Mr. G. R. Askwith.

130a. (Chairman.) Do you desire to make an observation now?-(Witness.) Yes, with regard to a statement in respect of employers' associations 21 Mar. 1904. which one of the Commissioners desired to have particulars of, if the same were available, I am informed that there is no statistical information with regard to funds. There is a table giving a general summary for 1902, based on special returns supplied to the Board of Trade with regard to the numbers of associations of employers in the different trades :-Building trades, 414; mining and quarrying, thirty-six ; metal, engineering and shipbuilding trades, ninety-eight; textile trades, fifty; clothing, trades, sixty-six; bakers and confectioners, forty-one; printing and kindred trades, forty-one, and all others 100; but those are only the numbers, not the funds. The reason is this: The trade unions when registered are required by law to furnish returns to the office of the Registrar of Friendly Societies. Both registered and unregistered unions also furnish the Department with certain information, but this is done wholly as a matter of grace. Employers' associations are not required oy law to furnish any returns except in so far as one or two of them are public companies. The best of them print annual reports for the use of their members. Some of these reports have been sent to the Department by request and also voluntarily. They do not, however, reveal the real strength of the associations; and any statistics based on such information would be most misleading. There is an important distinction between trade union funds and the resources of employers. Trade unionists, being mostly poor men, are compelled to accumulate funds very slowly by small contributions. An employers' association, on the other hand, might in an hour or two increase its ordinary balance of funds by many thousands of pounds if it became necessary to do so. I am informed is the pith of the whole matter, that even at the end of a strike the employers' association might have far more funds in its coffers than in ordinary times; whereas with regard to the men, the opposite would be generally the fact. I will put in this table. (Handing in the same. Vide Appendices, p. 10.)

That

131. (Mr. Sidney Webb.) I understand that employers' associations come within the definition of a trade union in the Trade Unions' Act, do they not?—I think so.

132. But they are not required to furnish the returns that trade unions are required to furnish ?-I understand from this memorandum that that would appear to be so. Trade unions, when registered, it says, are required by law to furnish returns to the office of the Registrar of Friendly Societies.

133. Is not an employers' association a registered trade union under the Act ?—I should like to examine the section of the Act under which that return has to be made to the Registrar of Friendly Societies before giving a definite an 'wer.

134. (Mr. Cohen.) It is only a registered trade union that is required to make a return ?-Only a registered trade union, apparently.

135 Are Employers' Associations registered ?—No, I think not.

136. (Chairman.) I think when we last parted you had just finished quoting some observations of Lord Halsbury which he made in Quinn v. Leathem and Allen v. Flood ?—

There were certain dicta of Lord Halsbury that I was quoting in Allen v. Flood, and in Quinn v. Leathem. Of course the dictum in Allen v. Flood was made in the stress of argument in controverting Lord Herschell's remarks upon the Mogul case, and the others were purely general remarks which might have been couched in different form if they were being developed or spoken to a popular audience; but as general remarks they serve, with regard to these cases, to put some ideas into the mind. If the actual decisions of these cases alone are taken, possibly some general rules may be deduced from them. If the decisions and the obiter dicta are all to be taken together as making the law, there cannot be much doubt that there is much entanglement which must at least be a great difficulty for even a clever man after study to attempt to work out, and much more so for any employer in the strain of a lock-out or a workman in the conduct of a strike.

137. Of course in considering the law in any of these cases it is obviously necessary always to keep in view the theory of the facts on which the judgment was founded ? -That in several of the cases comes out as a most important point. I might give shortly one or two instances. For instance, if we take the Mogul case, in Lord Justice Bowen's judgment it appears that he begins his judgment with this very mild remark, at page 611, 1889 (23 Q.B.D.) ; he says: "For the purposes of the present

