Conspiracy As A Crime, and As A Tort

Conspiracy as a Crime, and as a Tort
Author(s): Francis M. Burdick

Source: Columbia Law Review, Vol. 7, No. 4 (Apr., 1907), pp. 229-247
Published by: Columbia Law Review Association, Inc.
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COLUMBIA
LAW REVIEW.
VOL. VII. APRIL, I907 No. 4
CONSPIRACY AS A CRIME, AND AS A TORT.
That conspiracy is a substantive or separate crime in English

common law does not admit of doubt. The conspirators may
plan to commit a number of offenses in carrying out their agree-
ment, but an indictment, which charges them with a conspiracy
to commit such several offenses, charges them with but a single
crime.l "Such confederation or agreement is itself the offense.
The unlawful agreement makes the crime, and it is complete the
moment the agreement is entered into. Its legal character de-
pends neither upon that which actually follows it, nor upon that
which is intended to follow it. It is the same whether its object
be accomplished or abandoned. It may be followed by one
overt act, or a series; but as an offense, it is complete without
them.'2
This statement does not warrant the inference that the law
punishes conspirators for an intention only. In the language of
a distinguished judge:3
King v. Rispal (1762) i W. B1. 368, 3 Burr I320. In this case,
Rispal and two others were indicted for a conspiracy to defame one John
Chilton, and to extort money from him, and the indictment alleged that
they had extorted money from Chilton, in pursuance of such conspiracy.
After conviction, Rispal insisted that the crime laid in the indictment was
insufficient to enable the court to give judgment. Lord Mansfield, speak-
ing for himself and Justices Dennison, Foster and Wilmot, said: "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 suffi-
cient. The several charges in the indictment are not to be considered as
distinct and separate counts, but as one and the same united and con-
tinued offence, pursued through its stages. And then it is clear, that
the whole will amount to an indictable offence, viz., the getting money out
of a man by conspiracy to charge him with a false fact." Accord, State v:
Cawood (I830) 2 Stew. (Ala.) 360.
2 State v. Setter (1889) 57 Conn. 46I, 18 At. 782, 14 Am. St. Rep. 121,
4I Alb. L. J. I29. Accord, Geist v. U. S. (I906) 26 App. D. C. 594, 600.
3 Mr. Justice Willes, in Mulcahy v. The Queen (i868) L. R. 3 H. L.
306. The opinion was assented to by all of the judges summoned by the
Chancellor, and expressly concurred in by each of the law Lords. The
Lord Chancellor Cairns pronounced it "most clear and satisfactory."
230 COLUMBIA LAW REVIEW.
"A conspiracy consists not merely in the intention of tw

but in the agreement of two or more to do an unlawful act,
lawful act by unlawful means. So long as such a design rest
tion only, it is not indictable. When two agree to carry it into
very plot is an act in itself, and the act of each of the parti
against promise. * * * The number and the compact g
and cause danger."
Inasmuch as conspiracy is a crime, apart from any

act which the conspirators have in view when formin
federation, it would seem to follow that it does not me
crime perpetrated by the conspirators, while carryin
agreed scheme. And such is the accepted rule in E
as well as in the most of our jurisdictions.2 A few cou
held, however, that a conspiracy is not indictable aft
has been committed in execution of the conspiracy.3
DEFINITION OF CRIMINAL CONSPIRACY.
The Commissioners on Criminal Law in England proposed

the following definition:
"The crime of conspiracy consists in an agreement by two persons

(not being husband and wife), or more than two persons, to commit a
crime, or fraudulently or maliciously to injure or prejudice the public or
any individual person."4
Not unlike this, in any essential particular, is the definition ac-

cepted by the Supreme Court of the United States,5 and by many
Reg. v. Button (1848) II Q. B. 929, 12 Jur. o107, i8 L. J. M C. I9,

3 Cox C. C. 229. During the argument, Lord Denman, C. J. asked, "If
indicted for the conspiracy, is the defendant to purge himself by com-
mitting a felony?" In the opinion, which he delivered for a unanimous
court, he said, in reply to the objection that if the defendants were con-
victed of conspiracy to steal, and of theft pursuant to the conspiracy,
they would be twice punished for the same offense; "This is not so; the
two offenses being different in the eye of the law."
2 State v. Setter (I889) 57 Conn. 461, 468, i8 At. 782, 14 Am. St. Rep.
121, 4I Alb. L. J. 129; Graff v. People (1904) 208 Ill. 312, 70 N. E. 299;
Laura v. State (1853) 26 Miss. 174; Johnson v. State (1857) 26 N. J. L.
(2 Dutch.) 313, 324, aff'd (i86I) 29 N. J. L. (5 Dutch.) 453.
3 Elsey v. State (i886) 47 Ark. 572, applying statute Mansf. Dig.
sec. 1822; Comm. v. Kingsbury (I809) 5 Mass. Io6 (But see Comm. v:
Walker (1871) Io8 Mass. 309, 314, which is contra).
4 Seventh Report of the Commissioners on Criminal Law, 1843, p.
89, Art. 2. Accord, Reg. v. Warburton (1870) L. R. I C. C. R. 274, 40
L. J. M. C. 22, 23 L. T. 473, 9 W. R. I65, ii Cox C. C. 584.
5 Pettibone v. U. S. (1893) 148 U. S. 197, 203, 37 L. Ed. 419, 13 Sup.
Ct. 542.
CONSPIRACY AS A CRIME. 231
of the State courts1 and legislatures2 and stated b

Court as follows:
"A combination of two or more persons, by concerted action, to ac-

complish a criminal or unlawful purpose, or some purpose not in itself
criminal or unlawful, by criminal or unlawful means."
Some legislatures, however, have limited criminal conspiracy to

a confederation to commit a crime, or a few specified kinds of
private wrongs.3
The general principle on which the crime of conspiracy is
founded has been stated as follows:
"The confederation of several persons to effect any injurious object

creates such a new and additional power to cause injury, as requires
criminal restraint, although none would be necessary were the same
things proposed, or even attempted to be done by any person singly.
And this principle extends not merely to a confederation to commit a
crime, but also to the causing harm or prejudice to the public, or to a
private person, although neither that object, nor the use of the proposed
means to effect it would constitute a substantive crime."4
It will be observed that the principle enunciated above is very

far reaching. It is not limited to the forms of conspiracy which
were made punishable by the famous Ordinance of Conspira-
tors,5 and which consisted "in confederacy or alliance for the
false and malicious promotion of indictments and pleas, or for
embracery or maintenance of various kinds."6 It includes every
sort of corrupt combination entered into for the purpose of injur-
ing the public or an individual.7 And this far reaching principle
State v. Murphy (1844) 6 Ala. 765, 769; State v. Gannon (1902) 75

