If such conspiracies are to be tolerated as innocent, then every farmer in Vermont, now resting in the confidence that he may employ such assistance in carrying on his farm as he thinks he can afford to hire, is exposed to the operation of some secret code of law, in the framing of which he had no voice, and upon the terms of which he has no veto, and every manufacturer is handicapped by a system that portends certain destruction to his industry. If our agricultural and manufacturing industries are sleeping upon the fires of a volcano, liable to eruption at any moment, it is high time our people knew it.

But happily such is not the law, and among English-speaking people never has been the law.. The Reports, English and American, are full of illustrations of the doctrine that a combination of two or more persons to effect an illegal purpose, either by legal or illegal means, whether such purpose be illegal at common law or by statute, or to effect a legal purpose by illegal means, whether such means be illegal at common law or by statute, is a common-law conspiracy. Such combinations are equally illegal, whether they promote objects or adopt means that are per se indictable, or promote objects or adopt means that are per se oppressive, immoral, or wrongfully prejudicial to the rights of others.

If they seek to restrain trade, or tend to the destruction of the material prosperity of the country, they work injury to the whole public.

These propositions are the clear deduction of the cases cited in argument, and breathe a spirit of equality and justice that must commend itself to every intelligent mind.

Counsel have cited to us no case in which it has been ruled that this crime of conspiracy does not exist at the common law. We are referred to Mr. Wright's clever monograph upon Criminal Conspiracies, wherein the author, though not denying that conspiracies to injure industries and against the free exercise of one's calling according to his own choice were held to be criminal at the common law, still attempts to throw doubt upon the basis upon which the doctrine

rests.

But when, in 1 Hawkins' Pleas of the Crown, c. 27, § 2 (a book of great authority), 2 Russell on Crimes, 674, it is laid down "that all conspiracies whatever, wrongfully to prejudice a third person, are highly criminal at common law," and in 2 Wharton's Criminal Law, § 2322, it is said that "a combination is a conspiracy in law, whenever the act to be done has a necessary tendency to prejudice the public or oppress individuals, by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief," and the same proposition, in one form of expression and another, is laid down in 2 Bishop's Criminal Law, § 172, and in Desty's Criminal Law, § 11, and in 3 Chitty's Criminal Law, 1138, and in Archbold's Crim. Prac. & Pl. 1830, and it was said.

by Denman, C. J., in Queen v. Kenrick, 5 Q. B. 49: "It was contended, in the first place, that the third count was bad by reason of uncertainty, as giving no notice of the offense charged. The whole law of conspiracy, as it has been administered at least for the last hundred years, has been thus called in question; for we have sufficient proof that during that period any combination to prejudice another unlawfully has been considered as constituting the offense so called. The offense has been held to consist in the conspiracy, and not in the acts committed for carrying it into effect; and the charge has been held to be sufficiently made in general terms describing an unlawful conspiracy to effect a bad purpose”—and Baron Rolfe, in Reg. v. Selby, 5 Cox, Crim. Cas. 495, and Tindal, C. J., in Reg. v. Harris, 1 Car. & M. 661, and Crompton, J., in Hilton v. Eckersley, 6 E. &. B. 47, and Grove, J., in Rex v. Mawbey, 6 T. R. 619, and Lord Mansfield, in Rex v. Eccles, 1 Leach, Crown Cas. 274, and Hill, J., in Walsby v. Anley, 3 E. & E. 516, and Campbell, C. J., in Reg. v. Rowlands, 17 Adol. & El. 670, and Baron Bramwell, in Reg. v. Druitt, 10 Cox, Crim. Cas. 592, and Brett, J., in Reg. v. Bunn, 12 Cox, Crim. Cas. 316, and Malins, V. C., in Springhead Co. v. Riley, L. R. 6 Eq. 551, and Coleridge, C. J., in Mogul S. S. Co. v. McGregor, L. R. 15 Q. B. Div. 476, and Shaw, C. J., in Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 128, 38 Am. Dec. 346, and Caton, C. J., in Smith v. People, 25 Ill. 17, 76 Am. Dec. 780, and Gibson, C. J., in Commonwealth v. Carlisle, Journal Jurisprudence, 225, and Chapman, C. J., in Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287, have all added their indorsement of the doctrine advanced as early as the work of Hawkins, supra: it is manifest that we are compelled to forsake the literature of doubt, and to cleave unto that of authority. See, also, Rex v. Ferguson, 2 Starkie, N. P. 489; Rex v. Bykerdyke, 1 M. & Rob. 179; People v. Fisher, 14 Wend. (N. Y.) 9; State v. Donaldson, 32 N. J. Law, 151, 90 Am. Dec. 649; Snow v. Wheeler, 113 Mass. 186; State v. Noyes, 25 Vt. 415; State v. Burnham, 15 N. H. 396; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173, 8 Am. Rep. 159.

