injury to those against whom it is directed. Thus, procuring to strike might by the law of Quinn v. Leathem, coupled with that of Taff Vale, involve Trade Union funds in liability, even where there had been no procuring to break existing contracts.

59. There is no doubt that though the law of conspiracy is intricate in discussion, the existence of a criminal sanction for conspiracy is a valuable preservative of order, and modern times have shown that there are certain forms of oppression generally known as boycotting which can scarcely be met except by its aid. Whether there can truly be a civil action for conspiracy, on facts which fall short of criminal conspiracy, is a question which cannot be said to be settled. We have carefully considered the matter, and our view is in the negative. We have annexed to the Report (p. 20) a separate memorandum on the subject. But we do not think it material to discuss the question at length, because as we have already shown, the Legislature has thought fit to put those who conduct trade disputes in an exceptional position as regards that law.

60. We think therefore that without attempting to touch the law of conspiracy generally, it would be reasonable to recognize that, by the Act of 1875, it was conceded that Trade Unions, who necessarily act by means of combination, should for the purposes of Trade Disputes be put in a special position.

For the reasons already given the protection conceded was at that time confined to the criminal side. We think it can fairly be said that the civil side should be equally dealt with.

61. The proposal of the Trade Unions may be taken as embodied in Clause 3 of Mr. Whittaker's Bill of 1905, which is as follows:

"Clause 3. An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall not be ground for an action if such act, "when committed by one person, would not be ground for an action."

We think this would be better effected by an enactment to the following effect :"That an agreement or combination by two or more persons to do or procure to be done any act "in contemplation or furtherance of a trade dispute shall not be the ground of a civil action unless the "agreement or combination is indictable as a conspiracy notwithstanding the terms of the Conspiracy "and Protection of Property Act, 1875."

62. It is to be observed that in the above proposed amendment we have omitted after the words "trade dispute" the words between "employers and workmen" which are to be found in Section 3 of the Act of 1875. Our reason for so doing is that in "Quinn v. Leathem "the House of Lords expressed their opinion that the third section of the Act of 1875 would in the case before them have afforded no exemption from criminal liability because the acts of the defendants were not acts within the terms of the statute in contemplation or furtherance of a trade dispute between employers and workmen. Their Lordships did not offer any definition of what are acts in contemplation or furtherance of a trade dispute between employers and workmen; and though the acts done by the defendants are detailed in the evidence and commented upon by the Court it is difficult to collect which of those acts taken separately failed to come within the statutory description, so as to form any guide for future cases, where, of course, the circumstances will be different. It seems to us that the Act when construed in accordance with the decision of the House of Lords has failed in giving effect to the intention of Parliament in 1875. The Legislature at that time we cannot doubt had for their cardinal object to eliminate the vague and uncertain operation of the Law of Conspiracy from all disputes between employers and workmen arising out of strikes and similar combinations, and the words they used for this purpose are not "between employers and workmen in their employ," but, " between employers and workmen.'

For these reasons we are also of opinion that the Act of 1875 should be made to extend to so-called secondary strikes, and we state this with the greater confidence because the majority of those employers examined by us, whose evidence was of the greatest weight, agreed that there was no valid reason for drawing a distinction between secondary and other strikes.

63. We have now finished our observations on the three branches into which for convenience of discussion we divided the subject. There remain, however, one or two topics of a general nature. It must always be remembered that Trade Unions materially suffer from the fact that at common law they are illegal associations, and are only, so to speak, enfranchised so far as the words of the Statute go. Their present

enfranchisement depends on the words of Sections 2 and 3 of the Trade Union Act of 1871, 34 and 35 Vic. c. 31, which are as follows:

Section 2, "The purposes of any Trade Union shall not by reason merely that they are in restraint "of trade be deemed to be unlawful so as to render any member of such Trade Union liable to criminal "prosecution for conspiracy or otherwise."

of any

Section 3, "The purposes Trade Union shall not by reason merely that they are in restraint "of trade be unlawful so as to render void or voidable any agreement or trust."

We think that it might be declared by Statute positively that Trade Unions themselves are lawful associations.