Conn. 206, 212, 58 At. 769; Comm. v. Hunt (I842) 45 Mass. (4 Met.) III,
122; State v. Buchanan (Md. 1821) 5 Har. & J. 317, 333, 9 Am. Dec. 534;
Smith v. People (I860) 25 Ill. 9; Comm. v. Ward (1891) 92 Ky. I58,
17 S. W. 283; Alderman v. People (1857) 4 Mich. 414; State v. Pulle
(I866) 12 Minn. I64; Morris Run Coal Co. v. Barclay Coal Co. (1871) 68
Pa. 173; Ellzey v. State (i880) 57 Miss. 827.
2 Illinois Rev. St. I903, p. 622, Arts. 45, 46, 46 (a); Iowa Rev. St. I897,
5059; Maine Rev. St. I903, p. 944, ?? I9 & 20; Maryland Public Gen'l
Laws, Vol. i, p. 786, Art. 27, ? 34; Mississippi Code I906, ? Io84 (7).
3 Arkansas, Dig. of St. I904, I616-I620; California Pen. Code, ?? I82-
I84; Colorado, Mills Ann. St. ?? 1293-1299, as expounded in Lipschitz v.
People (1898) 25 Colo. 261, 53 Pac. IIII; Florida Rev. St. 1891, ? 2593;
Minnesota, Rev. Laws, I905, ?? 4867, 4868; New York Penal Code,
?? I68-171.
4 Seventh Report of the Commissioners on Crim. Law in England,
I843. The members of the Commission were, Thomas Starkie, Henry
Bellenden Ker, William Wightman, Andrew Amos and David Jardine.
5 33 Ed. I, Stat. 2 (1305).
6 Wright, Criminal Conspiracies and Agreements, p. 5.
7 Bishop's New Criminal Law, Vol. 2, I71.
is one of English common law.' Even Mr. Wright, w

the existence of so broad a doctrine in the early com
admits that it is an established principle of that law t
that it has gained recognition because of the benefice
which flow from it.2
CONSPIRACY AS A TORT.
If "the confederation of several persons to effect any injurious

object creates such a new and additional power to cause injury,
as requires criminal restraint, although none would be necessary,
were the same things proposed or even attempted to be done by
any person singly," it would seem that any one, who is damaged
by the unjustifiable exercise of "such new and additional power,"
should have an action in tort therefor. It would seem, too, that
the distinctive feature of such tort is the conspiracy, rather than
the species of harm inflicted. This view, however, has not re-
ceived unanimous assent.3
It was rejected by the New York Court of Appeals in a recent
decision.4 The complaint alleged that the defendants conspired
to traduce the plaintiff and injure him in his good name and repu-
tation, and lead his intimate acquaintances and business customers
to believe that the plaintiff was insane and not capable of attending
to his business, and to cause the plaintiff to be imprisoned on a
false charge and to wickedly abuse the process of the Supreme
1 State v. Buchanan (Md. I82I) 5 Har. & J. 317, 9 Am. Dec. 534,
containing an exhaustive examination of all the reported cases on the
subject, down to that time; State v. Cole (I877) 39 N. J. L. (io Vroom)
324; Comm. v. Carlisle (I821) Brightly's Pa. Rep. 36, opinion by Gibson,
J.; O'Connell v. The Queen (I844) ii Cl. & F. I55, 233, opinion of Tindal,
C. J., and p. 403, opinion of Lord Campbell.
n State v. Cole (1877) 39 N. J. L. (io Vroom) 324, the court declared
that it was not a crime for one partner to issue firm notes and use the
proceeds for the payment of his private debts, but it was a crime for him
and a third person to issue such notes and to so use the proceeds. The
added circumstance of the conspiracy "heightened the malfeasance into
a punishable crime." Followed in State v. Hickling (1879) 41 N. J. L.
(I2 Vroom) 208, a conspiracy to cause a person to be regarded as a dis-
honest man and a thief, by slanderously charging him with having stolen
a large amount of copper, brass, etc.
2 Wright, Criminal Conspiracies and Agreements, pp. 9, 48, 49.
3 It is supported by Chalmers-Hunt, The Law Relating to Trade
Unions (1902), Chap. IV; Eddy on Combinations (1901) ? 503; Bishop,
Non Contract Law (1889), ?? 353-362.
It is rejected by Pollock, The Law of Torts (6th. Ed.), p. 313; Cooley
on Torts (g906) Vol. i, Chap. V. But this author qualifies his rejection
by the statement: "It would seem that some cases might be so extraor-
dinary in their facts, as to be exceptions to that general rule."
4 Green v. Davies (1905) 182 N. Y. 499, 75 N. E. 536
Court; that in pursuance of the said conspiracy sev

defendants uttered against the plaintiff several sla
ticularly set forth in the complaint, and in further
such conspiracy one of the defendants maliciously
lently instituted a suit in the Supreme Court against
for a slander alleged to have been uttered by the pla
said defendant; that the plaintiff was arrested and
in said action, which action was thereafter terminate
the plaintiff, the defendant in said action-by whic
and the acts of the defendants thereunder plaintiff suf
The plaintiff also asked judgment for a further sum
leged he was compelled to expend in the defense of
brought against him. To this complaint the defendan
on the ground that separate causes of action were i
joined, to wit: First, a cause of action for slander a
malicious abuse of legal process; second, a cause o
slander uttered by one of the appellants with cause
for slanders uttered by the other defendants. The d
overruled at Special Term, and the interlocutory judg
on that decision was affirmed by the Appellate Divis
vided court.
It appears from this statement, that the question raised by the
demurrer was substantially the same as that in King v. Rispal,l
and State v. Cawood,2 cited in a foregoing note; and that the
answer given by the Special Term and the Appellate Division
was in accordance with that given by Lord Mansfield and his
associates in the earlier of the two cases, viz.:
"The several charges are not to be considered as distinct and sepa-
rate counts, but as one and the same united and continued offense, pur-
sued through its stages."
In the language of the prevailing opinion of the Appellate Division:

"There is but one cause of action alleged, and that is that the plaintiff
has been damaged by the united action of all of the defendants in pursu-
ance of an agreement between them to accomplish an illegal purpose."3
This answer the Court of Appeals declared to be erroneous,

and "opposed to the decisions in this State." Hutchins v. Hutch-
1(1762) I Wm. B1. 368, 3 Burr I320.

