456. It is therefore important that the provisions should be framed in clear and precise language ?-Exactly.

457. And especially as now the funds of trade unions may be liable on account of some action done in violation of the provisions of that section ?-Yes, that makes it more important for the unions now.

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"We are

458. Now as regards intimidation, you know that the Commission that reported in 1894 recommended that instead of the words used in the first sub-section of section 7 of the Act, the following words should be inserted: Uses or threatens to use violence to such other person or his wife or children, or injures his property '—omitting the ambiguous word 'intimidate.'” They thought the word "intimidate" was very vague; they thought it had received a certain interpretation in the case of Gibson v. Lawson, and they thought the language should be made perfectly precise. We can see no reason," they say, 66 why this should not be plainly expressed in the terms of the Act, rather than by words of reference which become clear, even to a lawyer only after consulting other books;" and then they recommend that these words should be substituted for the words in the first sub-section : "Uses or threatens to use violence to such other person, or his wife or children, or injures his property." I want just to read to you a passage which follows in that report; it is paragraph 334: "On the other hand it was suggested on the part of the employers that picketing is apt to become collective intimidation, and such intimidation is not the less effective, though not directly addressed to any person in particular; and a desire was expressed that the law might in some way be strengthened in order to meet this evil." This is what Sir Godfrey Lushington was rather putting to you. They say then: of opinion, however, that the existing law is sufficient if impartially and firmly administered, but there is reason to doubt whether it is in all cases completely understood. Where the practice of picketing' exceeds the bounds of information and peaceable conversation, and takes the shape of besetting the entrance or approaches of a factory or works in a threatening manner, we are advised that, apart from any threats addressed to individuals, the offence of unlawful assembly is committed." Now one other paragraph which follows: Assaulting or forcibly obstructing workmen desirous of entering the picketed' works is, of course, a breach of the peace; and if a picketing party shows a manifest intention to do such things, then every member of it will, we are advised, be guilty of the offence of unlawful assembly, even if no assault is actually committed. This appears to cover all cases which any law can well provide for, and we see no reason to believe that any practicable change in the law would make it more effective. In any case there must remain a great deal of moral compulsion or pressure which may in some cases he justifiable and in others not, but which positive law cannot usefully attempt to control. The law can and should protect the persons and property of these who dissent from the majority of their neighbours or fellow workers; it cannot compel the majority to have a good opinion of them." That is the Report of the Commission ?—That was in the Report of the Commission of 1894, yes.

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459. Now you understand Lyons v. Wilkins and Charnock v. Court, do you not, to have decided this: that picketing, if done with a view to coerce an employer, although unaccompanied with violence, threats, or intimidation, and although not amounting to a public or a private nuisance, is a criminal offence, and that the provision at the end of the section has no application to a case where picketing takes place with a view to coercing an employer. That is what was really decided, is it not? That although it is not a nuisance, private or public, still if picketing takes place with a view to coerce an employer, although unaccompanied with violence, intimidation, or illegal threats, it is a criminal offence. Is not that the ratio decidendi ?—Something very near it. 460. I thought they said if the picketing was done with a view to coerce ?-They said two things-that picketing practically implied watching and besetting--

461. That is one point ?-And you could not have watching and besetting without a view to coerce.

462. Then they held that if it was done with a view to coercion, although unaccompanied with threats or

37

intimidation, and although not a private or public nuisance, still it was illegal because it was done with a view to coercion; that is what they held, is it not?--I think the decision came to that-that it was as strong as that.

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463. (Chairman.) I do not think there is any point in the actual view of the word "coerce," because "coerce," I take it, in that context is simply written short for the words of the statute compel another person to abstain from doing, or to do, any act which such other person has a legal right to do or abstain from doing" ?—Yes; I assume Mr. Cohen to have taken the word "" coerce as an abbreviation only.

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464. (Mr. Cohen.) That is all. I just want to put to you this case, if you will allow me. If the workmen in besetting the premises of A. cause a public nuisance by obstructing the highway, they would be liable, would they not, quite independent of the Act?-Independent of the Act, yes.

