dispute between an employer and his workmen would be considered to be a dispute with reference to their mutual relations, and therefore would come within the meaning of the term trade dispute.

(b) EMPLOYERS AND WORKMEN.-This Act does not contain any definition of either of the expressions "employer" or "workman ;" nor is there any definition of the first-mentioned expression in the Employers and Workmen Act, 1875 (38 & 39 Vict., c. 90); but the last-mentioned Act does contain a definition of the expression "workman" (sect. 10,) and although there is no enactment that the two Acts are to be read together, still, as they are to some extent in pari materia, it is probable that the definition of a workman in the later Act may be held to apply, or at least may be prayed in aid, to explain the meaning of the expression in this Act. It may be observed that the Master and Servant Act, 1867 (30 & 31 Vict. c. 141, now repealed) gives a definition of the word "employer," and also of the word employed," which included a "workman ;" while the 34 & 35 Vict. c. 32 ("An Act to amend the criminal law relating to violence, threats, and molestation"), which contains constant references to "masters" and "workmen," has no definition of either term. Both these statutes are now repealed (see sect. 17, post).

(c) CRIME. It will be seen (ante, p. 78,) that the term "crime," as applicable to this section, comprises not only offences legally called crimes, but also misdemeanours, and offences punishable on summary conviction with imprisonment, either absolutely or as an alternative for some other punishment— e.g., where imprisonment is awarded as the alternative for non-payment of a fine. A question may perhaps arise as to whether the word crime, as so explained, will include cases where the punishment is by fine, which in case of non-payment is to be enforced by distress, and in default of distress then by imprisonment. Probably it would be held that in such cases the imprisonment was an alternative, though not directly so, for non-payment of the fine.

(d) The object of this section is to limit the operation of the

common law with regard to the offence of conspiracy in cases of dispute between employers and workmen (see note (a) supra).

The law relating to conspiracy generally has always been considered to be in a very unsettled state, and it has been expanded from time to time by various judges to suit their individual views of what should or should not be permissible to be done.

The usually recognized definition of the offence has been that it consists in an agreement between two or more persons to do an unlawful act, or by unlawful means to do an act in itself not unlawful. (See Rosc. Crim. Ev., p. 409, 8th ed.).

But it has been shown in a masterly chapter on the subject by Mr. J. Fitzjames Stephen, Q.C. (Rosc. Crim. Ev., ut supra. See the Preface), that this definition is very unsatisfactory, the word unlawful being ambiguous. "It does not," the learned writer remarks, "mean criminal, for there are many cases in which a combination to do a thing is a crime, although the act itself, if done by an individual, would not be a crime; for instance, it is a crime to conspire to seduce a woman," (see Lord Grey's Case, 3 St. Tr. 519; 1 East, P. C. 460), "though seduction itself is not a crime. On the other hand unlawful does not mean tortious, for there are torts which it is not a crime to conspire to commit, as, for instance, an ordinary trespass." (See Turner's Case, 13 East, 228.) "Nor again does any case go so far as to decide that a combination to commit a breach of contract is a conspiracy."

The generally accepted definition may indeed be said to have the merit of antithetical terseness, with the slight drawback of inaccuracy.

Another definition of conspiracy was given in the admirable report of the Commissioners on the Labour Laws, the more important part of which has been printed in the Introduction to this book; and it may be convenient to repeat it in this place

:

"The law becomes applicable not only where two or more persons combine to do any act which is in itself an offence, and would be criminal if done by any one of them, but also in many instances in which the act which is the purpose of the conspiracy if done by one would not be criminal, as, for instance, where several, with

the malicious intention to injure, combine to violate a private right, the violation of which by a single individual, though not criminal, would be wrongful, and would give a right of civil action to the party aggrieved."

But it is submitted, with deference, that the latter part of this definition appears to be too large; as it would include a conspiracy to trespass on land, which is a violation of a private right, but for which an indictment will not lie, though such violation by a single individual will give a right of civil action by the party aggrieved. On the other hand, it might be said that it excludes a conspiracy to seduce a woman, for which an indictment will lie, though for the mere act of seduction a civil action will not lie against an individual.

