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 Offr> ^ 
 
 
 U A. CO. L. i 
 
 •N
 
 THE LAW 
 RELATING TO TRADE UNIONS.
 
 T H E L A \V 
 
 KEI.ATING TO 
 
 TRADE UNIONS 
 
 SIR WILLIAM ERLE, 
 
 FtHOlERLV CHIEF JUSTICE IN THK COMMON PLEAS. 
 
 ITDnbon : 
 
 MAC-MILLAN AND CO. 
 
 1S69.
 
 LONDON : 
 
 R. CLAY, SONS, AND TAYLOR, PRINTERS, 
 
 BREAD STRKKT HII L. . 
 
 T
 
 CONTENTS. 
 
 FAGE 
 
 INTRODUCTION vii 
 
 .CHAPTER I. 
 
 COMMON LAW RELATING TO TRADE UNIONS. 
 
 Section i. Formation and Force of Unions i 
 
 „ 2. Right to Free Course for Trade in General . . 5 
 
 „ 3- Right to Free Course for Trade in Labour (that 
 is, to freedom to dispose of labour and capital 
 according to the will of the owner) .... 11 
 
 „ 4. Proceedings for Violation of the Right to Free- 
 dom for the Course of Trade 28 
 
 (a) Action for Civil Wrongs. 
 
 (d) Indictment for Criminal Wrongs other 
 
 than Conspiracy. 
 (<:) Indictment for Conspiracy. 
 
 5. Statutable and Professional Restraints of Free- 
 
 dom to Labour 42 
 
 (a) Restraints by Law, as by Factory Acts. 
 (1^) Professional Fees. 
 
 6. The Roots and Crowtli of the Connnon Law . 47 
 
 729620
 
 CONTENTS. 
 
 CHAPTER II. 
 
 STATl'TE LAW RELATING TO TRADE UNIUNS. 
 
 Section i. Statutes prior to 6 George IV. c. 129 .... 55 
 „ 2. The Statute 6 George IV. c. 129 56 
 
 (<?) The Section containing Prohibition. 
 (/') The Sections for Permission. 
 
 3. The Statute 22 Victoria, c. 34 75 
 
 4. The Statute 18 & 19 Victoria, c. 63, s. 44 (the 
 
 Friendly Societies' Act) 76 
 
 APPENDIX A. 
 
 Some Account of the Trials of R. z'. Rowlands and Others, 
 
 and R. '■. Dufifield and Others 8r 
 
 APPEXDIX B. 
 
 Sections 3, 4, 5, of the Act 6 Geo. IV. c. 129 .... 88 
 
 Section 44 of the Act 18 & 19 Vict. c. 63 f;o 
 
 Section i of the Act 22 Vict. c. 34 91
 
 INTRODUCTION 
 
 For the performance of their duty under Her 
 Majesty's Commission the Trade Unions Com- 
 missioners had to ascertain the state of the 
 existing law, both Common and Statute, con- 
 nected with Trade Unions, in order that amend- 
 ments might be proposed with knowledge of 
 their probable effect. 
 
 For this purpose I prepared the following 
 Memorandum, with the intention of its being 
 laid before my colleagues, and forming part of 
 the proceedings of the Commission. It has, 
 however, so grown under my hand as to em- 
 brace some topics beyond the immediate scope j 
 of our Commission ; and I now offer it on my j 
 own responsibility. I 
 
 Many of the principles were obtained by my 
 own induction, and arc expressed in words '
 
 INTRODUCTION. 
 
 Intkoulc- 
 
 TION. 
 
 whicli I composed ; the imperfections are there- 
 fore mine. 
 
 In stating the common law, I have aimed to 
 assign some of the reasons for it, both with a 
 view to show that the law is as stated, and 
 also in order to foster loyalty, which increases 
 with the opinion that there is reason for the law. 
 Human life is a progress between two sets of 
 physical and moral agencies perpetually striving 
 against each other — the one on the side of 
 falsehood, malice, and destruction ; the other on 
 the side of truth, kindness, and health : and the 
 law, if wisely made and properly administered, 
 maintains truth and kindness and health, and 
 so, among other things, helps persons of honest 
 industry to obey each his own will. 
 
 In the hope, also, of lessening confusion in 
 the legal reasoning on the lawfulness of certain 
 sets of circumstances, I premise ai few verbal 
 explanations. First — there are terms, of fre- 
 quent recurrence in that reasoning, each denot- 
 ing different sets of circumstances — some lawful, 
 some unlawful ; so that if any of these terms are 
 used without discriminating between the senses 
 of which they are capable, confusion follows : 
 "restraint of trade," "trade unions," "strikes," 
 and "combinations," are examples of such 
 terms. Secondly — as to " rights " and " duties," 
 "■wKonsfs" and "crimes." In this Memorandum
 
 INTRODUCTION. 
 
 " right " means a power which is vested in a 
 person by law, and is created entirely by opera- 
 tion of law. Every right correlates with a 
 "duty," A "wrong" is a violation of a right 
 not amounting to a crime, being a civil injury : 
 a " crime " is such a violation of a private right 
 or of a duty as affects the interest of the public : 
 it is known in practice to be classed as a 
 crime ; but the essence of criminality has not 
 been defined at common law. And thirdly — 
 in law, labour and capital are not contradis- 
 tinguished : neither the rights nor the duties of 
 a person are affected by being placed in the 
 class of either labourer or capitalist. 
 
 I intended in writing this Memorandum to 
 state the law as it is, and only rarely to express 
 an opinion as to what the law ought to be. 
 
 INTRODUC- 
 TION. 
 
 Dccanhcr, 1868.
 
 THE LAW 
 RELATING TO TRADE UNIONS. 
 
 CHAPTER T, 
 
 COMMON I.AW RELATING TO TRADE UNIONS. 
 
 I. Formation and Force of Unions. — As the 
 term "Trade Union" denotes many forms of 
 association for various purposes — such as mutual 
 assurance against either the accidents of hfe or 
 the accidents of trade, or such as the regulation 
 of the terms of hiring or of the supply of labour — 
 it may be well to premise that the term itself 
 affords no indication in respect of lawfulness. 
 Union by itself is presumed to be lawful : the test 
 of unlawfulness lies in the purpose of the union. 
 
 A person becomes a member of a union by 
 consenting to transfer a part of his own power 
 over his own rights to the governing body of the 
 union, which may be the general assembly or a 
 committee of delegates. The legitimate power 
 of the union over its members is in proportion 
 to each member's power over his own actions — 
 that is, to the quantity of the free-will of each 
 B 
 
 Chah. I. 
 Cnmnion 
 
 5 I. Forma- 
 tion and 
 Force of 
 Unions. 
 
 II
 
 THE LAW RELATING 
 
 Chap. I. 
 
 Common 
 
 Lau-. 
 
 §1. For ma- 
 tt nit and 
 Force nf 
 Unions. 
 
 member supposed to be transferred by him to 
 the union ; and the transfer is intended to relate, 
 for the most part, to power over the money or 
 the work of the individual member. The force 
 acquired by combination is incalculably greater 
 than the sum of the powers so transferred to 
 the union by each individual, as is exemplified 
 by soldiers for right, and by robbers for wrong. 
 This multiplication of force by combining is a 
 reason why combination for a purpose either 
 of crime or of some classes of wrong is made 
 criminal, the law prohibiting such combination 
 having the expediency of checking wrong in its 
 inception. At times, unions acquire power over 
 both members and non-members by terrifying. 
 Such power is in proportion to the terror ; and 
 terror for the most part decreases as knowledge 
 of the extent of the danger, coupled with 
 reliance on the law for protection, increases. 
 
 A union operates by way of agreement. If 
 all its purposes should be free from unlawful- 
 ness, it would be like to a partnership agree- 
 ment, for breach whereof the remedy is mostly 
 in chancery ; if any of its purposes should be 
 unlawful, whether criminal or not, it would be 
 so far void for illegality ; if any of its purposes 
 should be criminal, the concert would be a crime. 
 
 With respect to rights to property, they are 
 not direct!}' affected by the purposes of the
 
 TO TRADE UNIONS. 
 
 owner of the property ; but as unions operate by- 
 way of agreement, and as the vahdity of agree- 
 ments depends on (among other things) the 
 lawfulness of the purposes comprised in such 
 agreement, the purposes of the unions may thus 
 indirectly affect the rights of the members 
 thereof to the joint property of the union. 
 Accordingly, members of lawful unions have 
 rights to the property of the union the same as 
 other subjects to other joint property. Members 
 of unions for unlawful purposes have no right to 
 assistance from any court for the fulfilment 
 of the unlawful purposes ; but for all other 
 purposes except the unlawful (if they can be 
 distinctly severed) they are, I believe, in the 
 same position as unions for lawful purposes. 
 
 Although these rights exist in law, it is diffi- 
 cult in practice to enforce them. In most unions 
 the members are being changed perpetually by 
 outgoing and incoming, while no provision has 
 been made for transmission of rights of property; 
 and probably no such provision could be effec- 
 tive without the aid of an Act of Parliament 
 analogous to the Joint Stock Companies Acts. 
 A remedy for violating a right of property 
 cannot be enforced w-ith certainty unless the 
 owners of the right, when the alleged wrong was 
 done, are ascertained. 
 
 As regards violations of the rights of property 
 
 B 2 
 
 Chap, I 
 
 Common 
 
 Law. 
 
 § I. Forma- 
 tion and 
 Force o/ 
 Unions.
 
 THE LA W RELA TING 
 
 Chap. I. 
 
 Common 
 
 Law. 
 
 ^ I. Fonna- 
 tion and 
 Force of 
 I 'nions. 
 
 belonging to the union done by members of the 
 union — as, for example, by treasurers, clerks, 
 and other such officers — there is the difficulty 
 arising from the joint-ownership on the part of 
 the wrongdoers. When the wrong is by the 
 abstraction of property, neither trespass nor in- 
 dictment can be maintained by the union against 
 a member thereof for such abstraction. An 
 attempt was made to remove this difficulty by 
 section 44 of 1 8 and 19 Vict. c. 6t^ (the Friendly 
 Societies Act), but this section has been found 
 by experience not to afford a satisfactory re- 
 medy ; and I venture to suggest that the law 
 might be amended if it were enacted that a 
 joint owner, under certain circumstances doing 
 that which would be larceny or embezzlement as 
 between him and the other joint owners, should 
 be guilty notwithstanding his joint ownership. 
 I see no reason why in the case of some societies, 
 to be defined in the statute, a member taking or 
 embezzling the goods of the society against the 
 will of the other members, secretly with intent 
 to deprive them of their right, and to change 
 the property therein contrary to law, should not 
 be made as responsible, civilly and criminally, 
 as he would have been if no society had existed. 
 If this was the law,^ the trade unions would have 
 
 ^ Since this Memorandum was written, a statute to this effect 
 (31 & 32 Vict. c. 116) has been passed, and under the statute a 
 Treasurer of the Operative Bricklayers' Society has been con-
 
 TO TRADE UNIONS. 
 
 the usual protection of the law against violation 
 of rights of property by their own officers. 
 
 This protection might be supplemented by 
 giving also to some societies a summary remedy 
 analogous to the right given to friendly societies. 
 
 The test of unlawfulness is to be found in 
 the purposes of the union. For example, if 
 money is to be collected for the purpose of 
 obtaining useful information, and regulating ac- 
 cordingly the supply of labour, the union is so 
 far lawful ; if the purpose is to apply its money 
 to the injury of others — as, for instance, in 
 burning the property or destroying the lives of 
 persons obnoxious to the union — the union is 
 so far unlawful. About such cases as these 
 there is probably no dispute. But doubt about 
 the lawfulness of the union arises when there 
 is a purpose to restrain trade. 
 
 II. Right to Free Course for Trade in General. 
 • — Restraint of trade, according to a general 
 principle of the common law, is unlawful. I 
 say " a general principle," because the term 
 " restraint of trade " is of very wide extension, 
 
 victed (R. v. Blackburn, C.C.C. Dec. 17, 1S68). Now, there- 
 fore, unions have the aid of the criminal law against stealing ; 
 and if they remove illegality which is apparent on their rules 
 they may, according to the decision in Farrer v. Close (see p. 79, 
 />os/}, have aid from the 44th section of the friendly Societies' 
 Act, 18 and 19 Vict. c. 63. 
 
 Chai'. I. 
 
 Comir.oii 
 Law. 
 
 § I. Forma- 
 tion mid 
 Force of 
 Unions. 
 
 §2. Right to 
 Free Course 
 for Trade in 
 General.
 
 772^^ LA W RE LA TING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 \ 2. Right to 
 Free Course 
 for Trade in 
 General. 
 
 and applies to a multitude of relations between 
 man and man, relations which vary in countless 
 permutation by the addition or subtraction of 
 a circumstance ; and the unlawfulness depends 
 on the degree of restraint resulting from the 
 circumstances. Questions of degree cannot be 
 defined without a standard of measure : unlaw^- 
 ful restraint of trade, therefore, cannot be de- 
 fined, but it may be described ; and the best 
 description I can offer is this, that at common 
 law every person has individually, and the public 
 also have collectively, a right to require that 
 the course of trade should be kept free from 
 unreasonable obstruction. 
 
 Neither a grant of this right, nor a pro- 
 hibition of the violation thereof, is found in 
 the direct terms of a law ; but proceedings for 
 the violation of the right are recorded, and in 
 these proceedings the grant of the right, and 
 the prohibition of the violation thereof, are 
 assumed to exist. The right to security for 
 person and property is not granted affirma- 
 tively, but assaults and thefts are frequently 
 subjects of recorded legal proceedings in which 
 
 i this right is assumed. The law has been de- 
 scribed as jiibciis Jioncsta, proJiibeiis contraj'ia : 
 
 I this may be true of written law, but in un- 
 
 ! written law the Jussam is to be found in suits 
 
 I for violating \\\q proJiibitiim.
 
 TO TRADE UNIONS. 
 
 Many examples might be given of other 
 rights to a free course in other matters which 
 are known to the law not by express grant, but 
 by enforcement of prohibition against violation 
 thereof. The common law rights to a free course 
 for passage on highways, or for light to the eyes, 
 or for air to the lungs, or for the flow of the 
 stream of water to the land of riparian pro- 
 prietors, are not created by express grant, nor 
 are they more capable of being perceived by 
 any direct sense than the right to a free course 
 for trade, there being no property either in any 
 particle of light, or in air, or in running water, 
 or in any passage on ways ; but the existence of 
 each of these rights is made known by actions 
 or indictments for the infringement thereof It 
 may be worth adding, that the right to a free 
 course for air or water is a right to quality as 
 well as quantity. If either air or water is fouled 
 in an unreasonable degree, action lies for a wrong 
 in the class of nuisances ; and the degree which 
 is unreasonable is constantly shifting according 
 as density of neighbourhood increases. These 
 are examples of the application of the law re- 
 lating to other nuisances, besides those relating 
 to the free course for trade, in respect of air or 
 water, light or passage, above referred to. 
 
 The right to a free course for trade is of 
 great importance to commerce and productive 
 
 CiiAr. i. 
 Commcn 
 
 § 2. Right io 
 Free Course 
 for Trade in 
 Ce'iernl.
 
 THE LA W RE LA TING 
 
 Chap. I 
 
 Common 
 Law. 
 
 § 2. Right fo 
 Free Course 
 for Traiie .« 
 Geiteral. 
 
 industry, and has been carefully maintained b}- 
 those who have administered the common law 
 during the time to which our records extend. 
 The judgment of Parker, C.J., in Mitchel v. 
 Reynolds (i P. Williams, i8i), is an authority 
 showing the principle, and a limitation of it. 
 The question was, whether a contract operating 
 as a partial restraint of the trade of the vendor 
 of the good-will of certain premises was valid ; 
 and the answer was in the affirmative, provided 
 the restraint was not unreasonable with regard 
 to the public interest, and not greater than was 
 required for the interest of the purchaser (the 
 party restraining), and provided also that the 
 party restrained (the vendor) received value for 
 that which he gave up. In that judgment pre- 
 vious cases showing restraint of trade to be 
 illegal are examined, and the reasons for estab- 
 lishing the exceptive limitation are shown to 
 be founded on the interests of truth and ex- 
 pediency. The report of this case in SmitJis 
 Leading Cases (vol. i. p. 356, 6th ed.), collects the 
 principles of numerous decisions following Mit- 
 chel V. Reynolds, and defining more exactly 
 the exceptive limitation. 
 
 The laws relating to fairs, markets, and 
 staples ; the prohibitions against forestalling, 
 engrossing, regrating, monopolies, and all similar 
 contrivances for affecting prices otherwise than by
 
 TO TRADE UNIONS. 
 
 competition, have their origin in a purpose of 
 keeping the course of trade free from obstruc- 
 tion, and enabling buyers and sellers to deal 
 on the terms which free competition determines. 
 These rules were made for the purpose of 
 securing supply in times when stores were small, 
 and transit difficult, and famine near if supply 
 was delayed. Now, their utility, and therewith 
 their operation, has nearly ceased under altered 
 circumstances from the advance of civilization, 
 it being found that supply is best secured by 
 leaving mercantile speculation free. Accordingly, 
 it was ruled by Lord Ellenborough in R. v. 
 Cleasby (about the year 1812), that the engros- 
 sing of all the oil of a whaling season was no 
 offence at common law in the then state of 
 society; and he so held notwithstanding the 
 case of R. v. Waddington, quoted below. The 
 Legislature, by the 12 Geo. IIL c. 71, repealed the 
 statutes declaratory of the common law against 
 engrossing ; and the 7 & 8 Vict. c. 24, s. i, 
 enacts that no suit, civil or criminal, shall lie 
 for engrossing. At the same time, by s. 4, the 
 common law protection of the free course for 
 trade against obstruction by means of falsehood 
 is expressly continued. (See Russell on Crimes, 
 by Greaves, b. ii., c. 19, vol. i., p. 252, 4th ed.) 
 