465. And an injunction could be obtained ?—Yes. 466. In fact they would be indictable at common law, and an injunction could be obtained ?—Yes.

467. Then if they were committing a private nuisance, for instance, if they were watching the house of some private individual constantly, rendering his life uncomfortable, that person could bring an action and could obtain an injunction ?—Yes, I think so.

468. Now supposing no nuisance committed, and no intimidation, I want to know why should the workmen be held to be liable merely because they are trying to persuade other workmen not to take employment under a certain employer-on what grounds?-Whatever the ultimate design may be, it is exactly that which sticks in the throat of a large number of workmen that the men object that for mere persuasion they should be liable as for a criminal action.

469. Take a case, which I think is an ordinary case, where workmen wish to persuade other workmen not to take employment under a certain employer A. If they commit no nuisance, if they are not guilty of uttering illegal threats, not guilty of intimidation, not guilty of a private nuisance, not guilty of a public nuisance, why should they be considered as committing an offence; can you suggest any reason?-On the face of it there is no reason.

470. I think there is only one more question I wish to ask you. In fact, if they are held guilty in such a case, it is really substantially peaceful persuading for which they are held guilty, because it was done with the view of inducing the workmen not to take employment under a certain employer?—Yes; if such a case occurred, it would be for peaceful persuasion.

471. Now, may it not be worth while to consider the expediency of Mr. Haldane's suggestion to this extent as applicable to this case: that the question of picketing should be dealt with on the principles of law applicable to private and public nuisances. Generally, if an illegal act is done, if three or four workmen join in an illegal assembly, or commit a riot, or commit a public or a private nuisance, they will be liable?—Yes.

472. Is it not worth while considering whether Mr. Haldane's suggestion might not be applied to this extent, I do not mean that you could generally apply it, but to this extent that the question of picketing should be dealt with as a question of nuisance ?-Do I understand you to suggest that this section should be repealed, and that a special Act of Parliament should be brought in?

473. That special provision should be made ?—Not leaving it to the common law as it is at present, because I take it they are already liable for a nuisance.

474. Yes, you might leave it to the common law; that is what I mean, treating it as a nuisance, as Mr. Haldane suggests.

475. (Chairman.) There is no penalty for a private nuisance, is there ?-No; you can claim damages.

476. (Mr. Cohen.) But you can obtain an injunction ?— I do not know how far the trade unions would look upon that with favour. That would mean the repeal of this section.

477. (Chairman.) Not the whole section; only the subsection of it, I suppose, as to watching or besetting ?

27 Apr. 1904.

Mr. G. R. Askwith.

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That was thought to be going to do a great deal, but it has not done it.

178. (Sir Godfrey Lushington.) What is the remedy 27 Apr. 1904. in a case of public nuisance ?-Like obstruction of a highway?

479. Indictment, is it not ?—Yes.

480. And what is the remedy in the case of a private nuisance-an action at law ?-Yes, an action at law, claiming an injunction and damages for any loss.

481. And what is the remedy in the case of illegal assembly?-That would be an indictment.

482. May we not suppose that the object of the Legislature in this enactment was to substitute a provision which could be enforced summarily, in the place of legal powers which can only be enforced by what is an extremely difficult and expensive process ?-That may have been one of the reasons for the legislation, and, if I remember the debates aright, it was one of the reasons.

It was

pointed out that this section does give power to a Court of Summary Jurisdiction to act; and, as you can very well understand, it would be most important in a case of this kind that there should be summary jurisdiction.

483. Would it not be true to say that practically a remedy by indictment would be illusory in these cases? -The section has also got indictment in a particular

manner.

484. I did not mean that. A proceeding by indictment is an impracticable remedy ?—It is too slow.

485. (Chairman.) But proceeding by way of an ordinary action would be even worse?—Yes.

486. I mean to say that proceedings to abate a nuisance and an injunction would be perfectly useless, because they would put on separate men each time, and you would have hundreds of actions.

