case, and have been often repeated, to the effect that there has been no proof given that the defendants ever met, or entered into or became parties to any agreement or confederacy or conspiracy.... But I have now to inform you, as part of the law of conspiracy, that there is no necessity that there should be express proof of a conspiracy; such as proof that the parties actually met and laid their heads together, and then and there actually agreed to carry out a common purpose. Nor is such proof usually attempted. In Mulcahy's case (L. R. 3 H. of L. 306), a great judge (Mr Justice Willes) says, "So far as proof goes, conspiracy, as Grose, J., says in Rex v. Brissac (4 East 171), is generally a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them." It may be that the alleged conspirators have never seen each other, and have never corresponded; one may have never heard the name of the other; and yet by the law they may be parties to the same common criminal agreement. Thus, in some of the Fenian cases tried in this country, it frequently happened that one of the conspirators was in America, the other in this country; that they had never seen each other; but that there were acts on both sides which led the jury to draw the inference that they were engaged in accomplishing the same common object. And when the jury had arrived at this conclusion, the acts of one conspirator became evidence against the other; as in a remarkable case at Cork (as singular and remarkable a case as I ever met with). It was a case in which two persons had been connected with the American service in the late war. One was a captain of cavalry on the Southern side, and the other was a captain on the Northern side. The one was a native of this country, the other a native of America. They had been opposed to each other during the war; they had never seen each other; and amongst the documents found upon them when arrested was a letter in which one complained of violence and murder committed by the commander on the other side. These two men had never seen each other. When they arrived at Queenstown they were arrested. The one had come to take command of a brigade of Fenian cavalry, and had brought with him as his whole equipment a saddle, a pair of spurs, and two long pistols. The other was returning to Ireland; and was alleged to be a party to the Fenian conspiracy. They were put upon trial in the same dock, upon the same indictment; and the first time they saw each other was when they thus stood face to face in the dock. I mention this case as illustrating that a charge of conspiracy may be well founded, even though the parties never saw each other....

Again, it has been suggested that secrecy is to some extent an

essential of conspiracy; and your attention has been repeatedly called to the fact that all the proceedings of the defendants were above board, that they were unconcealed, that they were not carried on in the dark; and it was urged that there could be no guilty conspiracy, because all was done openly and above board. But I have to inforn you in point of law that, though secrecy is frequently a characteristic of conspiracy, it forms no essential element of the crime. The crime of conspiracy may be complete though all the proceedings of the confederates have been open and above board and unconcealed. In point of law, secrecy or darkness forms no element in the crime of conspiracy.

This law of conspiracy is not an invention of modern times. It is part of our common law; it has existed from time immemorial. It is necessary, to redress certain classes of injuries which at times would be intolerable, and which, but for it, would go unpunished. If the defendants have broken the law in the manner alleged in the information, there is no law of this land by which they could be reached but by the law of conspiracy. It has been said that in England this law has become entirely disused. But that is untrue; it is a law repeatedly put in force. It is seldom resorted to in political trials. But in a political trial such as the present, if the defendants have broken the law, their offence can only be reached by the common law indictment for conspiracy.

SECTION XVIII.

PERJURY.

[Perjury declared to be criminal.]

REX v. ROWLAND AP ELIZA.

STAR CHAMBER. 1613.

COKE'S THIRD INSTITUTE 164.

The King's attorney preferred an information in the Exchequer against Hugh Nanny, Esq., the father, and Hugh Nanny, the son, and others, for intrusion and cutting down a great number of trees, &c., in Penrose, in the county of Merioneth. The defendant pleaded not guilty, and the trial being at the bar, Rowl. Ap Eliza was a witness produced for the King, who deposed upon his oath to the jury, that Hugh, the

father, and Hugh, the son, joined in sale of the said trees, and commanded the vendees to cut them down. Upon which testimony the jury found for the King, and assessed great damages, and thereupon judgment and execution was had. Hugh Nanny, the father, exhibited his bill in the Star Chamber at the common law, and charged Rowland ap Eliza with perjury, and assigned the perjury in that he, the said Hugh, the father, never joined in sale, nor commanded the vendees to cut down the trees, &c. And it was resolved, first, that perjury in a witness was punishable by the common law. Secondly, that perjury in a witness for the King was punishable by the common law, either upon an indictment, or in an information, or by the Act 5 Eliz. c. 9 in an information. And the said Rowland Ap Eliza was by the sentence of the Court convicted of wilful and corrupt perjury.

[EDITOR'S NOTE. Mr Justice Stephen pronounces this decision to have been "one of the boldest, and, it must be added, one of the most reasonable, acts of judicial legislation on record" (Digest Cr. L., 1st ed., p. 345).}

[Perjury, at common law, can only be committed in a judicial

proceeding.]