64. In the same way it was to say the least of it doubtful whether a strike is at common law per se illegal, i.e., as concerted action. We think that Allen v. Flood, 1898, A.C. 1, authoritatively showed that a strike was not illegal, and that it follows as a corollary that to persuade to strike, i.e., to desist from working, apart from breach of contract, is not illegal. We think this also might be statutorily declared. We are also of opinion for reasons stated in an appendix that Allen v. Flood decided that no action lies against a person for the act of molesting another in his trade, business, or profession, unless such act be in itself an actionable tort; and as there are several dicta throwing doubt on this point we think there should be a declaratory enactment to that effect.

65. A good deal of evidence was laid before us from no unfriendly point of view to Trade Unions that it would be of great advantage that Trade Unions should be able to enter into binding agreements with Associations of Employers, and with their own members to enable them to carry out their agreements. At present this is impossible owing to the terms of Sec. 4 of the Trade Union Act of 1871. We think that facultative powers might be given to Trade Unions, either (a) to become incorporated subject to proper conditions, or (b) to exclude the operation of Sec. 4 or of some one or more of its Sub-sections for the purposes above mentioned.

66. Our recommendations may be summarised as follows:

That an Act should be passed for the following objects :

(1) To declare Trade Unions legal associations.

(2) To declare strikes from whatever motive or for whatever purposes (including sympathetic or secondary strikes), apart from crime or breach of contract, legal, and to make the Act of 1875 to extend to sympathetic or secondary strikes.

(3) To declare that to persuade to strike, i.e., to desist from working, apart from procuring breach of contract, is not illegal.

(4) To declare that an individual shall not be liable for doing any act not in itself an actionable tort only on the ground that it is an interference with another person's trade, business, or employment.

(5) To provide for the facultative separation of the proper benefit funds of Trade Unions, such separation if effected to carry immunity from these funds being taken in execution.

(6) To provide means whereby the central authorities of a Union may protect themselves against the unauthorised and immediately disavowed acts of branch agents.

(7) To provide that facultative powers be given to Trade Unions, either (a) to become incorporated subject to proper conditions, or (b) to exclude the operation of Section 4 of the Trade Union Act, 1871, or of some one or more of its Sub-sections, so as to allow Trade Unions to enter into enforceable agreements with other persons and with their own members.

(8) To alter the 7th Section of the Conspiracy and Protection of Property Act, 1875, by repealing Sub-section 4 and the proviso, and in lieu thereof enacting as a new Sub-section (which would also supersede Sub-section 1): "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 family, or damage be done to his property."

(9) To enact to the effect that an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall not be the ground of a civil action, unless the agreement or combination is indictable as a conspiracy notwithstanding the terms of the Conspiracy and Protection of Property Act, 1875.

67. We cannot conclude our Report without expressing our obligation to our Secretary, Mr. Hartley B. N. Mothersole, for his unvarying attention and assiduity in the performance of his duties, and for the very able assistance he has given us throughout our inquiry.

MEMORANDUM BY
BY MR. SIDNEY WEBB.

Union or Associa

I have signed the Report of the Majority of the Commission because I agree with all its specific recommendations as far as they go, though not with every phrase in the report itself. These recommendations appear to me well adapted to remedy the particular defects in the law to which they apply; and their enactment in distinct and unmistakable terms would, in my opinion, remedy many of the grievances of which Trade Unionists complain, and would effect a great improvement.

With regard to suggested limitation of the liability of Trade Unions for the wrongful acts of their agents, I think that attention should be drawn to the following clause, which was contained in a Government Bill submitted to the New South Wales Legislative Council on October 1st, 1903, by the then Attorney-General (Hon. Beruhard Wise), intituled "A Bill to amend the law of Conspiracy and to amend the Industrial Arbitration Act, 1901."

Clause 2.- No Trade Union or Industrial Union or Association of Employers shall be liable to any suit tion not liable for or action, nor shall the funds of such Union or Association be in any way chargeable in respect of any act or certain acts of its word, done, spoken, or written, during or in connection with an industrial dispute, by any agent, if it be agents. proved that such agent acted :

(i). contrary to instructions bona fide given by, or

(ii). without the knowledge of

The Governing Body of such Union or Association; and that the Union or Association has bona fide and by all reasonable means repudiated the acts or words complained of, at the earliest opportunity and with reasonable publicity.