2(Ala. i830) 2 Stew. 360.
3 Green v. Davies (1905) oo00 App. Div. 359, 91 N. Y. Supp. 470,
following Rourke v. Elk Drug Co. (I902) 75 App. Div: 145, 77 N. Y.
Supp. 373.
insl and Brackett v. Griswold2 were cited as examples

decisions, and extended quotations from them were pr
support of the doctrine that the gravamen of the civil
the case for conspiracy is not the conspiracy, but the
acts done pursuant to the conspiracy and the damage.3
Undoubtedly, Chief Justice Nelson did assert, in Hu
Hutchins, that an action on the case for conspiracy
guished from a writ of conspiracy (under the Ordina
Ed. I, already referred to) "could always be brought a
defendant; or if brought against more, one might be fo
and the rest acquitted," and hence concluded, that
spiracy or combination is nothing so far as sustaining
goes, the foundation of it being the actual damage do
party." And this assertion and conclusion are app
Judge Andrews, in Brackett v. Griswold. In both c
statements are mere dicta,4 and it is submitted erroneo
Recovery Against One Conspirator Only. Chief Just

son, in support of his dictum that if an action on the case
spiracy be brought against two or more persons, "one
found guilty and the rest acquitted," cites Saville v
Skinner v. Gunton,6 and Jones v. Baker.7 Neither of t
is an authority for this broad proposition. The firs
1(1845) 7 Hill 104.

2 (1889) II2 N. Y. 454, 20 N. E. 376.
3 Green v. Davies (I905) I82 N. . 499, 75 N. E. 536.
4 Hutchins v. Hutchins was decided against the plaintiff on a de-
murrer to the complaint, on the ground that he "had no interest in the
property of which he says he has been deprived by the fraudulent inter-
ference of the defendant, beyond a mere naked possibility, an interest
which might, indeed, influence his hopes and expectations, but which
is altogether too shadowy and evanescent to be dealt with by courts of
law." In other words, no legal right of the plaintiff had been invaded,
whether by the combined or several acts of the defendants.
In Brackett v. Griswold, by the death of some of the original de-
fendants and the discontinuance of the action against others, the action
had become one against Griswold alone; and the point seems to have
been made that the action under the third or conspiracy count, could not
be maintained against Griswold. This was certainly untenable (Rex
v. Nichols (1744) cited in 13 East 412, and i Leach 277 note), and did
not call for any decision of the question whether the third count stated a
cause of action for a conspiracy. Moreover, the court asserts that the
nature of the cause of action was adjudged in Arthur v. Griswold (1874)
55 N. Y. 400, to have been one for fraud and deceit by means of false
pretences, and then adds, "The allegation and proof of a conspiracy in
an action of this character is only important to connect a defendant
with the transaction and to charge him with the acts and declarations of
his co-conspirators."
5 (1698) i Ld. Raym. 374, 12 Mod. 208, I Salk. 13.
6 (1669) i Saund. 228.
7 (1827) 7 Cowen 445.
brought against a single defendant for what is n

malicious prosecution, and involved no charge o
The dictum of Lord Holt to the effect that, in an
case for conspiracy, "the damage is the gist of the
uttered in answer to the objection, that the pending
not lie, because there was no conspiracy, and in con
his holding that "the damage is as great in the pres
there had been a conspiracy."' But Lord Holt add
" If the one be acquitted in a proper action of conspir
ment can be given against the other." 2
In the other cases cited by Chief Justice Nelson,

alleged a conspiracy between the defendants to injur
which could have been equally harmful if done by ei
singly. He did not allege or prove any facts indicat
conspiracy created a "new or additional power t
but, having proved that he had been legally injured
defendants in the form alleged in the complaint, i
that he could have judgment against such wrongdo
standing he failed to prove the allegation of consp
decision is authority for the broad proposition that
of conspiracy, one of the alleged conspirators "mig
guilty and the rest acquitted."
Indeed, the Court of Appeals admits, that there ar
to this broad doctrine, although such exceptions ar
be "more apparent than real."3 It refers to Train v
one of these exceptional cases. There, plaintiff alle
firm of Kendal Brothers and one Taylor conspir
others, including plaintiffs, to sell on credit goods to t
false representations made by Taylor that the firm
of credit, in order that the firm might get the goods w
for them, sell them and turn over the proceeds to T
ment of debts owing by the firm to him. The cou
this cause of action was clearly an illegal combinat
the defendants by which they undertook to defraud
for the benefit of Taylor. "This cause of action," s
"must be made out, or the plaintiff must fail."
recover against one of the defendants unless he estab
1 In Salkeld's report of the case no mention is made of

conspiracy.
2 Ld. Raym. p. 379. To the same effect F. N. B. 115 E.
3 Green v. Davies (1905) 182 N. Y. 499, 75 N. E. 536, 537.
4 (1889) 5i Hun 215, 4 N. Y. Supp. 492.
to recover against all. But, said the Court of Appeals, a

"that case was rightly decided * * * the gravamen
action was not the conspiracy, but the tort."
Conspiracy the Gist of the Action. It is submitted, w
deference to the learned court, that the last portion of
ceding sentence would have read equally well had it been
"the gravamen of the action was the tort of consp
and that it would have been far better law. In support
proposition the following cases may be referred to:
In Evans v. Freeman and James,1 the plaintiff sued the d
ants to recover damages for an alleged conspiracy betwe
to induce her by false and fraudulent representations to
valuable property of hers for worthless property of de
Freeman's. The trial court charged the jury that if the
there was no conspiracy, but that either defendant ma
representations of material facts in the transaction which
in damage to the plaintiff, they could find a verdict aga
defendant. Under this charge, the jury found a ver
$7,273.33, against the defendant Freeman only. This
was set aside on appeal, because "the foundation of th
is the unlawful combination," and therefore a verdict could not
be sustained against Freeman alone.2
For this conclusion the court cited Collins v. Cronin,3 in
which the assignments of error raised the question, "Can there
be a recovery against one only, in an action on the case in the
nature of a conspiracy brought against two or more?" It was
answered by Justice Paxson in these words:
"In the case in hand the conspiracy was everything. Without it,
the plaintiff had no cause of action, for the plain reason that the acts
charged in the declaration were of such a nature that they could not be
committed by one defendant alone."4
1(I906) I40 Fed. 419.

