(a) The general result of the authorities cited in Skinner v. Gunton, 1 Wms. Saund. 230, on the subject of actions on the case in the nature of conspiracy, seems to be that the ground of action is the damage sustained by the plaintiff, and not the conspiracy; and that whether the action is in its nature joint, depends on the real nature of the particular wrong done, not upon the mere use of the word conspiracy, but upon whether the cause of action was one which could have arisen from the act of one only of the defendants, or could only have arisen from the joint act and contrivance of more than one of them: if so, it would be, as regards those of them whose concurrence would be essential, a cause of action essentially joint, and one on which two at least of the defendants, if not all of them, must have been convicted in order to sustain the action..

It is clear, as matter of law, that there is in the Crown a discretionary power of removing officers of militia or of the army. The Sovereign is, by the Constitution, the first in military command; and the prerogative of governing the army is solemnly declared by stat. 13 Car. 2, c. 6, to be in the Crown alone, for that the sole supreme government and command of the militia ever was in the Crown (2 Black. Comm. by Stephen, 520). The

militia are regulated by many statutes there referred to (Ibid. p. 598), especially 42 Geo. 3, c. 90, referred to in the course of this trial as bearing on the power of the Crown to remove officers in the militia. By the annual statute, called the Mutiny Act, the Sovereign is empowered to make articles of war, which shall be judicially taken notice of by all Judges and in all Courts; and to erect or grant authority to convene courts martial, with a jurisdiction to try and punish offences according to those articles. (Ibid. p. 600.) On some occasions the Crown directs a Court of Inquiry to be held, the object of which is to ascertain the propriety of resorting to ulterior proceedings against the party charged. (Ibid., in notis.) As to these Courts of Inquiry, they are only to inform the mind of the Sovereign, (acting either through the Secretary of War or the Commander-in-Chief, according as the militia may be embodied or not at the time,) the Sovereign having the absolute power of dismissal whatever the result, even if it be acquittal; Home v. Bentinck, 2 B. & B. 130.

No formal charges therefore, still less any inquiry, would be necessary to lead to the removal of a Lieutenant-colonel; though some recommendation must be made to the Crown by the Secretary of War,

1863.

DICKSON

v.

VISCOUNT

reasonable cause; R. v. Best, 1 Salk. 174; without which, or a conCOMBERMERE spiracy it is clearly no ground of

and Others.

action; Johnstone v. Sutton, 1 T. R. 493. And accordingly the second count, laid without a conspiracy, alleges the absence of reasonable

cause.

Now no doubt a conspiracy

with damage may be a cause of action; and though a conspiracy to obtain the dismissal of a man from his office may not be per se unlawful unless it be by unlawful means,it clearly is so if it be carried out by such means, especially if, as in this case, it has been successful. A conspiracy falsely to charge a man is unlawful, whether it be to charge him with criminal acts or only such as may affect his reputation: provided it be to effect an object in itself unlawful; R. v. Rispal, 1 W. Blackst. 370. But if the object is itself lawful, as to procure his dismissal or his prosecution, then the means must be unlawful; as, in the case of a criminal prosecution, the charges must be false and malicious, and there must either be a conspiracy to make such charges, or they must be without reasonable cause and wilfully false; R. v. Spragg, 2 Burr. 993; R. v. Gill, 2 B. & Ald. 204. An indictment for conspiracy ought to show either that it was entered into for an unlawful purpose, or to effect a lawful purpose by unlawful means; R. v. Seward, 1 Adol. & Ell. 714. And see R. v. Blake, 6 Q. B. Rep. 126, and R. v. King, 7 Q. B. Rep. 782, whence it appears that overt acts may be called in aid to explain the charge if averred to have been in

pursuance of it, but for which principle the first count could scarcely be sustained. Here it is not expressly alleged that the defendants conspired to effect the plaintiff's removal by means of false charges, (which might have amounted to an implied allegation that they were wilfully false,) but merely that they conspired to effect his removal, and then, "in pursuance of such conspiracy," falsely and maliciously represented. This, however, according to the case last cited, would amount to an allegation that they maliciously conspired to effect the removal by means of charges which were false. It is doubtful whether this would mean that they were wilfully false; and it is not (as in that case it was) alleged that the charges were without reasonable cause. The count must be construed, if possible, so as to make it good in some sense; but when it might possibly be good in one of two senses, and one of them can only be applied to this count by doubtful and distant implication, and is plainly expressed in another count; and when, moreover, the other sense is plainly expressed in the particular count under consideration, it seems more reasonable to construe the count in that sense rather than the other; that is (in this instance), in the sense of a conspiracy to effect the plaintiff's removal by means of charges false in fact, and also malicious. And in that sense the conspiracy is of the essence of the count.