But I cannot accept the assumption underlying the Report that a system of organised struggles between employers and workmen, leading inevitably now and again to strikes and lock-outs-though it is, from the standpoint of the community as a whole, an improvement on individual bargaining represents the only method, or even a desirable method, by which to settle the conditions of employment. A strike or a lockout-which is not only lawful, but under existing circumstances, as a measure of legitimate defence against economic aggression, may be sometimes even laudable— necessarily involves so much dislocation of industry; so much individual suffering; so much injury to third parties, and so much national loss, that it cannot, in my opinion, be accepted as the normal way of settling an intractable dispute. Moreover, from the standpoint of the community, such a method has the drawback that it affords no security-and even no presumption—that the resultant conditions of employment will be such as not to be gravely injurious to the community as a whole that they will not involve, for instance, on the one hand, the social degeneration of "sweating," or on the other the loss caused by restriction of output or of apprenticeship. I cannot believe that a civilised community will permanently continue to abandon the adjustment of industrial disputes-and incidentally the regulation of the conditions of life of the mass of its people-to what is, in reality, the arbitrament of private war.

A more excellent way is, I believe, pointed out in the experimental legislation of the past decade in New Zealand and Australia. We have in the factory, mines, shops and sanitary legislation of the United Kingdom, long adopted the principle of securing, by law, the socially necessary minimum, as regards some of the conditions of employment for certain classes of labour. The various industrial conciliation and arbitration laws of New Zealand and Australia carry this principle a step further, so as to include all the conditions of employment and practically all classes of labour. Such a system appears to offer, to the general satisfaction of employers and employed, both a guarantee against conditions of employment that are demonstrably injurious to the community as a whole, and an effective remedy for industrial war.

NOTE ON THE MOGUL CASE BY THE CHAIRMAN WITH NOTE APPENDED BY MR. ARTHUR COHEN.

There is no doubt that it has been often said that the Mogul case gave to employers a freedom of attack which was denied to workmen by Quinn v. Leathem. The facts in Quinn v. Leathem are given in the body of our Report.

The facts in the Mogul case, 23 Q.B.D. 614, and 1892, App., Cas., p. 25 are, as given by Mr. Askwith in his evidence, as follows:

"The defendants were ship-owners, and formed an association for the purpose of securing a monopoly of the carrying trade between Hankow and European ports. In pursuance thereof they offered a rebate of 5 per cent. to all shippers who should ship only with them; and their members were to forbid their agents upon pain of dismissal, to act for the plaintiffs, who were a competing firm of ship owners. In one case certain agents were dismissed. Upon the plaintiffs sending ships to Hankow, the defendants underbid them, and by the consequent reduction of freights, forced the plaintiffs to carry at a loss. Held unanimously by the House of Lords, that the plaintiffs had no cause of action."

The acts of offering a rebate and underselling do not suggest any difficulty, but at first sight doubtless, the forcing of the dismissal of the agents bears a strong similarity to the act of the forcing of the dismissal of the servants in Quinn v. Leathem, which act was held as indication of a conspiracy to injure.

This fact of the dismissal of the agents does not seem to have attracted notice at first, for it is not noticed in either the report of the argument or the judgment in the Court of Appeal. So far, therefore, as the oft-quoted judgment of Lord Justice Bowen is concerned the fact must be taken as unassumed.

But in the House of Lords the fact was relied on by counsel in argument, and it is noticed in the judgments.

Lord Watson said:

"The withdrawal of agency at first appeared to me to be a matter attended with difficulty, but on consideration I am satisfied that it cannot be regarded as an illegal act. In the first place it was impossible that any honest man could impartially discharge his duty of finding freights to parties who occupied the hostile position of the appellants and respondents; and in the second place the respondents gave the agents the option of continuing to act for one or other of them in circumstances which placed the appellant at no disadvantage."

Lord Morris said :

The fifth means used, viz., the dismissal of the agents might be questionable according to the circumstances, but in the present case the agents filled an irreconcileable position in being agents for the two rivals, the plaintiffs and the defendants."

From these remarks it is, I think, apparent that the dismissal of the agents in the Mogul case was not looked upon as on the facts an ultroneous attack like the withdrawal of Munce's workmen if he took Leathem's beef. In my judgment this view of the facts was right, but it would not matter if it was not so-the point being that on the facts held as proved, and, therefore, assumed in the application of the law, the case is not inconsistent with what the House of Lords afterwards laid down in Quinn v. Leathem.

I agree, for the reason stated in the Chairman's Note as well as for other reasons, that the decision of the House of Lords in the Mogul case is not inconsistent with the decision in Quinn v. Leathem.