On the other hand, to discuss with an employer the settlement of a dispute without handing him a resolution to strike was not an intimidation.' Nor even where a resolution to strike had been carried was it intimidation to give it to the employer at his request.

In Shelbourne v. Oliver,' Walsby v. Anley was followed, and it was held to be an offence to threaten to call out the men unless an obnoxious person was discharged; so also in R. v. Druitt," where pickets were placed who "insulted and followed persons," this was held to be intimidation, molestation and obstruction, though in that case Baron Bramwell told the jury that a picket who did not do anything more than peaceful persuasion might be innocent. Skinner v. Kitch was a case similar to Walsby v. Anley and Shelbourne v. Oliver, and had a similar result, while in R. v. Sheppard, peaceful persuasion being only proved, the case came within Baron Bramwell's observations in R. v. Hewitt, and resulted in an acquittal.

In R. v. Sheridan, Lush J. is reported in the Leeds Mercury, August 13th, 1868, to have said that there was nothing criminal in a combination to enforce a strike without intimidation.

$ 3.-RESTRAINT OF TRADE.

The normal activities of industrial organizations tend to produce that legal position generally

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1 O'Neil v. Kruger (1863); 4 B. and S. 389., 2 Wood v. Bowron, 2 Q.B. 21. (1866) 13 L.T. 630. (1867) 10 Cox C.C. 592. 5 (1867) 2 2 Q.B.D. 393. 6 (1869) II Cox C.C. 325.

We have to notice

known as Restraint of Trade. in the first place, the existence, from very early times, in corporations or guilds of traders, of a right given to them by a sovereign authority, by Royal Charter, or otherwise, to restrict trade in their area or occupation. Thus Henry II, by Charter, granted to the guild merchant of Oxford that no one outside the guild should do any trading in the city or suburbs; to the Nottingham Guild control of the cloth dying trade is given for ten leagues around the city. It is to be noticed that, without such Royal Charter, the organization would be considered by the medieval lawyer to be adulterine and so liable to be dissolved. may observe that, by the Municipal Corporations Act of 1835, such restraint of trade by custom was dissolved outside the City of London.

We

It is not necessary here to discuss at all fully the general development of the doctrine of restraint of trade. The instance of Dyers case' is often cited as early example of the recognition of the doctrine, but the case is complicated by elements of fraud and compulsion and is for that reason unsatisfactory. Nor are the mediaval statutes forbidding Forstalling and Regrating much in point. Coke certainly developed the doctrine of restraint of trade, as in the Ipswich tailors' case,* in which appears the phrase " the common law does abhor all monopolies," which, together with the case of the Exeter Tailors,' and the Gun-makers' Society v. Fell,* go near to decide, not only that a

1 (1414) Y.B. Henry V, F. 5, p. 26. 8 (1684) 2 Shower 345.

2 (1614) II Co. Rep. 53a. 4 (1742) Willis 384.

general restraint is void, but also that such restraint might taint the organization which was based upon

it.

In Jones v. North,' Vice-Chancellor Bacon said, "there is nothing illegal in the owners of commodities agreeing that they will sell, as between themselves at a certain price," but, as between the members, it might have been unenforceable. Thus also in the Mogul case, Lord Hannen said, "I think the agreement between the defendants to act in combination illegal in the sense that it was void and could not have been enforced," so also in Urmston v. Whitelegg.

A trade union or similar organization, therefore, might, and still may, at common law, be unlawful according as its objects or rules do or do not violate the general principles as to restraint of trade."

It is important that a clear distinction should be drawn in discussing the legality of trade unions at common law, between illegalities which may arise in connection with notions of conspiracy and those arising from the doctrine of restraint of trade alone.

Nothing resembling Conspiracy, in its modern sense, was known to the law before the seventeenth century, says the late Mr. Justice Wright in his invaluable Law of Criminal Conspiracies. In the Poulterers' case, the doctrine was established

1L.R. 19 E.9. 426. 2[1892], A.C. 25, at page 58. 363 L.T. 455. See Gozney v. Bristol Trade and Provident Society [1910], 1. Ch.D. 163, per Cozens-Hardy M.R. at p. 915. Russell v. Amalgamated Society of Carpenters and Joiners [1912], A.C. 421, per Lord Shaw at pp. 432-3, and per Lord Robson at p. 439, etc. 59 Co. Rep. 55.

that the gist of the crime was the intent, and, by gradual stages, the crime was extended to a conspiracy which, though planned, had not been carried out, and thus the agreement or confederacy for the commission of a conspiracy became itself an act of conspiracy.

It appears that this doctrine originated in the Star Chamber and, after the fall of that Court, became absorbed into the common law. Thence we arrive at the statement in Hawkins' Pleas of the Crown (1717) that a combination to do an act unlawful, though not criminal, might nevertheless itself be criminal.

The multiplicity of statutes forbidding combination certainly suggests a deficiency in the machinery of the common law to deal with the matter. There is an early ordinance of Edw. I, 1305, and an Act of Edward I, against those who confeder or bind themselves by oath, etc., to obtain advances of wages; many other similar statutes exist, such as Edw. 3, c. 15; 3 Hen. 6 c. 6; 7 Geo. I, etc. By the time of the General Combination Act of 1799, there were nearly a score, all passed apparently, to forbid that which the common law was powerless to prevent.

The fact that a combination, merely in restraint of trade, is nevertheless not an illegal conspiracy at common law has already been suggested-it is true that we find in Hawkins' Pleas of the Crown, p. 446, the statement that "all confederacies whatsoever wrongly to prejudice a third person are highly criminal at common law, as were diverse persons confederate together by indirect means to

impoverish a third person," and that this dictum was adopted by Grose J. in R. v. Mawby."

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The case of the Tailors of Cambridge often cited in support of this view was probably based in part at least upon the statutes, but, apart from statute, the erroneous notion of the criminal nature of a combination of workmen at common law finds expression as late as 1853 in the case of R. v. Rowlands, in which it was said to combine for the purpose of obtaining a lawful benefit to themselves gives no sanction to combinations which have for their immediate purpose the hurt of another, and is finally heard of in the judgment of Crompton J. in Hilton v. Eckersley, 1856, where he held, as against Lord Campbell, that a bond between employers not to raise wages might be a criminal conspiracy.

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Since that time we are only concerned with the civil aspect of the matter; as to how far a combination in restraint of trade is an illegal association at common law. In the middle ages, the notion that wages and prices should be fixed by free competition would have been thought a monstrous absurdity. The Statute of James I against monopolies contains a reservation in favour of corporations, companies or fellowships of any art, occupation or mystery. In Hobbs v. Young, Holt J. dissents from Coke's view that companies that went beyond the Elizabethan statute were necessarily unlawful as in restraint of trade. So

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11796, 6 T.R. 619. 2 i.e. 8 Edward VI, c. 15 and 1 Jac. 1, c. 6. 5 Cox C.C. 466. 46 E. and B. 47. 5 See Smiths' Leading Cases I, 406 et seq. 21 Jac. I, c. 3, sec. 9. 7 Carthew 162. 8 See Norris v. Stapps, Hobart's Reports 293, in which that view is taken.