evidence of a "concealment" within 9 G. IV. (b), and the communication of the fact of pregnancy or of the labour to other persons, was held by the judges to be in such a case only evidence that the birth was not concealed, but not to preclude (c) a conviction. The usual evidence of non-concealment, viz. the mother's confession of pregnancy, providing linen for the event, calling for help, &c. (d), may thus be outweighed by her act at the subsequent period. In a case, however, where a child's dead body was found in a bed among the feathers, evidence of the mother's providing linen for the event, and sending for a surgeon at the time, was held by A. Park, J. to entitle the mother to acquittal of a charge of concealing the birth (e). The body of the child must have been completely disposed of, so that a prisoner found with the body of her child still in (z) Archb. Cr. Pl. & Ev. 6th ed. 367. (a) R. v. Cornwall, R. & Ry. 336; R. v. Peat, 1 East's P. C. 229. (b) Per Parke, B., in R. v. Douglas, 1 Moo. C. C. 482. (d) See 1 East's P. C. 228. her possession sewn up in a cloth, was acquitted, though she appeared to be on her way to dispose of it (f). Till 9 G. IV. c. 31, concealment of a birth was not an offence for which a substantive indictment could be preferred (g). The expenses of prosecutors and witnesses are now allowed (h). SECTION IX. Offence of Conspiracy.]-The offence of conspiracy is more difficult to be ascertained precisely than any other for which an indictment lies; and is, indeed, rather to be considered as governed by positive decisions than by any consistent and intelligible principles of law. It consists, according to all the authorities, not in the accomplishment of any unlawful or injurious purpose, nor in any one act moving towards that purpose; but in the actual concert and agreement of two or more persons to effect something, which being so concerted or agreed, the law regards as the object of an indictable conspiracy (i). There are two classes of cases in which the criminality of such agreement is perfectly intelligible and obvious-1.-where the object proposed would, if accomplished, be a criminal offence in all parties acting in it; 2.-where, though the ultimate object may be lawful, the means by which the parties, conspirators, propose to effect their purpose, necessarily involve in them an indictable offence (j). Of the first kind are conspiring to commit a felony conspiring to obtain money under false pretences; conspiring to suborn or abstract a witness; where the object, if carried into effect, would be a substantive offence, and where, therefore, concert is indictable as an act in itself tending to produce it. Of the second kind, is a conspiracy to support (f) Reg. v. Snell, 2 M. & Rob. 44. (g) R. v. Parkinson, 1 Russ. C. & M. 475. (h) 7 W. IV. and 1 V. c. 44, s. 1. (i) When parties have once agreed to cheat a particular person of his money, though they may not then have fixed on any means for that purpose, the offence of conspiracy is complete. Per Bayley, J., R. v. Gill et al.; 2 B. & Ald. 205. See, however, p. 336, n. (1). (ز) "An indictment for conspiracy ought to show, either that it was for an unlawful purpose, or to effect a lawful purpose by an unlawful means," per Lord Denman, R. v. Seward, 1 Ad. & El. 711; 3 Nev. & Man. 557; but he is reported to have since said, that "this antithesis is not very correct," Reg. v. Peck, 9 Ad. & E. 690; 1 Per. & Da. 508. However, where the indictment was for conspiring to indict and prosecute G. for a crime liable to capital punishment, and then stated that "according to the conspiracy," the defendants did afterwards falsely indict him, it was held unnecessary to lay a conspiracy to indict falsely, as the conspiracy was completely formed and actually carried into execution, R. v. Spragge and others, 2 Burr. 999, cited by Lord Denman, 3 Nev. & Man. 562; 1 Ad. & El. 714. a cause, in itself just, by false testimony; and the same principle would apply here; for, whether the concerted offence be the end or the means, it is equally an offence, which, if consummated, would subject the offenders to the visitation of criminal justice. But it is not easy to understand on what principle conspiracies have been holden indictable where neither the end nor the means are, in themselves, regarded by the law as criminal, however reprehensible in point of morals. Mere concert is not in itself a crime; for associations to prosecute felons, and even to put laws in force against political offenders, have been holden legal (k). If, then, there be no indictable offence in the object, no indictable offence in the means, and no indictable offence in the concert, in what part of the conduct of the conspirators is the offence to be found? Can several circumstances, each perfectly lawful, make up an unlawful act? And yet such is the general language held on this subject, that at one time the immorality of the object is relied on; at another the evidence of the means; while, at all times, the concert is stated to be the essence of the charge; and yet that concert, independent of an illegal object or illegal means, is admitted to be blameless. The utmost limit of the modern doctrine of conspiracy seems to be reached in the decisions respecting concerted disapprobation of a performer or a piece at a theatre. The case of Macklin is well known, on whose prosecution several persons were committed for hissing him on his appearance in one of Garrick's favourite characters; and, in accordance with this precedent, Sir James Mansfield is said to have expressed himself in the case of Clifford v. Brandon, 2 Campb. 