union assuming power to dictate to a workman, whether a member or not, when he shall leave a service, does an act which the workman may with impunity resist and disregard. And this view of the law has been confirmed by a very recent statute, to be mentioned. And for like reasons, a combination of masters to discharge servants at the dictation of third parties, in order to keep wages low, was held, if not an indictable offence at common law, as at least contrary to the freedom of trade, and as so far void, that it could not in any way be enforced.1

Action for decoying another's servant.-It is indeed at common law an actionable wrong to induce or procure a workman to break his contract, if the breaking causes damage to the master. Hence if I, by offering higher wages, or otherwise, cause him to leave, so that his master suffers loss, his master can sue me for such loss, and recover damages, the two elements of liability against me consisting in my knowing that the workman was at the time under contract to another master, and that the breach of such contract which I procured would cause his then master some loss. But on the other hand, if I without any active inducement, by offering larger wages, cause another's servant to leave his master, and such servant chooses to accept my terms and break his contract with his former master, that is to say, if I have left it entirely to the servant's election, I incur no liability and do no wrong; the servant in that event alone incurs liability for the breach of his contract with the former master, in which case, if he pay proportionable damages, he will be quit of his liability. At the most he must pay those damages due to the former master for the breach of contract, and when those are paid we are both free to do as we please. Such a remedy, namely, the recovery of damages for any loss suffered, seems adequately to meet the occasion. And it has been held, that though I actively procure a workman to break his contract, I commit no indictable offence at common law, and that no one can be indicted

1 Hilton v Eckersley, 6 E. & B. 47. 2 Lumley v Gye, 2 E. & B. 216; Blake Lanyon, 6 T. R. 221; Fawcett v Beavres, 2 Lev. 63. 3 Bird Randall, 3, Burr. 1345; 1 W. Bl. 387. See comments on that case in Godsall v Boldero, 9 East, 72.

for being a common procurer of servants to break their contracts, an action of damages being at most the only remedy. It seems to follow from the same principle, that if a trade union induced a workman to break his contract and leave his master, this would be no indictable offence at common law; but at most those who so advised the workman would be liable for damages in an action by the

master.

Old statutes as to servants leaving their service.—The Statute of Labourers of Elizabeth in 1562, while repealing the older statutes beginning with Edward III., and consolidating and re-enacting their better parts, made it compulsory on workmen to serve for not less than a year, and fixed their wages and hours of work, and punished absenting workmen with fine and imprisonment, and punished masters paying more than legal wages with fine and a shorter imprisonment. So that the most rigorous relations between master and workmen were thereby riveted on both-relations at which modern experience and enlightenment revolt.2 That class of statutes made it a penal offence for a workman to break his contract and leave the service: and hence it was held that if several combined to commit a penal offence, this was a conspiracy, and indictable as much as if the breach were itself indictable. But it cannot with safety be laid down that an agreement or combination to commit a mere actionable wrong against A would be indictable at common law, though some dicta, and even one or two decisions, apparently go to that extent. Much confusion has no doubt existed on this subject, which has been chiefly caused by the doctrine of freedom of trade being erroneously mixed up with the question of breaking an isolated contract, and sometimes it has been doubted whether, though it may not be an indictable offence to induce one servant to desert his master, it may not be so to induce a strike of workmen, in other words, a large body of workmen to desert simultaneously with the in

1 R. v Daniel, 6 Mod. 182; R. v Collingwood, 2 L. Raym. 116. 2 25 Edw. III. St. 1; 5 Eliz. c. 4; repealed in 1875 by 38 & 39 Vic. c. 86, § 17. 3 R. v Thompson, 16 Q. B. 832. 4 See comments

on authorities, Wright's Criminal Conspiracies, 40-43.

tention to cause loss to the master who employed them.1 And if it be said to be contrary to justice that a master should suddenly be subject to wholesale desertion, the abandonment of his business, and irreparable loss of profit on large contracts, for the successful carrying out of which steady and continuous labour is essential, it may be answered that the only appropriate remedy lies in his own hands, namely, that he should guard in all his contracts against any responsibility or loss arising from strikes among his own men in the same way as he guards against the hurricane and the pestilence, or any act of God which he cannot control.