2 Holland, J. said, at p. 421, "The false representations of Freeman
could not have injured plaintiff, if her attorney (the defendant James)
had informed her, but, she says, he, instead, entered into an unlawful
agreement to deceive her, and they together did by their joint decep-
tions, induce her to make the trade."
3 (1887) II7 Pa. 35, ii At. 869; approved in Rundell v. Kalbfus
(I889) 125 Pa. I23, I7 At. 238, and other Pennsylvania cases.
In the following New York cases the acts charged in the complaint
were of such a nature that they could not be committed by one defendant
alone; Moore v. Tracy (1831) 7 Wend. 229, a conspiracy between the
firm of W. & A. Moore and Van Valkenburg, that the latter should buy
goods of the plaintiff on credit, should turn them over to the Moores,
declare himself insolvent and obtain a discharge, under the insolvent
act, and thus defraud plaintiff; Place v. Minster (I875) 65 N. Y. 89, a
The learned judge distinguished the case from a pr

which language had been used, similar to that of C
Nelson already quoted) on the ground that
"under the facts of that case the combination or conspira
One of the defendants could have traduced the character
as a teacher, as well as a number of them, and if he had
clearly liable in damages for his own act even although
no part in it."
This distinction between cases, where the gist of

conspiracy and those where it is not, has been caref
sistently observed by the Pennsylvania courts. C
Gibson repeatedly distinguished between an action
eral persons for defamation, and an action against
who combined to ruin the plaintiff's reputation by
charges. In Hood v. Palm,2 he declared that "a c
defame by spoken words not actionable would b
prosecution by action, by reason of the presumptio
and damage would be produced by the combination
In other words, no legal right of a plaintiff is invad
forms of slander uttered by individuals not acting i
a legal right is invaded when those same slanders ar
suant to a conspiracy between two or more persons
reputation. In Haldeman v. Martin,3 another case o
to slander plaintiff, the same great judge said:
"Where the uttering of the words in which it (the defam
is made, is not the gist of the action, they need not be s
A conspiracy to do an illegal thing is actionable, if injury
it; and where the illegal purpose has been executed, it i
licious wherever the motive for the conspiracy to execute
malicious. Ex vi termini, a conspiracy to accuse is eviden
ity."
The trial court had charged the jury that they must believe that
defendants conspired-that they did so for the purpose of defam-
conspiracy between the firm of Minster & Kohn and one Sherlock, that the
latter should buy goods on credit for the plaintiff, go through the form
of selling them to Minster & Kohn and then abscond, thus defrauding
the plaintiff; Train v. Taylor (1889) 51 Hun 215, 4 N. Y. Supp. 492, the
substance of the complaint has been stated already.
1 Laverty v. Vanaisdale (1870) 65 Pa. St. 507.
2 (I848) 8 Pa. St. 237. The slander was that plaintiff had cheated
the Franklin Ins. Co. by secreting goods and forcing the Company to pay
for them, as having been burned. The tort complained of was not the
defamation but the conspiracy.
3 (I849) o0 Pa. 369, 372.
ing plaintiff, and that they defamed her in pursuance of th

spiracy. This was objected to by the defendants, who a
jected to the court's refusal to instruct the jury "that an
would not lie, because the words were not set forth in the
Another objection was that the "second count was defecti
not laying the words to have been spoken falsely and malic
But, on appeal, the judgment was affirmed, on the ground
in the extract from Chief Justice Gibson's opinion, given
that the gist of the action was not the slanders uttered b
defendants, but their conspiracy to injure the plaintiff.
The nature of the modern action on the case for consp
as viewed by the Pennsylvania courts, is fully set forth in M
Danforth.' Said Justice Sergeant:
"The action on the case for a conspiracy has in modern times
the place of the writ of conspiracy, which seems to be conside
antiquated. The instances of these suits in our reports, are not v
merous, but sufficient appears to show that an action on the case lie
ever the plaintiff is aggrieved and damnified by unlawful acts,
the defendants in pursuance of a combination and conspiracy f
prupose. * * * It would seem that in most of the cases this
has been employed for acts in the nature of malicious prosecut
abuse of legal proceedings,2 yet I perceive no reason why it sh
confined to such cases."
Acts Which are Legally Harmful Only When Done by Con-

spirators. The New York Court of Appeals, notwithstanding its
repudiation of conspiracy as a tort, admits:
"There may be cases where acts committed in pursuance of a com-
bination of a number of persons, to injure a third person are actionable,
1 (1837) 6 Watts 304, the conspiracy charged was between plaintiff's

debtor, Tarbox, and two other persons, to the effect that Tarbox should
make assignments of his property to such persons who were to assist him
in getting out of the State and in preventing his property being applied
to the payment of plaintiff's just claim. In support of the decision, the
court cited Penrod v. Mitchell (1822) 8 S. & R. 522, in which Gibson, J.
said: "Without doubt, a conspiracy to enable a debtor to elude the
process of the law is immoral and pernicious in its consequences to society;
but as it is punishable by indictment, there is no reason that the actors
in it should receive castigation for what affects the public, in a civil action,
whose legitimate object is the redress of a private injury"; same case
sub nom. Penrod v. Morrison (I830) 2 Pen. & W. 126; and Griffith v.
Ogle (i806) I Binn. I72, in which Tilgham, C. J. declared that the con-
spiracy is the gist of the action.
2 Cook v. Brown (I878) I25 Mass. 503, is a case of this class, and Lord,
J. declared that the cause of action was not the abuse of process, nor the
false imprisonment or the malicious prosecution but "that the defend-
ants, by concert of action, fraudulently, and by means of false pretenses,
induced the plaintiff to leave his home in another state, and to come into
this state."
while the same acts if done by a single individual acting

concert, would not be actionable. Such cases may be t
for conspiracy."'
Statements to the same effect are frequently found in t

of other courts.2 If these statements are correct, the
to justify the conclusion that conspiracy is a substan
pendent tort.
Such conclusion has been distinctly formulated by
Court of Wisconsin.3 The case just noted was bro
guardian of an insane wife for damages resulting to
alleged unlawful conspiracy between the defendant
the husband's affections, and which had resulted in s
and the withdrawal of the husband's consortium an
Prior to the institution of this suit, the wife had bee
an action4 against one of the defendants (the moth
the plaintiff) for the alienation of this husband's affect
1 Green v. Davies (1905) 182 N. Y. 499, 505, 75 N. E. 536