Vice Chancellor Malins, in the case cited, supra, states the law of the subject in brief but intelligible words: "Every man is at liberty to enter into a combination to keep up the price of wages; but, if he enters into a combination for the object of interfering with the perfect freedom of action of another man, it is an offense, not only at common law, but under St. 6 Geo. IV, c. 129."

The principle upon which the cases, English and American, proceed is that every man has the right to employ his talents, industry, and capital as he pleases, free from the dictation of others; and, if two or more persons combine to coerce his choice in this behalf, it is a criminal conspiracy. The labor and skill of the workman, be it of high or low degree, the plant of the manufacturer, the equipment of the farmer,

the investments of commerce, are all in equal sense property. If men by overt acts of violence destroy either, they are guilty of crime. The anathemas of a secret organization of men, combined for the purpose of controlling the industry of others by a species of intimidation that works upon the mind rather than the body, are quite as dangerous, and generally altogether more effective, than acts of actual violence; and, while such conspiracies may give to the individual directly affected by them a private right of action for damages, they at the same time lay a basis for an indictment on the ground that the state itself is directly concerned in the promotion of all legitimate industries and the development of all its resources, and owes the duty of protection to its citizens engaged in the exercise of their callings. The good order, peace, and general prosperity of the state are directly involved in the question.

In the case at bar the third and fourth counts set forth more particularly the methods adopted by the respondents to interfere with the prosecution of its business by the Ryegate Granite Works. They charge the respondents with an intent to prevent the prosecution of the work of that company by threatening O'Rourke, Goodfellow, and others, that the Ryegate Granite Works were "scab shops," and all workmen therein were "scabs," and their names would be published in the "scab" list in the Granite Cutter's Journal, and that they would be shunned, and not allowed to work with any other granite cutters, and would be disgraced in the craft, etc., by all of which O'Rourke, Goodfellow, and others were frightened and driven away from said shops.

The exposure of a legitimate business to the control of an association that can order away its employés and frighten away others that it may seek to employ, and thus be compelled to cease the further prosecution of its work, is a condition of things utterly at war with every principle of justice and every safeguard of protection that citizens under our system of government are entitled to enjoy. The direct tendency of such intimidation is to establish over labor and over all industries, a control that is unknown to the law, and that is exerted by a secret association of conspirators, that is actuated solely by personal considerations, and whose plans, carried into execution, usually result in violence and the destruction of property.

That evils exist in the relations of capital and labor, and that workmen have grievances that oftentimes call for relief, are facts that observing men cannot deny. With such questions we, as a court, have no function to discharge further than to say that the remedy cannot be found in the boycott.

We do not deem it necessary to extend this discussion-already too long drawn out-in following seriatim the numerous objections taken in the able and elaborate brief of the respondents to the different counts of this indictment. The general scope of the views expressed covers the whole ground, we think; and the result is the judg

ment of the county court, overruling the motion to quash, and overruling the demurrer, and adjudging the indictment to be sufficient, is affirmed; and the cause is remanded, to be further proceeded with.

SECTION 3.-AUTHORIZED ACTS.