487. (Mr. Cohen.) Have any proceedings been taken -and an injunction-do you know of any ?-No.

Mr. G. R. Askwith.

5 May 1904.

Sir WILLIAM THOMAS LEWIS, Baronet.
Sir GODFREY LUSHINGTON, G.C.M.G., K.C.B.

Arthur Cohen, Esq., K.C.

488. (Sir Godfrey Lushington.) I propose to ask you some questions on the law of conspiracy; are you prepared to give us a general definition of what conspiracy means?-It has been said in various cases to be the doing of a legal act by illegal means, or the doing of an illegal act by illegal means, or the doing of an illegal act by legal means.

489. Those words have been often and often repeated, but it is pretty clear, is it not, that "illegal" there means something more than that which is criminal or actionable? -In the famous definition in Reg. v. Mulcahy the word unlawful is not defined.

490. Would you say that it is conspiracy to combine to commit a crime ?-Yes.

491. Any crime-any offence summarily punishable ? -I suppose it would, yes.

492. If it was a trifling offence, the breach of bye-laws for instance, and two persons combine to make that breach, would that be a conspiracy ?—I think there might be a conspiracy for doing that.

493. Would a combination to commit a breach of contract be conspiracy ?—Yes, I think so.

494. Any contract ?-I do not see where you can differentiate.

495. Would a combination to commit what is a tort in an individual be a conspiracy ?—Yes, I think so.

496. Any tort whatever. I do not wish you to give a definite answer unless you feel you are in a position to do so?-It is difficult at the moment to fix any limitation that might exist; speaking broadly, I should say if an individual can commit a tort you can have a conspiracy to commit a tort, it is two or more agreeing to commit the same thing one person can commit.

497-8. Then can a combination to do something which is neither criminal, nor a breach of contract, nor a tort, ever be a conspiracy ?—There you come to the point whether the agreement to commit the act may be in itself an unlawful conspiracy.

499. I am supposing the act is not a tort and not a breach of contract, and not a crime; nevertheless can an agreement

or combination to do that act constitute a conspiracy?I think it has so been laid down; the conspiracy consists in numbers agreeing to do an act harmful to another and the agreement itself is the illegal element.

500. When Lord Macnaghten speaks of an oppressive combination, does he mean a combination to commit something which is either actionable or criminal?— That is a difficult question to answer; I should say that he did not necessarily.

501. I am still on the question of conspiracy, but I am going first of all to put to you some questions as to torts committed by individuals. Putting aside all torts which consist of doing something which is obviously in itself either criminal or tortious, and as to which there is no question, do you consider that acts that are in themselves not criminal or wrongful have for some other reason been held to be criminal or wrongful? Take the tort of trade interference. You know Sir William Erle's dictum ?-Yes, I have read it.

502. As to the special protection which the Common Law grants to trade ?-Sir William Erle made rather a strong statement upon that point which has been enforced by other judges since, and which was taken as the foundation of Lord Esher's judgment in the Mogul

case.

503. (Mr. Cohen.) But it has been denied by other judges ?—Yes.

504. (Sir Godfrey Lushington.) In Allen v. Flood was that dictum of Sir William Erle's that traders were more closely protected than other persons not negatived ?— Some of the judges spoke very strongly in its favour, and others as warmly against it.

505. Do you consider that that doctrine was negatived or not in Allen v. Flood in the House of Lords ?—If you take the dicta of the judges, and not the absolute decision, the dicta of the majority were against it.

506. Since that time in Quinn v. Leathem has Sir William Erle's dictum been quoted with approval in the House of Lords ?-Yes, some of the Lords spoke of it with favour as if it had not been touched at all by Allen v. Flood.

507. Lord Brampton ?-Lord Brampton, and I think Lord Shand too.

508. (Mr. Cohen.) I think Lord Davey ?—No, I think it was Lord Shand.

509. (Sir Godfrey Lushington.) Do you know whether Mr. Justice Vaughan Williams in the case of Giblan v. The Labourers' Union also referred with approval to Sir William Erle's dictum ?-Yes, he did.