 A free course for trade has been carefully 
 maintained from the earliest times. Lord Coke 
 
 Chai'. I. 
 
 Common 
 Law. 
 
 § 2. Right to 
 Free Course 
 for Trade in 
 General.
 
 lO 
 
 THE LAW RELATING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 2. Right to 
 Free Course 
 for Trade in 
 (General. 
 
 ha.s collected some early authorities in his TJiird 
 Institute, c. 89, on Forestalling. He goes back 
 to the time of Ethelstan, and refers to laws 
 in the time of that king, and also to laws in 
 the time of the Conqueror, making provision 
 for buying and selling in open market, by for- 
 bidding traffic above a certain value outside of 
 a town unless with a witness. The clause in 
 Magna Charta securing to each person his liber- 
 ties is construed by him to include the right to 
 a free course for trade possessed by the subjects 
 of England {Second Institute, p. 47). There 
 is also a conviction reported by him in the 43d 
 Assize of Edward III., for affecting the market 
 price of an article by spreading a false report. 
 
 To the authority of Lord Coke I would add 
 a reference to the reports of some cases ; and 
 among them to Davenant v. Hurdis, in the time 
 of Elizabeth (Moore, 576), deciding that a 
 bye-law of the Merchant Taylors' Company, 
 restricting the dressing of cloths to the freemen 
 of the Company, was void for monopoly ; and 
 to the City of London's case (8 Co. 121 b), 
 deciding that a charter from the King, granting 
 that none but those free of the City should 
 trade therein, was void for the same reason ; also 
 to the case of Monopolies (11 Co. 87^), where 
 Lord Coke refers to a very ancient law, " You 
 shall not take in pledge the nether and upper
 
 TO TRADE UNIONS. 
 
 millstone, quia aniinam siiani apposnit tibi" 
 (Deut. xxiv. 6) and says that by this it appears 
 that every man's trade maintains his life, and 
 that therefore he ought not to be deprived nor 
 dispossessed of it any more than of his life. I 
 would also refer to R. •z^. Waddington (i East, 143), 
 in the time of George III., where the defendant 
 was convicted and punished for engrossing hops 
 — that is, buying them wholesale with intent to 
 sell them again wholesale. The arguments that 
 were used by counsel and adopted by the Court 
 in these cases, in support of the right to a 
 free course for trade, show that the governing 
 intention of those who administered the law 
 was to promote the good of the community 
 according to the light of their time, without 
 partiality for any class, unless more scrupulous 
 care for the protection of the less rich against 
 the more rich class can be considered partiality. 
 The intention of the judges in Waddington's 
 case was in this sense entirely beneficent, al- 
 though the prohibition there enforced against 
 buying wholesale with intent to sell again whole- 
 sale has been since found under altered cir- 
 cumstances to be a mistake, as ^bove explained. 
 
 III. Right to Free Course for Trade in Labour. 
 — Under the general principle, operating upon 
 all trade, which has been considered above, the 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 2. Right to 
 Free Course 
 for Trade in 
 General. 
 
 §3. Right to 
 Free Course 
 for Trade in 
 Labour.
 
 THE LAW RELATING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade in 
 Labour. 
 
 law relating to freedom in disposing of either 
 labour or capit?!, or both, is included. Every 
 person has a right under the laiv, as betzveen him 
 and his fellow subjects, to full freedom in dis- 
 posing of his ozvn labour or his ozvn capital 
 according to his ozvn will. It follows that 
 every other person is subject to the correlative 
 duty arising therefrom, and is prohibited from 
 any obstruction to the fullest exercise of this 
 right which can be made compatible zvith the 
 exercise of similar rights by others. Every 
 act causing an obstruction to another in the 
 exercise of the right comprised within this 
 description — done, not in the exercise of the 
 actor's own right, but for the purpose of obstruc- 
 tion — would, if damage should be caused thereby 
 to the party obstructed, be a violation of this 
 prohibition ; and the violation of this prohibition 
 by a single person is a wrong, to be remedied 
 either by action or by indictment, as the case 
 may be. It is equally a wrong whether it be done 
 by one or by many — subject to this observ^ation, 
 that a combination of many to do a wrong, in 
 a matter where the public has an interest, is a 
 substantive offence of conspiracy. It is equally 
 a wrong, whether the obstruction be by means 
 of an act unlawful in itself, on the part of the 
 party obstructing, or by means of an act not 
 otherwise unlawful.
 
 TO TRADE UNIONS. 
 
 13 
 
 Whether an act which does obstruct is un- 
 lawful seems to me to depend, under some 
 circumstances, on the purpose of the actor : an 
 example will help to explain my meaning. In 
 R. V. Rowlands (5 Cox C. C. 436) ^ some of the 
 defendants gave refreshment, or money, or advice 
 to workmen going to the factory of Messrs. 
 Perry, and thereby induced them to go away. 
 The gift in each case might be for a purpose 
 of beneficence towards the receiver, and might 
 be lawful. But if it appeared that the refresh- 
 ment produced incapacity, and the money 
 paid the railway fare of a stupified man to an 
 unknown place of concealment, and the persua- 
 sion deluded him into a railway carriage to 
 be carried to that place, where he was to be 
 abandoned, and if it further appeared that their 
 absence brought ruin on Messrs. Perry, the jus- 
 tification on the ground of beneficent intention 
 would be rebutted, and an act of obstruction 
 done for the purpose of causing unjustified 
 damage would remain proved, and would, in 
 my opinion, be an act of unlawful obstruction 
 which would render the parties to it liable to 
 action or to indictment, as the case might be. 
 
 These propositions assume that a person has 
 a right to do as he chooses with his own, whe- 
 ther labour or capital, within the limits set by 
 ^ See Appendix A, p. 8i. 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade in 
 Labour.
 
 14 
 
 THE LAW RELATING 
 
 Chai'. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Cours" 
 for Trade in 
 Labour. 
 
 Rules relat- 
 ing to nui- 
 sance. 
 
 law ; that a right involves a prohibition against 
 the infringement thereof; and that a prohibition 
 involves a remedy for the violation thereof If 
 these propositions are sound, they may serve the 
 purpose of giving a general notion of the direc- 
 tion of the law, and may be useful in suggesting 
 the limits to which relaxation of restraint of 
 trade ought to be carried. For effecting this 
 purpose very wide propositions are pertinent. 
 At the same time I am aware that such proposi- 
 tions assist but slightly in deciding specific cases 
 of nuisance by obstruction, each of which in- 
 volves for the most part many questions, of 
 which I subjoin a few examples. 
 
 In the first place, it is a general rule relating 
 to all nuisances, whether by obstruction or 
 otherwise, that unlawfulness begins at a certain 
 degree of annoyance, and that this degree is to 
 be measured not by an exact standard, but on a 
 supposed estimate of what is reasonable by men 
 assumed to be prudent. In these words the 
 defective nomenclature for legal ideas is ex- 
 emplified, seeing that the terms "nuisance," 
 "obstruction," "annoyance," may or may not 
 denote unlawfulness. Secondly, the lawful exer- 
 cise of a right is not a wrong. Where there 
 are conflicting interests, the limits for the exer- 
 cise of the rights relating to such interests vary 
 as circumstances vary, and the adjustment of
 
 TO TRADE UNIONS. 
 
 15 
 
 the line where lawfuhiess ends and excess begins 
 is not easy, because it is perpetually shifting. 
 Each competitor in trade may hinder another, 
 but the hindrance may not amount to unlawful 
 obstruction. The process of adjustment of the 
 line of lawfulness between rights which appear 
 to conflict — the line where the exercise of a 
 right is brought by excess to the confine of a 
 wrong — is of continually increasing importance 
 as a civilized population increases in density. 
 The principle which guides in doing it cannot be 
 conveniently explained here, but the subject is 
 approached in the section (s. 6, p. 47), relating 
 to the power of growth in the common law. 
 Thirdly, the rights in respect of demand and 
 supply of labour are in a sense reciprocal — that 
 is, obstruction of supply must be an obstruction 
 in the way of the demand, which would have been 
 supplied but for the obstruction, and was not. 
 Still there may be direct obstruction to the party 
 supplying labour which may or may not be an 
 obstruction to the party demanding it, according 
 to the possibility of obtaining a supply elsewhere. 
 Fourthly, the means of obstruction may be acts 
 unlawful in themselves, but the intrinsic unlaw- 
 fulness is irrelevant to their unlawfulness from 
 obstructing the free course of trade. This propo- 
 sition involves considerations of much complexity. 
 I have above attempted to give one example of 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade in 
 Labour.
 
 i6 
 
 THE LA W RE LA TING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade in 
 Labour. 
 
 Objcciiovs 
 n/isivered. 
 (Section V. 
 p. 42.; 
 
 my meaning, and I will only add a caution 
 lest zeal for freedom to honest industry should 
 result in giving facility to artful malignity. 
 Fifthly, the obstruction may be caused by the 
 use of words operating to alienate workmen or 
 employers from each other. The use of such 
 words for the purpose of obstructing trade may 
 be either lawful or unlawful, upon the principles 
 in accordance with which defamation injurious to 
 character may be justifiable or not. Such defa- 
 mation may be justified either for the protection 
 of a lawful interest belonging to the defamer, or 
 for the performance of a moral duty by him, 
 provided always that the defamation be uttered 
 without malice — that is, without a corrupt 
 motive. 
 
 The application of these principles has caused 
 endless discussion, but enough has been said in 
 this place to exemplify the considerations in- 
 volved in a legal proceeding for an alleged 
 nuisance b5^ obstruction of freedom to trade. 
 
 Objection has been made that the principles 
 above laid down are not correct, being incon- 
 sistent with the restraints on barristers, phy- 
 sicians, and the like, and also with the restraints 
 on employers and others under the Factory 
 Acts. An answer to this is attempted in the 
 section on this subject.
 
 TO TRADE UNIONS. 
 
 17 
 
 As to competition. It was said above that 
 the question of unlawfulness arises when the 
 transactions of the union are supposed to operate 
 in restraint of trade : and when the action of 
 the union is directed to the purpose either of 
 raising wages in the case of working men, or 
 of lowering wages in the case of employers, by 
 any restraint upon freedom of competition, the 
 question of unlawful restraint of trade has arisen. 
 To this question the presumption is that the 
 answer should be in the affirmative ; but the 
 answer cannot be certain unless the facts are speci- 
 fied, for this presumption may be rebutted by the 
 circumstances, as is above suggested in reference 
 to other alleged nuisances from obstruction. 
 . Wages are said to rise and fall by the action 
 of competition between labour and capital, and 
 this may be true in ultimate results. But the 
 competition to which the law for securing a free 
 course for trade relates, is the competition be- 
 tween working men themselves where the supply 
 of labour exceeds the demand, and between em- 
 ployers where the demand for labour of a given 
 kind in a given locality exceeds the supply. 
 
 It seems inaccurate to describe the competi- 
 tion to be between the capitalist and the labourer; 
 because the capitalist, in a stricter sense, is 
 occupied in lending value at interest propor- 
 tionate to risk, and is indifferent about wages 
 C 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade in 
 Labour. 
 
 Competi- 
 tion.
 
 THE LA W RE LA TING 
 
 Chaf. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade in 
 Labour. 
 
 and profits, production and prices. In a wider 
 sense, many of the employed are owners of some 
 capital in the shape of tools and other equip- 
 ment. Many of the employers are borrowers 
 only, and poorer than the employed ; and the 
 notion that employers are rich and powerful, 
 and oppressive because they are employers, is 
 unfounded. 
 
 Furthermore, it seems inaccurate to contra- 
 distinguish labourers or working men from capi- 
 talists or employers, as if they were separate 
 classes ; for both classes labour, and the labour 
 of the brain for the employing class may be 
 immeasurably more severe than the labour of 
 the muscles of motion for the working class. 
 All must labour by themselves or others, capital 
 being past labour accumulated. The accumu- 
 lated stores of the mental labour of past ages 
 exceed in value all money. These stores must 
 be used by the employer in the degree required 
 by his business ; but muscular action may be 
 supplied with very slight recourse to accumu- 
 lated knowledge in many departments of labour. 
 There is no hardship in labour, unless excessive ; 
 it is the condition for the existence of happiness 
 universally, and in moderation is a grand boon. 
 
 It is also true, in one sense, that all employed 
 are employers, and all employers are employed, 
 according to the relation of the person in respect
 
 TO TRADE UNIONS. 
 
 19 
 
 of whom the term is apphed to some other 
 person with whom he is compared. 
 
 I do not advert further to competition be- 
 tween classes, because the law is concerned 
 directly with the rights of individuals, and only 
 indirectly with the interests of classes, and be- 
 cause the free course for trade secured by law is 
 a free course for each individual to dispose of 
 his labour or his capital according to his own 
 choice. Moreover, the attempt to restrain trade 
 in the relation between employers and employed 
 begins for the most part with attempts in the 
 way of combination, whereby the individuals of 
 one class, either employers or labourers, attempt 
 to restrain others of the same class from direct 
 competition with themselves. Up to a certain 
 point the attempt may be lawful. The question 
 is thus raised. What is the point at which the 
 attempt begins to be unlawful } And the answer, 
 I submit, should be — When unlawful coercion is 
 attempted to be put upon the will of any indi- 
 vidual in disposing of his labour or his capital. 
 
 It is not easy to give a definition which shall 
 include every kind of "unlawful coercion :" but 
 it seems clear that the causing of damage to 
 the person or the property or the estimation of 
 the party to be coerced, cither by unlawful 
 action, or by falsehood (including all decejation), 
 C 2 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade in 
 
 Labour. 
 
 Unlaivfiil 
 Ol'stntction 
 of Trade.
 
 THE LA W RE LA TING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. RigJii to 
 Free Course 
 for Trade in 
 I^abour. 
 
 or by causing the fear of such damage from 
 unlawful action or falsehood, or by obstructing 
 the party who is to be coerced in the exercise 
 of any right connected with trade by unlawful 
 action or by falsehood — for the purpose of sway- 
 ing or defeating his will in disposing of his labour 
 or his capital — would be instances of unlawful 
 coercion, and so of unlawful restraint of trade. 
 
 I submit that there may also be unlawful ob- 
 struction to the free course of trade without any 
 such unlawful coercion as is above described. 
 Restraint of the free course for trade in labour 
 by acts of molestation or obstruction, which are 
 not otherwise unlawful, but which operate as 
 a hindrance to the exercise of a trade, and 
 which are done for the purpose of such hin- 
 drance without justification, seems to me, as 
 above stated, to be an actionable wrong. The 
 Act 6 Geo. IV. c. 129 is, in my opinion, decla- 
 ratory of the common law as to the offence, and 
 operative only to make a summary remedy. The 
 statute declares acts of molestation or obstruc- 
 tion, as well as acts of violence, intimidation, and 
 threats, to be an offence: but of this more when 
 we come to the statutes. 
 
 Furthermore, I think that there may also be 
 unlawful restraint of trade without coercion by 
 unlawful means, and without such obstruction or 
 molestation as is last above mentioned.
 
 TO TRADE UNIONS. 
 
 I assume that the employer and the employed 
 have each a right to a free course for trade in 
 labour, as above described. The supply of labour 
 to the employer is stopped if the working-man 
 chooses to stop ; and assuming for the present 
 that his act is lawful whenever he freely chooses 
 so to do, still a party who induces him so to do 
 may, in so doing (as it seems to me) infringe the 
 right of the employer to a free course for the 
 supply of labour. I take the case of money 
 paid to the working-man to induce him to 
 stop, in which the motive for so paying is 
 malice towards the employer — that is, some 
 corrupt or spiteful motive. I put aside money 
 so paid from a motive of supposed interest, as 
 in the case of some strikes, and assume it to 
 be paid for the sole purpose of ruining the 
 employer or destroying his manufacture. A 
 question is thus raised, Does the law allow it } 
 I think not. A stop in the supply of labour is 
 obviously a damage in every trade ; the causing 
 of the stop is a restraint of trade ; and all re- 
 straint of trade is, as above stated, presumed to 
 be unlawful until the contrary be shown. Such 
 a stop may be lawful, as for instance, where the 
 money is paid by a competitor offering higher 
 wages to obtain workmen ; but in the case sup- 
 posed the money is paid " not to work " for a 
 particular party, for the sole purpose of causing 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade in 
 Labour.
 
