least, as this depends upon unrestrained competition and speculation. The learned author then gives an account of the long series of enactments passed against combinations of workmen, whether for raising wages, or for any other purpose. Until very recent times it was considered the special duty of the legislature, whether in the interests of the wage-earners, or in those of the employers or consumers, to prescribe the rate of wages and other conditions of employment. In fact, for a very considerable period, a workman's wages and hours of work were fixed by Acts of Parliament or by justices of the peace. All agreements and combinations of workmen for advancing wages or lessening their usual hours of work were not only declared to be null and void, but were made criminal offences subject to severe punishment.

42. In 1824 by 5 Geo 4. c. 95 the combination laws were all repealed. The legislature, however, thought that having done so it would not be safe to leave the law standing on common law and statutory indictable offences such as assault, etc., but proceeded to enact that certain acts of coercion as well as combinations to commit them should be criminal offences summarily punishable.

43. The Act of 5 Geo. 4 c. 95 only stood for one year and was replaced by the Act of 1825. This Act, 6 Geo. 4 c. 129, also made certain specified acts, many of which were and some of which were not indictable at Common Law, punishable by a Court of Summary Jurisdiction. It prohibited, without defining, molestation and obstruction, and under this head and also under the head of Common Law conspiracy to injure, workmen were in Reg. v. Rowlands, 1851, 17 Q. B. Ad. E. 671 (see Appendix to Report, p. 49) convicted of an offence, although what they had done was by way of peacefully persuading. In consequence it was, by the Amending Act of 1859, 22 Vic. c. 34, provided that (in the cases in which combination was permitted by Statute) no person should by reason merely of his endeavouring peaceably, and in a reasonable manner, and without threats or intimidation, direct or indirect, to persuade, etc., be deemed guilty of molestation or obstruction within the meaning of the said Act of 1825, or should therefore be subject to a prosecution or indictment for conspiracy.

44. The Act of 1859 was in its turn replaced by the Criminal Law Amendment Act, 1871 (see Appendix to Report, p. 35), which repealed the Acts of 1825 and 1859, and by Section 1 made it penal to molest or obstruct any person, in manner defined by the section, with a view to coerce such person, etc.: and the definition was that a person is to be deemed to molest or obstruct another if he watch or beset the house or other place where such person resides or carries on business, or happens to be, or the approach to such house or place. No exception was made in favour of watching or besetting with a view to obtaining or communicating information or peacefully persuading: but in 1875 (before the passing of the Conspiracy, etc., Act, 1875), in the case of workmen being charged with conspiracy to molest Mr. Graham and others in their business of cabinet makers, Mr. Russell Gurney, the Recorder of London, in effect charged the Grand Jury not to bring in a true Bill, if all that the pickets had done was to peacefully persuade. (R. v. Hibbert, 1875, 13 Cox, C.C. 82: see Mr. Askwith's evidence, Question 104).

45. Next came the Act of 1875, The Conspiracy and Protection of Property Act, 38 & 39 Vic. c. 86, which repealed the Act of 1871. That Act is the now existing Act, and Section 7 is in the following terms:

"Section vii. Every person who, with a view to compel any other person to abstain from doing or to "do any act which such other person has a legal right to do or abstain from doing, wrongfully and with"out legal authority,—

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1. Uses violence to or intimidates such other person or his wife or children, or injures his property; or,

"2. Persistently follows such other persons about from place to place; or,

"3. Hides any tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof; or,

"4. Watches or besets the house or other place where such other person resides, or works, or carries on business or happens to be, or the approach to such house or place; or,

"5. Follows such other person with two or more other persons in a disorderly manner in or through any street or road,

"shall, on conviction thereof by a court of summary jurisdiction, or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a "term not exceeding three months, with or without hard labour."

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Attending at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate "information, shall not be deemed a watching or besetting within the meaning of this section."