2 Franklin Union v. The People (1906) 220 Ill. 355, 376
E. 176, IIo Am. Rep. 248; "a combination may amount to
although its object be to do an act which, if done by an in
not be an unlawful act"; Doremus v. Hennessy (1898) I76
52 N. E. 924, 54 N. E. 524, 43 L. R. A. 797, 68 Am. St. Rep. 203, "a
combination by them (the defendants) to induce others not to deal with
appellee, or enter into contracts with her, or do any further work for her
was an actionable wrong"; Jackson v. Stanfield (I893) I37 Ind. 592, 36
N. E. 345, 37 N. E. 14, 23 L. R. A. 588; Walsh v. Association of Master
Plumbers (1902) 97 Mo. App. 280, 71 S. W. 455, "the agreement between
the respondents is an illegal conspiracy and its effect is to inflict a civil
wrong upon appellants"; Boutwell v. Marr (1899) 71 Vt. i, 42 At. 607;
Gatzow v. Buening (1900) io6 Wis. i, 8I N. W. oo003, "a combination to
do an act tending necessarily to prejudice the public or oppress individuals
by unjustly subjecting them to the power of the confederates, and give
effect to the purposes of the latter, whether of extortion or mischief, is
unlawful * * * and any person whose rights are injured by acts
done in the furtherance of such conspiracy, has his action at law for re-
dress in damages"; Arthur v. Oakes (1894) 63 Fed. 310, 24 U. S. App.
239, ii C. C. A. 209, 25 L. R. A. 414, "It is one thing for a single indi-
vidual, or for several individuals each acting upon his own responsibility
and not in co-operation with others, to form the purpose of inflicting
actual injury upon the property or rights of others. It is quite a different
thing, in the eye of the law, for many persons to combine or conspire to-
gether with the intent, not simply of asserting their rights or of accomplish-
ing lawful ends by peaceable methods, but of employing their united ener-
gies to injure others or the public"; Hopkins v. Oxley Stave Co. (1897)
83 Fed. 9I2, 49 U. S. App. 709, 28 C. C. A. 99. "It has been held in several
well considered cases that the law will sometimes take cognizance of acts
done by a combination, which would not give rise to a cause of action
if committed by a single individual, since there is a power in numbers,
when acting in concert, to inflict injury, which does not reside in persons
acting separately."
3 Randall v. Lonstorf (1905) 126 Wis. 147, I05 N. W. 663, 3 L. R. A.
N. S. 470.
4Lonstorf v. Lonstorf (1903) ii8 Wis. 159, 164, 95 N. W. 961.
ground that "to entice away a wife's husband and dep

his consortium constitutes no injury in the law." The
in the conspiracy suit insisted that the complaint therein
be sustained without overruling the earlier decision. T
that "as this court has held that no action could be ma
the wife against a single person for the malicious alien
husband's affections, no action could be maintaine
number of persons for the same act done by them in
If conspiracy is not a tort by itself, their argument woul
be unanswerable. If the damage, and not the conspira
gist of the action, why should it matter whether tha
inflicted by one person, or by a number of confederat
On the other hand, if the corrupt conspiracy of two o
sons to inflict unjustifiable injury upon another is itse
then it is quite defensible for a court to entertain a civil
the redress of the injury inflicted pursuant to such
"although there may be no redress for the same injur
by a single person." And the Supreme Court of Wi
just this, by overruling defendant's demurrer, and de
the plaintiff's complaint stated a cause of action:
" If, " said the court, "the law could not reach and redress
as are here charged, it would be impotent indeed. No such r
be cast upon it. It will not allow conspirators against the m
and the happiness of the family to go 'unwhipt of justice' an
it will allow conspirators against a business or a profession
The court cited with approval an earlier Wiscons

which it was held that " an executed conspiracy to inflict
injury is actionable," and which defined an actionabl
acy as "a combination of two or more persons for the
accomplishing a criminal or unlawful object by crimin
ful means, or a lawful object by criminal or unlawful
the decision last referred to, the court repudiated the
Huttley v. Simmons,2 and cited Gregory v. Brunswick3 an
1 State ex rel. Durner v. Huegin (1901) IIo Wis. I89, 259

N. W. I046, 62 L. R. A. 700.
2 L. R. (1898) i Q. B. I8I, 67 L. J. Q. B. 2I3. Darling, J. held "that
conspiracy to do certain acts gives a right of action only where the acts
agreed to be done, and in fact done, would, had they been without pre-
concert, have involved a civil injury to the plaintiff," following Kearey
v. Lloyd (1887) 26 L. R. Ir. 268. The latter case was distinguished by
Andrews, J. (who took part in its decision) in Leathem v. Craig (I899) Ir.
R. Q. B. 667, as a case where the evidence disclosed no invasion of plain-
tiff's rights.
3 (I843) 6 M. & G. 205, 953, 6 Scott N. R. 809, I C. & K. 31.
v. Brandon,' as holding "that preconcerted hissing o

the purpose of injuring him in his profession, was
although such hissing would not "be actionable if pe
one."
Doubt has been expressed by a learned writer,2 whether