 THE LA W RELA TING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Frse Course 
 for Trade in 
 Labour. 
 
 damage to that party whose supply is thus 
 stopped. If the party paying for such a stop 
 attempts to rebut the presumption of unlawful- 
 ness by alleging an honest purpose, the question 
 of motive is the issue ; and if the motive is 
 found to be malicious, it seems to me to accord 
 with principle that he should be found guilty 
 of a wrong and made liable to damages. If 
 two or more combined for the purpose of so 
 causing damage, the combination would, I be- 
 lieve, be a crime. Other cases may be put of 
 a wrong inflicted by paying money for the pur- 
 pose of buying absence in order to cause damage 
 to a third party. If a person would be material 
 as a witness in an approaching trial, would it not 
 be a wrongful obstruction to the course of justice 
 for the adverse party to pay him to conceal 
 himself so that he could not be summoned to 
 attend, although no duty to attend would be 
 created before service of a summons .'' And 
 so, before the statutes against corrupt prac- 
 tices at elections, would not an action have lain 
 for paying a voter to be out of the way at 
 polling-time .-' 
 
 What has been said of gifts of money for the 
 purpose of stopping supply of labour is true, 
 mutatis imitaiidis, of persuasion for the same 
 purpose. 
 
 The law relating to comments on the conduct
 
 TO TRADE UNIONS. 
 
 23 
 
 of men in public capacities affords an analogy. 
 Such comments, however defamatory, are justi- 
 fied, if the motive of the writer be not corrupt : 
 but if a private enemy of such a man were to 
 hire a defaming writer to write him down, and 
 such a hiring was in proof, the motive would 
 be corrupt, and the justification would fail ; and 
 any of the parties to such defamation would be 
 liable in an action for damages. So he who 
 attempts to justify a stop in the supply of 
 labour to another, by persuading workmen to 
 leave him for the sole purpose of gratifying his 
 spite against the employer, ought to be made 
 liable — and, I believe, is liable at common law — 
 for the damage caused by such persuasion. 
 
 This is enough to indicate my opinion as to 
 the effect of the common law prohibition against 
 restraint upon trade in labour either by un- 
 lawful coercion or, in some instances, by other 
 means. 
 
 As to combination, each person has a right to 
 choose whether he will labour or not, and also 
 to choose the terms on which he will consent to 
 labour, if labour be his choice. The power of 
 choice in respect of labour and terms, which one 
 person may exercise and declare singly, many 
 after consultation may exercise jointly, and they 
 may make a simultaneous declaration of their 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade in 
 Labour. 
 
 Combina- 
 tion.
 
 24 
 
 THE LA W RE LA TING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade iti 
 Labour. 
 
 choice, and may lawfully act thereon for the 
 immediate purpose of obtaining the required 
 terms ; but they cannot create any mutual obli- 
 gation having the legal effect of binding each 
 other not to work or not to employ unless upon 
 terms allowed by the combination. Any arrange- 
 ment for that purpose, whatever may be its 
 purport or form, does not bind as an agreement, 
 but is illegal, though not unlawful, on account 
 of restraint of trade, and therefore void. Every 
 party to it, who chooses to put an end to it, 
 is thenceforward as free to claim his own terms 
 for his own labour as if such arrangement had 
 never been made ; and any attempt to enforce, 
 by unlawful coercion, performance of any such 
 supposed agreement, against a party who 
 chooses to break from it and labour or con- 
 tract for labour upon different terms, is an 
 attempt to obstruct him in the lawful exercise 
 of his right to freedom to trade ; and is thus 
 a private wrong. It is also a violation of a 
 duty towards the public — that is to say, of the 
 duty to abstain from obstructing the exercise 
 of the right to the free course of trade. A 
 person can neither alienate for a time his free- 
 dom to dispose of his own labour or his own 
 capital according to his own will (see Hilton 
 V. Eckersley, 6 Ell. & Bl. 47), nor alienate such 
 freedom generally and make himself a slave (see
 
 TO TRADE UNIONS. 
 
 25 
 
 the argument of Hargrave in the Negro Som- 
 mersett's case, 20 State Trials, 23) ; it follows 
 that he cannot transfer it to the governing body 
 of a union. 
 
 The reported cases exemplifying the applica- 
 tion of these principles of common law are not 
 numerous, because for some centuries statutes 
 were passed with the intent of regulating the 
 rate of wages, and the mode of conducting 
 business, by the interference of the magistrate. 
 But the law of this subject was much debated 
 in Hilton v. Eckersley in the Queen's Bench 
 and in the Exchequer Chamber ; and the 
 inalienability of the right to freedom in dis- 
 posing of labour or capital according to the 
 will of the individual owner was there affirmed. 
 In that case several employers had mutually 
 bound themselves under a penalty to carry on 
 their respective concerns according to the will of 
 the majority. The bond was held void for 
 restraint of trade ; and the opinion of Erie, J., 
 to the effect that capitalists had the same rights 
 in respect of capital as working men had in 
 respect of labour, and that working men had 
 a right to make any agreement for transferring 
 to others the disposal of their labour which they 
 chose (meaning an agreement of binding force) 
 for the purpose of raising wages, was held to 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade in 
 Labour. 
 
 Hilton V. 
 Eckersley.
 
 26 
 
 THE LA W RELA TING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade in 
 Labour. 
 
 R. V Row- 
 lands, and 
 R. V. Dnf- 
 
 d. [Ap- 
 pendix A , 
 
 be wrong. It follows that expressions to the 
 same effect supposed to have been used by him 
 in R. V. Rowlands and R. v. Duffield (5 Cox C.C. 
 436 and 404) were also incorrect. These expres- 
 sions seem to have been founded on a miscon- 
 struction of the 6 Geo. IV. c, 129, s. 4 ; whereas, 
 although by that section it was enacted that com- 
 binations and agreements for raising or lowering 
 wages should be exempted from criminal respon- 
 sibility, yet they were not made lawful.^ The 
 cases of R. v. Rowlands and R. v. Duffield are 
 noticed in the Appendix. 
 
 These are the general principles in accord- 
 ance with which unreasonable restraint of trade 
 in disposing of labour or capital is prohibited, 
 and freedom in disposing thereof is maintained. 
 The practical application of these principles lies 
 in indictment for violation of duty towards the 
 public, and in action for violation of a private 
 right, according to the circumstances of the case 
 in which a remedy for a wrong is sought. 
 
 I do not attempt to follow the application 
 of these principles to supposed cases any 
 farther, on account of the difficulty of com- 
 
 1 A judgment for the plaintiff in Hilton v. Eckersley might 
 probably have been supported on the ground that the circum- 
 stances of society which gave occasion for some of the rules of 
 the common law and many of the statutes against combinations 
 of working men were changed, the common law being in a state 
 of perpetual growth : cessanie ratioiic, cessat lex. The law is 
 as the judges declare it to be.
 
 TO TRADE UNIONS. 
 
 27 
 
 prising all the relevant facts in the supposition. 
 Men having the qualities requisite for dealing 
 with legal principles — that is, who are qualified 
 to assist either in administering the law as 
 attorneys, advocates, or judges, or in amending 
 the law as legislative advisers — would, I expect, 
 have power to apply them. The requisite 
 qualities are — 
 
 First, a general knowledge of the body of the 
 law in its organic entirety, by which the relation 
 of each part to the living body is perceived, in 
 analogy with which the relation of a living 
 branch to its parent tree is understood. For 
 example, if action lies, there must have been a 
 right and a violation of it — that is, a wrong ; if 
 indictment lies, there must have been a duty 
 towards the public and a breach thereof. 
 
 Secondly, a capacity for extracting principles 
 from adjudications, and raising them by ab- 
 straction to a wide extension, and afterwards 
 perceiving their effect pervading subordinate 
 principles. 
 
 And thirdly, sagacity in taking from the 
 multitude of facts which must be always co- 
 existing at the time and place when and where 
 a complainant alleges he was wronged, the facts 
 relevant to show the right and the violation 
 thereof, and also the facts relevant to show the 
 limitation of the supposed right within the degree 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 3. Right to 
 Free Course 
 for Trade hi 
 Labour.
 
 28 
 
 THE LA W RE LA TING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 §3. Right to 
 hrce Cojirse 
 ^or Trade in 
 Labour. 
 
 §4- Pro- 
 ceedings for 
 Violation of 
 the Right to 
 Freedom in 
 Trade. 
 
 (<t) Action 
 for civil 
 7urotigs. 
 {b; Jndict- 
 }net!t for 
 crimitial 
 ivrongs other 
 titan con- 
 spiracy. 
 
 which prudent men consider reasonable; and after 
 this process rejecting the rest as immaterial. 
 
 To the consideration of men who possess 
 these qualifications this statement of principles 
 is offered, for the purpose not of specific adjudi- 
 cation but of future legislation. 
 
 The interests of men of industry are deeply- 
 involved in the existence of these principles, 
 and their interest is protected by the law 
 equally with other interests. Their opinions of 
 their interest are important as evidence of the 
 existence of such interests ; but let me add that 
 the opinion of such men, if unused to legal 
 reasoning, upon the soundness of any principle 
 of law, is not of the same importance. There 
 are unnumbered persons in every rank of life 
 enjoying the benefits resulting from innumerable 
 principles of law which they understand im- 
 perfectly, and to which they could not give 
 expression. 
 
 IV. Proceedings for Violation of the Right 
 to Freedom for the Course of Trade. — The 
 remedies under the common law, for obstruc- 
 tion to the free course of trade, are either by 
 action for private wrongs or by prosecution 
 for criminal offences. I do not find any re- 
 ported cases showing that resort has been had 
 to proceedings for the civil injury which would
 
 TO TRADE UNIONS. 
 
 29 
 
 throw light on the present inquiry ; and as to 
 criminal offences, since the crime is almost always 
 committed by a combination, the remedy by in- 
 dictment for conspiracy has been most usual, as 
 in practice it has been found most convenient. 
 
 Still, if there be any such private right to 
 freedom for the course of trade as is above 
 described, it follows that an action lies for a 
 violation of that right ; and if there be a duty 
 towards the public to keep the course of trade 
 free from obstruction, indictment would lie for 
 breach of that duty. It is clear that action lies 
 for causing loss of service by enticing away 
 servants from their hiring ; and by analogy 
 there should be a remedy for preventing hiring 
 by obstructing for a malicious purpose the free 
 course for the supply of labour. If the same 
 reasoning be correct, an indictment might be 
 sustained against a single person in some cases 
 for obstructing the free course of trade. But the 
 law of conspiracy applied to restraint of trade is 
 the more usual remedy, and is therefore of more 
 practical importance. And before entering on it, 
 it may be worth while to notice briefly a distinc- 
 tion between a civil injury and a criminal wrong. 
 
 A civil injury is for the most part complete 
 when the external act has been done which vio- 
 lates a right and causes damage, and it is not 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 4- Pro- 
 ceedings for 
 Violation of 
 the Right to 
 Freedom in 
 Trade. 
 
 Distinction 
 bctivccn civil 
 and crimi- 
 nal wrongs.
 
 30 
 
 THE LA W RE LA TING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 54- Pro- 
 ceedings for 
 Violation of 
 the Right to 
 Freedom in 
 Trade. 
 
 necessary to inquire into the intention with 
 which that act was done, unless want of maHce 
 should be admissible as a defence, in which case 
 the malicious intent may become material in 
 reply. But a crime cannot be completed by 
 muscular action alone : there must always be in 
 addition a criminal intention, in respect either 
 of commission or omission, and the criminal 
 intention is an essential element of criminality ; 
 the external act being material for the purpose 
 of evidencing the criminal intention, as well as 
 to bring the matter within the scope of human 
 law, which does not pass upon bare intention 
 without an illegal act, or an attempt to commit 
 such act, or a conspiracy. Every act that can 
 be adduced as the sign of a criminal intention 
 is consistent with many intentions, some criminal, 
 some not ; so that the inquiry in a criminal case, 
 after identifying the actor and the act, is always 
 a question of intention. For example, where a 
 chattel has been moved, it may be with intent 
 to exercise a right, or with intent to steal ; so 
 also, where a latch is lifted, it may be by a friend 
 coming to visit or by a felon coming to steal ; 
 so also, where an incision has been made, it may 
 be with intent to cure by a surgeon, or with 
 intent to kill by a murderer : the criminality ot 
 the act depends on the intention with which it 
 was accompanied. The external act of supposed
 
 TO TRADE UNIONS. 
 
 31 
 
 criminality in some crimes may consist of words 
 only, and in that case the evidence of the words 
 is evidence of the intention ; words, where they 
 have a clear meaning, being as directly indicative 
 of intention as actions. High treason has been 
 at times proved by proof of words passing in a 
 consultation of conspirators against the king. 
 So, also, charges of conspiracy as a misde- 
 meanour, with intention either to restrain trade 
 or to do other wrong, may be proved by words 
 only of mutual agreement, if they clearly show 
 the criminal intention. 
 
 With respect to the crimes classed under the 
 term " conspiracy," the external act of the crime 
 is concert, by which mutual consent to a common 
 purpose is exchanged. The test of the crimi- 
 nality of the concert lies in the intent or purpose 
 of the concert. 
 
 All crimes are wrongs, either against persons 
 or the public ; and it is undisputed law that a 
 combination for the purpose of committing a 
 crime is a crime. All rights are created by law, 
 and violations of rights are wrongs, and some 
 wrongs are crimes ; but the quality of guilt 
 which makes a wrong to be a crime is known 
 only by practice, and has not been defined in 
 apt words, as is above stated. The public, 
 correctly speaking, has no capacity for a right, 
 
 Common 
 Law, 
 
 §4. P>-o- 
 cecdings for 
 Violation of 
 the Right to 
 Freedom its. 
 Trade. 
 
 Conspiracy 
 in general.
 
 THE LAW RELATING 
 
 Char I. 
 
 Common 
 Law. 
 
 M- Pro- 
 ceedings/or 
 l^iolation of 
 ilu- Right to 
 Freedom hi. 
 Trade. 
 
 De Beren- 
 ger's case. 
 
 R. V. 
 Turner. 
 
 not being a person ; but there are duties towards 
 the public of great importance, and it is con- 
 venient to speak of the pubhc having rights 
 correlating with those duties. Adopting this 
 form of speaking, it may be said that wrongs 
 become crimes by reference to the import- 
 ance of the public right violated thereby ; but 
 v/hatever be the essence of crime, it is certain that 
 a combination to commit a crime is a crime. 
 
 There seems also to be authority for saying 
 that a combination to violate a private right, 
 in which the public has a sufficient interest, is a 
 crime, such a violation being an actionable wrong. 
 De Berenger's case (3 M. & S. 67), if I understand 
 it aright, is an example. He combined with others 
 to spread at the Stock Exchange a false report of 
 the death of Buonaparte, for the purpose of raising 
 the price of stocks and selling at the rise. In my 
 opinion, he violated by the use of falsehood the 
 private right of the purchasers in the market 
 to buy at the price settled by competition ; 
 and the Court decided that the public has an 
 interest in the security of the public funds suf- 
 ficient to make such a combination to effect a 
 private wrong a crime. The limitation exclud- 
 ing from this category of crimes the class of 
 injuries in which the public has not a sufficient 
 interest appears from the case of R. v. Turner 
 (13 East, 228), deciding that a combination for
 
 rO TRADE UNIONS, 
 
 33 
 
 the purpose of taking hares unlawfully is not 
 indictable for that reason ; and this limitation 
 is sanctioned by Lord Campbell in Hilton v. 
 Eckersley (6 Ell. & Bl. 47), by his saying " that 
 the decision was wrong in respect of fact, for it 
 appeared in the statement of the facts that the 
 defendants were armed to resist the owner of the 
 hares, and that it was therefore a combination 
 for the purpose of a breach of the peace, and 
 for that reason a crime." This correction of the 
 judgment in respect of fact is an implied assent 
 to its correctness in point of law if the facts 
 had been as they were assumed to be. A com- 
 bination for wrong gives facilities to wrongdoers, 
 as above stated ; so that a combination to 
 trespass may with reason be held to be a crime, 
 although the trespasser, if single, would be liable 
 to action only and not to indictment. 
 
 There are other cases of conspiracy not so 
 specially defined. 
 
 The guilt of conspiracy may arise from simul- 
 taneity of action which an individual could not 
 incur by himself, as a combination of a crowd 
 for the purpose of so using a highway as to do 
 harm to other passengers. 
 
 There are also public interests of great im- 
 portance in respect of which some combinations 
 for the piu'pose of violating the public rights 
 therein arc crimes, altliough such violations by 
 D 
 
 Chap. 1. 
 
 Comniun 
 Law. 
 
 § 4. Pro- 
 cci'iliiigs for 
 Viola tiou of 
 the Right to 
 Freedom in 
 Trade.
 
 34 
 
 THE LA W RELA TING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 4- /'''(;- 
 ceedhigsfor 
 I'ioliition pf 
 the Right to 
 Frecdon in 
 Trade. 
 
 R. V. M.iw- 
 bey. 
 
 an individual alone may not be always indic- 
 table. Justice, morality, polity, and trade are 
 examples of such public interests. 
 
 Combinations to pei"vert justice by deception 
 are criminal ; and the statute of Edward I. 
 against conspiracies to maintain false pleas is 
 declaratory of the common law on that subject. 
 R. V. Mawbey (6 T. R. 619) is an example of this 
 crime, where the defendants (two justices) com- 
 bined for the purpose of deceiving the Quarter 
 Sessions by a false certificate of road repair. 
 
