authority of Modern, citing Burrows' marginalia condemning them.' He further argued that the proposition cited from the Tubwomen's Case was obiter dictum in so far as it transcended the fair boundary of the Tailors' case and added, "I should have been very glad to have seen this celebrated case of the Tubwomen: I believe it is not to be found, if such a case exists let it be produced and I will endeavor to answer it. If the gentlemen are not able to produce it, no answer is necessary; for et non existente & non apparente eadem est lex." This resourceful and ingenious argument, in default of better, did not avail. The recorder charged that "the authority cited from 8 Mod. Rep. does not rest merely upon the reputation of that book. * * * It is adopted by Blackstone, and laid down as the law by Lord Mansfield 1793, that an act innocent in an individual, is rendered criminal by a confederacy to effect it." The jury found defendants guilty and they were fined $8 each and costs.3

On December 12, 1809, the New York Cordwainers being charged with conspiracy it was moved in General Sessions of the Peace, Mayor DeWitt Clinton, presiding, to quash the indictment which set up that defendants, intending to form an unlawful club or combination to govern themselves and other workmen in said art and unlawfully extort money, etc., with by-laws, etc., conspired and agreed that no mem. ber would work for any master, who, after notice given to discharge one not a member of the combination, should continue to employ the same, or who should employ any violator of said by laws, who had not paid a fine imposed

16. A miserably bad book entitled Modern cases in Law and Equity,' 1 Burr. 386. “N. B.-Wannell's Case being here cited from 8 Mod., 267. The court treated that book with the contempt it deserves and they all agreed that the case was wrong stated there (I mean the old edition of that book)" 3 Burr., 1326.

2 An able member of the Michigan Bar expressed a few years ago like scepticism, as did a western judge after a vain quest for the elusive Tub

women.

Three years later Tomlins' Law Dictionary (1809) under the title "Conspiracy," said: "Journeymen confederating and refusing to work unless for certain wages, may be indicted for a conspiracy, notwithstanding the statutes which regulate their work and wages do not direct this mode of prosecution; for this offense consists in the conspiring and not in the refusal, and all conspiracies are illegal though the subject matter of them may be lawful. See the case of the Tubwomen v. The London Brewers, 8 Mod. Rep., 11, 320." The citation at 320 is of Starling's Case.

for breach thereof; and also indirectly to prevent Edward Whitess from following his trade, and to impoverish him by refusing to work for certain persons who employed him; and to increase wages, and to refuse to work for any one who should have more than two apprentices at the same time to learn their art, and indirectly to impoverish divers other persons named. For the defendants, Sampson1 attacked the whole system of common law, and declared that no American opinion sanctioned the doctrine of the criminality of agreements by workingmen to raise wages, except Recorder Levy's, the soundness of which he disputed, arguing that it rested chiefly on the authority of Hawkins' statement that "all confederacies whatever, wrongfully to prejudice a third person are highly criminal at common law, as where divers persons confederate together by indirect means to impoverish a third person"; a rule applicable only to common law conspiracies, that is to say, maintenance and false and malicious accusations of indictable offences which were crimina falsi. He denied that Hawkins ever wrote "that all confederacies are unlawful though the object of them be lawful," a doctrine which, he said, was taken from the case of The Journeymen Taylors, decided in 1721, whereas Hawkins' book, published in 1716, did not contain this dictum taken from "the worst book of English reports under which the shelf groans."4 Reviewing all cases cited in Hawkins' original note, including Rex v. Alderman Sterling," he said that this was a case referred to from the "miserable bad book by the title of The Tubwomen v. The Brewers of London." It seemed to puzzle the counsel in Philadelphia, and it puzzles us no less, to divine who these same Tubwomen could be. * The solution of the difficulty may be this: There was formerly in the Exchequer a barrister called the Tubman, 1 Reported by Wm. Sampson, Esq., of counsel supra.

2 In the Philadelphia Boot and Shoe Makers Case, supra.

3

Cf. Turner's Case (1810) 13 East 228 wherein Lord Ellenborough C. J, (citing Godb. 444) said that all conspiracy cases proceeded upon the theory that the combination was to effect its object by falsity; and that an indictment of conspiracy to commit a mere civil trespass would not lie. Cf. Queen v. Daniell (1704) 6 Mod. 99.

5 Also citing Burrowes' marginalia, supra.

6 Which he cited only from 1 Lev. The case is reported (1665) 1 Sid

- 174; 1 Keb 650; 655; 675; 682; & 1 Levinz 125.

who was a King's counsel and had precedence. It might have been his duty to file this information; and the cause which would improperly have been entitled The Tubman v. The Brewers, was still more so called The Tubwomen v. The Brewers, by the reporter, whom the Court of Kings Bench states to have been a misstater of cases. It was about gallon beer. Gallons and tubs have some affinity, gallons being but the diminutive of tubs. Sic canibus catulos similis, sic matribus hædos. And between the tubman and the tubwomen there is but a syllable. A reporter so ignorant of men and things might mistake, as was his habit, and send forth the case in this report with this whimsical title." Mr. Sampson also contended that Starling's Case laid down no such principle as that attributed to The Tubwomen's; for the Judges in the former admitted that, as a general principle, meeting and consulting to impoverish private individuals, as the excisemen were1, could not maintain a public prosecution, but that the case was exceptional in that it affected the King's revenue; or as Sampson put it "The principle of the decision seems truly to have been this, that reges habent longas manus." Mr. Colden, also for the defence, argued that combinations to raise wages could only be punished as conspiracies under the statutes of laborers, prior to which no case could be found condemning them; and that the Cambridge Taylors' Case was grounded upon statute. On the other hand Riker, for the prosecu. tion, argued that by the common law of England adopted in New York, the conspiracies charged were criminal. He said: "This conspiracy unnaturally to force the price of labor beyond its natural measure is as dangerous as any kind of monopoly, and if it be tolerated, as well may be regrating, forestalling, and every other pernicious combination. Suppose all the bakers in New York were to refuse to bake till they received an exorbitant remuneration. Suppose the butchers should enter into a similar combinaBut Wyndham J. in Keeble's Report deemed them public persons, see infra.