Gregory v. Brunswick really sustains such a proposition. It is
submitted that the court which decided the case, evinces no such
doubt. Chief Justice Tindal expressly declared3 that "the
charge against the defendants is that they conspired together with
others for a certain unlawful purpose," and that the defendants'
fourth plea, "which professes to be pleaded in confession and
avoidance of part of the cause of action, viz., the hooting, hissing,
groaning, shouting and yelling at the plaintiff, and making a noise,
outcry and uproar at and against him, does not in fact confess
and avoid any part of that which is the gist of the action." Maule,
J., told the defendants' counsel that they "should justify the con-
spiracy."4 Coltman, J. said:5
"When plaintiff's counsel thought proper to rest his case wholly on

proof of conspiracy, we think the judge was well warranted in treating
the case as one in which, unless the conspiracy was established, there was
no ground for saying that the plaintiff was entitled to a verdict. * * *
The case proved was, in fact, a case of conspiracy, or it was no case at all
on which the jury could properly find a verdict for the plaintiff."
1(1809) 2 Campbell 358, II R. R. 731. Sir James Mansfield said:

"But if any body of men were to go to a theater with the settled inten-
tion of hissing an actor, or even of damning a piece, there can be no doubt
that such a deliberate and preconceived scheme would amount to a con-
spiracy, and that the persons concerned in it might be brought to pun-
ishment," although "the audience have certainly a right to express by
applause or hisses the sensations which naturally present themselves at
the moment."
2 Sir Frederick Pollock, in 6 COLUMBIA LAW REVIEW 208-9, and
Law Quart. Rev. 117.
3 6 Scott N. R. at p. 822. The court gave defendants leave to amend,
but they declined, and judgment was given against them on the fourth
plea. In 6 M. & G. at p. 217, Tindal, C. J. is reported as saying, "The
gist of the action is the conspiracy; and the plea justifies only an overt
act"; and at p. 958, he said that on the trial of the case he "merely fol-
lowed that which had been chalked out by the plaintiff's counsel, dealing
with the action as one of conspiracy."
4 6 Scott N. R. p. 819. Again he said, "The plea applies to and at-
tempts to justify something not charged in the declaration. The charge
is that the defendants conspired together with other persons to hoot and
hiss the plaintiff, and that they hooted and hissed the plaintiff in conse-
quence of such conspiracy; the justification says nothing about a pre-
vious conspiring. You might as well attempt in justification of a libel
to separate the nominative case from the verb; they are not more in-
divisible." Ibid, p. 820.
5 (I844) 6 M. & G. 959, 960.
Gregory v. Brunswick has been referred to appr

many eminent judges both in England' and in th
and has been treated by them as a classic example o
distinction to be made between the non-tortious conduct of a
single person and the tortious conduct of a combination.'
Acts which are Legally Harmful when Done by Conspirators
Acting Singly. The authorities, cited in the early paragraphs of
this article, show that a conspiracy to do acts, which would be
criminal if done by the conspirators acting without a combination,
is itself a substantive crime. If it is true, that the "essentia
elements, whether of a criminal or of an actionable conspiracy ar
the same, though to sustain an action special damage must b
proved,"4 it would seem to follow that we may have the substan
1 Among others by Lord Esher in Temperton v. Russell (I893) I Q.

B. 7I5, 728; by Bowen, L. J. in Mogul Steamship Co. v. Macgregor (I889
23 Q. B. D. 598, 614; by Andrews, J. in Leathem v. Craig (I899) 2 Ir.
Rep. Q. B. at p. 679; by Walker, L. J., ibid, p. 768; by Holmes, L. J.,
ibid, pp. 774, 776; "It is not illegal, so far as I know, for one person or
for several persons to hiss an actor on the stage. But an agreement to
attend the theater for the purpose of hissing an actor with a view of inter
fering with his means of livelihood is a criminal conspiracy; and if th
consequence to the individual attacked is the loss of future engagements
he has a right of action against the members of the combination'"; and by
Lord Macnaghten, in Quinn v. Leathem (I90I) A. C. at pp. 5IO, 5II,
"That a conspiracy to injure-an oppressive combination-differs widely
from an invasion of civil rights by a single individual cannot be doubted."
2 Among others by Chapman, C. J. speaking for a unanimous court
in Carew v. Rutherford (1870) io6 Mass. i, at p. I ; " There are cases where
an element of the tort is a conspiracy of two or more persons who com-
bine together for the doing of the wrong "; by Gibson, C. J. in Hood v. Palm
(1848) 8 Pa. 237; by Agnew, J. in Morris Run Coal Co. v. Barclay Coal
Co. (1871) 68 Pa. I73, 187.
3 In Moore & Co. v. The Bricklayers' Union (I890) 23 Oh. W. L. Bul.
48, 53 (affirmed by the Supreme Court, 3I Oh. W. L. Bul. 208) Taft, J.
writing for the unanimous General Term, said, "We are of the opinion
that even if acts of the character, and with the intention shown in this
case, are not actionable, when done by individuals, they become so when
they are the result of combination, because it is clear that the terrorizing
of a community by threats of exclusive dealing, in order to deprive one
obnoxious member of means of sustenance will become both dangerous
and oppressive."
In Quinn v. Leathem (1901) A. C. at p. 529, Lord Brampton remarked:
"It has often been debated whether, assuming the existence of a con-
spiracy to do a wrongful and harmful act towards another and to carry
it out by a number of overt acts, no one of which taken singly and alone
would, if done by one individual acting alone and apart from any con-
spiracy, constitute a cause of action, such acts would become unlawful
or actionable if done by the conspirators acting jointly or severally in
pursuance of their conspiracy, and if by those acts substantial damage
was caused to the person against whom the conspiracy was directed; my
own opinion is that they would."
Quinn v. Leathem (I90O) A. C. 495, at 528-9, opinion of Lord
Brampton, citing Barber v. Leister (i860) 7 C. B. N. S. I75; Leathem v.
Craig (I898) Ir. R. Q. B. 667, at 697, opinion of O'Brien, J.; Giblan v.
tive tort of conspiracy, even when the acts to be done