510. Then is it or is it not the law that traders have special protection ?-Taking the dicta, I think they are contradictory.

511. And if there is special protection for traders, is it only for traders who are employers, or does it extend also to traders who are workmen ?—Taking Sir William Erle's dictum ?

512. Yes?-Sir William Erle purported to bring in both parties.

513. And do you think that that dictum does apply to both parties ?—It has not in the cases that have come out apparently applied so plainly to workmen as it has to employers.

514. Do you know any case in which that dictum has been appealed to by labourers, and where the appeal has been listened to ?-In what you might call a labourers' case?

515. Yes?-No, I think not; in other cases it has been said that it applies to workmen equally, as for instance, when it was quoted in the Mogul case.

516. Then another alleged tort: you know Lord Esher's theory that malice renders a lawful act unlawful ?-Yes, he used that dictum in Bowen v. Hall and also in Temperton v. Russell.

517. Was that dictum negatived in Allen v. Flood?Everyone thought so; yes, I should say.

518. And was it negatived again in Quinn v. Leathem? Yes, it was.

519. May we say then that that dictum is dead ?—I should say it was.

520. That malice in the individual agent cannot alter the legal quality of an act ?-In the sense of the motive of the mind.

521. Take a third kind of tort: you remember Lord Bowen's ruling in the Mogul case that the law recognises it as a tort for an individual to do something which, although it is neither criminal nor actionable in itself, yet is injurious that is to say, is done with the intention to hurt and does do hurt ?-Yes, he founds his argument by starting with what the individual may do.

522. (Mr. Cohen.) "Intentionally to do that which is calculated in the ordinary course of events to damage and which does in fact damage another in that other person's property or trade, is actionable if done without just cause or excuse." (Page 613, 23 Q.B.D., 1889.)

523. (Sir Godfrey Lushington.) Was that negatived in Allen v. Flood?-If that was Lord Bowen's meaning, that it referred to motive; of course that statement of his was criticised by Lord Herschell in Allen v. Flood, and Lord Watson rather argued that he did not mean what at first sight would appear.

524. Lord Bowen in the Mogul case does lay down, does he not, that for an individual to do something, with an intention to hurt will be doing an actionable thing unless he can show justification ?-His words have been just read.

525. Was that principle rejected by Allen v. Flood?— Yes, if you take the remarks of the majority.

526. In Quinn v. Leathem did not the Lord Chancellor say that Allen v. Flood had made nothing lawful which before was unlawful ?-He said he did not agree with the Chief Baron that Allen v. Flood had altered the law in certain respects, and made that lawful which would have clearly been actionable before the decision of that case.

527. And Lord Lindley said that there was no contradiction between Lord Bowen's ruling and Allen v. Flood? -Yes, the meaning of Allen v. Flood was confined by the remarks in that case; you may say that the absolute decision was something different to any overthrow of Lord Bowen's idea, but the dicta of some of the judges were against the apparent argument that Lord Bowen had used.

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Mr. G. R. Askwith.

528. The ultimate question I want to put to you is, whether Lord Bowen's judgment in the Mogul case, so far as it relates to individuals, is now good law or not? 529. (Mr. Cohen.) I find that in Quinn v. Leathem 5 May 1904. Lord Lindley says, Allen v. Flood firmly established the far-reaching and important proposition that an Act otherwise lawful, although harmful, does not become actionable by being done maliciously in the sense of proceeding from a bad motive." Is not that inconsistent with what Lord Justice Bowen said

in the Mogul case ?-Of course it is very difficult to decide absolutely what Lord Bowen did mean in the Mogul case, because it has been debated, and one set of judges say he meant one thing, and another say he meant another thing.

530. (Sir Godfrey Lushington.) Lord Lindley also says most distinctly that he thinks there is no contradiction between Lord Bowen's ruling and Allen v. Flood: "The cases collected in the old books on actions on the case and the illustrations given by the late Lord Justice Bowen in his admirable judgment in the Mogul Steamship Company's case may be referred to in support of the foregoing conclusion, and I do not understand the decision in Allen v. Flood to be opposed to it " ?—Yes.