I. ACTS IN FURTHERANCE OF PUBLIC JUSTICE.

This kind of occision of a man according to the laws of the kingdom and in execution thereof ought not to be numbered in the rank of crimes, for it is the execution of justice, without which there were no living, and murders, burglaries, and all capital crimes would be as frequent and common as petit trespasses and batteries. The taking away of the life, therefore, of the malefactor according to law by sentence of the judge, and by the sheriff or other minister of justice pursuant to such sentence, is not only an act of necessity, but of duty, not only excusable, but commendable, when the law requires it. The deliberate, uncompelled, extrajudicial killing of a person attaint of treason, felony, or murder, or in a præmunire, tho' upon the score of their being such, is murder.

Therefore it is necessary (1) that he that gives sentence of death against a male factor be authorized by lawful commission or charter, or by prescription to have cognizance of the cause; (2) that he that executes such sentence be authorized to make such execution, otherwise it will be murder or manslaughter, or at least a great misprision in the judge that sentenceth, or in the minister that executeth. 1 Hale, P. C. 496.

2 Accord: Boycotting, State v. Glidden, 55 Conn. 46, 8 Atl. 890, 3 Am. St. Rep. 23 (1887); Crump v. Commonwealth, 84 Va. 927, 6 S. E. 620, 10 Am. St. Rep. 895 (1888).

If the indictment is for conspiracy to commit a crime of which concert is an essential element, such as adultery, the agreement to do the act cannot be separated from the act itself to form the foundation for a charge of conspiracy. Shannon v. Commonwealth, 14 Pa. 226 (1850); Miles v. State, 58 Ala. 390 (1877). Cf. State v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62 L. R. A. 700 (1901).

To convict of conspiracy, it is not necessary that defendant was a party to the conspiracy at its formation. He is guilty if, with knowledge of the conspiracy, he aids in carrying it into execution. People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122 (1830). Since the conspiracy is complete when the unlawful agreement is made, a subsequent withdrawal before the contemplated act is committed is no defense to the charge of conspiracy. Dill v. State, 35 Tex. Cr. R. 240, 33 S. W. 126, 60 Am. St. Rep. 37 (1895).

LEONIN'S CASE.

(Worcestershire Eyre, 1221. Select Pleas of the Crown. Sel. Soc. Pl. 133.)

Leonin, Phillip's son, and Jacob his servant slew John of Middleton in the forest of Kinfare and fled and were dwelling in Staffordshire in the township of Kinfare. And therefore this must be discussed at Stafford. Let them be exacted and outlawed. Inquiry as to their chattels must be made at Stafford. Englishry is presented.

Afterwards came John, Phillip's son, Robert of Stapleton and Adam. of Peissi and undertook to produce Leonin and Jacob before the justices at Stafford to abide judgment. So the sheriff is ordered that the exacting and outlawing be respited until they shall have another order.

At Lichfield came Leonin and Jacob and put themselves upon their verdict as to when, where, and by whom the deed was done. The jurors of the hundred of Seisdon say that in the time of the war John came with many others into the king's forest to offend in the forest, as was his wont, and was found seised of the whole body of a doe, and the king's servants and foresters could not take him alive, and he defended himself against our lord the king and cut off a forester's finger, and thus it was that he was slain. And so it is considered that [Leonin and Jacob] be quit thereof.1

UNITED STATES v. RICE.

(United States Circuit Court for North Carolina, 1875. 1 Hughes, 560, Fed. Cas. No. 16,153.)

On the 15th of last September, Andrew Woody, of Spring Creek, Madison county, was killed by Noah H. Rice, a United States deputy marshal, who was endeavoring to serve a capias on him for violation of the internal revenue laws. From facts developed before the court it appears that Woody had expressed a determination to resist any process which might issue against him, and had threatened to kill the defendant, Rice, if he attempted to arrest him. When this officer came upon Woody, the latter was armed with a rifle. His demeanor was hostile, and when commanded to surrender he so acted as to impress the officer with the belief that his intention was to shoot him, and in self-defense he fired upon Woody with fatal effect. Rice came to Asheville and surrendered himself to the authorities, was examined by Commissioner Watts on application for bail, and committed to jail. His case was finally removed to the United States court, on Tuesday, May 11, 1875. He was placed upon trial for his life. The jury hav

1 See, also, Anon. Y. B. 30 & 31 Edw. I, 512 (1302).

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