46. This, it will be observed, made it penal to watch or beset, etc., the house with the qualification that attending merely to communicate or obtain information should not be deemed watching or besetting. As the Bill passed through Parliament the Government was pressed to insert words putting peaceful persuasion on the same footing as communicating and obtaining information, but they refused on the groun td hat it was implied by the terms of the Bill. (See Mr. Askwith's evidence, Question 104). After the Act had passed, a case, Reg. v. Bauld, 1876, 13 Cox 282, came before the Court, and in the course thereof it was ruled that watching and besetting for any other purpose than that of obtaining or communicating information was forbidden, and therefore that watching or besetting for the purpose of peacefully persuading was an offence. The same result was come to in the decision of the authoritative case of Lyons v. Wilkins. 1896, 1 Ch. 811, 1899, Ch. 255. It is sometimes represented that workmen are thus punished for merely peacefully persuading. (See Appendix to Evidence, p. 9, Letter to M.P.'s from Trade Union Congress Parliamentary Committee. But this is not so. No workman has ever been punished under this Act for merely peacefully persuading. What he has been punished for is watching or besetting a house, etc., with the view of peacefully persuading a different matter. Before he can be convicted or punished it has to be proved that he watched or beset the house; and also that he did so to compel, though compelling may, in the case supposed, mean little more than persuading persons to do what without such persuasion they might not be willing: to do.

47. The proposal made on this matter by the Trade Unions may be taken to be embodied in Clause 1 of Mr. Whittaker's Bill of 1905, which is in these terms:

"Clause i.-It shall be lawful for any person or persons acting either on their own behalf or on "behalf of a trade union or other association of individuals, registered or unregistered, in contemplation of or during the continuance of any trade dispute, to attend for any of the following purposes at or near a house or place where a person resides or works, or carries on his business, or happens to be-

"(1) for the purpose of peacefully obtaining or communicating information;

"(2) for the purpose of peacefully persuading any person to work or abstain from working."

48. Such an enactment would go further than the mere insertion of what the Government of 1875, as above stated, understood was already done, because it is not an amplification of the proviso, but a positive enactment giving a right to attend. The proposal would, in fact, legalise the attendance of any number of persons for the specified purpose, although the attendance might be such as to constitute a nuisance, or a trespass. But the real objection lies deeper. The evidence on this matter laid before us is on this point really overwhelming, and is evidence which the Trade Unions have made no attempt to contradict. What it comes to is this, that watching and besetting for the purpose of peaceably persuading is really a contradiction in terms. The truth is that picketing-however conductedwhen it consists of watching or besetting the house, etc., and it is to be observed that the statute places no limit to the number of persons attending for the purpose only of obtaining or communicating information or to the length of time during which such attendance may be maintained-is always and of necessity in the nature of an annoyance to the person picketed. As such, it must savour of compulsion, and it cannot be doubted that it is because it is found to compel that Trade Unions systematically resort to it. It is obvious how easy it must be to pass from the language of persuasion into that of abuse, and from words of abuse to threats and acts of violence. A considerable proportion of the cases of physical violence which occur during times of strike arise directly or indirectly out of picketing. At the same time all the witnesses admitted that the real vice of picketing consisted in illegal intimidation, that is to say, in producing in the mind of a person apprehension that violence would be used to him or his wife or family or damage be done to his property, and some witnesses thought that picketing by one or two persons could not produce any injurious effect. It must be remembered that, if picketing amounts to a nuisance, it can be restrained by injunction, and that a Trade Union which authorises the nuisance can be made liable in a civil action. Moreover, the consideration that the right to strike, which, when not accompanied by breach of contract, tort, or crime, is legal, and indeed is conceded by nearly all employers to be within the rights of workmen, carries with it in our judgment as a corollary the right to persuade others to do the same. We therefore think that this right could be safeguarded, and at the same time the oppressive action of picketing struck at if the watching-besetting clause

with its proviso were struck out, and instead thereof another Sub-section (which would also supersede Sub-section 1) inserted "acts in such a manner as to cause a reasonable apprehension in the mind of any person that violence will be used to him or his wife or family, or damage be done to his property."

C. THE LAW OF CONSPIRACY AS AFFECTING TRADE UNIONS.

49. The subject of the law of conspiracy is peculiarly intricate: and it is probably impossible to reconcile the opinions and dicta which have been pronounced by judges and writers of authority on the matter. The remarks which we shall make cannot be authoritative and are not intended to be exhaustive, but they will be sufficient, we hope, to indicate the bearing of the subject on the question referred to us.

