« EelmineJätka »
wages, and angry at seeing their places filled up by others. And this may go on for days or weeks together, or similar dialogues may be renewed day after day at the workman's own door in the presence perhaps of his wife and family, or the same procedure may be applied to the workman's wife in the workman's absence. Even if the interview begins with persuasion, it is obvious, as the Report also states, 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. In one way or another under the name of picketing compulsion and intimidation are extensively exercised, and are very difficult to detect. The truth is that picketing is a form of industrial conscriptions; and, in organizing it, Trade Unions act as if they represented not only their own members but the entire body of workers, and had authority to enforce regulations to which all were bound to conform. It is a system which could not be habitually practiced by any society in which membership was purely optional, and which recognized that every individual was free to act as he pleased. In connection with this point it must be remembered that the Statute does not apply exclusively to workmen; at the instance of Trade Unions it was made of general application, and extends to the whole community. As a fact I believe the particular enactment is not required for anybody except workmen in time of strike. Picketing exists nowhere but in connection with Trade Unions. Is it possible, for instance, to imagine that a tradesman should picket the premises of a competitor? Or that one Railway Company should picket the station of another Railway Company? Or that the authorities of a church or chapel should watch and beset the approach to a rival church or chapel? Or that picketing should be introduced into political warfare, and say the Conservative organizations should station pickets at the doors of the private residences of Liberal members of Parliament, to watch them day after day coming in and going out, to communicate or to receive information or to peacefully persuade them? The very suggestion seems ludicrous; yet this is but a very faint picture indeed of what in times of strike
individual workmen have actually to undergo at the hands of Trade Union pickets.
I am of the opinion that picketing is an abuse for which a remedy is urgently required, and that the personal freedom of workmen needs not less protection than hitherto, but more. I, therefore, recommend that the existing prohibition of watching and besetting be retained, and that the proviso permitting it for the sole purpose of giving and receiving information be repealed.
I think Section 7 of the Act of 1875 should be amended so as to make it clear that the person against whom any of the forbidden acts of molestation are committed need not be the same person who is intended to be compelled. It has already been decided in Lyons v. Wilkins that this is the proper interpretation of the Statute; but the language of the Statute is far from clear. The offence of molesting a workman is, it is obvious, equally great whether it is with a view to compel the workman not to work or the employer not to employ; and the offence of molesting a wife is not lessened by the fact that the object is to compel the husband not to work.
I agree with the proposal 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. This is a general and comprehensive provision, covering almost everything; but it will be advisable also to particularize.
I therefore agree also with the proposal to declare that a strike (including a sympathetic or secondary strike) from whatever motive or for whatever purpose, apart from crime or involving breach of contract, is not illegal.
Also with the proposal that to persuade to strike, i.e., to desist from working, apart from breach of contract is not illegal. But I should wish the proposal to extend to persuading not to enter into a contract of employment.
I further recommend that the notification of a strike, whether given by the workmen themselves or by anyone else on their behalf, shall be declared not to be illegal. This appears to be a simple matter, but it has a long legal history of its own, reaching down to the present time.
On the subject of conspiracy I concur with the recommendation of the Report. I also concur with the reason given in the Report for such recommendation, viz., that the considerations which led to restrictions being placed by the Statute of 1875 upon criminal proceedings for conspiracy in trade disputes justify the introduction at the present time of similar restrictions on civil proceedings. But in my opinion the logical argument in favor of establishing such conformity or of supplementing the exceptional provisions made in 1875 for the case of trade disputes, is insufficient to support what is in effect a recommendation to supersede the law laid down and approved by the House of Lords in their decision on Quinn v. Leathem more especially as that argument may be met, I do not say overborne, by the counter argument that many acts are torts without being crimes, and that conspiracy to injure may be one of them. Believing as I do that substantial reasons exist for holding there to be a strong case for relief against the law as it now stands, I think these reasons require to be expressly stated. Nor is it enough to express these in general language, as to say that the law is vague and unintelligible and produces hardships in forbidding acts which should be permissible. To appreciate the case it is necessary to follow the operation of the law to its practical consequences, and this unfortunately cannot be done without reference to the technicalities of the complex and obscure law of conspiracy, and even to their history. I also think that there should be offered some reasoned assurance that the result of the suggested change in the law will not be to make permissible acts which ought to be forbidden.