It is not the object of this note to discuss the general law of conspiracy, but the reader who wishes fuller information on the subject cannot do better than study the remainder of Mr. Fitzjames Stephen's chapter; and he may also refer with great advantage to the remarks of the Commissioners in the report already referred to. See also Blackstone by Serjt. Stephen, iv. 264.

The application of the law of conspiracy to workmen in relation to their employers, is a striking instance of treating as an offence an act when done by several, which act, if done by a single person would not only be neither criminal nor tortious, but would be one which a single person would have a perfect right to do.

It has always been considered that a single workman had an undoubted right to insist on raising his wages if he could; and if in doing so there was no breach of contract involved on his part, his act was strictly lawful; but it has been decided that if several workmen met together and combined for that purpose it was illegal and they might be indicted for conspiracy (R. v. Tailors of Cambridge, 8 Mod. 11; R. v. Hammond and another, 2 Esp. 719; see also per Lord Mansfield, C. J., in R. v. Eccles, 1 Lea. 274; per Grose, J., in R. v. Mawbey, 6 T. R. 636.) The ground on which these decisions and dicta rest appears to be that such combinations were in restraint of trade. Lord Campbell, C. J., indeed, in a later case (Hilton v. Eckersley, 6 E. & B. 62), expressed his dis

satisfaction with these "loose expressions," as he termed them; and enunciated a doctrine certainly more in accordance with sound principles, and which have been adopted by statute.

His Lordship said: "I cannot bring myself to believe, without authority much more cogent, that if two workmen who sincerely believe their wages to be inadequate should meet and agree that they would not work unless their wages were raised, without designing or contemplating violence or any illegal means for gaining their object, they would be guilty of a misdemeanor, and liable to be punished by fine and imprisonment. The object is not illegal, and therefore if no illegal means are to be used, there is no indictable conspiracy."

These remarks, which were made in 1855, had reference to conspiracy at common law, as the statute, 6 Geo. 4, c. 129 (1825) was then in force, by sect. 4 of which the penalties for compelling workmen to leave their employment, &c. (under sect. 3), were not to extend to meetings "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 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 require, &c., or the hours or time, &c.; 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." And sect. 5 contained a similar proviso as to meetings for settling rates of wages to be paid by masters to workmen.

So that at the time when Hilton v. Eckersley was decided, combinations to raise the rate of wages had been made lawful by statute.

There is great force in Mr. Fitzjames Stephen's observation that its provisions as above set forth would have been quite unnecessary if Lord Campbell's view of the legality at common law of combinations to raise wages were correct.

Sect. 3 of the 6 Geo. 4, c. 129, had made it penal for any person (inter alia), by molesting or obstructing, to force or endeavour to force any workman to leave his employment, &c. And the 22 Vict. c. 34, passed to amend and explain that section, declared that no one should "by reason merely of his entering into an agreement, &c., for the purpose of fixing or endeavouring to fix the rate of wages, &c., at which they or any of them shall work, or by reason merely of his endeavouring peaceably, and in a reason- ' able manner, and without threat or intimidation, direct or indirect, to persuade others to cease or abstain from work, in order to obtain the rate of wages or the altered hours of labour so fixed or agreed upon, &c., be deemed or taken to be guilty of molestation' or 'obstruction' within the meaning of the said Act, and should not therefore be subject or liable to any prosecution or indictment for conspiracy."

Both these Acts were repealed by the 34 & 35 Vict. c. 32. ("An Act to amend the Criminal Law relating to violence, threats, and molestation, 1871") generally called the Criminal Law Amendment Act; by sect. 1 of which a penalty was imposed for certain threats, molestations, and obstructions, used to coerce masters or workmen ; but it contained a proviso " that no person shall be liable to any punishment for doing or conspiring to do any act on the ground that such act restrains or tends to restrain the free course of trade," unless such act were one of the acts specified, and were done with the object of coercing.

This last-mentioned Act is now repealed by the present Act (sect. 17). And it is enacted by the section under consideration that an indictment for a conspiracy will not lie, with certain exceptions (sect. 4, 5), where the act to be done would not be an offence if done by a single individual.

Thus, if a single workman were merely to break his contract with his employer and to leave his work unfinished, this, although an act in respect which civil proceedings might be maintained, would not be an offence punishable on summary conviction; the Master and Servant Act, 1867 (30 & 31 Vict. c. 141,) which made such an act so punishable (sect. 9, 14),