369, in the following terms :-" The audience have certainly a right to express by applause or hisses the sensations of the moment; and nobody has ever hindered or would ever question the exercise of that right. But, if any body of men were to go to the theatre with the settled intention of hissing an actor or damning a piece, there can be no doubt such a deliberate and preconcerted scheme would amount to a conspiracy, and that the persons concerned in it might be brought to punishment." In this case, the act is lawful; the means are lawful; the motive may be even laudable, as if a notoriously immoral piece. were announced, and the parties determined to oppose it; and yet the concert alone makes the crime. It is extremely difficult to understand this, unless concert be a crime; and still more difficult to reconcile it, or many other of the cases, to the decision of the king's bench in (k) R. v. Murray and others, tried before Abbott, C. J. at Guildhall, 1823. 1811(); where it was holden that an indictment would not lie for a conspiracy to enter a preserve for hares, the property of another, for the purpose of ensnaring them in the night time, and with offensive weapons; Lord Ellenborough observing," I should be sorry to have it doubted, whether persons agreeing to go and sport upon another's ground, in other words, to commit a civil trespass, should be thereby in peril of an indictment for an offence which would subject them to infamous punishment." Here the object was as much illegal as any object can be which is not in itself indictable, and the act concerted, that of going armed at night to destroy game, so dangerous to the public, that it has since been made punishable with transportation; and yet this, according to the doctrine laid down, was not the object of an indictable conspiracy, because it was only a civil trespass. On the principle of this decision, it is difficult to understand how many of the cases of conspiracy can be sustained; as that of conspiracy to seduce a young lady; for the object in itself, however immoral, would be only the subject of an action on the case at the suit of the father (m). And yet this has been holden indictable, although no artifice was employed, and the lady was a willing participator in the elopement planned by the defendants (n). Without, therefore, attempting the hopeless task of deducing all the instances in which, according to the authorities, indictments will lie for conspiracies, from any fixed principles, we will enumerate the most important heads of offence on which convictions have been supported. It may, then, be taken on the authorities, that indictments will lie for the following conspiracies. 1. All conspiracies (even by bare words (o) to commit felony or indictable misdemeanours, whether the object be effected or not, and whether or not any steps beyond the conspiracy be taken towards its completion. 2. All conspiracies to effectuate a purpose, whether lawful or unlawful, by means involving crime; as a conspiracy to prosecute any one by false witnesses, which was, in fact, the only crime treated as a conspiracy by the old writers, and from which the law has gradually been extended by the courts (p). 3. Conspiracies tending directly to injure the public or any large (1) R. v. Turner and others, 13 East, 228. Cited by Taunton, J. in R. v. Seward et al. 1 Ad. & El. 711, to show that it is not the combining to do any wrongful act which constitutes a conspiracy. (m) R. v. Lord Grey and others, 3 State Trials, 519; 1 East, P. C. 460. (n) Id. ibid. See also R. v. Delaval and others, 3 Burr. R. 1434. (0) Stra. 195. (p) 3 Inst. 143. body of men; as to raise the prices of the funds by false rumours (q); or by magistrates to present a false certificate that a road, under indictment, is in repair (r). 4. Conspiracies affecting public trades; as combinations to prevent an individual from exercising his particular trade (s), or among workmen to raise their wages; concerted schemes to cheat by pretences of one being a merchant and the other a broker, and so to sell unwholesome and useless provisions in barter for articles of value (t); and schemes to carry on an extensive system of swindling (u). 5. Conspiracies wrongfully to prejudice another by the use of some falsity, though neither the injury nor the falsity would be indictable in themselves; and this, whether the injury be calculated to affect the person, the property, or the character (v). Thus, a conspiracy to destroy the reputation of an individual by imputing mere immorality (w); to charge a man falsely as the father of a bastard child (x); to set up a fictitious claim to an estate, and marry under feigned names in order to give a colour to the title (y); and to defraud an individual of money by wilfully misrepresenting facts or concealing truth, are indictable as conspiracies. But no indictment will lie for conspiring to give a false warranty, e. g., of a horse, without actual proof that the parties concerted to effect a fraud, and not merely that they took on themselves to make assertions severally which proved to be groundless (z). 6. Conspiracies to effect any flagrant immorality, as the seduction of a young lady from her father (a). 7. Conspiracies by parish officers to procure by sinister means unsuitable marriages between paupers, in order to discharge one parish and charge another, have been held indictable, not only on the ground of the injury done to the parish charged, but of the profanation of the marriage tie (b). But where a young man belonging to one parish had gotten with child a young woman belonging to another, and the parish (a) R. v. De Berenger, Lord Cochrane, and others, 3 M. & S. 67. (r) R. v. Mawbey and others, 6 T. R. 619-638. (8) R. v. Eccles, 1 Leach, C. C. 274, as cited by Lord Ellenborough, 13 East, 231. (t) R. v. Macarty and Fordenburgh, 2 Lord Raym. 1179. See 2 East, P. C. 824; and Regina v. Orbell, 6 Mod. 42. (u) R. v. Roberts, 1 Campb. 399. () Hawk. b. 1, c. 72, s. 2. (w) 1 Bla. Rep. 392. (x) R. v. Armstrong, 1 Ventr. 301; see Form, post. (y) R. v. Robinson, 1 Leach, 39. (z) R. v. Pywell and others, 1 Stark. Rep. 432. (a) R. v. Lord Grey and others, 3 St. Tr. 519; East, P. C. 460. (b) R. v. Tarrant, 4 Burr. 2106; R. v. Herbert, 1 East, P. C. 461; R. v. Compton, Cald. 246; R. v. Seward et al. 1 Ad. & El. 706; 3 Nev. & Man. 557. |