pose of the question, for we were very properly reminded of the cases of R. v. Druitt, 10 Cox, C. C. 592, and R. v. Bunn, 12 Cox, C. C. 316, in which Lord Bramwell and Lord Esher (then Bramwell, B., and Brett, J.) are both said to have held that the statutes on the subject have in no way interfered with or altered the common law, and that strikes and combinations expressly legalized by statute may yet be treated as indictable conspiracies at common law, and may be punished by imprisonment with hard labour. Neither of those cases is very satisfactorily reported; in neither was there any motive for questioning the dicta of the judges: in the one tried by Lord Esher there was no opportunity, in consequence of the prisoner having been acquitted on all the counts to which the alleged ruling applied. We are well aware of the great authority of the judges by whom the above cases were decided, but we are unable to concur in these dicta, and, speaking with all deference, we think they are not law. It seems to us that to hold that the very same acts which are expressly legalized by statute remain nevertheless crimes punishable by the common law is contrary to good sense and elementary principle, and that the reports therefore cannot be correct. If the dicta are law, they render the statutes passed on these subjects practically inoperative; these statutes might as well not have been passed. The dicta are criticised in detail, and with great ability, in Wright, J.'s., excellent work on the law of Criminal Conspiracies and Agreements, pp. 50-59. It is difficult to withhold assent from the statements and reasonings contained in those pages, and it seems to us that the law concerning combinations in reference to trade disputes is contained in 38 & 39 Vict. c. 86, and in the statutes referred to in it, and that acts which are not indictable under that statute are not now, if indeed they ever were, indictable at common law. There remains to be considered only the case of Curran v. Treleaven, in which the Recorder of Plymouth affirmed the conviction by magistrates, who had convicted the secretaries of three trades unions in Plymouth for having intimidated Mr. Treleaven, a shipowner in that town, within the meaning of the Act 38 & 39 Vict. c. 86, s. 7, subs. 1. The circumstances were very much like those in the last case on which we have just decided. In order to prevent the employment by Mr. Treleaven of non-union men, the three secretaries told him that if he did not cease to employ non-union men, they would call off from their employment by him all the members of their respective unions. Mr. Treleaven refused compliance with their demands, and thereupon the secretaries called off their respective union men, who in obedience to the call struck work. The facts are stated to us as follows by the learned Recorder, in the case which he has submitted to us: "On October the 14th there was a meeting of the union, at which it was resolved to adopt the course which the defendants had stated at their interview would be adopted, and accordingly on the 15th the defendants, in the presence of Mr. Treleaven, whom they had asked to attend, made the following statement to Mr. Treleaven's workmen and others, who were assembled at the wharf: Inasmuch as Mr. Treleaven still insists on employing non-union men, we, your officials, call upon all union men to leave their work. Use no violence, use no immoderate language, but quietly cease work and go home.' The orders thus given were obeyed, and the union men who were unloading Mr.

Treleaven's ships immediately ceased unloading them, although they had not completed the work that they were under contract to perform." He also found, amongst other facts, or rather he has expressed his opinion upon the two following facts or points in these words (amongst other points not necessary to be considered with reference to the particular question of intimidation): "That the defendants did not desire or intend that any violence should be used or injury done to Mr. Treleaven or his property; that it was not proved that their words or acts were calculated directly to cause any such violence or injury, although I am of opinion that Mr. Treleaven was not unreasonably afraid that such violence or injury might occur from the action of the members of the unions in consequence of the strike, but against the wishes and intentions of the defendants; that the defendants had no ill will against Mr. Treleaven personally, but acted with the object of obliging all the labourers to join the unions as a means of getting employment, and of obtaining for the members of the unions a monopoly of the labour of the port." He held, as the result of a very careful and able examination of the statutes and authorities, that the facts above stated constituted intimidation within the words of the section, and that the appellants were properly convicted by the magistrates of intimidating. We are unable to agree with him, as we said in an earlier part of the judgment. We do not propose to enter upon an exhaustive enumeration of all the possible acts which do and of those which do not constitute intimidation within the section; but we say that to tell an employer that if he employs workmen of a certain sort, the workmen of another sort in his employ will be told to leave him, and tell the men when the employer will not give way to leave their work, use no violence, use no immoderate language, but quietly cease to work and go home (we quote the words of the Recorder), is certainly not intimidation within any reasonable sense of the statute.

'Two further observations are necessary in order to make our judgment complete and effective. We do not think that the legislature intended, by the change of words in the first subsection of the seventh section of 38 & 39 Vict. c. 86, to send the Courts back to 6 Geo. 4, c. 129, for an interpretation of the word "intimidate," although the later statute did repeal 34 & 35 Vict. c. 32, which limited intimidation to cases which would justify a magistrate in binding over the party to keep the peace. There is indeed much to be said for the view entertained by my learned brother Cave, and acted upon by him (as) mentioned by the Recorder in his judgment), in a case tried before him at Liverpool, namely, that "intimidation" in 38 & 39 Vict. c. 86, must still be limited to threats of personal violence as enacted by 34 & 35 Vict. c. 32. It may become necessary to decide this point in time to come; it is not now, and we confine ourselves to the negative statement that 6 Geo. 4, c. 129, is not now on this subject the governing statute. The other point is this: The Recorder held that, though an agreement to strike to benefit themselves would be now a lawful agreement, a strike which would have the effect of injuring an employer is illegal, and indictable at common law. He cites in support of his view, some phrases from the judgments of the Lords Justices in the case of the Mogul Steamship Co. v. McGregor and others, 23 Q.

