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11 Am. J. Legal Hist. 25 (1967)
The Origin and Development of Conspiracy to Defraud

handle is hein.journals/amhist11 and id is 31 raw text is: The Origin and Development of Conspiracy to Defraud by TOM HADDEN * Introduction 3 HE CHARGE OF CONSPIRING TO DEFRAUD is the most important and frequently employed branch of the law of criminal conspiracy. Yet it has been largely ignored in most general discussions of the law of conspiracy, or at best treated as a special case to be exempted from the general attack on a crime which can only be defined as an agreement to act illegally. The reasons for this tacit acceptance are largely pragmatic: the charge is useful in that it enables suc- cessful prosecutions to be brought in cases in which the offenders have clearly been involved in fraudulent transactions, but could prob- ably not be convicted of any substantive offence whether for lack of evidence or for technical legal reasons. But though as a specific head of liability under the general law on criminal combinations its authenticity and usefulness cannot be doubted, the exact extent of the offence is not clear: in particular the nature of the cheat or fraud necessary to sustain the charge is not fully settled. As a re- sult there is a tendency to go back to the older cases on the subject, and to cite the opinions and decisions of an earlier age in support of the various possible lines of argument.' But, as so often in sit- uations of this kind, the judges in the older cases did not always have the same problems in mind so that their words and rulings are not always strictly applicable to the issues in the modern cases. A full understanding of the origin and development of the law is all the more necessary. The Early Period (1500-1800) The modern law of conspiracy is a relic of the times when the King's courts took it upon themselves to exercise a wide jurisdic- tion as custos morum. This has been widely recognised. What is not so often realised is that that part of the law concerned with * Emmanuel College, Cambridge, England. 1 The judgment of Evatt J. in R v. Weaver (1931) 45 C.L.R. 321, is a particularly good instance of this. It is not practical to deal with his account of the development of the law in detail: it must suffice to state that he does not give adequate weight to the parallel development of the law of cheating and of false pretences, and to its influence on conspiracy.

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