2 Cf. National Protective Ass'n v. Cummings, supra. Mr. Sampson said that these statutes were "The lineal descendants, the lawful and immediate issue of pestilence and public calamity "; and cited Espinella's letters to the effect that the poverty and pain of the English working classes is such that "The workmen in certain manufacturing towns in England exhibit the strange phenomena of green hair and red eyes."

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tion; and if there be impunity for them, why shall not all other artisans do likewise? What will become of the poor, whose case the counsel takes so feelingly to heart? The rich will, by their money, find supplies; but what will be the sufferings of the poor classes?" And then he advanced an hypothesis that seems both strange and familiar to-day : Suppose that some rich speculators, acting upon similar principles, should, in a cold winter, combine to purchase up all the wood, and refuse to sell it but at an extravagant advance, should we have no law to protect the poor against such oppression?" "And would it be argued that without an express statute the law could furnish no remedy.1 As such acts would be against the public good, and immoral in a high degree, they would therefore fall under the animadversion of the general law; and, as offences against the whole community, be subject to public prosecution." Emmett, with Riker, controverting the proposition that conspiracy does not lie at common law except in connection with crimina falsi, which were infamously punished, citing Cope's Case, argued that Hawkins rested on good authorities, of which the most important is Starling's Case, holding that "either a conspiracy unlawfully to prejudice other individuals or the public at large, is an offence," and that “all confederacies whatever wrongfully to prejudice a third person are highly criminal" at common law in this country.3 Admitting some cases in Modern to have been badly reported, he maintained that others had never been questioned, and that East, the most recent authority on crown law, relied upon the Taylors' Case in stating the principle that "an indictment lies whenever either the conspiracy is entered into for a corrupt and illegal purpose [or for the use of unlawful means to effect a legal purpose], although such purpose be not effected," a doctrine broadly laid down in the Taylors' Case, and supported by that of The Tub. women v. The Brewers of London, "which," he said,

1 See Peo. v. Sheldon (1890) 66 Hun 590 afd. (1893), 139 N. Y. 251 ; Cummings v. Union Blue Stone Co. (1900) 164 N. Y. 401.

2 (1718) 1 Stra. 144; conspiracy to ruin a card maker by putting grease into his paste; and Sir Francis Delaval's Case (1763) 3 Burr 1434 conspiracy to assign a woman with her consent to immoral purposes. Cf. Note Skinner v. Gunton, 1 Wm. Saunders 230.

33 Wilson's Lectures 118.

4 This is an argument that an overt act need not be proved and not that what A may lawfully do may be the purpose of a conspiracy.

"has puzzled not only the opposite counsel, but those in a neighboring State have examined the question to know where that case is to be found and what it means. My learned friend, however, has settled into the belief that it means the case of The King v. Alderman Sterling and others, already commented upon. In this I concur, although not for the reasons he assigns, for it having been tried and decided in the Kings Bench, the tubman of the Court of Exchequer could have nothing to say to it; and even if he had I do not see why its being conducted by an officer, called the tubman of the court, should entitle it to be called the Tubwomen's Case (1). The truth, I presume, is that the small beer, called gallon beer, mentioned in that report as being sold to the poor, was hawked about, as similar beverages are in many countries, and sold in the streets by women who, from their occupation and the vessels in which was contained the article they sold, were called tubwomen. And when the brewers of London combined not to make or permit any more such beer to be made, by which the occupation of these women was ruined, it is very probable that their interest and activity against the brewers made them conspicuous personages in the cause and procured that name for the case. Be that, however, as it may, the case of King v. Sterling undoubtedly contains the principle that supports the case in 8 Mod.; that any conspiracy to do a wrongful act, tending to public injury or the impoverishment of third person is indictable (2)." It would thus appear that if Sterling's Case be, in fact, the same with that of the Tubwomen, it was not cited by these learned counsel for the broad proposition attributed to the latter in the Taylors' Case, but rather to the point that the agree1 So Mr. Wright (page 42), impugning the authority of the Taylors' Case, points out that while the defendants were tailors of Cambridge, the case is made to turn on 7 Geo. I c. 13, which only applied to the metropolis.

1

2 Our italics. Here again it is to be noted that the italicized proposition is not that attributed to the Tubwomen, namely, that the conspiracy is indictable, although the act with which it is concerned may be lawfully done by individuals. Mr. Emmett further offered from the Liber Assizarum 27 Ed. 111 page 138, 139, a list of matters to be inquired of by inquest of office in the King's Bench, including covin or alliance of merchants to raise the price of wool, as ancient authority to show that conspiracies, whose gravamen was impoverishment of the people, were common law offences not dependent upon the plague or the Statute of Laborers.