50. The nature of a criminal conspiracy at common law is described in the following well-known passage from the opinion of the Judges delivered by Willes J. in Mulcahy v. Reg. 1868 L.R 3H.L 317

"A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or do a lawful act by unlawful means. So long as such a design rests in "intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in "itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being "enforced if lawful, punishable if for a criminal object, or for the use of criminal means.'

A more definite statement of the law is to be found in the Report of the Royal Commission of 1874, of which L. C. J. Cockburn, Sir Montague Smith, and Mr. Russell Gurney were members :—

"Conspiracy may be divided into three classes. First, where the end to be accomplished would "be a crime in each of the corspiring parties, a class which offers no difficulty. Secondly, where the purpose of the conspiracy is lawful, but the means to be resorted to are criminal, as where the "conspiracy is to support a cause believed to be just by perjured evidence. Here, the proximate or "immediate intention of the parties being to commit a crime, the conspiracy is to do something criminal, "and here, again, the case is consequently free from difficulty. The third and last case is, where, with malicious design to do an injury, the purpose is to effect a wrong, though not such a wrong as "when perpetrated by a single individual would amount to an offence under the criminal law. Thus, an attempt to destroy a man's credit and effect his ruin by spreading reports of his insolvency would "be a wrongful act, which would entitle the party whose credit was thus attacked to bring an action as for a civil wrong; but it would not be an indictable offence. If it be asked on what principle a "combination of several to effect the like wrongful purpose becomes an offence, the answer is-upon "the same principle that any other civil wrong, when it assumes a more aggravated and formidable "character, is constituted an offence, and becomes transferred from the domain of the civil to that -" of the criminal law. All offences, it need hardly be observed, are either in their nature offences "against the community, or are primarily offences against individuals. As regards the latter class every offence against person or property or other individual right, involves a civil wrong, which "would have entitled the person injured to civil redress, were it not that, owing to the aggravated "nature of the wrong, and the general insecurity to society which would ensue from such act if "allowed to go unpunished, the State steps in and, merging the wrong done to the party immediately "interested in the larger wrong done to the community, converts the wrong done by the infraction "of individual right into a crime, and subjects the wrong-doer to punishment, to prevent, as far as "possible, the recurrence of the offence. Thus the dividing line between private wrongs, as entitling "the party injured to civil remedies, and private wrongs thus converted into public wrongs, in other "words, into offences or crimes, is to be found in the more aggravated and formidable character "which the violation of individual rights under given circumstances assumes. It is upon this principle that the law of conspiracy, by which the violation of private right, which if done by one "would only be the subject of a civil remedy, when done by several is constituted a crime, can be "vindicated as necessary and just. It is obvious that a wrongful violation of another man's right "committed by many assumes a far more formidable and offensive character than when committed by a single individual. The party assailed may be able by recourse to the ordinary civil remedies to "defend himself against the attacks of one. It becomes a very different thing when he has to defend "himself against many combined to do him injury. To take the case, put by way of illustration, that "of false representations made to ruin a man's business by raising a belief of his insolvency. Such an attempt made by one might be met and repelled. It would obviously assume very different "proportions and a far more formidable character if made by a number of persons confederated together for the purpose, and who should simultaneously, and in a variety of directions, take measures "to effect the common purpose. A variety of other instances illustrative of the principle might be put. "The law has, therefore, and, as it seems to us, wisely and justly established that a combination of persons to commit a wrongful act with a view to injure another shall be an offence, though the act, "if done by one would amount to no more than a civil wrong. We see no reason to question the propriety of the law as thus established, nor have we any reason to believe that in its general "application it operates otherwise than beneficially. Whether there are cases in which, on a correct

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"view of the law, parties may be held liable on a charge of conspiracy, where the end is not wrongful,

or the means to be used criminal, is a matter into which we do not think it necessary to enquire, as, "if such be the law, which we greatly doubt, we are prepared, as we shall state further on, to recommend "that as respects the contract of hiring and service, and the relation of master and servant the "law should be amended."

51. Previous to 1871 the Courts had in certain cases (of which R. v. Rowlands, App. to Report, p. 49 is an example) in applying the law of conspiracy, treated, as criminal combinations, ordinary strike proceedings which did not involve the commission of anything, which, if done by one person, would be forbidden by either the criminal or the civil law. Such proceedings, workmen represented, ought not to be considered criminal. Parliament, accepting this view of the workmen, endeavoured to meet it by the Criminal Law Amendment Act of 1871 (see App. to Report, p. 35), but this expedient failed, as is shown by the Gas Stokers Case, R. v. Bunn (see App. to Report, p. 53).