case

we are to assume some possible damage to the plaintiffs." That is all he says about the damage. Then when that case came up to the House of Lords, [1892] A.C., Lord Halsbury says, at page 36: "After a most careful study of the evidence in this case I have been unable to discover anything done by the members of the associated body of traders other than an offer of reduced freights to persons who would deal exclusively with them; and if this is unlawful it seems to me that the greater part of commercial dealings, where there is rivalry in trade, must be equally unlawful.” And a similar line is taken, I think I may say, by all the Law Lords, particularly by Lord Watson, who says, at page 42 : "There is nothing in the evidence to suggest that the parties to the agreement had any other object in view than that of defending their carrying trade during the tea season against the encroachments of the appellants and other competitors, and of attracting to themselves custom which might otherwise have been carried off by these competitors.' But when you turn to the criticism on that same case by Lord Herschell in Allen v. Flood, [1898] A.C., page 140. Lord Herschell puts an entirely different complexion upon the facts in the Mogul case, by saying: "In that case the very object of the defendants was to induce shippers to contract with them, and not to contract with the plaintiffs, and thus to benefit themselves at the expense of the plaintiffs, and to injure them by preventing them from getting a share of the carrying trade. Its express object was to molest and interfere with the plaintiffs in the exercise of their trade. It was said that this was held lawful, because the law sanctions acts which are done in furtherance of trade competition. I do not think the decision rests on so narrow a basis, but rather on this, that the acts by which the competition was pursued were all lawful acts, that they were acts not in themselves wrong. ful but a mere exercise of the right to contract with

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whom, and when, and under what circumstances and upon what conditions they pleased. I am aware of no ground for saying that competition is regarded with special favour by the law; at all events, I see no reason why it should be so regarded." Then, again, in Quinn v. Leathem, which is reported in 1899, ii. Ir. Rep. 713, Chief Baron Palles in his judgment made the remark: The whole course of the trial showed that the origin of the acts in question was such a trade dispute, and that those acts were done in furtherance of it." When it came up to the House of Lords, the House of Lords said that it was not a trade dispute-there had been no trade dispute. Then, again, in Allen v. Flood, the whole of the judgments of the judges who were called in depended upon the question: Assuming the evidence given by the plaintiffs' witnesses to be correct, was there any evidence f a cause of action fit to be left to the jury," with the result that every one of the judges summed up the evidence in a different way, and practically gave their judgment upon what they considered to be the result of the evidence; whereas the House of Lords decide the case upon a theory that Allen had only given information to the employer, with the exception of some of the judges, Lord Halsbury, Lord Morris, and I think Lord Ashbourne, who in their judgments plainly intimate that they considered that Allen had intimidated the employer; although in the trial before Mr. Justice Kennedy the judge had expressly stated that there was no evidence whatsoever of intimidation. It seems important upon these cases to bear in mind the theory of the facts upon which the decision was given in considering what the results of the judgments are.

138. I think you were next going to give us your view upon the subject of conspiracy, upon the illustrations, I mean, of what the feeling upon the subject of conspiracy is, as gathered from the various Bills which have been brought before Parliament ?-I think the proposals which have been made show what apparently is now desired by some trade unions. For instance, both the Bills of last year, Mr. Shackleton's and Sir Charles Dilke's, contain the following proposed clause: "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 a ground for an action, if such act, when done by one person, is not a ground for an action." In 1902, on 5th September, the Trade Union Congress demanded fresh legislation, "To clearly define the law of conspiracy, so that what is legal for one man to do shall not be either a criminal offence or an actionable wrong if done by many in combination." (Vide Appendices, p. 8.) On 5th May, 1903, in a letter to Members of Parliament by the Trade Union Congress, the Parliamentary Committee stated, among the trade union grievances, acts when done by one person are legal: when done by combination with others are actionable at common law as a conspiracy; and the appeal is made: we respectfully desire on behalf of trade unions that under the Conspiracy Act the same rights shall be extended to actions done by persons in combination as to acts done by a single person." (Vide Appendices, p. 9.)