531. In Giblan v. The National Labourers' Union, do not the judges, Lord Justice Romer and Lord Justice Stirling, recognise such a tort by an individual-I mean the tort of intentional damage ?—Yes, I think they do. Lord Justice Romer said that it was not essential that the plaintiff should establish a combination of two or more persons to do the acts complained of.

532. Then we go back to the starting-point. Is the doctrine that in the case of an individual defendant there may be a tort of intentional damage, as laid down by Lord Bowen in the Mogul case, law now or not ?-There are strong dicta throwing considerable doubt upon the proposition as put by you; there are equally strong dicta in its favour.

533. Now to pass to the subject of the conspiracy to injure: Lord Macnaghten, in Quinn v. Leathem, says that the law does recognise a conspiracy to injure in the absence of justification, does he not ?—Yes, he makes some long remarks upon that point at page 510 of 1901 Appeal Cases.

534. Is it not the usual course in an action for tort for the plaintiff first of all to prove the prima facie tort, and then to leave it to the defendant, if he can, to prove just cause or excuse ?-Yes.

535. That is the invariable scheme of an action at law?-Yes, I think that describes it.

536. If that be so, applying that to the conspiracy to injure, the prima facie conspiracy apart from the justification is simply a combination to do an act of intentional damage?—Yes.

537. That category is enormously wide, is it not?Very wide indeed; it leaves it entirely to the courts to decide, as Lord Justice Bowen remarked, on which side of the line cases came.

538. That is the justification, but I am speaking of the act itself-an act of intentional damage is a very comprehensive term, is it not?-Once found that there is an intent to damage, you get into the difficulty of the justification.

539. The difficulty I refer to is the entire absence of limit with regard to the act; any act whatever which does harm, if done in combination, is primâ facie a conspiracy, according to that?-It is an extremely broad definition.

540. It would not go so far as to comprehend, I suppose, an act which does harm but which at the same time is the exercise of a proprietory right ?—No, I do not suppose it would.

541. A person is entitled to exercise his proprietory right irrespective of the consequence to other persons ?— Well, there is the maxim, Sic utere tuo ut alienum non laedas.

542. Did Lord Macnaghten in Quinn v. Leathem, when he said that the law recognises a conspiracy to injure, suggest that there was any limitation on the meaning of the words to injure ?-No, I think not; the words are these: Does a conspiracy to injure resulting in damage give rise to civil liability? It seems to me that there is

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authority for that proposition, and that it is founded in good sense," and then he goes on with a number of authorities.

543. (Chairman.) I suppose the practical limitation would be supposed to rest in the common sense of the jury or other tribunal ?-Yes.

544. (Sir Godfrey Lushington.) That then raises the question whether a combination of two or more persons to do anything which to the judge and jury seems to be objectionable is a conspiracy?-That might be held, if there are no adequate limitations.

545. The law of conspiracy to injure you will admit is a very wide spreading and universal law ?-There have been no practical limitations laid down in the courts at present.

546. And you will also agree that according to the judgments in the House of Lords and elsewhere the law of conspiracy to injure arises from the common law ?— Yes.

547. Therefore we may say it is as old as the hills? Yes, it might be said to be in the armoury of the law.

548. Now to what extent has this universal, unlimited, and extremely ancient law been put in operation in the course of the history of centuries ?—There were a certain number of cases alluded to by Lord Macnaghten, starting with Gregory v. the Duke of Brunswick, and I think there were a certain number of cases alluded to, rather upon the point of conspiracy and trade interference, in Allen v. Flood, both by the judges and by the Lords.

549. There have been a certain number of cases of political boycotting in Ireland, have there not ?-Yes. 550. And of cases not connected with trade there is Gregory v. the Duke of Brunswick ?—Yes.