 As to morality, the law coincides therewith, 
 although it does not vindicate every breach 
 thereof; and there is a class of cases where 
 the interference of the law is supported on the 
 ground of morality. In this class are the com- 
 binations for deluding women into unchastity, 
 either by aggravated seduction (see R. v. Lord 
 Grey, 9 State Trials, 127), or by deceptive forms 
 of marriage (see the cases collected in Russell 
 on Crimes, by Greaves, b. v. c. 2, vol. iii. pp. 130 
 et seq. 4th ed.). In this class also is included the 
 case of R. v. Delaval and others (3 Burr. 1435), 
 where the defendant Delaval combined with the 
 master of a girl apprenticed to learn singing to 
 take an assignment of her apprenticeship for the 
 purpose of teaching and seducing her, and they 
 were convicted of conspiracy. The ground of 
 the decision is not given, as no objection was
 
 TO TRADE UNIONS. 
 
 35 
 
 made. But it cannot be disputed that such 
 conduct was a breach of the duty created by 
 an ordinary deed of apprenticeship towards the 
 apprentice and her parents, and so a personal 
 wrong and a civil injury. It was also a vio- 
 lation of the public interest in the chastity 
 of the women who are inclined to be chaste, 
 to make the rights conferred by law on masters 
 subserve the purpose of doing this wrong to an 
 apprentice. 
 
 The combinations for seditious purposes are 
 violations of the public interest in maintaining 
 the polity established by law. Of these cases 
 no explanation is required. 
 
 I come now to conspiracies connected with 
 trade. 
 
 Some of the lav^^s which affect the distribution 
 of commodities, and make provision in order 
 that supply and demand may meet and deal 
 upon the terms obtained by free competition, 
 have been above referred to. 
 
 The laws affecting the production of com- 
 modities make similar provision, mutatis mutan- 
 dis, in order that all the parties concerned in the 
 process required for the production of a saleable 
 product may deal as to labour upon the terms 
 obtained by free competition. Such obstruction 
 as is above described to free competition in 
 D 2 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 4- Pro- 
 
 ccdings/or 
 Viola tiim of 
 the Right to 
 Freedom in 
 Trade. 
 
 Conspiracies 
 connected 
 with Trade.
 
 36 
 
 THE LA W RE LA TING 
 
 Chap. I. 
 
 Common 
 La»v, 
 
 §4- Pro- 
 ceedi'igs for 
 Violation of 
 the Riglit to 
 Freedom in 
 Trade. 
 
 disposing of labour or capital is an unlawful 
 restraint of trade, and a combination so to re- 
 strain trade by preventing free competition is 
 the crime of conspiracy, being a violation of a 
 private right in which the public has an interest, 
 and also a violation of a duty towards the public. 
 
 It seems essential that the terms obtained b}- 
 free competition should prevail consistenth* 
 throughout all the processes involved in pro- 
 duction, seeing that it is commercially useless if 
 it will not fetch a remunerative price after paying 
 the cost of production, the amount of which cost 
 depends on the terms obtained by competition. 
 
 The employer has to go through many pro- 
 cesses of cost and risk : he has to deal with the 
 landlord for premises, with the capitalist for 
 money and fixed capital, and with artisans for 
 work. The employed has to take the wages for 
 which he consents to work without the same risk 
 or cost. In all these processes the law provides 
 for the action of free competition, making a 
 combination in restraint of trade by so obstruct- 
 ing free competition, as is above described, the 
 crime of conspiracy. 
 
 In relation to j^roduction the combinations 
 of the employed to obstruct free competition 
 amongst the working class for wages are more 
 frequent than combinations of employers to 
 obstruct free competition amongst themselves.
 
 TO TRADE UNIONS. 
 
 37 
 
 The interest of the employed in a uniform rate 
 of wages is more common to the class in general 
 than the interest of the employers in any at- 
 tempt to make a uniform scale of prices or 
 profits. Moreover, the employed are a more 
 numerous class, and by reason of closer com- 
 panionship in factories and the like, and more 
 constant interchange of mind there, have more 
 facilities for acting in concert. These conside- 
 rations may account for more frequent pro- 
 ceedings against working men than against 
 employers, without imputing partiality in the 
 administration of the law. 
 
 The tendency to combine for the purpose of 
 raising or lowering wages appears from the 
 manifold statutes passed for the purpose of ad- 
 justing a current rate of wages on some basis 
 other than free competition. These statutes 
 have long since been repealed. While they 
 were in force they tended to prevent a resort 
 to the common law remedy for conspiracy, and 
 the records of proceedings under the common law 
 against conspirators for the purpose of restrain- 
 ing freedom for labour are not numerous ; but 
 .still there are authorities sufficient to show 
 what the law is in this matter. 
 
 In the collections of precedents for indict- 
 ments for conspiracy to raise wages, in violation 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 4. Prt>- 
 ceedings for 
 Violation 0/ 
 the Right to 
 Frecdotn in 
 Trade. 
 
 [c^ Indict- 
 ment for con- 
 spiracy.
 
 38 
 
 THE LA W RELA TING 
 
 Chai>. I. 
 
 Common 
 Law. 
 
 § 4. Pro- 
 ceedings/or 
 Violation 0/ 
 tlie Right to 
 Freedom in 
 Trade. 
 
 Hilton V. 
 Eckersley. 
 
 of the statutes fixing a maximum, which are 
 given in Wentworth and Chitty, there are counts 
 for combining not to work for less than the 
 required wages, founded on the common law 
 prohibition against restraint of trade ; but the 
 most important authority is Hilton v. Eckersley 
 (6 Ell. & Bl. 47) before mentioned. There an 
 agreement by employers to carry on business as 
 the majority should direct was decided to be in 
 restraint of trade at common law, and illegal and 
 void, though exempt from prosecution under 
 6 George IV. c. 129, as mentioned above. The 
 case is cited here for the sake of the judgment 
 of Crompton, J., who held that such an agree- 
 ment would be " indictable at common law, as 
 tending directly to impede and interfere with the 
 free course of trade and manufacture," and to 
 take away " the freedom of action of an indivi- 
 dual to carry on his trade according as it 
 
 may be for his interest or that of the public." 
 He dwelt also on the mischief that would follov.- 
 if parties should give up the right of judging 
 for themselves, and place themselves under the 
 dictation either of a majority or of a committee 
 of delegates. Crompton, J. was remarkable for 
 learning, depth, and acuteness, and was painfully 
 conscientious about speaking accurately when 
 he spoke judicially. I believe also that he never 
 recognised the notion that the common law
 
 TO TRADE UNIONS. 
 
 39 
 
 adapts itself by a perpetual process of growth 
 to the perpetual roll of the tide of circum- 
 stances as society advances. His judgment in 
 this case is direct to the point that an agree- 
 ment for any coercion whatever, restraining the 
 free-will of each party by the will of the whole, 
 is an illegal restraint of trade, and indictable at 
 common law. Other judges held the bond to 
 be illegal, but reserved their opinion on the 
 point of criminality. Erie, J. held it to be 
 legal ; and his opinion was adjudged to be 
 wrong, as above mentioned. 
 
 Walsby v. Anley (30 L. J. M. C. 121) is also 
 a decision bearing on this point. Walsby com- 
 bined with other workmen to leave the employ 
 of Anley simultaneously, unless he discharged 
 certain workmen who were working under a 
 declaration which they objected to. They thus 
 conspired to coerce his will in the exercise of 
 his right to a free course of trade in respect of 
 hiring and discharging. Crompton and Hill, J.J. 
 held that this was a conspiracy indictable at 
 common law. The question was raised by an 
 appeal against a conviction for endeavouring by 
 threats to force the emplo}'er to limit the nuni- 
 ber of his workmen, under 6 Geo. IV. c. 129, s. 3. 
 The words of alleged threat were : " Unless the 
 men who are working under the declaration 
 be discharged, we cease to work immediately." 
 
 Chap. I. 
 
 Common 
 Law. 
 
 §4- Pro- 
 ceediii~s/or 
 Violaiioii of 
 the Right to 
 Freedom in 
 Ti-acie. 
 
 iralshy V. 
 Anley.
 
 40 
 
 THE LA IV RE LA TING 
 
 Chap. I. 
 Common 
 
 §4- Pro- 
 ceedings for 
 Violation of 
 the Right to 
 Freedom in 
 Trade. 
 
 R. V. Maiv- 
 bcy. 
 
 The objection to the conviction was, that this 
 was no threat, because each had a right to leave 
 singly, and it was contended that it followed that 
 all had a right to leave simultaneously. The 
 objection w^as overruled by all the judges, but on 
 different grounds ; by the Chief Justice on the 
 ground that a notice of an intended simultaneous 
 stop of work, with the prohibited intent, was a 
 criminal threat within the statute. But I cite 
 the case here for the sake of the judgments of 
 Crompton and Hill, J. J., who held that the 
 threat must be of an illegal act, and that a com- 
 bination for a simultaneous stop of work for the 
 purpose of annoying the master was an obstruc- 
 tion to the free course of trade, and a crime ; 
 and Crompton, J. refers to his judgment in 
 Hilton V. Eckersley, and affirms its correctness, 
 notwithstanding the objections thereto by Mr. 
 Longe in his pamphlet on the Law of Strikes} 
 It should be noted that the simultaneity of 
 the leaving makes the damage, and that the 
 act of one cannot cause that damage. 
 
 The dictum of Grose, J. in R. v. Mawbey 
 (6 T. R. 6^)6), relating to the criminality of 
 combinations to raise wages, was relevant only 
 for the purpose of establishing that the guilt 
 of conspiracy is complete by the agreement. 
 
 '^ An Inquiry info the Z.7w of Sln'h's. By F. D. Longe. 
 Cambridge and London, i860.
 
 TO TRADE UNIONS. 
 
 41 
 
 The case had no connexion with wages, as 
 explained above. 
 
 In R. V. Journeymen Tailors of Cambridge 
 (8 Mod. 10) the conspiracy was to refuse to 
 work at a less sum per day than was demanded, 
 being at a higher rate than the maximum of 
 wages fixed under the statute 5 Eliz. c. 4. 
 
 The dicta in the last two cases, that acts 
 lawful for one may become indictable if more 
 than one combine to commit them, Avere not 
 pertinent to the adjudication then being made. 
 The judges do not refer to examples, and 
 although the proposition may be true of cases 
 where simultaneity is the essence of the crimi- 
 nality of the act, I cannot discover any other 
 cases in which it would be true. 
 
 From the authorities referred to it appears 
 that the crime of conspiracy consists of two 
 elements — namely, an intention, and an agree- 
 ment by two or more tc execute it ; th^it an in- 
 tention to use such coercion as is above described 
 to be unlawful, against any person in the exercise 
 of his right to freedom to trade, is sufficient as 
 to one element of conspiracy ; and that the 
 making of the agreement to execute the inten- 
 tion completes the offence. The mere intention, 
 without some act equivalent to an attempt to 
 execute it, is not sufficient, but the outward act 
 by which mutual consent to an agreement is 
 interchanged is sufficient to complete the offence. 
 
 Chap. I. 
 
 Common 
 Law. 
 
 §4- Pro- 
 ceedings/or 
 Violation of 
 the Right to 
 Freedom in 
 Trade. 
 
 R. V. Jour- 
 neymen 
 Tailors of 
 Cainhridge.
 
 42 
 
 THE LA W RELA TING 
 
 Chap. I. 
 
 Common 
 Law. 
 
 §4- fro- 
 cecdiiigs fo?- 
 
 If this reasoning is correct, the common law in 
 
 force since the statute of 6 George IV. secures 
 
 to every person freedom to follow his own will 
 
 "■ioiaUoTcf as to working and employment, and also as 
 
 the Right to , ,..'.,, 
 
 Freednmin to combuimg With othcrs HI rcspcct ot wages 
 
 Trade. 
 
 and hours, and for all other lawful purposes ; 
 but he has no right to use unlawful means, 
 either by himself or in combination with others, 
 in order to coerce the will of another party to 
 prevent him from working or employing as he 
 may choose ; and probably he has no right 
 to apply the power of a combination for the 
 purpose either of malicious damage or of unjust 
 extortion, although he uses no unlawful means 
 except combining to obstruct the free course 
 of trade, in order to effect such purpose. 
 
 § 5. statu- 
 table aiid 
 Professional 
 Restraints 
 of Freedom 
 to Labour. 
 
 V, Statutable and Pi'ofessional Rcstravits of 
 Freedom to Labour. — Two objections have been 
 offered to the correctness of the principle that 
 every employer and every working man has a 
 right, as between him and his fellow subjects, to 
 act according to his own will in disposing of 
 his own capital or his own labour as far as is 
 compatible with the rights of others : first, be- 
 cause the law has put several restraints upon 
 this freedom ; and secondly, because in the pro- 
 fessions of a physician and an advocate usage 
 has put some restraints on this freedom in 
 recrard to the amount of fees.
 
 TO TRADE UNIONS. 
 
 43 
 
 As to tlie first objection, one answer is con- 
 tained in the words used in defining the principle, 
 by which its apphcation is hmited to the right 
 of one subject as against anotJier subject. 
 
 All rights are created by law, and are regu- 
 lated by law : the right to the freedom as above 
 described, although protected from violation by 
 other subjects, is still regulated under the law. 
 The law restrains the working mian of every 
 rank from many kinds of work unless he has a 
 legal qualification. Ke may not v/ork in certain 
 medical, legal, militar}^, and nautical capacities, 
 unless qualified according to law. These are 
 examples of restraints imposed by law to save 
 the public from damage by reason of want 
 of skill. There are also restraints imposed by 
 law to save the party restrained from damage by 
 reason of his own ignorance or helplessness, such 
 as restraints on women and children from excess 
 of labour under the Factory Acts, or restraints 
 on working men in some deleterious trades from 
 sacrifice of health. Restraints also from trade 
 unless qualified by apprenticeship are restraints 
 under the law. So the law restrains the capi- 
 talist from disposing of his capital for purposes 
 which violate legality, morality, public policy, 
 and the like. Restraints may also be m:iposed 
 by law on parties incapable from infancy or 
 mental disease of managing their own affairs 
 for their own sake. 
 
 Chap. I. 
 
 Common 
 Law. 
 
 § 5. SiatH- 
 table and 
 Pmfcsslonnl 
 Rrstrnints 
 of Freedom 
 to Labour. 
 
 (.,) Re- 
 straiiits by 
 laiu, as by 
 Factory 
 A cts.
 
 44 
 
 THE LA W RELA TING 
 
 Common 
 Law. 
 
 § 5. Stain- 
 laOie and 
 Profcssioial 
 Restraints 
 of Freedom 
 to Labour. 
 
 m Profess- 
 ional fees. 
 
 These restraints by law are distinct from re- 
 straints by the will of another subject. The 
 fullest freedom under the law as between him 
 and his fellow subjects is compatible with count- 
 less restraints imposed by law for the benefit 
 of his fellow subjects individually, or of the 
 public generally, or of himself. The right to 
 this freedom for the capitalist and the working 
 man is part of the right to property and personal 
 security, and is subject to analogous restraints. 
 It is analogous to the right to passage according 
 to will on a highway : generally speaking, all 
 have it ; but an individual may be restrained by 
 lawful imprisonment, and all may be restrained 
 when the law authorises a stop of passage. 
 Some unions attempt to restrain the freedom 
 of the members either without authority of law, 
 as by agreements which are void, because con- 
 trary to public jDolicy ; or in violation of law, 
 as where rules in restraint of trade are enforced 
 by unlawful means. There is no analogy be- 
 tween these restraints and such restraints under 
 the law as are above mentioned. 
 
 The second objection, founded on the usage 
 relating to the fees for physicians and advo- 
 cates, has been applied both for the purpose 
 of impeaching the principle of freedom for the 
 course of trade, and for the purpose of justify- 
 ine the action of those unions which fix a
 
 rO TRADE UNIONS. 
 
 45 
 
 minimum wage for an artisan; but whatever | Chap. i 
 be the purpose for which the objection is used, ' La"- '" 
 
 § 5. StatK- 
 
 ofessioiial 
 Restraints 
 of Frecttoin 
 to Labour. 
 
 it seems to be founded on a misconception, 
 
 and to be irrelevant to the law relating toj^rif"""^ 
 
 trade unions. 
 
 The action of unions, so far as it excludes 
 non-unionists from work, and requires forj 
 unionists wages to a certain amount, is founded ! 
 on a supposed monopoly of a given kind of 
 work in a given district. All such work is 
 assumed to be the property of the union : if 
 all the workmen who can supply the work are 
 in the union, the monopoly is secured ; and 
 the usual action has been to increase washes 
 and decrease work until a maximum amount 
 of wages has been extracted from the' employ- 
 ers, and the equal distribution of the minimum 
 amount of work secured for each member. 
 
 This action has no analogy to the usage of 
 the two professions above named. The exclu- 
 sion of unqualified men from practice is not 
 for the sake of giving a monopoly of practice 
 to the qualified, as explained above. It is not 
 in order to limit number, but to secure efficiency. 
 Neither have the physicians or barristers any 
 combined action for extracting from patients 
 or suitors the maximum of money for the 
 minimum of work, and distributing it equally 
 among all the members of those two profes-
 
 46 
 
 THE LA W RELA TING 
 
 Chat. I. 
 