spirators would be actionable if done by them acting
in such a case, the conspiracy is not a mere matter of
of damages inflicted by the various tortious acts, but
action by itself.
Such was the view taken by the lower courts, i
Davies,' and repudiated by the Court of Appeals.2
established doctrine in several jurisdictions. An
afforded by a leading Pennsylvania case.3
"It was an action on the case in the nature of a wr
spiracy." The first count alleged that defendant
falsely to charge the plaintiff with taking illegal fees an
his removal from judicial office for such offense.
count charged the defendants with conspiracy to
plaintiff before the house of representatives of taking an
illegal fees from one Hershberger, and pursuant to such c
procured Hershberger to make an affidavit falsely s
plaintiff had extorted from him an illegal fee. On t
jury found a verdict for the plaintiff on both counts
damages at six hundred dollars.
The defendants appealed on two principal gr
That the declaration does not allege that the defendan
against the plaintiff without probable cause. 2. That
ration does not allege that the plaintiff was put to inc
or suffered any loss or damage."
The first objection was based upon the alleged analog
actions for malicious prosecution and the present
analogy was repudiated by the court, which declar
"action on the case in the nature of a writ of conspira
invented for the ease of plaintiffs, being attended wit
form than the old writ of conspiracy"; and that, un
writ of conspiracy, it was not necessary to allege tha
spirators acted without probable cause.
Of the second objection the court said:
Nat. Amal. Lab. Union (1903) 2 K. B. 600, at pp. 618-620

Romer, L. J., and at pp. 62 -2, opinion of Sterling, L. J.
Similar views are expressed in Wildee v. McKee (i886)
by Sterrett, J. and in Hood v. Palm (I848) 8 Pa. St. 237, by G
and in State ex rel. Durner v. Huegin (1901) IIO Wis. I89, 8
6a L. R. A. 700.
1 (I905) Ioo App. Div. 359, 91 N. Y. Supp. 470.
2 (1905) I82 N. Y. 499, 75 N. E. 536.
3 Griffith v. Ogle (i806) i Binney 172.
"The old writ of conspiracy charges a conspiracy in the de

and that conspiracy' is the ground of the action. In the pres
likewise the conspiracy is the gist of the action, although it may
sary to show some act in execution of it. The declaration do
such act; and we are of the opinion that inasmuch as the con
was to accuse the plaintiff of an offense for which he was liable
ment, and removal from office, the law implies damage."
It will be observed, that if either of the defendants, w

conspiracy, had falsely and maliciously charged the plain
the offense of taking illegal fees, and had corruptly induce
berger to make a false affidavit for the purpose of secur
tiff's removal from office, he would have been guilty of an
able tort. But neither counsel nor court intimates that such fact
affects plaintiff's right of action for the conspiracy.
Another example is afforded by a recent Wisconsin case.2
Plaintiff sued three defendants for damages caused by the forma-
tion and execution of a conspiracy to defraud her of certain real
estate. As alleged by the plaintiff and found by the jury, the
defendants' conspiracy was substantially as follows:
"That defendant Hulburt should make love to plaintiff, and lead her
to believe that he was intent on marrying her; that he should become
engaged to marry her; that by means of the influence and control which
the marriage engagement would enable said Hulburt to acquire over
plaintiff, he should induce her to transfer her property to him without
any, or for an inadequate or nominal consideration; that he should then
break the engagement and refuse to marry plaintiff; and that, if she
should then seek to recover back her property, the defendant should
charge plaintiff with unchastity and threaten to expose and disgrace
her, and thereby frighten and prevent her from making any attempt to
regain her property from said Hulbert."
Here again, either defendant might have defrauded plaintiff of

her property. Hence under the doctrine of Green v. Davies, that
"where the conspiracy results in the commission of that which
would be an actionable tort whether committed by one or by
many, then the cause of action is the tort, and not the conspiracy,"
the plaintiff's cause of action was not conspiracy but fraud. Such
was not the conclusion reached by the Wisconsin court. On the
other hand, it declared:
"The gist of this action is the damage suffered by a wrong which was
distinct from other wrongs which were in a measure incidental thereto.
1 The italics are those of the court.

2 Patnode v. Westenhaver (1902) II4 Wis. 460, go N. W. 467.
CONSPIRAC Y AS A CRIME. 245
* * * The cause of action for the conspiracy in such circu

a possession by itself, a right to prosecute for the damages
executed fraudulent combination. * * * The right to
damages caused by a consummated conspiracy is distinct,
from the right to redress for wrongs caused in the progres
tion. It may go against all the members of the combine, an
be incidental transactions causing damage included in the
all, from which causes of action may arise against individ
of the combine. The prosecution of all for the conspiracy
concurrently with the prosecution of one or more member
bine liable for some element of the damage in another form
to the point of satisfaction, at which point the element sa
out, as there can be but one satisfaction for the same element of
damage."
Limits of Conspiracy as a Tort. It is not within the scope of

this article to define with any particularity these limits.' Its pur-
pose has been to consider whether, within any limits, conspiracy
is to rank as a substantive or separate tort. And yet, the fact that
conspiracy as a tort is subject to limitations ought not to be ignored
in this connection. This fact has been assumed throughout our
discussion. Not every combination of persons which inflicts
pecuniary harm upon another amounts to an actionable con-
spiracy. The harm inflicted must have been a "legal injury,"
and the combination must have been formed and employed to
effect an unlawful object or a lawful object by unlawful
means.2
In determining whether a particular combination has rendered

its members liable to a tort action for conspiracy, we may well
bear in mind the wise warning of Lord Justice Bowen:3 "In the
application of this undoubted principle it is necessary to be very
careful not to press the doctrine of illegal conspiracy beyond that
which is necessary for the protection of individuals or of the public."
1 These limits, especially in cases growing out of labor controversies,

have been very carefully and exhaustively discussed by Professor Jere-
miah Smith, 20 Harvard Law Review, pp. 253 and 345.
2 Mogul Steamship Co. v. McGregor, Gow & Co. (i888) 21 Q. B. D.
544, 549-50, 57 L. J. Q. B. 541, 543, opinion of Coleridge, Ch. J. At a
previous stage of this litigation, the Chief Justice had said: "If a con-
spiracy were proved in point of fact, and the intention of the conspirators
were made out to be not the mere honest support and maintenance of the
defendants' trade, but the destruction of the plaintiff's trade, and their
consequent ruin as merchants, it would be an offense for which an in-
dictment for conspiracy, and if an indictment, then an action for con-
spiracy, would lie." (i885) 15 Q. B. D. 476, 483, 54 L. J. Q. B. 540.
3 Mogul Steamship Co. v. McGregor, Gow & Co. (1889) 23 Q. B. D.
598, 6i6, 57 L. J. Q. B. 541.
When, however, it appears that a combination is enter

