fact whether they did maul him or not has nothing to do with the matter of the conspiracy.  They might, of course, be tried for assault and battery, or for an attempt to commit murder; but if they are being tried for the conspiracy the criminal act is the combining and meeting, not what they do afterward.  Therefore it is of no importance whatever what the result of the matter is.  The thing that is criminal is the combining; and this leads to a very curious consequence:  All conspiracies are criminal; but the object aimed at may be very slightly so.  So that it is perfectly possible to have a conspiracy which shall result to its members in five or ten years in the state-prison, whereas the object itself, the act aimed at, may have been comparatively slight, a mere misdemeanor.  Take the case of mere intimidation without assault or battery; one man goes to another and says:  “If you take that work I shall smash your head,” that is intimidation.  Thirty of our States have made that unlawful, but it is only a misdemeanor.  But if one thousand men get together and say:  “We will go around to tell him we will smash his head,” that is conspiracy; and conspiracy may subject them to penalty of years in prison.  It has been found in the experience of the English people to be such a dangerous power, this power of combination, that to use it for an unlawful or wrongful end may be more of an offence than the end itself.

A combination to injure a man’s trade is, therefore, an unlawful conspiracy; well shown in a recent Ohio case where a combination of several persons to draw their money out of a bank simultaneously for the purpose of making it fail, was held criminal.  It gives a claim for damages in a civil suit and may be enjoined against.  But is it necessarily criminal?  It is possible that the offence to the public is so slight that the criminal courts would hardly take cognizance of it in minor cases where there is not some statute expressly providing for a criminal remedy.  The Sherman Act, our Anti-trust Act, does so where even two persons conspire together to restrain interstate commerce.  It is a crime at common law, however slight, for even two to combine to injure any person’s trade.  But, independent of statutes, suppose only two persons agree not to buy of a certain butcher in Cambridge:  in theory, he might have a civil remedy; but it may be doubted that it would amount to a criminal offence. Lex non curat de minimis.  So, it is an offence under most State anti-trust laws, as it was at the common law, to fix the price of an article—­that is restraint of trade—­or to limit the output.  Two grocers going to the city in the morning train agree that they will charge seven dollars a barrel for flour during the ensuing week; two icemen, to harvest only a thousand tons of ice.  The contract between them could not be enforced; it is undoubtedly unlawful; but it would hardly be a criminal offence at the common law.  There is, at least at the common law, some middle ground between those contracts which are merely unenforceable, and those which subject the co-makers to a criminal liability; although under the cast-iron wording of a statute it may be that no such distinction can be made.