 Common 
 Law. 
 
 § 5. Statu- 
 table and 
 Professional 
 Restraints 
 of Freedom 
 to Labour. 
 
 sions. It is clear that the usual amount of a 
 professional fee is settled on a different principle 
 from that which regulates the wages for service. 
 In these two professions service is in law gra- 
 tuitous, and is often so in fact. It cannot be 
 estimated at any market rate : the external act 
 of service may be almost imperceptible, indeed 
 it may lie in a u'ord ; and yet the value of it to 
 the recipient may be immeasurably great. Pro- 
 bably bargaining in each case would be un- 
 pleasant to both parties, and a settlement by 
 custom is preferred. Whatever may be the 
 reason for the usage, enough has been said to 
 show that it is founded on a principle different 
 from that by which unions seek to regulate 
 wages. I would only add a reference to Ken- 
 nedy V. Broun et ux. (32 L. J., N. S., C. P. 137), 
 where the right of an advocate to sue for re- 
 muneration was negatived : the reason given 
 for the adjudication accords with this explana- 
 tion. 
 
 If it should appear to any that a party 
 making a contract for his labour is coerced if 
 the opposite party require him either to perform 
 his contract, or to pay damages for the breach 
 of it, it would not be superfluous to remark 
 that freedom to dispose of labour consists in 
 freedom to contract for disposing of it. Labour, 
 unless gratuitous, can only be disposed of by
 
 TO TRADE UNIONS. 
 
 47 
 
 hire, so that a contract for hire is an appHca- 
 lloii of the principle, not an exception from it : 
 restraint arises when the party is restrained 
 from using his own will in making a contract for [ Proj, 
 his own labour. 
 
 The same observation is true of any restraint 
 supposed to be created by partnership. The 
 restraint on property is created by an assign- 
 ment of private property to the partnership ; 
 and the restraint on service, if any, is created 
 by the contract for agency involved in the 
 contract of partnership. 
 
 VI. The Roots and Groivth of the Coiiiinon 
 Laiv. — There are some relations between man 
 and man which do not change, such as birth; 
 and the rules of law relating thereto do not 
 change. There are other relations which are 
 perpetually changing as society progresses, and 
 the conflicts of rights caused by this perpetual 
 process of change is the subject of a perpetual 
 process of adjustment, according to principles 
 contained in the common law. The serfs and 
 copyholders of the middle ages passed through 
 many variations of rights, as well at common 
 law as by statute, before they became enfran- 
 chised electors. 
 
 Rights in respect of contracts, restraint of 
 trade, combination, the relation between em- 
 
 Chap. I. 
 
 Cnmiiioii 
 Lavv. 
 
 . 5. Statu- 
 table and 
 
 o/t'ssiotial 
 Restraints 
 of Freedom 
 to Labour. 
 
 % 6. The 
 Roots and 
 Gro'^vtli of 
 the Co)iunon 
 La:v.
 
 THE LA W RELA TING 
 
 Char I. 
 
 Common 
 Law. 
 
 §6, The 
 Roots and 
 Grouitk of 
 the Common 
 
 ployer and employed, and some kinds of 
 nuisances, afford examples of perpetual change. 
 An attempt to adjust them by statute may 
 succeed, if the authors and interpreters of the 
 statute understand the principles of the com- 
 mon la'w, and in some degree incorporate them. 
 Without that process the interpretation of the 
 words of a statute merely by a dictionary leads 
 often to unsatisfactory results. Even if the 
 statute is well drawn, society soon progresses 
 beyond it, and the need of the principles of the 
 common law is constantly renewed. 
 
 I therefore offer a few words on the power 
 of growth in the common law. I do so with 
 misgiving, having no judicial authority for 
 my opinion that I know of. 
 
 Every rule of the common law ought to be 
 applied with some limitation of reasonableness 
 in degree. The relations of ideas of number, 
 measure, and weight may be expressed in un- 
 limited terms with absolute certaint}- ; but it is 
 not so with the relations of the actions of man 
 upon man. Those relations cannot be defined 
 till the laws of matter, and also the laws of mind, 
 are within the limits of certain knowledge, and 
 till social progress is stopped. Definite rules 
 therefore may not be expected. In the mean- 
 time life multiplies, proximity increases, and 
 each man mouM become a nuisance to his neigh-
 
 TO TRADE UNIONS. 
 
 49 
 
 hour in respect (among manifold other matters) 
 of air and water, labour and capital, production 
 and distribution, if a perpetual process of ad- 
 justment was not in constant action. This 
 •adjustment is effected by the principles of the 
 Common Law. 
 
 These principles originate practically from the 
 people. Proximity leads to mutual help in a 
 known course of business ; a known course of 
 business involves the recognition of some estab- 
 lished principles. These principles may be 
 acted on long before a complete language is 
 framed. A course of business without a verbal 
 law is equivalent to living law ; a verbal law not 
 in accordance with the course of business cannot 
 be practically enforced. 
 
 In all assemblies of free men each man has 
 authority in proportion as his mind is noble. 
 The test of nature's nobility is industry. In 
 agriculture, trade, and manufacture, the men of 
 most influence are in effect seers, and the seers 
 establish the course of business which is con- 
 sidered by them the most expedient at the 
 time ; and in case of dispute the same seers are 
 trusted as arbitrators to apply the principles 
 involved in the course of business. The prin- 
 ciples are applied at first in the concrete ; 
 gradually they grow into rules of wider appli- 
 cation, and words grow appropriate for their 
 
 E 
 
 Comnn 11 
 Law. 
 
 § 6. r!ie 
 Roots find 
 Growth of 
 the Com7Jio7i 
 Law.
 
 !;o 
 
 THE LA W RELA TING 
 
 Common 
 Law. 
 
 §6. The 
 Roots and 
 Growth of 
 tlie Coiitino.i 
 L.itu. 
 
 expression ; and the judiciary men and the 
 legislative men adopt them. Throughout this 
 process the rules practically originate from the 
 people.^ In a mass of free people the unso- 
 phisticated majority, according to experience, 
 are certain to intend to side with the kind and 
 true against the false and malicious : the com- 
 pound of the kind and true being the just. 
 
 This process has in all mercantile countries 
 been in constant action, as the law merchant is in 
 its theory adjusted by the usage of merchants. 
 The same process was in constant action in 
 the Saxon county-courts presided over by the 
 sheriff. The probi ct Icgalcs Jiomincs attending 
 on the county-court were men of practical 
 business engaged in useful industry, and living 
 in the neighbourhood. From them the jury- 
 men were selected ; and the jury so taken were 
 judges both of the law and of the fact, the 
 sheriff having power to keep order on the trial, 
 but having no power to guide the decision. 
 The law must therefore have been found by 
 the jury in the traditions of the course of 
 the business in which the contention arose, and 
 in their own sense of right. 
 
 So far as rules of conduct for practical people 
 are concerned, it matters not whether justice is 
 
 1 See Savigny's Trait J de D^-oit romai?t, translated by Gue- 
 noux, lib. i. cap. 2, ss. 7 and 9, Droit populaire, -j
 
 TO TRADE UNIONS. 
 
 51 
 
 supposed to have its source in inductive search 
 after utiHty, or in an intuitive perception of 
 right to be tested by utility, inasmuch as utility 
 and right in this sense lead to a similar course 
 of action. One man obeys conscience. tested by 
 utility; another takes utility alone for a guide. 
 
 But if the origin of the principles of the 
 common law is to be traced beyond their 
 practical existence, they seem to originate from 
 conscience — that is, from the same power which 
 has made the majority of all free men of all 
 ages and languages to have a perception of 
 that which they feel to be just, and which they 
 admire for itself, and assume to be useful till 
 the contrary be proved. And among such free 
 men some are pre-eminently gifted with this 
 perception of the just. 
 
 The jurists whose words are recorded in the 
 civil law rely on their own sense of right where 
 an opinion is adopted because " cEqiinm esse miJii 
 videtiirr The words of these men would not 
 have been handed down if they had merely ex- 
 pressed their intuitions before their highest facul- 
 ties had been trained by long and painful efforts 
 both to understand the relations of man to man, 
 and the words of wide extension expressive of 
 those relations, and also to know how far those 
 relations had been so adjusted by the men who 
 had gone before as that their adjustment had 
 E 2 
 
 Common 
 Law. 
 
 §6. The 
 Roots and ■ 
 Growth 0/ 
 the CoiiuHon 
 Law.
 
 52 
 
 THE LA W RELA TING 
 
 Chap. I 
 
 ConiPKjn 
 Law. 
 
 §6. The 
 Roots and 
 Croiuth of 
 the Common 
 Law. 
 
 been adopted into the usages of the people and 
 grown into law ; such adoption being the process 
 by which living law grows. 
 
 So the jurists whose writings are authority for 
 international law relied in solving a new question 
 on their own intuition of right, giving as their 
 reason, " Quia aqnuvi est J' 
 
 So, also, in England, the Chancellors who 
 originated equitable rules overruling law saw, 
 by their intuitive perception, the iniquity of 
 the law to be overruled, and introduced the 
 remedy ; and amongst the Judges at Common 
 Law, Hale, Holt, and Mansfield may be 
 taken as examples of men who by the exercise 
 of the same intuitive perception became emi- 
 nent. They were masters of the learning of 
 their predecessors ; their commissions ran then 
 as nov/, "to do what to justice appertained, ac- 
 cording to the laws and customs of England ; " 
 and although they maintained in accordance 
 with those laws and customs some of the 
 feudal ])rinciples established after the Conquest, 
 which had survived to their time, yet when 
 new relations in social progress raised new ques- 
 tions, and feudality had either expired or was 
 irrelevant, they decided according to their own 
 intuition of ju.stice : and they have their eminence 
 because their intuitions have accorded with those 
 of the strong men in the generations that have
 
 TO TRADE UNIONS. 
 
 53 
 
 succeeded, Mansfield takes rank as a benefactor 
 of mankind ; and the recommendation of 
 Junius that he should be impeached for in- 
 troducing notions of substantial justice to 
 modify some supposed rules of common law 
 which worked iniquity, is evidence of his title 
 to that rank. 
 
 I have said so much of the common law in 
 general, as well as of those principles thereof 
 which are relevant to trade unions, because 
 the power of the law lies in the respect of the 
 people for it, and I believe that the common law 
 will be regarded as a valuable inheritance by 
 all who understand its principles, and can com- 
 pare reasoning thereon with reasoning on the 
 mere words of a statute. 
 
 There is a description of the sources of the 
 common law by Parke, B., in Mirehouse v. Rennell 
 (i CI. & Finn. 546), which is superior to any that 
 I can write. Lord Coke, also, has given an 
 account of the sources of the common law in 
 Co. Litt. lib. I pass these descriptions with 
 the remark that they describe rather the places 
 where the stream of the common law may be 
 found flowing, than the place where the source 
 rises or the root begins. 
 
 Common 
 Law 
 
 §6. The 
 Roots and 
 Growth of 
 the Common 
 Law. 
 
 In concluding this chapter, I would refer, forj 
 the purpose of removing an unjust estimation
 
 54 
 
 THE LAW RELATING TO TRADE UNIONS. 
 
 Chap.I. 
 
 Common 
 Law. 
 
 §6. The 
 
 Roots and 
 Crozvth of 
 the Cotiniion 
 Law. 
 
 of law, to Hooker's words {Ecclcs. Pol. book i. 
 ch. i.) on Government, as equally applicable to 
 law : " He that goeth about to persuade a mul- 
 titude, that they are not so well governed as 
 they ought to be, shall never want attentive 
 and favourable hearers ; because they know 
 the manifold defects whereunto every kind of 
 regiment is subject; but the secret lets and 
 difficulties, which in public proceedings, are 
 innumerable and inevitable, they have not ordi- 
 narily the judgment to consider." And for the 
 purpose of a just estimation of our Legislature 
 since the Reform Act of 1832, I refer to Mr. 
 Ludlow, who, in the book by him and Mr. Lloyd 
 Jones on the Progress of the Working Class 
 from 1832 to 1867, says that the legislation dur- 
 ing that time has been "wholesome, stimulant, 
 and beneficent," and justifies these words by 
 specifying numerous statutes of enlightened 
 wisdom and grand beneficent results, both to 
 society in general and to the less rich part of 
 it in particular ; wherefrom an ever-rising tide 
 of improvement has been continuously flowing 
 abroad upon the whole body of the people, 
 without a suspicion of partiality for any class.
 
 CHAPTER 11. 
 
 STATUTE LAW RELATING TO TRADE UNIONS. 
 
 I. Statutes prior to 6 George IV. c. 129. — 
 With respect to the statutes relating to trade 
 unions, the 6 Geo. IV. c. 129, and the supple- 
 mentary Act 22 Vict. c. 34, are the statutes 
 now in force. 
 
 The repealed legislation concerning trade and 
 industry has been blamed for partiality. An 
 examination of the grounds for blame would 
 not now be worth the time, but I would sug- 
 gest that persons are not justified in imputing 
 it who have not examined the statutes by the 
 light of the times in which they were passed, 
 and are not sure that they could have proposed 
 something more just and expedient if they 
 had been then in Parliament. Much of this 
 legislation was directed against combinations : 
 it was supposed to contain more prohibitions 
 than were required for the protection of person 
 and property, and was all repealed either before 
 
 Chap. II. 
 Statutes. 
 
 §1. Statutes 
 firior to 
 6 Geo. IV. 
 c. X2g.
 
 56 
 
 THE LA W RELA TING 
 
 Chap. II. 
 Statutes. 
 
 § I. Statute- 
 frier to 
 6 Geo. IV. 
 c. 129. 
 
 !J2. r/ie 
 Statute 
 6 Geo. ir. 
 c. 129. 
 
 or by the 5 Geo. IV, c. 95. The framers of 
 this statute seem to have considered that 
 the evils which pressed on the lower stratum 
 of industry before the acts for the reform of 
 Parliament, of the Poor Laws, and of the Corn 
 Laws, would be alleviated by allowing them 
 to combine for the obstruction of the free course 
 of trade, assuming that the employers were 
 richer, and oppressive because richer, and that 
 the working men stood in no need of protection 
 from each other ; assuming also that working 
 men could violate the law for truth with im- 
 punity, inasmuch as the statute authorised them 
 to combine to induce other working men to 
 break their contracts for service. The evils 
 resulting in one year from this statute were 
 sufficient to produce its repeal, and the sub- 
 stitution of the 6 Geo. IV. c. 129. 
 
 II. The Statute 6 George IV. c. 129. — This 
 statute, like all others, must be construed with 
 reference to the state of the law existing at 
 the time of the enactment, and to the matters 
 recited in the preamble. 
 
 The principles of the common law existing 
 at the time have been stated above. 
 
 The preamble recites that the provisions of 
 5 Geo. IV. c. 95 were for the protection of the 
 free employment of capital and labour, and for
 
 TO TRADE UNIONS. 
 
 57 
 
 the punishment of combinations interfering with 
 such freedom by means of violence, threats, and 
 intimidation, and that the provisions of that 
 statute were not efifectual. It then recites that 
 such combinations were dangerous to the tran- 
 quillity of the country, and injurious to trade and 
 commerce, and prejudicial to the interest of those 
 concerned in them. It then recites the expedi- 
 ency of making further provision as well for the 
 security and personal freedom of individual 
 workmen in the disposal of their skill and 
 labour, as for the security of the property and 
 persons of the masters and employers. 
 
 These recitals show that the Legislature recog- 
 nized a right to a free course for trade as therein 
 and as herein described, and intended to create 
 further security for the enjoyment of that right 
 without partiality for any class. 
 
 Furthermore, it may be noticed that although 
 the 5 Geo. IV. c. 95 contained prohibitions 
 against some combinations, and the attention 
 of the Legislature was upon combinations in 
 passing the 6 Geo. IV. c. 129, yet there is not 
 only no prohibition therein against any kind of 
 combination, but there are, on the contrary, two 
 classes of combinations (those described in ss. 4 
 and 5) relating to wages, which are thereby 
 rendered exempt from all liability whatever to 
 penal consequences, as well under the common 
 
 Chap. II. 
 
 Statutes. 
 
 5 2. The 
 Statute 
 
 6 Ceo IV. 
 c. 129.
 
 THE LA IV RELA TING 
 
 Chap. II 
 Statutes. 
 
 § 2. The 
 Statute 
 
 6 Co. ir. 
 
 c. 129. 
 
 (a.) Tlie scc- 
 tion of 6 
 Geo. IV. c. 
 129 contahi- 
 ins: prohibi- 
 tion. 
 
 as under the statute law : it follows that all 
 combinations and unions which are still unlawful 
 conspiracies are unlawful by the operation of 
 the common law. 
 
 The 5 Geo. IV. c. 95 repealed so much of 
 the common law as related to the criminality 
 of the combinations exempted from punishment 
 thereby; the 6 Geo. IV. c. 129 repealed the 
 5 Geo. IV. c. 95 entirely, and left the common 
 law of conspiracy in force against all combina- 
 tions in restraint of trade, the combinations 
 exempted from penalty under ss. 4 and 5 
 alone excepted. 
 