52. We refer to what we have already said upon the history of the repeal of the combination laws, and the enactment by the legislature of specific offences summarily punishable. In 1875 the Government of the day resolved in framing the Act of that year to deal with the law of conspiracy so far as it affected Trade Unions, and to apply a more drastic remedy than that which had failed in 1871, by declaring that a combination to do, or procure to be done, any act in contemplation or furtherance of a Trade Dispute between employers and workmen should not be indictable as a conspiracy, if such act committed by one person would not be a crime punishable with imprisonment. This policy of the Act of 1875 was explained by the responsible promoters of the measure in terms which are unmistakable. Earl Cairns, who was then Lord Chancellor, in the debate which took place on the Act of 1875, Conspiracy and Protection of Property Act 38 and 39 Vic. c. 86, when it was in Committee in the House of Lords, is reported in "Hansard," Vol. 226, p. 164, to have said:

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"The Bill did make a change in the existing law, and, the clause now under consideration was in har"mony with the other parts of the measure. Taken in connection with the following clauses, the Bill at"tempted to define what acts connected with trade disputes were criminal and what were not-therefore it "recited all acts relating to trade disputes which were intended to be treated criminally, and "it sets those acts out. On the other hand it declared by this clause that an agreement by two or more persons to do what would not be a crime if done by one person was not to be punished as a "crime; but by the next clause intimidation and annoyance by violence was struck at, and it was "declared that every person who with a view to compel any other person to abstain from doing, or to "do, any act which such other person had a legal right to do or to abstain from doing, should use "violence or intimidation either to his person, or his wife or children, or his property, should be liable "on conviction to a pecuniary penalty or to imprisonment. By this clause, then, intimidation was "struck at, and combined action to carry out such intimidation would therefore be struck at. It was "true that, under the existing law, if one man broke his contract that would not be a crime, while "if say-fifty-broke their contract, that at common law might be regarded as a conspiracy. Under "this Bill it would not be a conspiracy. The principle upon which the Bill was framed was that the "offences in relation to trade disputes should be thoroughly known and understood, and that persons "should not be subjected to the indirect and deluding action of the old law of conspiracy."

53. There can, therefore, be no doubt as to the evils at which the Act of 1875 was aimed. It was considered that the Common Law relating to criminal conspiracies was in many respects vague and uncertain, and that workmen were justified in demanding that the law as to their liability in connection with strikes and disputes should be made clear, precise, and definite. Such being the object of the legislature, it was deemed expedient to enact, as is done in the third section, that :

66 An agreement or combination by two or more persons to do or procure to be done any act in con"templation or furtherance of a trade dispute between employers and workmen shall not be indictable "as a conspiracy if such act committed by one person would not be punishable as a crime." This enactment has made it perfectly clear in what cases combinations to do acts in furtherance or contemplation of trade disputes between employers and workmen involve criminal responsibility. It is clear that, subject to certain exceptions specified in the Statute, no combination to commit any act, which, if done by one person would not be an offence punishable by imprisonment, can be the foundation of criminal proceedings.

54. The civil action of conspiracy differs in this respect from the criminal, that the conspiracy is not complete by mere agreement, but must result in something being done from which damage results in order that the action may lie.

55. For the reasons which we gave in our treatment of Branch A, no one was during the discussion of the Bill of 1875, thinking of the civil action. It is, however, evident that the authoritative exposition of the law in the Taff Vale case, makes the subject of the civil action of supreme importance.

