It is stated indeed upon these counts, that the act was mischievous to certain individuals; and if the individuals had been named, that would have answered my objection. But I submit to your Lordships, in support of the second proposition which I stated, that this offence, if it be any, is alleged in too general a way to convict any of the defendants. It would have been otherwise, if it had appeared that they were actuated by any malicious motive against those individuals, or had any clear intention of benefiting themselves at the expense of those individuals; and I may with safety to my client concede this, though I am not driven to it. On the contrary, I beg to state, it does not appear on this record, that the defendants could possibly gain any thing by what they are accused of having done; for it is not stated upon any of the counts, nor is it the fact, that they possessed one sixpenny worth of stock from the sale of which they could derive an advantage: they were therefore doing mischief without any purpose to answer by it.
Lord Ellenborough. Brother Best, was it possible to state that their purpose was to injure certain individual persons who should purchase stock, when by no possibility could they know who the persons were that would become purchasers? If that could have been stated, can you suggest any name which in any way might have been inserted?
Mr. Serjeant Best. I submit to your Lordship it might have been stated; and the evidence in the cause helps me to suggest an answer to your Lordship's question. Your Lordship will remember, that evidence was given of the accountant-general of the Court of Chancery having made purchases of stock on this day; it might have been stated on the face of this record, that it was known the accountant-general of the Court of Chancery would purchase stock on the day in question, for he purchased most days, and that the offence was committed with a view to injure the said accountant-general, or the persons in whose behalf he purchases.
Lord Ellenborough. I do not know, that in the course of his office he is directed to purchase on account of certain named individuals, on a given day; if he is not, even so the allegation could not be precise.
Mr. Serjeant Best. The stock is purchased, my Lord, to the credit of a particular cause, the accountant-general being the agent in the transaction for the suitors in that cause. Therefore the allegation might have been, that it was to injure the accountant-general, in his character of agent for those persons on whose behalf he purchased stock on the particular day. And this brings us to the true character of conspiracy. I submit to your Lordship, this act could only be made conspiracy, by shewing that the defendants possessed stock, and by stating on the indictment, that possessing stock, they conspired to raise the price of the funds on a particular day, and that when raised, they sold their stock to certain persons specified. Suppose they knew of persons who were going to purchase on this day, and with a view to make those persons pay more than they otherwise would, they did that which is charged upon this indictment; that would clearly be an indictable offence. It is not the difficulty of bringing the case within the law that furnishes an answer to the objection; if the law is defective, your Lordship would recommend it to the Legislature to remedy the defect, by making a new law.
Lord Ellenborough. Impossibility is some answer in point of law.
Mr. Serjeant Best. Your Lordships may be protecting gamblers as infamous as any of these defendants; you may be giving your support to prosecutions instituted by one set of gamblers against another, if this indictment is supported. A fair holder of stock could have no difficulty in coming by indictment, and stating, I was compelled by circumstances to lay out a sum of money in the public funds on a given day, the day on which this transaction took place, and I paid so much per cent. more for what I bought. If it is necessary to constitute conspiracy, that the intent be to injure that person who in the event is injured, then it is impossible to support this indictment. I put it most strongly against my clients when I say, they meditated a fraud upon all who should purchase stock on this day; but to use the criminal law of this country, for the protection of those who honestly purchase stock, and not to support a prosecution brought by one set of gamblers against another, your Lordships will require it to be stated on the face of the indictment, who they were that were injured.
Mr. Justice Bayley. Suppose the conspiracy had been stated in the way it is, but the allegation had gone on; that by reason of the said conspiracy, A. B. and C. who on that day were obliged to purchase stock, were obliged to pay a larger sum than they otherwise would have paid?
Mr. Serjeant Best. That would have answered my objection, and that is the way in which it should have been stated; because then your Lordships would see, you were raising the arm of criminal justice to protect those who were the objects of its protection.