 It would be convenient to giv^e here the text 
 of the third, fourth, and fifth sections of the 
 statute 6 Geo. IV. c. 129; but as the im- 
 portant section (the third) is long, and likely to 
 confuse, I print these sections in an Appendix,^ 
 together with section 44 of 18 & 19 Vict. c. 6'},, 
 and section i of 22 Vict. c. 34, which are here- 
 after referred to. 
 
 The operative words of the third section of 
 the Act of 6 Geo. IV. have been arranged with 
 skill in a work on the Law of Combination ; ''^ 
 and from it I gratefully borrow the subjoined 
 
 1 See Appendix B, p. 88. 
 
 - Strikes and Lock-outs ; or, the Law of Combination. 
 Barrister. London, 1867. 
 
 By a
 
 TO TRADE UNIONS. 
 
 59 
 
 analysis, premising that the three classes of 
 the offences created are indicated by Arabic 
 numerals. Each offence consists of an action, 
 together with an effect or purpose : the actions 
 are indicated by letters of the alphabet, and the 
 effects or purposes by Roman numerals. 
 
 The offences prohibited by the 6 Geo. IV. 
 c. 129 are all founded upon restraint of trade; 
 and so far this statute declares the common 
 law, while at the same time it adds some sum- 
 mary remedies. In each of the three classes 
 of offences the right to freedom in disposing 
 of labour or capital according to the will of 
 the individual is violated by some coercion, or 
 attempt at coercion, of such will. In the first 
 class the coercion is applied to the working 
 man, in the third it is applied to the employer, 
 and in the second it is applied indifferently to 
 working men or employers in respect of their 
 relation to some union. 
 
 The third section enacts as follows : — 
 " I. If any person, 
 
 a. by violence to the person or property, 
 
 b. or by molesting, 
 
 c. or in any way obstructing another, 
 
 i. forces or endeavours to force any 
 journeyman, manufacturer, workman, 
 or other person, hired or employed in 
 any manufacture, trade, or business, 
 
 Chap. II. 
 Statutes. 
 
 §2. The 
 Statute 
 b Ceo. II'. 
 c. 129.
 
 6o 
 
 THE LA IV RE LA TING 
 
 to depart from his hiring', employ- 
 ment, or work, 
 or to return his work before it is 
 finished, 
 ii. or prevents or endeavours to prevent 
 any journeyman, manufacturer, work- 
 man, or other person, not being hired 
 or employed, from hiring himself to 
 or from accepting work or employ- 
 ment from any person ; 
 every person so offending is liable to three 
 months' imprisonment, with hard labour. 
 2. If any person, 
 
 a. uses or employs violence to the per- 
 
 son or property of another, 
 
 b. or uses threats or intimidation, 
 
 c. or molests, 
 
 d. or in any way obstructs another, 
 
 i. for the purpose of forcing or inducing 
 such person to belong to any club 
 or association, 
 
 ii. or to contribute to any common fund, 
 iii. or to pay any fine or penalty, 
 iv. or on account of his not belonging 
 to any particular club or association, 
 
 V. or on account of his not having con- 
 tributed or having refused to con- 
 tribute to any common fund, or to 
 pay any fine or penalty,
 
 TO TRADE UNIONS. 
 
 6r 
 
 vi. or on account of liis not having com- 
 plied, or of his refusing to comply 
 with any rules, orders, resolutions, or 
 regulations, made to obtain an ad- 
 vance or to reduce the rate of wages, 
 or to lessen or alter the hours of 
 working, or to decrease or alter the 
 quantity of work, or to regulate the 
 mode of carrying on any manufac- 
 ture, trade, or business, or the man- 
 agement thereof ; 
 every person so offending is liable to 
 three months' imprisonment, with hard 
 labour. 
 '• 3. If any person, 
 
 a. by violence to the person or property 
 
 of another, 
 
 b. or by threats or intimidation, 
 
 c. or by molesting, 
 
 d. or in any way obstructing another, 
 
 i. forces, or endeavours to force, any manu- 
 facturer, or person carrying on any 
 trade or business, 
 
 to make any alteration in his mode 
 of regulating, managing, con- 
 ducting, or carrying on such 
 manufacture, trade, or business, 
 or to limit the number of his 
 apprentices, or the number or| 
 
 Chap. I r. 
 
 Statutes. 
 
 § 2. TIu- 
 Statute 
 6 Geo. ir. 
 c. 129.
 
 62 
 
 THE LA W RE LA TING 
 
 Chai'. II. 
 Statutes. 
 
 § 2. The 
 Statute 
 6 Geo. Il\ 
 
 c". I2g. 
 
 description of his journeymeii, 
 workmen, or servants ; 
 
 j every person so offending is liable to three 
 
 months' imprisonment, with hard labour. 
 
 " But (s. 4) no persons shall be punished who 
 
 meet together for the sole purpose of consulting 
 
 upon and determining the rate of wages or prices, 
 
 which the persons present at the meeting, or any 
 
 1 of them, shall require or demand for their work ; 
 or the hours for which they shall work in any 
 manufacture, trade, or business. And (same sec.) 
 no persons shall be punished who enter into 
 any agreement, verbal or written, among them- 
 selves, for the purpose of fixing the rate of wages 
 or prices which the parties entering into the agree- 
 ment, or any of them, shall demand for their work. 
 " So much for the workmen. The 5 th section 
 of the act relates to the masters. By that 
 section the masters are not to be liable to any 
 prosecution or penalty, if they meet together 
 for the sole purpose of consulting upon and 
 determining the rates of wages which those 
 present at the meeting, or any of them, shall 
 pay to their journeymen, workmen, or servants, 
 for their work, or the hours of working, in any 
 manufacture, trade, or business : neither shall 
 they be liable to punishment for entering into 
 any agreement, verbal or written, among them- 
 selves, for the purpose of fixing the rate of
 
 TO TRADE UNIONS. 
 
 63 
 
 wages which the parties entering into the 
 agreement, or any of them, shall pay to their 
 journeymen, &c." 
 
 In all the classes the elements of the crime, or 
 offence, consist of an act and an intention. In 
 each class, although the offence may be com 
 mitted either by unionists or by non-unionists, 
 yet the coercion or attempted coercion of the 
 will of the party aggrieved is such as the trade 
 unions, whether of employers or of working men, 
 usually resort to in order to prevent the meeting 
 of supply and demand, of labour and capital, in 
 free competition. Accordingly, the operation of 
 the statute is in practice applied almost entirely 
 to alleged excesses on the part of trade unions. 
 
 In the first class, relating to working men, the 
 criminal intention must be to stop work, by pre- 
 venting either the beginning or the continuance 
 of an employment ; in the third class, relating 
 to employers, the criminal intention must be 
 either to force a change in the management 
 of a business, or to check freedom in the em- 
 ployment of labour ; in the second class, the 
 criminal intention must be on behalf of some 
 union to force either contribution to its funds 
 or compliance with its rules. The terms de- 
 scribing the intention, which is one element of 
 the crime, are clear, and do not appear to have 
 
 Chap. II. 
 
 Stat'ites. 
 
 §2. T/u- 
 statute 
 6 Cro. 1 1 : 
 C. i^q.
 
 64 
 
 THE LA W RELA TING 
 
 Chap. II 
 Statutes. 
 
 § 2. The 
 Statute 
 6 Geo. IV. 
 c. 129. 
 
 Threats. 
 
 led to much dispute, and may be passed 
 without further notice ; but the terms describing 
 the act, which is the other element of the crime, 
 have caused doubt. 
 
 The acts are described in terms of wide 
 generality, in order that there may be com- 
 prehended therein a wide class of actions which 
 from their nature do not admit of precise defini- 
 tion. The essence of the crime lies in the in- 
 tention to coerce the will of another, indicated 
 by some act comprised under one of the terms 
 "violence," "threats," "intimidation," "molesta- 
 tion," "obstruction;" and the act comprised 
 within either of these terms is sufficient to con- 
 stitute that element of the crime which lies in 
 action if it was reasonably believed by the party 
 committing it to be such as might coerce the 
 will of the party to be affected thereby. 
 
 Thus, as to the first term, an act of very slight 
 assault, done for the purpose of assaulting, may 
 be sufficient to prove violence within the mean- 
 ing of the statute, when such slight assault was 
 intended to be, and was probably, sufficient to 
 coerce the will of a weak and timid person. 
 
 So also of threats. If any person with the 
 purpose of threatening conveys to the mind of 
 another that he will bring any form of evil 
 upon him, with the intent of forcing him to 
 do one of the acts mentioned in the statute.
 
 TO TRADE UNIONS. 
 
 65 
 
 it seems to me that he has used a threat suf- 
 ficient to constitute the guilt. The governing 
 object of the statute is to secure the exercise of 
 the free-will of each individual in disposing of 
 his labour or his capital. It matters not what 
 degree of evil may be suggested, if the sug- 
 gestion is intended to take away free voluntary 
 action as to the matters defined in the statute 
 from the party to whom the suggestion is 
 addressed. Evil may be inflicted in respect of 
 the manifold interests relating to person, pro- 
 perty, reputation, or affection. But I say no 
 more on this point, because a material question 
 has been raised — Whether a threat of bringing 
 evil on a party, without otherwise violating any 
 law in so doing, is a threat within the statute .-' 
 I do not find an express adjudication on this 
 point : as far as I can collect the opinions of the 
 judges from incidental expressions, they appear 
 to preponderate in favour of an answer in the 
 negative. 
 
 What has been said of the class of acts com- 
 prised under the term " threat " is true in degree 
 of intimidation. In each class the coercion is 
 intended to be caused by fear : in threats the 
 fear is caused by words ; in intimidation, by 
 any deeds or words which might create fear. 
 Wiiether the acts arc sufficient to prove intimi- 
 dation within the statute ought to depend ui)on 
 F 
 
 Chap. II. 
 Statutes. 
 
 § 2. 77^1? 
 Statuti' 
 6 Geo. IV. 
 c. 129. 
 
 Intimida- 
 tion.
 
 ri6 
 
 THE LA IV RE LA T/NG 
 
 Chap. II. 
 Statutes. 
 
 §2. The 
 Statute 
 6 Ceo. IV. 
 c. 129. 
 yiotestation. 
 
 < ibstrucfion 
 
 the degree of timidity on the beHef of which 
 the party intending to intimidate acted. 
 
 So of acts of molestation. Any act which 
 was intended to cause and did cause annoyance 
 in a substantial degree to the party intended to 
 be molested, if done with one of the prohibited 
 intents, would constitute guilt within the meaning 
 of this term. The measure of the degree of 
 molestation is to be found in the sensibility of 
 the sufferer, not in the act of the actor. B)' 
 annoyance in a substantial degree, I mean the 
 degree commonly referred to in actions for 
 nuisances. The means of molestation vary in- 
 finitely, considering all the channels through 
 which annoyance may be sent to the human 
 mind. Annoyances not sufficient to be an action- 
 able nuisance to the residence, or an actionable 
 damage to the reputation, if they were capable 
 of molesting and were known to be so, and 
 were done for the purpose of molesting with 
 the prohibited intent, would be acts of moles- 
 tation within the statute, according to my under- 
 standing of it. 
 
 And so of obstruction. Any act that ob- 
 structs the exercise of any right, if done for 
 the purpose of obstructing, and with the pro- 
 hibited intent, would be sufficient. One fre- 
 quent mode of committing this offence is by 
 interfering with the right of passage on a high-
 
 TO TRADE UNIONS. 
 
 67 
 
 way. Every subject has the right to pass and 
 re-pass at all times at his free-will and pleasure, 
 this right being limited by the existence of a 
 similar right in all other subjects ; and although 
 the exercise of that similar right may operate 
 as some obstruction to others, still it does not 
 become unlawful thereby if done for the purpose 
 of exercising the right, and if done in the degree 
 reasonable for the exercise of that right. The 
 right and the limitation are constantly exempli- 
 fied in the uninterrupted passage of any crowd, 
 either of passengers, or of animals, or of car- 
 riages, where each uses the passage for himself 
 with attention to the rights of passage for others. 
 But if a person comes on a highway for any 
 purpose other than that of passage, he is a 
 trespasser ; and so the use of the highway for 
 the purpose of shooting rabbits thereon was 
 held to be a trespass (see R. v. Pratt, 4 Ell. & 
 VA. 860). So, also, trespass lies for bringing 
 cattle along a highway for the purpose of pas- 
 ture, and not of passage. According to this 
 doctrine, any use of the highway not for the 
 purpose of lawful passage, but for the purpose 
 of making passengers in any degree unwilling 
 to pass to and from the premises of any party, 
 with the intent of coercing the will of that 
 party, and so of forcing him to do one of the 
 acts specified in the statute, would be a criminal 
 
 Chap. 11. 
 
 Stauitcs. 
 
 § 2. 7 he 
 Statute 
 eCeo. IV. 
 c. I2g.
 
 68 
 
 THE LA W RELA TING 
 
 Chap. II. 
 Statutes- 
 
 § 2. Th,: 
 Statute 
 OGco.jy. 
 (•■ 129. 
 
 obstruction within the statute. Thus if a crowd 
 were assembled in such numbers as to fill the 
 street where the entrance to the premises was, 
 and passed backwards and forwards so as to 
 stop all access, with any other intent than that 
 of using the right of passage, they would be 
 guilty of an offence against the public by a 
 criminal obstruction of the highway, and of an 
 injury to the party to whose premises access 
 was prevented, if he suffered special damage. 
 They would also be guilty of an offence under 
 the statute if they did so with intent to coerce 
 the will of the party having any interest in such 
 premises, and so to force him to one of the acts 
 specified in the statute. These principles, and 
 this interpretation of the statute, were enforced 
 by Bramwell, B. in the cases of R. v. Druitt and 
 R. V. Partridge (C. C. C. Aug. 21 and 22, 1867 ; 
 10 Cox C. C. 592), where the defendants had 
 been concerned in the practice of picketing in 
 the tailors' strike then pending. 
 
 And that which is true of a crowd so assem- 
 bled with the intent of causing an obstruction, 
 and so of coercing the will as above described, is 
 equally true of one person stationed as a watch 
 to give Avarning, or the like, to persons passing 
 to and fnjm the premises of the party whose 
 I will is to be coerced, if he thereby obstructs 
 I unhu\ full\- the cnjoA-mcnt of the rieht of free
 
 TO TRADE UNIONS. 
 
 69 
 
 passage for him and others, with intent to 
 coerce his will and force him to one of the 
 specified acts. The amount of actual obstruc- 
 tion is no more material in this offence than the 
 extent of actual removal of a chattel is material 
 in larceny. The smallest wrongful act which is one 
 of the series of acts by which the crime is to be 
 completed externally, coupled with the criminal 
 intention, is the misdemeanour of attempting to 
 commit a crime. In burglary, the breaking may 
 be by the lifting of a latch, and the entrance 
 may be by inserting the tip of a finger. Ac- 
 cording to this doctrine, the placing of pickets, 
 as they are called, with the usual purpose of 
 interfering with free passage by molesting, or 
 the like, if done with one of the prohibited 
 intents, is the crime of obstruction within the 
 statute. It may also be at the same time the 
 crime of molestation, or of threat, or of intimi- 
 dation, within the statute ; it may also be a 
 wrongful obstruction of the highway at common 
 law, according to the circumstances ; and may 
 be actionable and indictable. 
 
 Chaf. 1 1 
 
 Statutes, 
 
 § 2. riu- 
 
 'statute 
 6 Geo. n\ 
 c. 129. 
 
 I will further suggest that the words prohi- 
 biting " molestation " and " obstruction," as 
 well as violence, intimidation, and threats, are 
 to be taken in their common acceptation, not 
 limited by the words that precede. These
 
 THE LAW RELATING 
 
 Chap. II. 
 
 Statutes. 
 
 ^ 2. The 
 Statute 
 6 Ceo. IV. 
 c. 129. 
 
 two terms are additional to those in 5 Geo. 
 IV. c. 95, and the Legislature must be taken 
 to have added them with the intention that 
 they should be so construed as to receive effect 
 according to their ordinary acceptation. 
 
 The description of the offences prohibited 
 by the third section of 6 Geo. IV. c. 129 creates 
 a difficulty in enforcing the statute, inasmuch 
 as they are made to consist of an intentional 
 act of grievance, with an ulterior intention 
 to cause an act to be done by the party 
 wronged. Thus, if an offence by molestation 
 is taken as an example, there must be an 
 act of molestation against the employer with 
 intention to molest him — as by taking his men 
 away — with an ulterior intention to force him to 
 alter his mode of carrying on business — as by 
 paying wages according to a book. Intention 
 as an element of crime is more dif^cult of proof 
 than acts of crime, and becomes more so in pro- 
 portion as it is less closely connected with the 
 act which is the other element of crime. The 
 complications of statement required in indicting 
 for a crime consisting of two intentions is seen 
 in the twenty counts of the indictment for 
 conspiracy to commit offences against this- 
 statute in R. •:'. Rowlands (5 Cox C. C. 436). 
 
 There is a further difficulty in applying the 
 statute by reason that the description of the
 
 TO TRADE UNIONS. 
 
 Cmak II. 
 Statutes. 
 