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139. In your view is there any reason for an expression of doubt as to what the law really is on this subject ?It seems that during the last twenty years there have been various theories advanced. Perhaps I might put what one would say were the two extreme theories as instances. One school of thought seems to contend that there cannot be an action for conspiracy unless the persons conspiring have done something which one man alone might not do. That this view was held in 1894, or later than 1894-in 1901-is apparent from the last edition of Sir Frederick Pollock's "Law of Torts," sixth edition, where he alludes, at page 313, to other malicious wrongs. He says this, "The modern action for malicious prosecution has taken the place of the old writ of conspiracy, and the action on the case grounded thereon, out of which it seems to have developed. It was long doubtful whether conspiracy is known to the law as a substantive wrong, or, in other words, whether two or more persons can ever be joint wrongdoers, and liable to an action as such, by doing in execution of a previous agreement something it would not have been unlawful for them to do without such agreement. There is now a distinct decision in the negative." (Then he alludes in a note to Huttley v. Simmons) "open indeed to discussion in the Court of Appeal, But it was already settled for practical

13

purposes that the conspiracy or 'confederation' is only matter of inducement or evidence." He alludes to the

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Mr. G. R. Askwith.

Mogul Steamship Company: As a rule'"he is quoting Lord Bowen in this case- -“As a rule it is the damage 21 Mar. 1904. wrongfully done, and not the conspiracy that is the gist of actions on the case for conspiracy.' 'In all such cases it will be found that there existed either an ultimate object of malice or wrong, or wrongful means of execution involving elements of injury to the public, or at least negativing the pursuit of a lawful object.' Either the wrongful acts by which the plaintiff has suffered were such as one person could not commit alone, say a riot, or wrongful intention, if material, was proved, and damages aggravated by showing that they were done in execution of a concerted design. In the singular case of Gregory v. Duke of Brunswick, (6 Man. and Gr. 205, 953) (1844) the action was, in effect, for hissing the plaintiff off the stage of a theatre in pursuance of malicious conspiracy between the defendants. The court were of opinion that in point of law the conspiracy could be material only as evidence of malice, but that in point of fact there was no other such evidence, and therefore the jury were rightly directed that without proof of it the plaintiff's case must fail." Then there is a little more on the succeeding pages, which I do not think I need read. Then as to the case to which he alludes, Huttley v. Simmons, which was decided by Mr. Justice Darling, [1898j 1 Q.B. 181, a cab driver sued the president of a strike committee and others for conspiring to induce Young, a cab proprietor, not to let the plaintiff a cab. It was there held by Mr. Justice Darling, on the authority of Allen v. Flood, that the act done was not a legal wrong to the plaintiff, although found by the jury a conspiracy.

140. (Mr. Cohen.) That was only a Nisi Prius decision? -It was before Quinn v. Leathem. Another case was Kearney v. Lloyd, 1890, L.R. Irish Rep. xxvi. 285, where Chief Baron Palles held this: "The act neither constituted a civil nor criminal wrong without a preconcert. Neither the ends sought nor the means contemplated would be a crime in anyone who, by himself alone and not in union with others, succeeded in accomplishing that end. Neither is that end nor are those means contrary to public policy or such as can be deemed illegal for any reason affecting the public generally." Thus distinguished lawyers held that view after the case of Allen v. Flood, but with regard to the decisions in Huttley v. Simmons and in Kearney v. Lloyd, before the case of Quinn v. Leathem and before Allen v. Flood was supposed to be explained in that case. The other school of thought is specially prominent since the case of Quinn v. Leathem, which put Gregory v. Duke of Brunswick upon quite a different footing from that which it might be supposed to represent in the statement made by Sir Frederick Pollock. It is perhaps best illustrated by the judgment of Lord Brampton in Quinn v. Leathem, [1901] A.O. 528, where he says this: "A conspiracy consists of an unlawful combination of two or more persons to do that which is contrary to law, or to do that which is wrong. ful and harmful towards another person. It may be punished criminally by indictment, or civilly by an action on the case in the nature of conspiracy if damage has been occasioned to the person against whom it is directed. It may also consist of an unlawful combination to carry out an object not in itself unlawful by unlawful means. The essential elements whether of a criminal or of an actionable conspiracy are, in my opinion, the same, though to sustain an action special damage must be proved. This is the substance of the decision in Barber v. Lesiter (7 C.B. N.S. 175). I quote as a very instructive definition of a conspiracy, the words of a great lawyer, Willes J. in Mulcahy v. Reg. (1868, L.R. 3 H.L. 317) in delivering the unanimous opinion of himself, Blackburn, J., Bramwell, B., Keating, J., and Pigott, B., which was adopted by this House. 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 to 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. The number and the compact give weight and cause danger. It is true these words were uttered touching a criminal case, but they are none the less applicable to conspiracies made the subject of civil actions like the

Mr. G. R. Askwith.