the purpose of inflicting unjustifiable legal injury upo
and does inflict such injury, it is submitted that a civi
conspiracy should lie. Such a combination "makes opp
dangerous that which if it proceeded only from a sin
would be otherwise."1 In other words, such a com
"creates a new and additional power to cause injury
The recognition of a tort of conspiracy within some suc
as these, has practical advantages. In the first place, i
the profession to treat "civil and criminal conspiracie
as in pari casu."2 A combination between two or more
to accomplish a criminal or unlawful purpose, or som
not in itself criminal or unlawful by criminal or unlaw
subjects the confederates to a criminal prosecution; and
ensues to an individual therefrom, it subjects them to a ci
by their victim.3 On the other hand, "no agreement or
tion of individuals can constitute a crime, unless the act co
of, when consummated, will deprive some individual, o
individuals, or the people of some legal right."4
In the second place, it tends to diminish rather than to
litigation. The case of Green v. Davies5 well illustr
There, the plaintiff would have been able to recover i
action all damages he had suffered from the wrongful
defendants, if the Court of Appeals had treated the con
the defendants to do those acts as a substantive tort.
ing to treat it as a single cause of action, it was force
tain the defendants' demurrer, and to compel the plai
institute a separate suit for each tortious act don
Ibid. Adopted by Sterling, L. J. in Giblan v. Nat. Amal. Lab.

Union (1903) 2 K. B. 600, 621.
2 Chalmers-Hunt, The Law Relating to Trade Unions, p. II4.
3 In Mogul Steamship Co. v. McGregor, Gow & Co. (i888) 2I Q. B.
D. at p. 549, Lord Coleridge said: "If the combination is unlawful, then
the parties to it commit a misdemeanor, and are offenders against the
State; and if, as the result of such an unlawful combination and misde-
meanor, a private person receives a private injury, that gives such person
a right of private action."
In Quinn v. Leathem (1901) A. C. 495, at p. 528, Lord Brampton said:
"A conspiracy may be punished criminally by indictment, or civilly by
an action on the case in the nature of conspiracy if damage has been occa-
sioned to the person against whom it is directed. * * * The essential
elements, whether of a criminal or of an actionable conspiracy, are, in my
opinion, the same, though to sustain an action special damage must be
proved."
4Gage v. State (1903) 24 Oh. C. C. R. 724, 727.
6 (I905) I82 N. Y. 499, 75 N. E. 536.
defendants, or either of them, in carrying

The learned judges, who were responsib
appear to have ignored what Mr. Justic
"the general principle of convenience which
maxim, 'Interest reipublicae ut sit finis liti
FRANCIS M. BURDICK.
NEW YORK.
Brinsmead v. Harrison (1872) L. R. 7 C. P. 547, 553, 41 L. J. C. P. I9.

Conspiracy As A Crime, and As A Tort

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Conspiracy As A Crime, and As A Tort

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Conspiracy as a Crime, and as a Tort

Author(s): Francis M. Burdick

CONSPIRACY AS A CRIME, AND AS A TORT.

That conspiracy is a substantive or separate crime in English

"A conspiracy consists not merely in the intention of tw

Inasmuch as conspiracy is a crime, apart from any

DEFINITION OF CRIMINAL CONSPIRACY.

The Commissioners on Criminal Law in England proposed

"The crime of conspiracy consists in an agreement by two persons

Not unlike this, in any essential particular, is the definition ac-

Reg. v. Button (1848) II Q. B. 929, 12 Jur. o107, i8 L. J. M C. I9,

of the State courts1 and legislatures2 and stated b

"A combination of two or more persons, by concerted action, to ac-

Some legislatures, however, have limited criminal conspiracy to

"The confederation of several persons to effect any injurious object

It will be observed that the principle enunciated above is very

State v. Murphy (1844) 6 Ala. 765, 769; State v. Gannon (1902) 75

is one of English common law.' Even Mr. Wright, w

If "the confederation of several persons to effect any injurious

Court; that in pursuance of the said conspiracy sev

In the language of the prevailing opinion of the Appellate Division:

This answer the Court of Appeals declared to be erroneous,

1(1762) I Wm. B1. 368, 3 Burr I320.

insl and Brackett v. Griswold2 were cited as examples

Recovery Against One Conspirator Only. Chief Just

1(1845) 7 Hill 104.

brought against a single defendant for what is n

In the other cases cited by Chief Justice Nelson,

1 In Salkeld's report of the case no mention is made of

to recover against all. But, said the Court of Appeals, a

1(I906) I40 Fed. 419.

The learned judge distinguished the case from a pr

This distinction between cases, where the gist of

ing plaintiff, and that they defamed her in pursuance of th

Acts Which are Legally Harmful Only When Done by Con-

1 (1837) 6 Watts 304, the conspiracy charged was between plaintiff's

while the same acts if done by a single individual acting

Statements to the same effect are frequently found in t

1 Green v. Davies (1905) 182 N. Y. 499, 505, 75 N. E. 536

ground that "to entice away a wife's husband and dep

The court cited with approval an earlier Wiscons

1 State ex rel. Durner v. Huegin (1901) IIo Wis. I89, 259

v. Brandon,' as holding "that preconcerted hissing o

Doubt has been expressed by a learned writer,2 whether

"When plaintiff's counsel thought proper to rest his case wholly on

1(1809) 2 Campbell 358, II R. R. 731. Sir James Mansfield said:

Gregory v. Brunswick has been referred to appr

1 Among others by Lord Esher in Temperton v. Russell (I893) I Q.

tive tort of conspiracy, even when the acts to be done

Nat. Amal. Lab. Union (1903) 2 K. B. 600, at pp. 618-620

"The old writ of conspiracy charges a conspiracy in the de

It will be observed, that if either of the defendants, w

Here again, either defendant might have defrauded plaintiff of

1 The italics are those of the court.

* * * The cause of action for the conspiracy in such circu

Limits of Conspiracy as a Tort. It is not within the scope of

In determining whether a particular combination has rendered

1 These limits, especially in cases growing out of labor controversies,

When, however, it appears that a combination is enter