THE KEEPERS OF THE LIBERTIES OF ENGLAND V. HOWELL GWINN.

UPPER BENCH. 1652.

STYLE 336.

Howell Gwinn was indicted of perjury for taking of a false oath in an affidavit made before a Master of the Chancery, and was found guilty'. It was moved in arrest of judgment (i) that it doth not appear by the record that the oath made was anything material to the suit depending in that Court; and so it is but an extra-judicial oath, and is not perjury either by the common law or by statute; (ii) it doth not appear that the party took a false oath; for it appears not whether the Master of the Chancery had any power to take this oath.

ROLLE, C.J. Perjury at the common law is intended to be in some Court, and in legal proceedings. For a false oath, made before

1 p. 363. "Memorandum. Howell Gwinn cut off a dead man's hand, and put a pen and a seal in it; and so signed and sealed and delivered with the dead hand; and swore that he saw the deed sealed and delivered."

us, not touching a matter in question between parties, an indictment of perjury lies not....A false oath is one thing, and perjury is another; for one is judicial, and the other is extra-judicial. And the law inflicts greater punishment for a false oath made in a Court of justice than if it be made elsewhere; because of the preservation of justice.

JERMYN, J., said that Perjury takes its name from perverting of justice; and therefore it is intended to be in a court of justice.

THE COURT held the indictment ill; and gave judgment against the Custodes.

[But taking a false oath in a matter which, though extra-judicial, concerns the public, is indictable; although not as Perjury.]

REX v. FOSTER.

CROWN CASE RESERVED. 1821.

RUSSELL AND RYAN 459.

The defendant was tried and convicted before Mr JUSTICE BAYLEY, at the Lent Assizes for the county of Durham in the year 1821, upon an indictment for perjury, in falsely swearing before a surrogate (in order to obtain a marriage licence) that Ann Robinson, his intended wife, had, for the four preceding weeks, been residing in the parish of Sunderland.

The learned JUDGE, not being aware of any instance in which a false oath before a surrogate had been made the foundation of such an indictment, thought it right to reserve the case for the consideration of THE JUDGES, and bailed the defendant.

In Easter term, 1821, THE JUDGES met and considered this case. They were unanimously of opinion that perjury could not be charged upon an oath taken before a surrogate. THE JUDGES were also of opinion that, as the indictment in this case did not charge that the defendant took the oath to procure a licence, or that he did procure one, no punishment could be inflicted. THE JUDGES directed a pardon to be applied for.

K.

27

27

[The false statement must be material to the proceedings before the judicial tribunal.]

REGINA v. HOLDEN.

LANCASTER Assizes. 1872.

12 Cox 167.

The prisoner was indicted for perjury committed by him at the hearing, before the Justices at Petty Sessions, of a summons taken out by him against the present prosecutor for using language calculated to incite him (Holden) to commit a breach of the peace....

The prisoner, who was a saddler at Colne, was removing his goods from his shop; and, as he was standing on the top of the cart, arranging the goods, the horse moved slightly. This so enraged him that he jumped off the cart and kicked the horse and struck it on the head. The prosecutor, seeing the prisoner thus act, shouted to him, "That is nice conduct for a religious man! If there was a Society here for the prevention of cruelty to animals, I would summon you." Whereupon the prisoner replied, "If you don't go into your own house, I will do the same to you." The prosecutor then retorted in these words :"Thou can't; thou art a squinting, lying devil." Next day the prisoner laid an information' against the prosecutor for using language calculated to incite him to commit a breach of the peace. The Justices heard the charge, and eventually dismissed it. During the case, several witnesses proved that they saw the prisoner kick and strike the horse. But the prisoner in cross-examination swore distinctly that he had not done anything of the kind. The magistrates thereupon committed the prisoner to the Assizes for having committed perjury.

MELLOR, J., said he doubted whether perjury could be assigned on the statement made by the prisoner that he had never kicked or struck the horse; as he did not think the words were material to the issue.

Hawthorne, for the Crown, said that as it went to the credit of the witness, it was material..........

MELLOR, J.... My brother LUSH and I have considered this case. We are of opinion that there can be no assignment of perjury. The words used were merely collateral to the issue then before the Court. I may also say that we entertain no doubt about it.

Not guilty.

1 [EDITOR'S NOTE. As the spoken words were not a crime (though in a London street they would be, under 2 and 3 Vict. c. 47, s. 54, sub-s. 13) the information was probably only for the purpose of having the utterer bound over to keep the peace.]