First, then, with regard to criminal proceedings for conspiracy, and to the circumstances which led up to the Statute of 1875.
A complete statement of the law as it stood in 1873 may be found in the late Mr. Justice Wright's Treatise; for present purposes the following may perhaps suffice. The offence of criminal conspiracy as defined by the Ordinance of Conspirators of 1305 was limited to agreements between two or more persons to commit the particular act of false and malicious in
dictment for treason or felony, and could only be prosecuted in the event of the person so falsely accused having been tried in consequence and acquitted. In course of time conspiracy came to extend to agreements to commit any crime (also such fraud as was not criminal), and by the end of last century it was recognized as including agreements to commit a civil wrong (R. v. Warburton, 1870, L. R. i. C. C. 274). Thus the agreement or combination, whether it was to commit an offence or to commit a tort, was a combination to commit some unlawful act, something forbidden by the law the criminal or the civil law as the case might be. In accordance with this was the common description it cannot be called a definition — of a criminal conspiracy, viz., a combination or agreement to do an unlawful act or to do a lawful act but by unlawful means. About the same time the crime of conspiracy (an indictable misdemeanor) was held to consist in the agreement to do the unlawful act; the agreement entered into, the crime was complete, whether the unlawful act was carried out or not. So far there is no dispute. But, the common description of conspiracy notwithstanding, were there not cases in which a combination to do acts, such as when done by an individual were neither criminal nor tortious, was a criminal conspiracy? Was not a combination to do intentionally acts at once harmful and not unlawful call the acts having this double characteristic in- 1 1 jurious acts known as a conspiracy to injure? And if so, was the combination to do such acts a prima facie conspiracy, if they were done at all? If they were done with a bad motive? If they were done to a trader in the course of his trade? These are questions which will now be considered.
The difficulty whether combination to injure constituted a criminal conspiracy may be attributed in great measure to the opinions held by Judges on the question as to what circumstances (if any) would cause the like injurious acts to be
1 44 Conspiracy to injure" may be taken as the generic term, comprehending a variety of species known in "Pleaders" language as conspiracy to oppress, conspiracy to coerce, conspiracy to impoverish, etc. But it must always be borne in mind that it does not mean to commit a legal injury or legal wrong, as the phrase might seem to import: it means to commit an act neither criminal nor tortious, but intentionally hurtful. This is the more necessary because in some instances, notably in FitzGerald, J.'s, charge to the Jury in R. v. Parnell, the term conspiracy to injure is applied to a conspiracy to commit a legal wrong.
unlawful when done by an individual apart from combination. Lord Esher, for instance, held that a lawful act, if done with malice, became unlawful (Bowen v. Hall, and other cases), Sir W. Erle that an injurious act of an individual, if done in restraint of the free course of trade, was actionable and even criminal.
It is not to be supposed that views like these as to what was unlawful for individuals were accepted universally. Lord Esher's view of the effect of motive was inconsistent with Stevenson v. Newnham, decided in 1853. And that the right attributed by Sir W. Erle to a trader to protection from interference in the free course of trade a right, it may be pointed. out, described not as absolute but as qualified by equal rights attributed to others was not at the time completely recognized, may be inferred from the variations of opinion on the subject amongst the judges in the case of Allen v. Flood (in 1897), where some regarded it as the privilege of capitalist traders or employers, others as the privilege of all traders whether capitalists or workmen, but of nobody else; others as the common right of everybody to pursue his calling or to do what he was at liberty to do; others again denying that there was such a right at all beyond the right to protection from interference from anything which by the general law, whether civil or criminal, was forbidden. But, as admitted by Sir W. Erle, the question of the violation by an individual of the trader's right to a free course of Trade had not been made the subject of proceedings in the courts.
To judges who held such opinions a combination to injure, if it was to injure a trader, or if it was to do harm with a bad motive, must have appeared to be a combination to do what was unlawful and therefore to fall into the ordinary description of a criminal conspiracy, viz., a combination to do an unlawful act or do a lawful act by unlawful means. To other judges a combination to injure under the same circumstances would be a combination to do something which if done by an individual was not unlawful. This divergence of opinion may help to explain ap
1 The cases supposed to be of this kind were reviewed in Allen v. Flood and were shown to be cases of interference by acts which according to the general law were unlawful, irrespective of the motive with which they were done.