551. Will you describe that case ?—That was a case of hissing in a theatre.

552. A combination to hiss in a theatre and to create a riot ?-Yes.

553. Do you know the case of Kearney v. Lloyd ?— Yes, Kearney v. Lloyd came after Allen v. Flood and was decided by one of the judges from what he understood to be the meaning of Allen v. Flood. It was a case in Ireland with regard to people abstaining from subscribing to a sustentation fund in a parish, and it was argued before Chief Baron Palles and Mr. Justice Andrews.

554. Were those two cases which were not concerned with trade, Gregory v. the Duke of Brunswick and Kearney -. Lloyd, both proceedings under this general law of conspiracy, successful?-Lord Macnaghten says there are others.

555. But were those cases successful? Did the plaintiff recover?—Not in Gregory v. the Duke of Brunswick. 556. Nor in Kearney v. Lloyd ?—I think not.

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557. (Mr. Cohen.) In Kearney v. Lloyd the Chief Baron said If anything is well settled in law it is that, in cases of this description," that is so-called actions for conspiracy, "in which the old writ of conspiracy did not lie, the gist of the action is not the conspiracy itself, but the wrongful acts done in pursuance of it. The cause of action must exist although the allegation of conspiracy be struck out " ?-That comes to this, that two or more conspiring together cannot be liable unless there are wrongful acts for which one man would be liable.

558. (Sir Godfrey Lushington.) I am not now on the question of what is the law; I am on the question of to what extent the law has been carried out in history. In the two cases which were not immediately connected with labour, Gregory v. the Duke of Brunswick and Kearney v. Lloyd, an attempt was made to enforce the law, which failed. Is not that so ?-Yes. Of course the law, prior to 1871, was complicated by the question of restraint of trade; all the cases are quoted in Mr. Justice Wright's book on Conspiracy" and he examines them.

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559. The cases which Mr. Justice Wright refers to in his book, are referred to with a view to negative the existence in law, of a conspiracy to injure ?—Well, Mr. Justice Wright examines every case of conspiracy of which there is any report in any legal document that he can find during the course of English history, and there is no finding of a conspiracy to injure as the result.

560. In the case of trade disputes, what instances are there in which this law of conspiracy to injure has been attempted to be enforced against traders or employers ?— By rival traders and employers or by workmen.

561. By anybody ?-There is the Mogul case. 562. That is one; and do you know the Glasgow Fleshers' case ?-Yes.

563. Do you know Bulcock's case ?—Yes.

564. Those are three cases in which this law of conspiracy to injure was attempted to be enforced against employers; were the proceedings successful?—No, I do not think they were in any of them.

565. They failed in every case. Can you state a case in which the law has been successfully enforced against masters ?-On the ground of conspiracy to injure only ?

566. Yes, I am on that entirely ?—Not one on the ground of conspiracy to injure only. It has been brought in in the action as an addition to other suggestions against the employer; everyday it is put in.

567. But you do not know a single case in which masters have been found responsible for a conspiracy to injure ?—Not on the ground of conspiracy to injure only.

568. Then how is it with the workmen? Have there been any cases against the workmen ?-There is Quinn v. Leathem which was said not to be a trade dispute and there have been other cases that I have mentioned in the course of my evidence.

569. There have been these numerous cases in which workmen, but none in which two or more employers have been found civilly responsible for conspiracy to injure ?No, I think not.

570. Do you not think then it is rather perplexing to workmen to be told that there is such a wide sweeping law in existence as conspiracy to injure, but which at the same time in the whole course of history has produced no effective case against masters, although in the last few years it has produced a number of cases against workmen ? -Undoubtedly, and if you come to possible criminal liability, it becomes still more serious.

571. Do you consider that workmen have a right to strike?-Yes.

572. Do you consider that the right of strike is as absolute a right as a proprietary right ?—That is rather a broad way of putting it, is it not? 573. I will put it in more detail.

Before striking has

a workman to ask anybody's leave ?—No.