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present.' Then he goes on with regard to the King v. Warburton (L.R. 1 C.C. 276) and says: "It has often been debated whether, assuming the existence of 21 Mar. 1904. a conspiracy to do a wrongful and harmful act towards another and to carry it out by a number of overt acts, no one of which taken singly and alone would, if done by one individual acting alone and apart from any conspiracy, constitute a cause of action, such acts would become unlawful or actionable if done by the conspirators acting jointly or severally in pursuance of their conspiracy, and if by those acts substantial damage was caused to the person against whom the conspiracy was directed: my own opinion is that they would." Then he refers to the Mogul case, and he cites the R. v. Journeymen Tailors of Cambridge and the dictum of Lord Mansfield in R. v. Eccles, and of Mr. Justice Grose in R. v. Mawbey. Then again Mr. Justice Andrews, 1899, ii. Ir. Rep. 684-5, whose judgment is approved by Lord Macnaghten, says: "It is not the mere added fact of the conspiracy which makes unlawful theacts which would not be unlawful if done by only one. It can, in my opinion, be properly held in a case like this to be the altered character which, as I have endeavoured to point out, the concerted action impresses on the acts themselves." And then there is a very important statement, cautious in its form, but containing somewhat the same view as Lord Brampton's, given by Lord Macnaghten in Quinn'v. Leathem [1901] A.C. 510, where he says: "Does a conspiracy to injure resulting in damage give rise to civil liability?" It seems to me that there is authority for that proposition and that it is founded in good sense. Gregory v. Duke of Brunswick is one authority, and there are others. There are valuable observations on the subject in Mr. Justice Erle's charge to the jury in Duffield's case and Rowland's case (17 Q.B., A. & E. 671). Those were cases of trade union outrages; but the observations to which I refer are not confined to cases depending on exploded doctrines in regard to restraint of trade. There are also weighty observations to be found in the charge delivered by Lord FitzGerald, then FitzGerald J., in Reg. v. Parnell and others: "That a conspiracy to injure, an oppressive combination, differs widely from an invasion of civil rights by a single individual cannot be doubted. I agree in substance with the remarks of Bowen L. J., and Lords Bramwell and Hannen in the Mogul

The passage in the judgment of Lord Justice Bowen in the Mogul case, which Lord Macnaghten refers to is this 1889 (23 Q.B.D. 616): "Of the general proposition that certain kinds of conduct not criminal in any one individual, may become criminal if done by combination among several, there can be no doubt. The distinction is based on sound reason, for a combination may make oppressive or dangerous that which if it proceeded only from a single person would be otherwise, and the very fact of the combination may show that the object is simply to do harm and not to exercise one's own just rights. In the application of this undoubted principle it is necessary to be very careful not to press the doctrine of illegal conspiracy beyond that which is necessary for the protection of individuals or of the public.' "But what is the definition of an illegal combination? It is an agreement by one or more to do an unlawful act, or to do a lawful act by unlawful means, O'Connell v. The Queen (11 Cl. and F. 155), Reg. v. Parnell (14 Cox C.C. 508) and the question to be solved is whether there has been any such agreement here." He then proceeds to differentiate combinations for the purpose of combination, and combinations with a view to harm, and the just cause or excuse permitted in the former, and not in the latter, and says. "But such legal justification would not exist when the act was merely done with the intention of causing temporal harm, without reference to one's own lawful gain, or the lawful enjoyment of one's own rights. The good sense of the tribunal which had to decide would have to analyse the circumstances and to discover on which side of the line each case fell." Those are two views of conspiracy which seem to have been held. I might add to these judgments an important statement made by Lord Lindley in Quinn ▼. Leathem, at page 537, where he says: "It was contended at the bar that if what was done in this case had been done by one person only, his conduct would not have been actionable, and that the fact that what was done was effected by many acting in concert, makes no difference. My Lords, one man without others behind him

who would obey his orders could not have done what these defendants did. One man exercising the same control over others as these defendants had, could have acted as they did, and, if he had done so, I conceive that he would have committed a wrong towards the plaintiff for which the plaintiff could have maintained an action."