56. The importance of the subject was brought to the front by the decision in the House of Lords of the case of Quinn v. Leathem, L.R. 1901 AC 495. The facts of that case were as follows:

The plaintiff, Leathem, master butcher, sued the defendants, Trade Unionist officials (Craig being the president, Quinn, the treasurer) for damages for procuring persons to break contracts and not to enter into contract with him; and for procuring workmen in the employment of such persons to leave the service of their employers and to break their contracts of service, with intent to injure the plaintiff and to prevent such persons from carrying out their contracts with the plaintiff and from entering into other contracts with him; and for intimidating such servants and coercing them to leave the service of their employers to the injury of the plaintiff; and for unlawfully conspiring together with others to do the acts aforesaid with intent to injure the plaintiff. The plaintiff was a butcher at Lisburn, about eight miles from Belfast; he employed non-Unionists only. He had for foreman a man who had been with him ten years, and he himself had for twenty years been in the habit of supplying meat to Munce, a butcher in Belfast, to the value of £30 a week on the average. Munce employed Unionists. The defendants were butchers' assistants in Lisburn and Belfast. In the spring of 1895, the defendants formed themselves into a Trade Union, and one of the rules was that they would not work with non-Union men or cut up meat that came from a place where non-Union men were employed. In July of the same year the defendants required the plaintiff to dismiss his foreman. The plaintiff negotiated on behalf of his foreman and his men, and offered to pay all fines against them and asked to have them admitted to the society. The defendants rejected this proposal, saying that the plaintiff's men should be punished and should be put to walk the streets for twelve months. The plaintiff refused to comply with defendants' demand, thereupon the defendants called on some of his men to leave him, but as they were non-Unionists the Union could do no more than induce one of them to leave. This, however, was in breach of contract. They then demanded of Munce to discontinue taking meat from plaintiff, with "threat" of a strike against him (in the nature of a secondary strike). Munce complied, to the great loss of the plaintiff. The "threats" which the Unionists sent during the negotiations were, to the plaintiff, "If you continue as at present our Society will be obliged to adopt extreme measures in your case," and to Munce: "We have endeavoured to make satisfactory arrangements [with Leathem], but have failed, so therefore have no other alternative but to instruct your employees to cease work immediately Leathem's beet arrives."

The case began in 1896, when the decision of the Court of Appeal in "Flood v. Jackson," had not yet been reversed on appeal (as "Allen v. Flood)"), and was in force as a binding authority. The defendants did not call witnesses. The Jury found that the defendants had "wrongfully and maliciously" induced the customers and servants of the plaintiffs to refuse to deal with the plaintiffs, and had conspired to induce them so to do. Verdict accordingly was given for the plaintiffs, and the defendants moved for judgment to be entered in their favour on the ground that no actionable wrong had been shown on the evidence. The motion came on for hearing in November, 1898, after the adjudication of "Allen v. Flood," by the House of Lords. The Queen's Bench Division, and the Court of Appeal unanimously (with the exception of Palles C.B. in the Court below) upheld the verdict, holding that the rule laid down in "Allen v. Flood," that an act of harm, if not unlawful in itself, did not become unlawful, because done with a bad motive, did not apply to the case of a combination. The case then went to the House of Lords who unanimously affirmed the decision of the Court below. The Law-lords unanimously held that the terms of the Conspiracy, etc., Act, Section 3, which exclude indictments for conspiracy left unaffected the civil remedy for Conspiracy, and they found that in the case before them the defendants were civilly liable as for Conspiracy.

57. Throughout these remarks we have assumed that it is not for us to discuss the status or privileges of Trade Unions so far as they rest on Parliamentary sanction. It may be a question whether the enactment in Section 3 of the Act of 1875, Conspiracy and Protection of Property Act 1875, is in truth correctly expressed ; whether in truth an act done by a combination of persons can ever be the same as an act done by one. There, however, the matter stands, and it is not doubtful that it represents a concession to Trade Unions, whose chief strength must necessarily lie in collective action.

58. The danger to Trade Unions consists not so much in the judgment of Quinn v. Leathem as in the possible expansion of the judgment by the application of the dicta of certain of the Law-lords who took part in it. In Quinn v. Leathem there was the element of procuring to break contract. But to break a contract is to involve liability for damages, and the procuring to break a contract is itself a tortious act. Lumley v. Gye, 2 E and B 216. We are aware that Lumley v. Gye has been much discussed, but we consider it has been authoritatively affirmed as good law by the recent judgment of the House of Lords in The Glamorgan Coal Co. (Ltd.) and others v. The South Wales Miners' Federation and others, 1905, A.C. 239. But the dicta of Quinn v. Leathem show clearly that there might be an action of damages based on any conspiracy to injure or to do harm, and it is obvious the very essence of a strike is in one sense