There can be no doubt that such an action will lie in such a case,

(subject to a question as to whether any action will lie against a Secretary of State for an act done by him in his office, character and capacity as such secretary,) because the making of charges against an officer such as would justify his dismissal, (as these must be assumed to have been supposing them true,) would amount to a libel, which is an indictable offence; and so the defendants might have been indicted for a conspiracy; and, although the old common law writ of conspiracy would not lie, (as it was confined to cases of felony,) yet, assuming a loss of office to have been caused, as in this case, there would be a ground of action on the case in the nature of a conspiracy. But then, on the other hand, as the charges, although false in fact, would not be even libellous or actionable at all if made bona fide by the plaintiff's superior in command; and even the letter of a creditor to the Secretary of War, reflecting on an officer, if bona fide for the purpose of redress, is privileged; (Fairman v. Ives, 5 B. & A. 642;) it follows, of course, that, à multo fortiori, an action of this kind could not be sustained in such a case, unless these charges, which it is not averred were wilfully false, were made in pursuance of a conspiracy; and, as it is not averred in this count that they were without reasonable cause, nor, as already observed, is it alleged that they were wilfully false, the allegation of conspiracy is the more essential. The count must be construed in the sense necessary to

make it good, and good as against all the defendants, it was necessary to allege, that General Peel conspired with one or other, or both, of the other defendants to present to the Queen charges against the plaintiff which he and they knew to be false. Constitutionally and legally, the Queen could not, and therefore it must be taken that she would not, have acted but upon his advice; and therefore, as the damage could not have been sustained without his concurrence, malá fide or bona fide, in the act; and if he had acted bona fide in merely presenting charges which the other defendants knew to be false, of course no action of any kind could lie against him; it was therefore necessary to allege that he was a party to the conspiracy. But as there could be no conspiracy to present false charges by the Colonel-in-Chief, without either his concurrence or that of the Lord Lieutenant, and as mere passive concurrence, counsel, or consent, would not render any one liable (Sedman v. Walker, 1 Exch. 589), it would be necessary to establish as against some two or more of the defendants some acts in furtherance of the conspiracy. It will be seen that the first count alleged, that while the Earl was Colonel, Lord Combermere was Lord Lieutenant, and General Peel Secretary of War, they conspired together to procure plaintiff to be dismissed, and in pursuance of such conspiracy maliciously caused it to be represented to the Queen that certain charges preferred against him by the Earl were

1863.

DICKSON

v.

VISCOUNT

and Others.

true; and the count, it will have been seen, was only good by conCOMBERMERE Struing it as alleging this representation to the Queen as in pursuance of the conspiracy. And in point of law there could be no dismissal (without court martial) but by the act of the Queen, on the representation of the Secretary for War; and thus the count turned entirely on the conspiracy to make a false representation to the Queen.

It has been well settled, that a bona fide, though erroneous, representation to the Secretary at War is privileged. Thus, the memorial of a tradesman addressed to the Secretary at War, complaining of the conduct of a half-pay officer in the army, for not having paid a debt due to him, and stating the facts of his case fairly and honestly, according to his opinion and understanding of such facts, is not the subject of an action for a malicious libel, although the statement of those facts is derogatory to the character of the officer. (Fairman v. Ives, 5 B. & A. 642.) And it would of course follow that a bona fide representation by the Secretary of State would be privileged. And though, in a later case, it was held, by the Court of Queen's Bench, in an action for libel, that a letter to the Secretary of State, by an inhabitant of a borough, imputing to person who

was the town clerk, and clerk to the justices of the borough, corruption in the latter office, was not a privileged communication; Blagg v. Sturt, 10 Q. B. Rep. 899. That decision has itself been corrected by a later case in the same Court;

Harrison v. Bush, 5 E. & B. 353; where it is conceived the true doctrine is laid down, that such a communication honestly made is privileged. The latter case was all the stronger, as the party there was really and in truth a volunteer, or a stranger who had no personal interest in the matter. On the principle of that case, it is clear that the Earl of Wilton and Lord Combermere in sending the charges to the Secretary of State were privileged, unless they acted maliciously, and of course it would follow that he was equally privileged in presenting them to the Queen or making any representation thereon, even assuming that if he were not so any action would lie against him for an act done in his capacity as Secretary of State. Any representation to the Sovereign must of necessity be an act done in that character and capacity, and so the case does not come within the principle of that class of cases in which the Secretary of State has been held liable as a trespasser for acts illegal and without authority. Thus it was held that a Secretary of State is not a conservator or justice of the peace under 24 Geo. 2, and has no jurisdiction to grant a warrant to break open doors to search for libellous papers; and such a warrant is illegal and void. (Entick v. Carrington, 2 Wils. 275.) So a Secretary of State is liable in trespass for a removal of a prisoner by his orders, which he had no legal authority to make; Cobbett v. Grey, 4 Exch. 729. Here it was most clearly and properly with