141. (Chairman.) You have mentioned at present the two extreme schools, and the illustrations you have taken of the two extreme points of view. Have you come to any conclusion to be drawn from the cases generally, or not ?—The difficulty that to the ordinary person's mind appears to have arisen since the time of the Mogul case, seems to be somewhat of this kind: that Lord Justice Bowen built up an argument that an individual is civilly liable for malicious wrong, an act causing harm to another not actionable in itself, but if intended to cause harm, actionable unless done with sufficient justification : hence if in combination a conspiracy: that Allen v. Flood upset the idea of malicious wrong being actionable per se or requiring justification, and said that if the act is done in the exercise of a legal right it does not require justifica. tion; and that Quinn v. Leathem, not having malicious wrong to fall back upon, put forward conspiracy to injure, even if, as done by individuals, the acts did not amount to actionable wrongs and therefore brought conspiracy into prominence and made such acts of a conspiracy, not of an individual, illegal unless justified, and did not define justification or molestation, but sent the parties to law to find out. The result of the difficulty is how to conduct a strike and also in conducting a strike, the Taff Vale case having decided that damages can be got, how to avoid paying those damages. That seems to me the sort of argument that might be and indeed has been built up as the apparent result of these cases; and of course if it is anything like that, it puts a great difficulty on the conduct of strikes, and it becomes a question not only of law but also of policy as to what the Commission should suggest with regard to conspiracy.

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142. Hitherto you have spoken of the civil liability in conspiracy cases. Turning now to the question of criminal liability, have you anything to say particularly on the section in the Act of 1875 ?—I have pointed out generally some theories of thought upon conspiracy, and it seems to me that it might be useful to consider shortly the history leading up to Section 3 in the Act of 1875 and then the section itself, and to deal with the two points of whether criminal responsibility still attaches in spite of the section, and how far and what civil liabilities are also liable to be incurred. In 1875 the Report of the Commission, page 27, which was sent in prior to the Act being passed, says this: Legislative provision should be made to the effect that no person shall be liable to be indicted for conspiracy, by reason only of the object of the combination being to force or control the action or will of any master or workman in any matter relating to the mode of carrying on his business or work, unless the means of coercion to be resorted to shall be one of those mentioned in the Criminal Law Amendment Act, or be the wilfully breaking or procuring others to break any contract of hiring and service, and unless the object of such coercion shall be one of the purposes set forth in that Act." Following the same line that I have done with the other divisions, I mention that as indicating the suggestion that was made to Parliament with regard to this Act.

143. It was on the back of that Report I understand that the Act of 1875 was passed ?—Yes; and I would like to point out particularly that the Report says, "No person shall be liable to be indicted for conspiracy by reason," etc., which is a point of considerable importance when one comes subsequently to consider some of the dicta, particularly of Lord Lindley, with regard to possible criminal liability still existing under the wording of the Act of 1875. Continuing with the progress of the proposals which were made in 1875, I would refer to what took place in Parliament, and the following statement by the Lord Chancellor Cairns in "Hansard," 3rd series, volume 226, page 35. The Lord Chancellor said: The Criminal Law Amendment Act of 1871 'repealed all the old trade combination laws, as they were called, and provided that certain specific things should be offences, and as to conspiracy it provided that, 'No person shall be liable to any punishment for doing or conspiracy to do any act on the ground that such act restrains or tends to restrain the free course of trade unless such Act is one of the Acts

herein before specified in this section and is done with the object of coercing as herein before mentioned.' It was supposed by all the parties to that Aot that it would have eliminated the element of trade strikes; but it did not do that, and convictions had occurred which were somewhat unexpected. He believed it would be hopeless to reduce to a code the whole law of conspiracy, but it was quite possible, taking a particular area of acts, to say what should be a crime committed by one person, irrespective of any acts of conspiracy, and then knowing the punishment affixed to individual acts, it was open to Parliament to say, 'We will not sanction any higher punishment even when these acts are committed by more than one person.' This was what had been done here. A particular punishment had been assigned to individual acts, and then the clause prevented the general law of conspiracy from enlarging the criminal character of those particular Acts."