 §2. riu 
 
 Statute 
 6 Geo. ll\ 
 
 C. I2C,. 
 
 classes of actions by the supposed wrong-doer, 
 which are to constitute that element of the 
 offence which lies in act, as contradistinguished 
 from intention, consists more of the effect of 
 that action upon another, than of the deed done 
 by the wrong-doer himself. In respect of the 
 first three classes — violence, threats, and intimi- 
 dation — this remark is true to some extent, 
 though practically acts of violence, threatening, 
 or intimidation, can be recognised without diffi- 
 culty. As to the remaining two classes — viz., 
 molestation and obstruction — the description by 
 which the guiltiness of the action imputed as 
 the act of the offence can be tested, refers solely 
 to the effect of the action either upon the feel- 
 ings or upon the rights of the opposite party. 
 The description, therefore, is wide enough to 
 include every word or deed spoken or done 
 for the purpose of molesting or obstructing, 
 and producing the purposed effect, with one of 
 the prohibited ulterior intents specified in the 
 .statute. In respect of acts causing obstruc- 
 tion, the difficulty is less than in the case of 
 molestation. Nevertheless, the prohibition against 
 molestation has vQvy important effects towards 
 securing freedom from constraint. 
 
 Sections 4 and 5,^ the substance of which has jf}„Jt/'b'^' 
 been already given, are sections of permission, >rV''»"-f"'^ 
 
 i See the text of these sections in Appendix B, p.
 
 72 
 
 THE LAW RELA TING 
 
 Chap. II. 
 Statute.s. 
 
 giving impunity to some combinations thereto- 
 fore illegal. 
 
 The principles of the common law have been 
 above considered. 
 
 The third section of the statute 6 Geo. IV. 
 c. 1 29 enumerates certain violations of the right 
 to free trade which are unlawful at common law 
 as well as by this statute ; and in respect of these 
 violations of free trade it enacts that there should 
 be a summary remedy, as before explained ; 
 then ss. 4 and 5 grant impunities in respect of 
 the combinations therein mentioned, which are 
 assumed to be illegal for restraint of trade, but 
 which are exempted thereby from punishment. 
 
 The fourth section exempts from any penal 
 consequences as well meetings to consult on the 
 wages which the persons present at the meeting 
 shall accept, as any agreement respecting the 
 wages which the persons entering into such 
 agreement shall receive. Under this section 
 unions can with impunity combine with respect 
 to the wages and hours of the parties either 
 present at the meeting or entering into the 
 agreement. As the exemption is limited to 
 parties present at a meeting, or entering into the 
 agreement personally, it may be held that this 
 power of combining for wages was intended to 
 be confined to unions for a limited district, 
 where the rate of wages, and the cost of
 
 TO TRADE UNIONS. 
 
 73 
 
 living, and other circumstances affecting a 
 rate of wages, might be uniform, and was 
 not intended to apply to extensive unions or 
 amalgamations of unions. But it is a question 
 of construction on which I find no adjudication.^ 
 It gives to the workmen's unions within the ex- 
 emption the power to combine for regulating 
 the rate of the members' wages, but excludes 
 them from interference in respect of the mode 
 of carrying on business, or of the number of 
 apprentices or journeymen, or of piecework, and 
 other trade matters ; and by s. 5 the same pro- 
 visions, mutatis nuitandis, are applied to masters. 
 
 It should be borne in mind that the impunity 
 is limited to combinations for the purpose of 
 directly raising or lowering wages, as described 
 in the section, and does not extend to combi- 
 nations immediately for crimes and mediately 
 through those crimes for a rise of wages. Com- 
 binations to exclude apprentices, piecework, and 
 overtime are indirectly to increase wages, but 
 the words of exemption do not in my opinion 
 extend to such combinations. 
 
 As the unions, although coming within the 
 exemption from punishment, remain unlawful 
 if they operate in unlawful restraint of trade, 
 
 1 Since this was written the Amalgamated Society of Cai- 
 penters has been held to be legal, no objection being taken 
 on the ground of amalgamation. (Faner v. Close, Q. B., Jan. i8, 
 1868.) 
 
 Chap. II. 
 
 Statute.-. 
 
 §2. The 
 
 Statute 
 6Gi-/>. /r. 
 
 C. I2<J.
 
 74 
 
 THE LA W RELA TING 
 
 Chak H. 
 Statutes. 
 
 §2. Tlu- 
 Statute 
 6 Geo. 1 1 '. 
 <■. 129. 
 
 one consequence of illegalit}' is that any mem- 
 ber of the union is free to leave the union at 
 any moment, and that he cannot make himself 
 liable by his agreement to fines or other bad 
 consequences for leaving. The members of such 
 unions act in combination as long as they 
 choose, and leave the combination whenever 
 they choose. And although a combination 
 merely for the purpose of raising wages is per- 
 mitted by the statute, and a simultaneous stop 
 from work of several men really intended for 
 that purpose is permitted, yet a simultaneous 
 stop for the immediate purpose of inflicting a 
 loss upon an employer, and so of coercing his will, 
 with an ulterior view of raising wages, does not 
 seem to me to be permitted thereby ; as for 
 instance, if the stop was planned for the pur- 
 pose of drowning a mine, or extinguishing the 
 fire of a smelting furnace, or stopping all traffic 
 on a railway, and so of causing loss, such a stop 
 might amount to molestation and obstruction 
 under the statute, and might be a conspiracy 
 at common law, and not protected by sections 
 4 and 5. 
 
 If this important statute had made lawful the 
 combinations which it exempted from punish- 
 ment, the improvement would have been very 
 great, and the law would thereby have been 
 made to be as it was supposed to be by
 
 TO TRADE UNIONS. 
 
 75 
 
 Erie, J. in Hilton 
 tioned. 
 
 Eckersley, above men- 
 
 Ill. TJic Statute 22 Victoria, c. 34. — I am 
 not aware that this statute has received any 
 judicial construction, and will only venture to 
 offer one or two observations.^ 
 
 It was passed, as appears from the preamble, 
 both to declare and to further the intention of 
 6 George IV. c. 1 29, s. 4, in consequence of some 
 decision supposed to require correction, probably 
 a ruling of some point in R. v. Rowlands and 
 R. V. Duffield, of which cases some account 
 is given in the Appendix.^ Its operation is 
 limited to give impunity to other persons be- 
 sides workmen (i) for meeting with workmen 
 and agreeing upon a rate of wages to be claimed 
 by them, and (2) for endeavouring peaceably 
 and without intimidation to persuade others — 
 that is, other workmen — to cease or abstain from 
 work in order to obtain the rate of wages so 
 agreed on or to be agreed on. Therefore, persons 
 other than workmen cannot claim impunity 
 under this statute, unless they act with workmen 
 meeting in accordance with the provisions of 
 6 Geo. IV. c. 129, s. 4 ; nor as to persuading to 
 cease from work, unless there be an agreement and 
 
 1 See the section of the statute in Appendix 15, p. 91. 
 
 2 See Appendix A, p. 81. 
 
 Chai'. II. 
 
 Statutes. 
 
 §3- Tlu- 
 Statute 
 22 / 'ict. 
 <■■■ 34-
 
 ■76 
 
 THE LA W RELA TING 
 
 Chap. II 
 Statutes. 
 
 §3. The 
 Statute 
 22 / 'ict. 
 
 c: 34. 
 
 §4. T/te 
 Statute 
 18 &r' 19 
 
 / 'ict. c. 6 
 s. 44. 
 
 an unsettled claim thereon in respect of wages, 
 also in accordance with the statute of 6 Geo. IV. 
 Moreover, the act gives impunity for the 
 actions above mentioned, so far as the statute 
 6 Geo. IV. c. 129, s. 3, and the law against 
 conspiracy, are concerned. The parties coming 
 within the provisions of this act still remain 
 liable to action for any civil injuries for violating 
 rights to the free course for labour, as well as 
 liable to the remedies for criminal wrongs other 
 than those specified in the statute, notwith- 
 standing its provisions. 
 
 IV. T/ie Statute 18 &• 19 Victoria, c. 6^, s. 44 
 {tlie Friendly Societies Act), — There remains the 
 question, whether the societies exempted from 
 liabilities to punishment by 6 Geo. IV. c. 129* 
 ss. 4 and 5, are entitled to the benefits respecting 
 security for property and settlement of disputes 
 which were granted to societies established " for 
 any purpose which is not illegal " under the 
 Friendly Societies Act.^ 
 
 The operation of 6 Geo. IV. c. 129, ss. 4 and 
 5, seems to be this: — The unions exempted 
 from liability to any penal consequences thereby 
 have power to combine for the objects therein 
 mentioned, and to collect funds by voluntary 
 contributions, with impunity. But in respect of 
 ^ See the section of the Statute in Appendix B, p. 90.
 
 TO TRADE UNIONS. 
 
 77 
 
 the unions which obtain exemption from punish- 
 ment by reason of those sections, it follows that 
 they operate in restraint of trade, and are illegal, 
 and that illegality is not affected by the ex- 
 emption from penal consequences. 
 
 In Hornby 7^ Close (lO Cox C. C. 393), it was 
 held, first, that the trade union there mentioned 
 was not within the Act (18 & 19 Vict. c. 6-^, 
 s. 44), because it was not cjusdan generis with a 
 friendly society (but that point is no longer 
 material) ; and secondly, that a society or union 
 was established for an illegal purpose where the 
 rules operated in illegal restraint of trade, and 
 that, if it was established for an illegal pur- 
 pose, it could not take the benefit granted 
 by the Act to societies established for any 
 purpose not illegal. In that case rules against 
 j)iecev/ork were held to be in illegal restraint of 
 trade. 
 
 This construction of the 44th section appears 
 to have caused disappointment, but perhaps that 
 feeling would be abated if the words of the 
 statute were considered together with the rules 
 of law operating therewith, without assuming 
 that the intention was to give to trade unions 
 tlie benefit of the summary jurisdiction given 
 for friendly societies. 
 
 It is essential for the exercise of summary 
 jurisdiction by an inferior tribunal tliat the 
 
 Chap. II. 
 
 Statutes. 
 
 §4. The 
 Statute 
 18 &= 19 
 Vict. c. 65, 
 ■f- 44- 
 
 Uor>!hy v. 
 Close.
 
 7« 
 
 THE LA W RELA TING 
 
 Chap. 11 
 Statutes 
 
 §4. The 
 Statute 
 18 &= 19 
 I'ict. c. 63, 
 s. 44. 
 
 event, on the happening of which the jurisdic- 
 tion is to attach, should be defined. Tliis lias 
 been clearly done in respect of friendly societies, 
 but in respect of trade unions the operative 
 words are, that a society " established for an)' 
 purpose which is not illegal " may claim aid from 
 the summary jurisdiction. Then arises the ques- 
 tion — What is a "society" within the meaning 
 of this section 1 The term is wide enough to 
 include trade unions, but it also includes ever}' 
 concert of two or more to act together, and 
 therefore includes more than can have been 
 intended. If the excess is to be limited to 
 societies cjusdcni generis with friendly societies, 
 the rule is grievously vague. 
 
 But assuming that a trade union may be a 
 .-.ociety within the Act, if it is not for an illegal 
 purpose, what are the " purposes" of a society 1 
 As a society it has no mind, and the beginning of 
 its action must be by resolution of the whole or 
 the governing part of the members ; and if the 
 purposes are only those which are declared by 
 resolution, the provision against illegal purposes 
 is almost nullified, as they might not be declared. 
 But whether the purposes are those expressed in 
 resolutions, or secretly entertained, how is the 
 
 magistrate to ascertain their existence ? And 
 I 
 I yet he must do so at his peril before he exercises 
 
 I the juiisdiction, unless it should be held that the
 
 TO TRADE UNIONS. 
 
 79 
 
 purposes are presumed to be legal till that pre- 
 sumption be rebutted by evidence. In the case 
 of Hornby v. Close, these difficulties as to as- 
 certaining the purposes of the society were re- 
 moved, because the rules were produced, and 
 were held to operate in restraint of trade, inas- 
 much as they prohibited piecework under pain 
 of fine and expulsion. 
 
 The effect of this case has been misunderstood 
 if it is supposed to decide that the members of 
 trade unions have not all the ordinary remedies 
 for violations of rights of property which the 
 members of the community in general possess. 
 They have difficulties from the shifting of mem- 
 bers, and from joint ownership, as explained 
 above ; but they may proceed by action or in- 
 dictment where other subjects would have a right 
 to do so, and in those proceedings the legality or 
 illegality of their purposes is immaterial. They 
 might have also the benefits of incorporation, 
 and therewith all the powers of the law to en- 
 force their rules, and protect their rights, if they 
 would take the law to be as it is laid down by 
 the competent tribunals, and alter their rules 
 conformably thereto. 
 
 Ch/M'. II 
 Statutes. 
 
 §4. The 
 Statute 
 18 &f 19 
 Vict. c. 63, 
 J. 44. 
 
 Since the above was written, it has been de- 
 cided in Farrer v. Close (O.B. Januar}- 18, 1868), 
 
 F<tr>e>- V. 
 Close.
 
 TRADES UNIONS. 
 
 Ch.m-. II. 
 Statutes. 
 
 5 4- The 
 Statute 
 iS &y' 19 
 \ ict c. 63. 
 s. 44. 
 
 that the Amalgamated Society of Carpenters was 
 entitled to the benefit of the 44th section of the 
 Friendly Societies' Act, against an officer who 
 had misappropriated the money of the society. 
 The rules authorized the application of the funds 
 to various trade purposes, and among others to 
 the support of members when out of work ; 
 and although it was objected that the funds 
 might thus be applied to maintain strikes, it was 
 said that a strike was not necessarily illegal ; 
 and the case was distinguished from Hornby i\ 
 Close, because there was no rule operating 
 directly in restraint of trade, such as the rule 
 prohibiting piecework in the latter case. The 
 inferences from the judgment in Farrer v. Close 
 seem important for the interests of trade unions, 
 as regards both the recognition of the legality of 
 some strikes, and the indication of the boundary 
 between legal and illegal purposes within the 
 meaninsf of this section.
 
 APPENDIX A. 
 
 Some Account of the Trials of R. v. Rowlands 
 AND Others, and R. v. Duffield and Others 
 (S Cox C. C. 436 AND 404). 
 
 * 
 On the trial of these cases the judge said certain' am'kmh.v 
 
 things to the jury which have since been cited as if he J^_ 
 laid down propositions of law absolutely. But in all ; R. v. Row- 
 cases it is essential for the correct understanding of j r'! Duffilw. " 
 the words of a judge to bear in mind the facts to I 
 which they relate. 
 
 The account of the trial may be of use in showing 1 
 the meaning of the ruling, and in exemplifying the 
 importance of security under the law for the disposing 
 of labour as well as capital. 
 
 I describe the facts according to the effect of the 
 evidence on my mind. In 1849, i'^ Wolverhampton, 
 there were six firms of tin-plate workers and japan- 
 ners, who made and japanned tin-plate articles. With- 
 out understanding the manufacture, I assume for the 
 purpose of this case that some of these articles could 
 be made by hand with three processes, viz. punching 
 holes, cutting out pieces, and joining the pieces; and 
 that some of these firms possessed machinery for 
 some of these processes, Messrs. Perry making more 
 use of machinery than their rivals. The workmen in , 
 Wolverhampton were usually paid by the article, so 
 much for a cullender or a pepper-box. Some of the 
 Wolverhampton unions had proposed a book of prices, \
 
 APPENDIX. 
 
 Ali'KNDIX 
 
 A. 
 
 K. V. K..«-- 
 lands and R. 
 :•. Diiffield. 
 
 which were to be uniform for each article ; but as the 
 proper wages for workmen who did all processes by 
 hand, if paid on this principle, would be too much 
 for workmen who did some processes only by hand 
 and some by machinery, and as the wages claimed 
 were not supposed to be properly adjusted according 
 to the use of machinery, the two firms of the Messrs. 
 Perry did not consent to pay according to the pro- 
 posed book of prices ; but they paid such prices that 
 their workmen received for their time more than work- 
 men for other firms who were paid according to the 
 book. The Messrs. Perry prospered, and their workmen 
 were well off and contented ; but as they undersold the 
 rival manufacturers, and as they superseded hand- 
 labour by machinery, there were two sources of hostility 
 towards them. 
 
 In November 1849, Messrs. Perr)' and Son, one of 
 the firms, saw reason to be dissatisfied with a work- 
 man named Preston, and discharged him. 
 
 There was a National Association of United Trades 
 in London, of which the defendant Peel was secretary, 
 the defendant Green a delegate, and the defendant 
 Winters a member. The other defendants were mem- 
 bers of provincial unions ; but not one of them was 
 employed by Messrs. Perry, or had any monied in- 
 terest at stake in the strike, as far as I could perceive. 
 The reserve fund of the National Association was 
 stated to be more than 20,000/., and Preston, it 
 was said, had contributed and procured contributions 
 thereto. Preston seems to have applied to this asso- 
 ciation in respect of his discharge by his employers. 
 
 The following is the account by Mr. George Henry 
 Perry of the setting in of the strike : —
 
 APPENDIX. 
 