Series of statutes as to combinations of workmen.— Another class of statutes were passed for the express purpose of making combinations for certain defined objects connected with trade indictable offences. These were the combination statutes, beginning with the Statute of Conspirators of 33 Edward I., and including statutes of Henry VI. and Edward VI., down to George III. The statute of Edward VI. shows that workmen were then in the habit of making confederacies and agreements as to the hours they should work, and what work they should do in a day, and what prices they should work for, and those that so conspired were declared liable to fine and imprisonment, and on a third offence to be set in the pillory, and to lose one ear, and be declared infamous." And in 1725 the offence of threatening masters or others for not complying with their rules and demands was declared felony. In 1825 the old statutes were repealed, and while workmen and masters were severally allowed to meet, confer, agree, and settle as to wages, hours, and prices, all persons were declared liable to imprisonment for three months if by violence, threats, intimidation, or molestation they forced or endeavoured to force a workman to depart from his, hiring, to refuse work, to become a member of a club, or to comply with rules made as to wages; and the same if they forced a master to alter his trade or business, or to limit his workmen and servants.4 In 1871, and again in 1875, that

1 Per Crompton, J., on Trade Unions, 36. 4 6 Geo. IV. c. 129.

Hilton v Eckersley, 6 E. & B. 47; Erle, 2 2 & 3 Ed. VI. c. 15. 3 12 Geo. I. c. 34.

prior statute was repealed, and such offences were defined in different language.

Under the various combination statutes there was nevertheless nothing illegal in workmen carrying out a strike, so long as those who struck did not break their contract, but gave regular notice to leave the work, and so long as they abstained from the violence, threats, intimidation, and molestation described by that class of statutes.1 There were, however, many loose expressions pervading the decisions of the courts, which were naturally due to the great multiplicity of the statutes and the uncertainty as to their precise objects, as well as to the ignorance of those laws since made plain by political economists. And until very recent times it was doubted whether, irrespective of any breach of contract, and of any threat or molestation, the mere fact of several workmen combining simultaneously to leave the service, though each could do so with impunity, was not an indictable offence. All this confusion was sought to be put to an end in 1871 and 1875, when the last revisions of these acts took place.2

Trade union not illegal in itself.—It is now declared by statute that there is nothing illegal in the purposes of any trade union, so as to avoid any agreement or trust by reason merely that it is in restraint of trade.3 At the same time

a trade union still cannot enforce any agreement, with or between its members as to the terms on which each will accept employment, or the payment of his subscriptions or fines, or as to allowances made for acting in conformity with the society's rules.4

Modern definition of intimidation in another's business.The law of intimidation connected with trade disputes was after much discussion at last declared by the legislature. The Conspiracy and Protection to Property Act of 1875 enacted that whosoever should be guilty of the following

1 R. v Selsby, 5 Cox, C. C., 495, n.; R. v Shepperd, 11 Cox, C. C. 325. It was held, however, also that to strike in breach of their contract, that is to say, to combine to commit a penal offence, was a molestation within the statutes.-R. v Rowlands, 5 Cox, C. C. 404 ; 2 Den. 361.

2 38 & 39 Vic. c. 86; 34 & 35 Vic. c. 31; 39 & 40 Vic. c. 22. 3 34 & 35 Vic. c 31, § 3. 4 34 & 35 Vic. c. 31, § 4.

conduct, with a view to compel any other person to abstain from doing or to do any lawful act, in other words, from pursuing any lawful business, should be punishable. This conduct is described as wrongfully and without legal authority, (1) using violence to or intimidating any other person, or his wife, or children, or injuring his property; or (2) persistently following any other person about from place to place; (3) hiding any tools, clothes, or other property owned or used by any other person, or depriving him of or hindering him in the use thereof; (4) watching or besetting the house or other place where any other person resides or works, or carries on business or happens to be, or the approach to such house or place; or (5) following any other person with two or more other persons in a disorderly manner in or through any street or road.1 But in order not to interfere with the legitimate objects of associations of men, who are careful, while seeking occasion to reason and expostulate with others, not to go the length of intimidation, it is provided that the attending at or near the house or place where a person resides or works, or carries on business or happens to be, or the approach to such house or place, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section. By this qualification fair play is given to all kinds of argument and discussion. The same enactment, though its chief moving cause was the difficulty of protecting workman against workman, is stated in sufficiently general language to include all persons whatsoever, and is no longer a piece of class legislation. Whenever a person, whether workman or not, who has a legal right to do or abstain from doing any act is wrongfully, and without legal authority, and with a view to compel him to act against his will, persistently followed, watched, or beset, or if his wife or children are intimidated

2

138 & 39 Vic. c. 86, § 7. "The Conspiracy and Protection of Property Act, 1875."

2 The word "intimidation" was said by the judges in O'Connell's case not to be a word of art, and not necessarily to import a bad sense.-O'Connell v R., 11 Cl. & F. 407. But time has since changed that sense, and this statute has now made the word a word of art, and used it in a bad sense.-Ibid.