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35 Geo. L. J. 328 (1946-1947)
Common Law Conspiracy

handle is hein.journals/glj35 and id is 338 raw text is: COMMON LAW CONSPIRACY
BENJAMIN F. POLLACK*
0  VER one hundred and fifty years ago a legal scholar delivering a
lecture on law is said to have made the observation that Natural
law is the rule of human action prescribed by the Creator, and discovered
by the light of reason .. ., and distinguishable from the arbitrary law
which he said is a rule of action applied to all persons, and is prescribed
by the Supreme power in a state; he further stated that . . . one is
from God, the other human.1 Viewed from the perspective of a viola-
tion of natural law, a basis for the validity of the current war trials
may be found in the theory of common law conspiracy. There are cer-
tain acts that are inherently criminal, and such are certainly those
which can be universally recognized as violations of natural laws. Just
as the law of criminal conspiracy developed to meet the social demands
of a change of times, so may an international law of conspiracy be
established, and for the same reasons.
Whether or not the doctrine of an international law of conspiracy
has developed sufficiently to afford a legal justification to the Nurem-
berg trials or that of the Japanese leaders, such a development, if it is to
come, may be similar to the development of the common law rule of
criminal conspiracy in Anglo-American Jurisprudence. The following
examination of the authorities attempts to trace the origin and develop-
ment of this rule.
It-should be stated at the outset that, while the language of the courts
and the principles of law expounded in opinions rendered on conspiracy
indictments based on statutory law seem similar to those enunciated in
instances of indictments on common law conspiracy, there is a substan-
tial difference between these cases. This discussion will be concerned
solely with the principles of law pertaining to indictments for criminal
conspiracy at common law. In this connection it must be observed that
the common law is not the source of jurisdiction in the federal courts,
as there are no common law offenses against the United States. Offenses
can become the subject of an indictment in the courts of the United
*A.B. Harvard, 1919; LL.B., 1921; Member of Lands Division, Department of justice
since 1936, now detailed to the office of the Assistant to the Attorney General. Member
of the bar of Massachusetts.
The views here expressed are those of the author and should in no way be considered
those of the Department of justice.
2(1832) 3 LEGAL EXAiraIER 242.

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