574. Is he at liberty to strike for any motive whatever? —I do not know of any limitation at the moment.

575. Has anybody a right to interfere with him to prevent him from striking ?—No, the right to strike is per se legal.

576. Absolutely unlimited. Do you know of any case in which workmen combining to strike have been stopped by injunction or been successfully sued for damages ?-No. I presume by striking, in the sense in which you are using it, you mean leaving work?

577. Yes, combining to leave work ?-Yes, without breaking contracts.

578. (Mr. Cohen.) Do you know of no prosecutions before 1871 ?-That was a different matter before 1871.

579. (Sir Godfrey Lushington.) Do you know of any case since 1871 in which workmen for merely combining to strike, to cease work, have been stopped by injunction or been successfully sued for damages ?-No.

580. If there is a right to strike, then inducing men to strike is inducing them to exercise their right ?—Yes. That was remarked, I think, in Allen v. Flood by one of the Lords.

581. Do you know Lord Macnaghten's words in Allen v. Flood ?-On page 151 of 1898 Appeal Cases, Lord Macnaghten says "I do not think that there is foundaany tion in good sense or in authority for the proposition that a person who suffers loss by reason of another doing or not doing some act which that other is entitled to do or to abstain from doing at his own will and pleasure, whatever his real motive may be, has & remedy against a third person who, by persuasion or some other means not in itself unlawful, has brought about the act or omission from which the loss comes, even though it could be proved

that such person was actuated by malice towards the plaintiff, and that his conduct if it could be inquired into was without justification or excuse."

582. Do you think those remarks are limited to individuals, or do they extend to persons acting in combination ?--I should say they were perfectly general.

583. Do you consider that to be law now ?-There have been remarks by Lord Lindley, I think, in Quinn v. Leathem which go the other way.

584. Before you go to Quinn v. Leathem would you take Lyons v. Wilkins ?-There are the remarks of Lord Justice Kay on the one side, and Lord Justice A. L. Smith on the other; they are both given upon the assumption that the words of the Act gave the only permission which allowed such inducement.

585. Do they not lay it down in a broad way that whilst workmen may strike, they are not at liberty to do anything more than strike ?-Lord Justice Kay says, "Still more clearly is it illegal to induce a man or to prevent a man in the position of Schoenthal from working for the plaintiff by calling out the workmen of that man, and inducing them not to work for him, that being done for the purpose of putting pressure both upon Schoenthal and upon Messrs. Lyons, by preventing Schoenthal from working for Messrs. Lyons. I cannot read Section 7 without seeing distinctly that those things are not permissible by this Act of Parliament, and no Act of Parliament can be referred to which makes them lawful."

586. Would the effect of that be, that in a strike where there is a contest going on between the employer and workmen, the employer should be free to persuade workmen to enter his service, but that strikers should not be free to dissuade them. Is not that the effect of those observations in Lyons v. Wilkins ?-Speaking generally, it might come to that; of course you might get a condition of affairs in which employers, by inducing workmen to come into their service, might be liable for conspiracy if they took away the workmen of other people.

587. More than that; if the employer persuades workmen to enter into his services so as to carry on the business in spite of the strike, does not every such act of the employer necessarily tend to injure-as it seems in the eyes of the workmen-workmen's interests ?-Yes. of course it docs; the employer simply takes other labourers instead of them; he cannot carry on his work without doing so, but from the point of view of the man who is turned out, or who is on strike, and in whose place somebody else is taken, of course it is an injury to him.

588. If there is a battle going on between two persons, you cannot help one without injuring the other ?-No.

589. It is for workmen, is it not, to say for themselves whether they like to enter employment ?—Yes.

590. And have the workmen on strike as good an interest to dissuade workmen from taking work as an employer has to persuade them to take work?-They consider it is for their advantage in order to carry out the strike.

591. There is a substantial interest at stake ?-I think I ought to qualify my previous answer to a certain extent by saying that I assume you mean an abstract interest, not interest in the sense of a right that can be legally employed.

592. You agree that masters and men have each an interest ?-Yes.

593. And therefore the workmen have a substantial interest in trying to induce other workmen not to work?It is one of the methods by which, in fact, they can only carry on the strike to any effective conclusion from their point of view.