144. When he says "here" he means in the Act of 1875 ?-Yes.

145. Just let me see if I quite understand it. That seems to be taking another view of it. Looking at the Act of 1875 for a moment, that would mean, as I understand, what you have just read, that Section 3 was, so to speak, a corollary to Section 7. Section 7 points out the punishment for certain specific acts?—Yes.

"A

146. Then I suppose Section 3 says no conspiracy over and above the doing of that act will render you any more liable; and that would be the application especially of Lord Cairns' words ?-Section 3 itself alludes to a particular punishment by saying, crime for the purposes of this section means an offence punishable on indictment, or an offence which is punishable on summary conviction, and for the commission of which the offender is liable, under the statute making the offence punishable, to be imprisoned either absolutely or at the discretion of the court as an alternative for some other punishment." The point is more clearly shown perhaps in the next extract that I was going to read, which is a statement by Lord Cairns, in Committee in the House of Lords, reported in "Hansard," volume 226, page 164, where he says: "The Bill did not make a change in the existing law, and the clause now under consideration was in harmony with the other parts of the measure. Taken in connection with the following clauses, the Bill attempted 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 set 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, but if, say, fifty broke their contract that at common law might be regarded as 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." That leads up to the Act of 1875 itself, in which the section we have been considering is Section 3, which I will read, "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 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. Nothing in this section shall exempt from punishment any persons guilty of a conspiracy for which a punishment is awarded by any Act of Parliament. Nothing in this section shall affect the law relating to riot, unlawful assembly, breach of the peace, or sedition, or any offence against the State or the Sovereign. A crime for the purposes of this section means an offence punishable on indictment, or an offence which is punishable on summary

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Mr. G. R. Askwith.

conviction, and for the commission of which the offender is liable, under the statute making the offence punishable, to be imprisoned either absolutely or at the discretion of the court as an alternative for some other punishment. 21 Mar. 1904. Where a person is convicted of any such agreement or combination as aforesaid to do or procure to be done an act which is punishable only on summary conviction and is sentenced to imprisonment, the imprisonment shall not exceed three months, or such longer time, if any, as may have been prescribed by the statute for the punishment of the said act when committed by one person." I have no doubt that the opinion of working men since that Act of 1875 was passed has been that criminal liability for conspiracy in trade disputes has been swept away. I propose to deal with some of the points of possible criminal liability later on, but to allude first of all to certain cases which have occurred since the Act of 1875 was passed, with a view of endeavouring to point out the idea started by Lord Justice Bowen in the Mogul case, followed out in a large number of cases since, and the effect that that may have upon employers and workmen respectively, an effect which seems to have given rise on many sides to the view-I will not quite go so far as to say of one law for the employers and one for workmen, but of a law which is much more to the advantage of the employers than it can possibly be to that of the workmen, and which, in fact, puts the workman in the position of having continually to be coming to the Law Courts for the purpose of finding out what justification, according to the legal dicta, will enable him to escape from civil liability as an individual, from civil liability as a conspirator, and from damages in paying for that civil liability. The first and the most important case of all, which has been cited in judgment after judgment, with the greatest approval, is of course the judgment of Lord Bowen in the Mogul case, which occurred in 1889, 23 Q.B.D. 614, and went up to the House of Lords, 1892 A.C. 25. 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. Another case, which followed that on the same lines, was in 1898, the Scottish Co-operative Wholesale Society, Limited v. The Glasgow Fleshers' Trade Defence Association and others, 35 Scottish Law Reports, page 645. In that case there was a combination by members of a trading society to induce salesmen not to supply the plaintiffs with goods, by representing to them that they would withdraw their custom if they continued to do so; and this was held lawful, the object being to prevent the plaintiffs from buying from a rival trading society. The facts at a little greater length are these: The co-operative stores and the fleshers were rivals in trade. There was only one place in Glasgow (Yorkhill' Wharf) for importation of American and Canadian meat, and there the salesmen, for the importers, put their meat up to auction. In order to oust the stores from this market, the fleshers threatened the salesmen that they would refuse to bid at their auctions unless the salesmen declined to receive bids from the stores. The fleshers being the larger customers, the salesmen yielded. Thestores then brought this suit against the fleshers for damages and an interdict, on the ground that the defend. ants by means of threats, had deprived them of their custom, that their acts were wrongful, illegal, and malicious, and amounted to an illegal conspiracy. Held, following the Mogul case, and Allen and Flood, that the fleshers were not liable; they had only induced salesmen to do an act, in itself lawful, by means of which they were entitled to adopt. Then a third case on this point that I am going to allude to is, Bulcock v. St. Anne's Master Builders' Federation and others, 1902, 19 Times L.R. 27. In this case a joiner brought an action against a federation of master builders, the chairman and secretary, and a member of committee, for wrongfully and maliciously procuring him to be discharged from his employment. The defendant federation was

