Lord Ellenborough. By false reports and rumours.
Mr. Serjeant Best. An intention of doing that on a particular day, may be either a meritorious or a criminal action; but what I submit to your Lordships, is, that of itself, it is neither the one nor the other; it is therefore necessary to put on the record something which shall bring the fact within the purview of the law. It is not stated upon this record, that the defendants were possessed of any funds, that they were desirous of selling those funds, and that therefore they meditated a fraud on the particular persons to whom they should sell their funds, by raising the price;—it is merely stated, that the object was to raise the price of the funds, which I submit to your Lordships may be commendable or criminal.
One can conceive many circumstances in which this might be stated to be a public mischief, and some such circumstances were stated by my learned friend, who very ably opened this prosecution upon the trial. If the public funds were raised in price on a day on which the commissioners for reducing the national debt would make purchases, that would be an injury to the country, by the commissioners being enabled to purchase a smaller amount of stock for the same amount of money; but there is no allegation of the kind upon this indictment, and in no other way, do I conceive, could the public be injured. If the public had been injured, it was enough to have stated, that what was done, was done with a view to the injury of the public; but all that I find stated upon the record, is, that the defendants conspired and agreed together to raise the price of the public funds upon a given day; and the prosecutors knew there was no purchase made by the commissioners for reducing the national debt on that day; because, as I understand the fact to be, they never purchase on a Monday;—however, all that is material to me is, that the transaction is not so charged upon the face of the indictment. If I am right in this, I am persuaded your Lordships will be of opinion, that this is not an indictable offence.
If I am to be told, there is a distinction made between conspiracy and other offences, I submit to your Lordships, no distinction which has ever been made goes to a length which reaches the present case. I am aware many acts are made criminal, being accomplished by conspiracy, which accomplished by an individual only, would not be the subject of judicial animadversion; but I can find no case (and I have very carefully looked into all of them) which carries the principle on which the doctrine relating to conspiracy is founded further than this; that in conspiracy, though the means may be lawful, yet the end must be unlawful, either as it is mischievous to the public or to individuals; and I can state no case, in which parties have been held guilty of conspiracy, where the end they have had in view has not been either mischievous to the public, or at least to a specified class of individuals.
Looking back to the earlier statutes and cases on the subject of the law regarding conspiracy, your Lordships must collect, that neither the legislature nor the judges of the land had the least idea of embracing such a transaction as this, within their view of conspiracy. The older cases, in which the doctrine upon conspiracy has been applied, have been cases described by the statute of 21st Edward I. of persons who have conspired to instigate a criminal prosecution against an innocent individual, and of persons who, for the purpose of supporting their unlawful enterprises, have kept retainers in the country. In modern times, the decisions have come nearer to the present case; but I think I can satisfy your Lordships, there is none that reaches it.
The case in which the doctrine relating to conspiracy has travelled on, if I may so say, embracing a larger compass of acts, is that of the King v. Edwards, 8 Modern Reports, 320. In that case the doctrine laid down is, that a conspiracy to do a lawful act for effecting an unlawful end, is a crime. If the end be unlawful in this case, undoubtedly the endeavour to accomplish it was a crime. But I submit to your Lordships, as the act is stated upon the Record, the end is not unlawful, and that no case can be found which shews, that the end which these parties had in view was an unlawful end. Upon the principle of the case which I have mentioned, which goes far beyond the former cases on this subject, if I am right in stating, that per se there is nothing criminal in raising the price of the public funds, something must be added upon the record to make that act a crime.
Another case is that of The King v. Starling, 1 Siderfin, p. 174. It was an indictment for a conspiracy to depress what was called the gallon-trade, (that is, the practice of selling beer by the gallon) and thereby to cause the poor to mutiny, and to injure the farmers of excise; that was stated as the object of the conspirators. They were acquitted of that part of the charge which alleged an intention to cause the poor to mutiny; but found guilty of a design to injure the farmers of excise. The reporter says, after many debates it was adjudged, not that a conspiracy to injure the farmers of excise, speaking of them generally, was a crime—but, that the verdict relates to the information, the information relates to the excise, which is part of the revenue of the king; and to impoverish the farmers of excise would make them less able to pay the king his dues. And so the Court, in giving judgment, say, we must look at the record, to see if we can find out that what is charged upon the defendants be that which must necessarily produce a public mischief; and they say it does in this way; that the verdict relates to the information, and the information to the excise, which is part of the revenue of the country; and, as to impoverish the farmers of excise, would render them less able to pay the king his dues, there appears a public mischief on the face of the record itself. This I take to be a strong authority in my favour; for if the Court, after many debates as it is stated, and having given the subject every possible attention, came to the conclusion, that they were obliged to look at the record, to see whether the case stated on the record was one which necessarily connected the act done with some public mischief, we must necessarily infer from this, that the Court would have been of opinion, that unless that necessary connexion was established by the statement on the record, the judgment ought to be different. If I am not correct in this position, the Court had no occasion to look to the verdict and see whether it related to the information, and to the information, to see whether it had a relation to the revenue: the Court would have said, we must give judgment against the defendants, because it is stated upon this record, that the object of the defendants was, to impoverish the farmers of excise. It is by tracing back the thing itself, by shewing that the farmers of excise are thus made less able to pay their debts to the government, and therefore that the government was to be injured, that the act is constituted an offence.
There is another case, in Salkeld, 174, The King v. Best. The judgment of the Court in that case is, that several persons may lawfully meet and consult to prosecute a guilty person; otherwise, to charge a person who is innocent, right or wrong, would be indictable. The inference is, that upon a charge of conspiracy to do an act which in itself is perfectly innocent, which is not indictable, you must state something upon the face of the record, shewing a mischief connected with it, to make it indictable. I submit to your Lordships, there is nothing upon the face of this record, which does shew any mischief connected with the act which is made the subject of charge. In conspiracy as in every other offence, the means may be lawful; but in conspiracy, the end must be unlawful. It is this which constitutes the only distinction between cases of conspiracy and of any other crime; that although the means may be lawful, the end must necessarily be unlawful and mischievous. I say, it is impossible for your Lordships to collect from any part of this record, that the end sought to be obtained by these defendants was unlawful, as against any Act of Parliament or the positive decision of any Court; or unlawful, as generally mischievous to the public.