B. D. 598, but, with deference, he has somewhat misapprehended the point of these observations. It is true that where the object is injury, if the injury is effected an action will lie for the malicious conspiracy which has effected it; and therefore it may be indictable. But it was pointed out in some detail by the Court of first instance that where the object is to benefit oneself, it can seldom, perhaps it can never, be effected without some consequent loss or injury to some one else. In trade, in commerce, even in a profession, what is one man's gain is another's loss; and where the object is not malicious the mere fact that the effect is injurious does not make the agreement either illegal or actionable, and therefore it is not indictable. The Recorder finds that there was no malice in fact; and this finding is inconsistent with the conclusion that the agreement was either criminal or unlawful. For these reasons we are of opinion that the judgment of the Recorder cannot be sustained, that it must accordingly be reversed, and the conviction quashed.'

Some cases upon the repealed statutes will be found in the appendix at the end of this volume.

CHAPTER THE TWENTY-FIFTH.

OF RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES.

THE distinction between these offences appears to be, that a riot is a tumultuous meeting of persons upon some purpose which they actually execute with violence; a rout is a similar meeting upon a purpose which, if executed, would make them rioters, and which they actually make a motion to execute; and an unlawful assembly is a mere assembly of persons upon a purpose which, if executed, would make them rioters, but which they do not execute nor make any motion to execute. (a) These offences may be treated of more at large in the order in which they have been mentioned.

1

Riot. I. A riot is described to be a tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprise of a private nature, and afterwards actually executing the same, in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful. (b)2

(a) 1 Hawk. P. C. c. 65, ss. 1, 8, 9. 3 probably be deemed most correct at the Inst. 176. 4 Black. Com. 146.

Three

(b) 1 Hawk. P. C. c. 65, s. 1. persons or more is the correct description of the number of persons necessary to constitute a riotous meeting; but it should be observed, that in Hawkins (c. 65, ss. 2, 5, 7) the words 'more than three persons' are three times over inserted instead of three persons or more;' which in Burn's Just. tit. Riot, s. 1, is remarked as an instance that, in a variety of matter, it is impossible for the mind of man to be always equally attentive. The description of riot stated in the text, and taken from the work of Mr. Serjeant Hawkins, is submitted as that which would

AMERICAN

1 In Indiana, Illinois, and Georgia, riots are defined by statutes not greatly differing from the common-law definition. In Illinois and Georgia, however, two can make a riot. It was also held that two white men and a negro could make a riot. S. v. Jackson, 1 Speers, 13; S. v. Thackham, 1 Bay, 358; S. v. Calder, 2 McCord, 462, and probably two men and the wife of one may make a riot, though the point has not been decided. Bishop, ii. s. 1144. Where two out of three were inactive it seems there could be no riot. Scott v. U. S., Morris, 142; Hardebeck v. S., 10 Ind. 459; S. v. Kuhman, 5 Mo. Ap. 587; but in Maine it was decided that where

present time. It should be observed, however, that riot has been described differently by high authority. In R. v. Soley and others, 11 Mod. 116, Holt, C. J., said, 'The books are obscure in the definition of riots. I take it, it is not necessary to say they assembled for that purpose, but there must be an unlawful assembly; and as to what act will make a riot, or trespass, such an act as will make a trespass will make a riot. number of men assemble with arms, in terrorem populi, though no act is done, it is a riot. If three come out of an alehouse, and go armed, it is a riot.' See also R. v. Cunninghame-Graham, 16 Cox, C. C. 420.

NOTES.

If a

In some cases, in which the law authorizes force, it is not only lawful, but also commendable, to make use of it; as for a sheriff or constable, or perhaps even for a private person, to assemble a competent number of people in order with force to suppress rebels, or enemies, or rioters; and afterwards with such force actually to suppress them; or for a justice of peace, who has a just cause to fear a violent resistance, to raise the posse, in order to remove a force in making an entry into, or detaining of, lands. Also it seems to be the duty of a sheriff, or other minister of justice, having the execution of the King's writs, and being resisted in endeavouring to execute them, to raise such a power as may effectually enable them to overpower any such resistance; yet it is said not to be lawful for them to raise a force for the execution of a civil process, unless they find a resistance; and it is certain that they are highly punishable for using any needless outrage or violence. (c)

It seems to be agreed, that the injury or grievance complained of, and intended to be revenged or remedied by a riotous assembly, must relate to some private quarrel only; as the enclosing of lands in which the inhabitants of a town claim a right of common, or gaining the possession of tenements the title whereof is in dispute, or such like matters relating to the interests or disputes of particular persons, in no way concerning the public. The proceedings of a riotous assembly on a public or general account, as to redress grievances, pull down all inclosures, or to reform religion, and also resisting the King's forces, if sent to keep the peace, may amount to overt acts of high treason by levying war against the King. (d)

It seems to be clearly agreed that in every riot there must be some such circumstances either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people; as the show of armour, threatening speeches, or turbulent gestures; for every such offence must be laid to be done in terrorem populi. (e) But it is not necessary, in order to constitute this crime, that personal violence should have been committed. (f) If sufficient force be used to terrify a single person, it is enough, though no other persons are near enough to be within reach of the alarm. Four persons went to a cottage, in which was one old man; one of them began to knock down the end of the cottage with an axe, and knocked part of the woodwork against the old man; he then caught the old man by the collar, and said, 'Come, you must go out of the house,' and he did go out, and the prisoners pulled the house to the ground, except the chimney; the jury were told that if such force was used by the four prisoners as to terrify the old man, they might find that there was a riot, and this direction was held right. (y)

Upon these principles, assemblies at wakes, or other festival times, or meetings for the exercise of common sports or diversions, as bullbaiting, wrestling, and such like, are not riotous. (h) And upon the