one of a number of similar local organisations in neighbouring places, all of which were affiliated to the Lancashire and Cheshire Building Trades Society. The plaintiff was secretary of the local branch of a joiners' trade union. There was a trade dispute between the joiners in the locality and their employers; and the plaintiff ceased working in consequence of the dispute, but subsequently obtained employment with a firm in another place, this firm being members of one of the allied federations. One of the rules of the Lancashire and Cheshire Society provided that in every case of dispute no member should employ any workman who was on strike or locked out from the workshop of another member. The defendants asked the society to intervene for the purpose of inducing the plaintiffs' employers to discharge him; and, as a result, this firm wrote to their foreman that the plaintiff had better be paid off, else they would get into trouble. The plaintiff was accordingly paid off and discharged. The County Court judge found that there was no evidence of any act done with an intention to injure the plaintiff, and that there was no evidence of anything except acts by the defendants to further their own purposes, and gave judgment in favour of the defendants. The plaintiff appealed: and the King's Bench Division held that the County Court judge had come to a correct conclusion, and dismissed the appeal, with costs. 147. (Sir Godfrey Lushington.) Was that a case of conspiracy, or a case against defendants as individuals? It is not mentioned as conspiracy?—I have not got it here as conspiracy.

148. (Mr. Cohen.) It was an action brought, was it not?—Yes, they brought an action. It comes in upon the point of justification. Those cases, when they are examined, show clearly what employers in competition, assuming that they are following their own advantage, can do, even though they may harm another, without being subject to damages for illegal conspiracy. Now, the point I was dealing with was, whether labour competition is on the same plane with the trade competition that is shown in those cases. There are dicta to that effect. Lord Justice Bowen in the Mogul case, 23 Q.B.D. 619 says, "One may with advantage borrow, for the benefit of traders, what was said by Erle J. in Reg. v. Rowlands of workmen and of masters: The intention of the law is, at present, to allow either of them to follow the dictates of their own will, with respect to their own actions, and their own property; and either, I believe, has a right to study to promote his own advantage, or to combine with others to promote their mutual advantage.'" Then it would appear, too, that Lord Shand held the same views, seeing his judg ment in Allen v. Flood and in Quinn v. Leathem. In the former, A.G., 1901, 514, he quotes his remarks in Allen v. Flood, which are found at 1898, A.C. 164, and he says: The case was one of competition in labour, which, in my opinion, is in all essentials analogous to competition in trade, and to which the same principles must apply." Then there is the judgment of Mr. Justice Cave in Allen v. Flood, which is very strong upon the same point; and there are the statements of Sir William Erle, and there are other statements that I do not think I need read. Those dicta concurred in saying that labour has the same rights of competition. Now, in the same way as I took three employers' cases, taking three cases of workmen. there comes the case of Temperton v. Russell, 1893, 1 Q.B. 715, and I will give a statement of the facts as they were very clearly and shortly stated by Lord Justice Holmes, in 1899, ii. Ir. Rep. 773. He says, "The plaintiff in that action had incurred the hostility of three trade union societies represented by the defendants, on account of his selling building material to a firm of builders who had refused to be bound by the rules of the society. The hostile feeling which had existed led the defendants to advise the societies to refuse to work for any builder upon goods bought by him from the plaintiff, and a builder named Brentano, who had entered into a contract with the plaintiff for the purchase of materials, was induced by the fear that this advice would be acted on, to break a contract that he had already made with the plaintiff and to withdraw his future custom." It was held that these people were liable for damages. The other case I was going to allude to was quite a recent case, Carr v. The National Amalgamated Society of House and Ship Painters and Decorators, which was tried at Manchester Assizes on July 21st and 22nd, 1903, an account of which is given in the "Labour Gazette" of August,