594. If the workmen are not to be permitted to induce others to refuse to enter the employment of a master, do you think it would be possible to carry on any strike effectually?—No, I think not.

595. Then Lord Lindley's ruling would absolutely make once for all, all strikes ineffective ?-Lord Lindley's remarks-and perhaps purposely, at the commencement of his judgment in Lyons v. Wilkins-point out the very great limitation which exists with regard to the law as to the conduct of strikes. I am not saying whether it should be altered or not, or whether it is absolutely correct or not, but he shows what the mcde of decision by some of the judges may be considered to be,

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Mr. G. R. Askwith.

596. What do you conceive to be the operation of Lord Macnaghten's decision upon previous decisions which I will mention do you consider that Lord Macnaghten's decision is a confirmation of R. v. Druitt ?—R. v. Druitt 5 May 1904. was thrown over by subsequent legislation and appeared to have vanished; the breadth of Lord Macnaghten's judgment seems rather to point to the doctrine in R. v. Druitt still existing.

597. Therefore R. v. Druitt, you would suppose, is still good law. That was a case of molestation, but it did not amount to statutory molestation ?-No, Lord Bramwell was the judge who tried it, and I daresay I could give you his words.

598. I should be right in saying, should I not, that the effect of Lord Macnaghten's ruling is, that the combination of two or more persons to molest would be a conspiracy, although the molestation was not statutory molestation ?—The dictum is wide enough for that.

599. Then would it be a conspiracy to do something less than molestation-simply to do something which would interfere with the employer in regulating his business? Would that be an injurious conspiracy?— It might be.

600. On what would it depend ?-There is no limitation laid down.

601. It would then depend on the determination of the judge and the jury?—Yes, and the damage that was done.

602. Yes, but on the judgment which the judge and jury might form on consideration of all the circumstances? -Yes, and if you take Mr. Haldane's view, a nuisance being a mode of deciding by the judge and jury, he suggests that should be the mode of decision.

603. Is the effect of Lord Macnaghten's ruling to uphold the cases of R. v. Rowlands and R. v. Bunn? You remember those cases ?-Yes. I do not think Lord Macnaghten, if his mind had been set upon its being said that he upheld the decisions in those cases, would have accepted the position, but those cases. by the width of his dictum, may be to a certain extent, I suppose, said to be upheld by it.

604. This is a practical question. I want to understand this. If workmen combine to do anything the object of which would be to interfere with the employer in regulating his business, would that be an act of conspiracy?—According to the length to which some of the dicta have gone, I think there would be a liability of an action being brought for conspiracy.

605. What can a workman say if he is told his liability depends according to the weight to be given to some dicta of the judges ?-Of course, that is the difficulty from the point of view of the workman; he wants to know what the law clearly is, and the dicta in these cases, if you take the dicta only, are, in my humble judgment, very contradictory indeed.

606. The dicta are contradictory and some of them go to the length of logically upholding the decisions in R. v. Rowlands and R. v. Bunn, wherein the fact of combining to interfere with the action of an employer was said to have constituted conspiracy?—I think it might be so argued.

607. Is it true that every strike that has ever existed has been hurtful to the employer and has been intended to be so ?-Yes, I suppose so.

608. Then these dicta you have mentioned would go to the extent at once of declaring every strike a conspiracy: as a combination to do something which is hurtful to the employer?-They would lead up to the view that seems to have been taken by Lord Lindley in Quinn v. Leathem that all combinations to prevent others from working are per se illegal, unless there is a justification.

609. To pass to that subject of justification, the defendant in any case is at liberty, is he not, to show just cause or excuse, to prove justification ?—Yes.

610. Does just cause and excuse mean legal justification, or moral justification ?—Legal justification.

611. If it meant moral justification, that would revolutionise the law altogether, would it not ?—Oh, yes, of course.

612. In these actions for conspiracy to injure, in theory the justification which the defendant has got to make