 " I am a manufacturer at Wolverhampton, canying | Adendix 
 
 A. 
 
 on business under the firm of Perry and Son. I have 
 carried it on for twenty years, and my father did before I ^^^ 
 me. In the spring of 1S50 I had 120 men, half for 
 tin work, half for japan. The japan workers depend 
 on the tin workers. During the first three months of 
 1850 we were in good work with large orders. The 
 workmen's wages would range from 25^-. to 5 ox., but 
 some earned 60^. In November 1849 I discharged 
 Thomas Preston. I was not aware of any differences 
 between me and my workmen in the spring of 1850. 
 We had been comfortable for many years before we 
 received a certain letter. 
 
 "In the second week of December, 1849, Green 
 called about Preston. He stated he was a member of 
 the National Association of United Trades, of which 
 Thomas Duncombe, M.P. was president, that they 
 had considerable funds (20,000/. I believe) at the 
 .delegates' command, and that nearly the entire work- 
 ing population was co-operating with them. I said, 
 'Mr. Green, what is your business with me?' He 
 replied, ' You've discharged Thomas Preston ; ['ve 
 called to know the reason.' I said we did not require 
 Preston's services, that was our reason for discharging 
 him. He asked if it was not because he belonged to 
 the club that we discharged him. (The club is the 
 Tin-plate Workers' Society.) I said the reason we dis- 
 charged him was because we did not want his services. 
 He again asked if it was not because he belonged to 
 the club ; if it was, they should take all the men out ; 
 they should stop the supplies, so that not a man should 
 call. He then left me with the assurance from me 
 that we discharged Preston because we did not want 
 
 Row- 
 lands and K. 
 V. DuffielJ.
 
 84 
 
 APPENDIX. 
 
 AM'ENDIX 
 
 A. 
 
 R. V. Row- 
 lands and R. 
 V. Duffield. 
 
 his services. The question I put was this, that he had 
 better mind his own business, and not come meddUng 
 and interfering with ours. He did not mention any 
 name then. Nothing else jjassed that I recollect. 
 
 " I received a letter about the 3d of April, which 
 was dated 2d April, 1850, headed 'Selling-book of 
 prices,' and signed 
 
 " ' Fredk. Green, | Mediators, not in an 
 " ' Thos. Winters, i offensive spirit^ 
 
 [The letter was produced and read.] 
 
 " After I had received this letter Green called about 
 the 1 2th April. He said he was a delegate from the 
 National Association, and he and Mr. Peel had come 
 down to settle the difference between us and our 
 workmen. I told him that I was not aware there was 
 any difference between us and our men, and that if 
 our men had anything to complain of, and would come 
 to me, we could settle it without his interference ; and 
 begged that he would not come meddling with our 
 business. He then said he wished us to adopt a book 
 of prices which the men had written out, and of which 
 a copy had been sent us. I said I had not had an 
 opportunity of looking at the list, but I would do so 
 in a few days of leisure. Nothing else occurred. 
 
 " He called again in a week or fortnight. He again 
 urged me to adopt this book of prices, and said if we 
 did not they should take all the men out. As we had 
 very large orders for America unexecuted, I did not 
 tell him pointedly we would not pay the book, but 
 that we would consider of it, so as to get time and to 
 get some more men hired. I did not wish to have 
 the men taken out. Nothing else occurred." 
 
 The sequel of the evidence describes the course of
 
 APPENDIX. 
 
 85 
 
 the strike. If I rightly appreciate it, it shows the 
 power of evil in remorseless activity, destroying those 
 relations between employers and employed on which 
 comfort and peace depend, bringing guilt and misery 
 on the workmen and ruin on their employers. The 
 Messrs. Perry maintained their right for freedom for the 
 course of labour with energy. Hoping for support 
 according to law, they tried all the resources for labour 
 in England. They tried to go on with apprentices 
 and boys, and twice imported a band of artisans from 
 France. But in vain ; their factories were deserted, 
 and their trade stopped. 
 
 The workmen were induced, some to break their 
 contracts, others to leave their employ without notice. 
 Pickets at every approach were busy with all that 
 came and went ; money was paid largely to get work- 
 men away — 600/. for the removal of the Frenchmen 
 alone. Some of the men were supplied with liquor 
 and induced to go to the railway station, and to enter 
 a carriage without knowing the purpose. They were 
 conveyed to different places, where a scanty supply of 
 money was sent for a few weeks, and then many were 
 left to themselves ; their discomfort may be imagined 
 from the case of two workmen who, being left penniless, 
 walked home fifty-two miles without a farthing to sup- 
 port them, and were so blamed for returning that the 
 wife of one of them had to stop the coarse abuse upon 
 her husband by threatening to use a brush handle to 
 drive them out of the house. 
 
 But the guilt towards the apprentices was worse ; 
 not only were they taught to disregard their contracts 
 and to abscond, but one of the defendants was stated 
 to have made a suggestion " that apprentices could do 
 
 Appendix 
 A 
 
 R. V. Row- 
 lands and R. 
 z'. Duffield.
 
 86 
 
 APPENDIX. 
 
 Appendix 
 A. 
 
 R. V. Row- 
 lands and R. 
 'J. Duffield. 
 
 them great service if they would ; he remembered 
 when he was connected with leather what game the 
 apprentices played in cutting up and destroying 
 leather ; and the foreman of Messrs. Perry deposed 
 that before the apprentices went away the tools were 
 injured, the tin was cut to waste, and the patterns 
 were missing. After the close of the strike a party of 
 apprentices were said to have been found huddled in 
 a garret in London. 
 
 This misery was inflicted by parties, many of whom 
 seemed ill qualified to appreciate the importance ot 
 the matter in dispute. Judging from outward appear- 
 ances, the London defendants were men of high 
 respectability, with intellect and experience qualifying 
 them to discern at a glance the essence of any trans- 
 action they were engaged in, and to guide the course 
 of it \ the provincial defendants seemed to be little 
 more than instalments in their hands. It was not 
 clear that there was any monied interest at stake ; 
 some of the witnesses said that wages according to 
 the book would be lower than the current rate with- 
 out the book. It is not probable that the president of 
 the association understood or cared for useful industry, 
 or that their secretary or delegate understood about 
 the book of prices, if the description of the question 
 respecting the book was correctly given by Mr. Perry. 
 But it may be that the dragging of two well-established 
 firms of manufacturers down from a station of wealth 
 and influence through various stages to ruin would be 
 an impressive warning not to trust to the law for help 
 against a trade union ; it may be that there was a 
 probability of increased subscriptions if a master was 
 sacrificed for discharging a servant ; it may also be 
 that the defendants believed they were promoting the
 
 APPENDIX. 
 
 87 
 
 interest of working men. Motives are never matter of 
 certain knowledge. According' as the motives should 
 be found honest or corrupt so would the liability be, if 
 the principles here stated are correct. 
 
 It was at the close of the trial that the judge used 
 some of the words which have been brought into 
 question, first informing the jury, in effect, that they 
 were not trying workmen for combining to obtain a 
 rise of their own wages, and then stating that they 
 were trying the defendants for other and different 
 offences, as set forth in the indictment ; and, among 
 other things, ruling that there was evidence to go to 
 the jury against Winters and Rowlands, although the 
 only overt acts of conspiracy in evidence against them 
 were acts of persuading men while the strike was 
 going on to leave Messrs. Perry's employ, without 
 using threats or intimidation. 
 
 The case of R. v. Rowlands is in substance the 
 same as R. v. Dufifield ; in the one the defendants 
 struck against Messrs. Perry and Son, in the other 
 they struck against the finn of Mr. Edward Perry. 
 The question of the book was the ground of the 
 strike against both firms, and both firms rejected the 
 book for the reason above explained. 
 
 The facts of this case, taken with the reasoning 
 of the foregoing Memorandum, raise two questions : 
 first. Did every member of the executive committee 
 in London, who authorised Messrs. Green and Peel 
 to take part in the strike, incur the same criminal 
 guilt as Messrs. Green and Peel ? and secondly, Was 
 every such member of that committee liable in an 
 action by every person who suffered damage from 
 that strike, and was every such person entitled to 
 recover therein the amount of such damage? 
 
 ArPENDIX 
 
 A. 
 
 R. V. Row- 
 lands and R. 
 V. Duffield.
 
 APPENDIX B. 
 
 Sections 3, 4, 5, of the Act 6 Geo. IV. c. 129. 
 
 Appendix 
 B. 
 
 6 Geo. IV. [ 
 c. lag, ss. 3, 
 4.5- 
 
 Penalty on 
 Persons 
 compellhig 
 your?ieyiuen 
 to leave 
 their 
 Employ- 
 ment, or to 
 return lVo)-A- 
 unjinislied ; 
 
 or prevent- 
 ing their 
 Hiring 
 tlumselves ; 
 
 or compell- 
 ing them to 
 belong to 
 Clubs, &'c. ; 
 
 or to pay any 
 Fines, for 
 not having 
 
 III. And be it further enacted, That from and 
 after the passing of this Act, if any Person shall by 
 Violence to the Person or Property, or by Threats or 
 Intimidation, or by molesting or in any way obstruct- 
 ing another, force or endeavour to force any Journey- 
 man, Manufacturer, Workman, or other Person hired 
 or employed in any Manufacture, Trade, or Business, 
 to depart from his Hiring, Employment, or Work, or 
 to return his Work before the same shall be finished, 
 or prevent or endeavour to prevent any Journeyman, 
 Manufacturer, Workman, or other Person not being 
 hired or employed from hiring himself to, or from 
 accepting Work or Employment from any Person or 
 Persons ; or if any Person shall use or employ 
 Violence to the Person or Property of another, or 
 Threats or Intimidation, or shall molest or in any way 
 obstruct ano;her for the Purpose of forcing or in- 
 ducing such Person to belong to any Club or 
 Association, or to contribute to any common Fund, 
 or to pay any Fine or Penalty, or on account of his 
 not belonging to any particular Club or Association, 
 or not having contributed or having refused to 
 contribute to any common Fund, or to pay any 
 Fine or Penalty, or on account of his not having 
 complied or of his refusing to comply with any
 
 APPENDIX. 
 
 89 
 
 Rules, Orders, Resolutions, or Regulations made 
 to obtain an Advance or to reduce the Rate of Wages, 
 or to lessen or alter the Hours of Working, or to 
 decrease or alter the Quantity of Work, or to regulate 
 the Mode of carrying on any Manufacture, Trade, or 
 Business, or the Management thereof; or if any 
 Person shall by Violence to the Person or Property of 
 another, or by Threats or Intimidation, or by molest- 
 ing or in any way obstructing another, force or 
 endeavour to force any Manufacturer or Person carry- 
 ing on any Trade or Business, to make any Alteration 
 in his Mode of regulating, managing, conducting, or 
 carrying on such Manufacture, Trade, or Business, or 
 to limit the Number of his Apprentices, or the Number 
 or Description of his Journeymen, Workmen, or 
 Servants ; every Person so offending, or aiding, abet- 
 ting, or assisting therein, being convicted thereof in 
 Manner herein after mentioned, shall be imprisoned 
 only, or shall and may be imprisoned and kept to 
 Hard Labour, for any Time not exceeding Three 
 Calendar Months. 
 
 IV. Provided always, and be it enacted, That this 
 Act shall not extend to subject any Persons to Punish- 
 ment who shall meet together for the sole Purpose of 
 consulting upon and determining the Rate of Wages 
 or Prices, which the Persons present at such Meeting 
 or any of them, shall require or demand for his or 
 their Work, or the Hours or Time for which he or they 
 shall work in any Manufacture, Trade, or Business, 
 or who shall enter into any Agreement, verbal or 
 Wi-itten, among themselves, for the Purpose of fixing 
 the Rate of Wages of Prices which the Parties enter- 
 ing into such Agreement, or any of them, shall re- 
 
 H 
 
 Appendix 
 B. 
 
 6 Geo. IV. 
 c. 129, ss. 3, 
 4.5- 
 
 cotnplied 
 with Orders 
 as to Wages ; 
 
 or compell- 
 ing any 
 Manufac- 
 turer, dr'c. 
 to alter his 
 viode of 
 carrying on 
 Business ; 
 
 hnprison- 
 
 nient, or 
 Imprison- 
 ment with 
 Hard 
 Labour for 
 Three 
 Months. 
 
 Not to affect 
 Meetiiigsfor 
 settling 
 Kates of 
 IV ages to be 
 7-eccived, or 
 Hours of 
 Work to be 
 employed by 
 the Persons 
 tneeting.
 
 90 
 
 APPENDIX. 
 
 Appendix 
 B. 
 
 6 Geo. IV. 
 c. 129, ss. 3, 
 4. 5- 
 
 Not to affect 
 Meetings for 
 Rates 0/ 
 Wages, &^c. 
 to be paid by 
 Masters to 
 yourney- 
 men, i^c. 
 
 quire or demand for his or their work, or the Hours 
 of Time for which he or they will work, in any Manu- 
 facture, Trade, or Business ; and that Persons so 
 meeting for the Purposes aforesaid, or entering into 
 any such Agreement as aforesaid, shall not be liable 
 to any Prosecution or Penalty for so doing ; any Law 
 or Statute to the contrary notwithstanding. 
 
 V. Provided also, and be it further enacted. That 
 this Act shall not extend to subject any Persons to 
 Punishment who shall meet together for the sole Pur- 
 pose of consulting upon and determining the Rate of 
 Wages or Prices which the Persons present at such 
 Meeting, or any of them, shall pay to his or their 
 Journeyman, Workmen, or Servants, for their Work, 
 or the Hours or Time of working in any Manufac- 
 ture, Trade, or Business, or who shall enter into any 
 Agreement, verbal or written, among themselves, for 
 the Purpose of fixing the Rate of Wages or Prices, 
 which the Parties entering into such Agreement, or 
 any of them, shall pay to his or their Journeymen, 
 Workmen, or Servants, for their Work, or the Hours 
 or Time of working in any Manufacture, Trade, or 
 Business ; and that Persons so meeting for the Pur- 
 poses aforesaid, or entering into any such Agreement 
 as aforesaid, shall not be liable to any Prosecution or 
 Penalty for so doing, any Law or Statute to the con- 
 trary notwithstanding. 
 
 Section 44 of the Act 18 & 19 Vict. c. 63. 
 
 18 & 19 Vict. I XLIV. In ihe case of any Friendly Society estab- 
 
 c. 03, s. 44' 
 
 J, g, f~ lished for any of the Purposes mentioned in Section 
 o/socUties IX. of this Act, or for any Purpose which is not
 
 APPENDIX. 
 
 91 
 
 illegal, having written or printed Rules, whose Rules 
 have not been certified by the Registrar, provided a 
 Copy of such Rules shall have been deposited with 
 the Registrar, every Dispute between any Member 
 or Members of such Society, and the Trustees, Trea- 
 surer, or other Officer, or the Committee of such 
 Society, shall be decided in manner herein-before 
 provided with respect to Disputes, and the Decision 
 thereof, in the Case of Societies to be established 
 under this Act, and the Sections in this Act provided 
 for such Decision and also the Section in this Act 
 which enacts a Punishment in case of Fraud or 
 Imposition by an Officer, Member, or Person, shall 
 be applicable to such uncertified Societies : Provided 
 always, that nothing herein contained shall be con- 
 strued to confer on any such Society whose Rules 
 shall not have been certified by the Registrar, or 
 any of the Members or Officers of such Society, 
 any of the Powers, Exemptions, or Facilities of this 
 Act, save and except as in and by this Section is 
 expressly provided. 
 
 Appendix 
 B. 
 
 18 & 19 Vict, 
 c. 63, s. 44. 
 
 ivhose Rules 
 are not cer- 
 tified^ Dis- 
 putes be- 
 tiveen tlie 
 Society 
 and its own 
 Members to 
 be settled 
 as in Cases 
 of certified 
 Societies. 
 
 Section i of the Act 22 Vict. c. 34. 
 I. That no Workman or other Person, whether 2^vict. c. 34, 
 
 S. I. 
 
 actually in Employment or not, shall, by reason merely 
 of his entering into an Agreement Avith any Workman 
 or Workmen, or other Person or Persons, for the pur- 
 pose of fixing or endeavouring to fix the Rate of 
 Wages or Remuneration at which they or any of them 
 shall work, or by reason merely of his endeavouring 
 peaceably, and in a reasonable Manner, and without 
 Threat or Intimidation, direct or indirect, to persuade 
 
 Agreenients 
 in certain 
 Cases not to 
 be deemed 
 "Molesta- 
 tion " or 
 " Obstruc- 
 tion,"
 
 APPENDIX. 
 
 Appendix others to ccasc Or abstain from Work in order to 
 obtain the Rate of Wages or the altered Hours of 
 
 "Vict. c. 34, Labour so fixed ot agreed upon or to be agreed upon, 
 shall be deemed or taken to be guilty of " Molesta- 
 tion" or " Obstruction," within the Meaning of the 
 said Act, and shall not therefore be subject or liable 
 to any Prosecution or Indictment for Conspiracy : 
 Provided always, that nothing herein contained shall 
 authorize any Workman to break or depart from any 
 Contract or authorize any Attempt to induce any 
 Workman to break or depart from any Contract. 
 
 •within the 
 Meaning of 
 the recited 
 Act. 
 
 London: r. clav, s.)ns, and tavi.oi;, im<:\ters.
 
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