"A foreman

1903, at page 215. It is a very curious case: in the employ of a painter refused to join the union to which the greater number of the other men in the same employment belonged. The men alleged that the foreman was really a working foreman, not a managing foreman, as he often himself worked with the brush; and they objected to work with him unless he joined their society. The painter refused either to persuade his foreman to join the society or to dismiss him, and, in consequence, the other men left their employment. In doing so they acted upon the advice of an official or walking delegate' of the society. The executive Committee of the Society by resolution gave authority for the men to be withdrawn. The bulk of the men left after giving due notice, but a few men left their employment contrary to the term of their contract of service. After this the painter was in negotiation with a contractor with the view of obtaining a certain sub-contract for painting. The walking dele. gate, however, saw the contractor and told him that if he gave the painter the work the men would be called out. In consequence of this the painter did not obtain the subcontract. It was alleged that a similar thing happened in other cases; and that all the painter's various tenders were rejected when the parties were told that the men Iwere liable to be called out. The painter then brought an action for damages against the Society and the walking delegate, alleging that they had unlawfully induced workmen to break contracts with him, unlawfully induced persons not to enter into contracts with him, and conspired to injure him in his business. In answer to questions put to them by the judge, the jury found that the defendants did conspire to induce and procure, and did in fact induce and procure certain of the plaintiff's workmen to leave their employment; that they maliciously, and with the intention of injuring the plaintiff, induced a certain firm to refuse to accept the plaintiff's tender for a contract; and that they did maliciously, and in order to injure the plaintiff, conspire to obstruct, and did in fact obstruct, the plaintiff in carrying on his trade as painter. The jury further assessed the damages at £322, and judgment was given for the plaintiff for that amount." 149. It was tried before a judge ?-It was tried before a Judge of Assize.

150. It was not a County Court judge ?—No; it is a very curious case. Those cases afford very good illustrations of what have been held to be justifiable for competitors in the market of trade, and what have been held unjustifiable for competitors in the market of labour, and of what extreme difficulty there is in the market of labour in dealing with this question of justification or no justification. After the Act of 1875 had been passed, there came up the two very important cases of Bowen v. Hall, 6 Q.B.D. 333, and of Temperton v. Russell, to which I have already alluded. In both those cases Lord Esher speaks of "malicious intent" in the sense of motive, and although Temperton v. Russell was actually decided upon another point, I think upon that of conspiracy to injure, yet the ruling that he then made, partly endorsed, though not expressly endorsed, or at least passed by by Lord Justice Bowen in the Mogul case, was held to be the view of what was admissible in a conspiracy until the case of Allen v. Flood threw doubt upon it. But the malicious intent which had been spoken of with approval in Bowen v. Hall and in Temperton v: Russell, was strongly disapproved of by the House of Lords in Allen v. Flood, and, it seems to me, was overthrown by that case. That case restored the decisions which had previously been good law, and which were laid down in Stevenson v. Newnham, 1853, 13 C.B. 285, and in the case of the Bradford Corporation v. Pickles, 1895, A.C. 587, laying down that an act which does not in itself amount to a legal injury cannot be actionable merely because done with a bad motive.

151. (Mr. Cohen.) Lord Macnaghten, you read to us, in Quinn v. Leathem said that the dicta of Lord Esher in Temperton v. Russell and Bowen v. Hall were overruled ?—Yes, I read that passage at pages 508 and 509. It may be remarked that Lord Watson explains Lord Justice Bowen's statement with regard to malicious intent in the Mogul case, and points out that the case of Bromage v. Prosser, which Lord Justice Bowen cites in support of his proposition as actually worded, does not appear to be so, and that there are other portions of his judgment which appear to show that he considered that