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also in Nightingale v. Bridges, and East India Co. v. Sandys, it was held that, "a monopoly is no immoral act which, if it happens to be to the advantage of the public, as this trade is, ceases to be against the prohibitory part of the law."

Nevertheless, even before the case of Mitchell v. Reynolds, such organizations as restrained labour would probably not be held to be for the advantage of the public, and the nineteenth century view is clearly shown in the case of Hilton v. Eckersley, already mentioned (where the legality of a group of employers agreeing by bond to fix wages by a majority was under discussion); Erle J. thought the bond and association good, but, on appeal, the Court (Lord Campbell and Crompton J.) thought it unenforceable; the former distinguishing between the civil illegality arising from the restraint, which he held to exist, while deciding against the association being a conspiracy, while Crompton J. thought it amounted to a criminal conspiracy. The Court of Exchequer Chamber, in a judgment by Alderson B., also held the combination to be civilly unlawful, but expressed no opinion as to its criminal aspect as a conspiracy. Finally, in R. v. Stainer, Keeting J. definitely held that an association, merely in restraint of trade, was not thereby made a criminal combination.

There remains, therefore, only to be considered the effect of civil unenforceability upon a trade union prior to 1871. In Hornby v. Close, a society had sought to take advantage of the

3 2366 5 S.T. 3 (1870) L.R. 1 C.C.R. 230.

11 Shower 135. 4 (1867) L.R. 2 Q.B. 153.

Friendly Societies Act, 1855, which gave power to such an organization to recover monies wrongly taken from it by members before the Justices if it were established for a purpose not illegal. The Court held that, although the object of Hornby's society (the Boilermakers') was, in part, the relief of sick members, yet, in so far as one of its principal objects was the support of members on strike, it was a society established for an illegal purpose and refused all aid to recover monies stolen by defaulting members. Thus, apparently, before 1871 a trade union illegal at common law by reason of its objects being in restraint of trade was without legal redress and must be considered, if not criminal, to have been at least an outlaw.

The Act of 1868, which authorized the prosecution by joint owners of property against one of them, did not give the trade union any means of recovering their funds in a civil action, and, after another decision, Farrer v. Close,' had followed Hornby's case (despite the fact that in R. v. Blackburn' it had been held that the criminal remedies in the 1868 Act could be used by trade unions), there was passed the Trade Unions Funds Protection Act of 1869, by which the decision in Hornby v. Close was negatived and trade unions were expressly placed within the protection of the Friendly Societies Act, 1855.

$ 4.-LIABILITY FOR INTERFErence.

We now turn to that branch of law which is concerned with tortious acts, centring round the 1 (1869) 4 Q.B. 602. 211 Cox C.C. 157. 32 and 33 Vict., c. 61.

right of persons to dispose of their labour or their capital as they will.

These proceedings, which, like the writ of trespass, originally partook both of a criminal and of a civil character, could be taken not only against a servant who left his master's service, but also against the person who enticed him away. A writ of trespass, if the servant was taken away, lay at common law, apart from the Statute of Labourers,' but later the writ against the enticer, probably in the form of trespass on the case, came to lie under the statute.

2

The famous Gloucester Grammar School case* extended the right to trade without interference generally. In Garrett v. Taylor, threats of personal injury and vexatious litigation were held to be an unlawful interference of a trader's customers. (See also Keeble and Hickeringill, and Carrington v. Taylor, 1809; cases of interference by the making and use of a decoy for ducks, so also Tarleton v. McGawley,' where natives willing to be customers were frightened by cannon.)

5

8

There is little doubt, however, that in this class of case, as in cases of restraint of trade, the law is more favourable to defendants than was formerly the case. In Springhead Spinning Co. v. Riley, Malins, V.C., said, "directly a man enters into a combination which has as its object the interfering with the perfect freedom of action of

1 Y.B.B. 47 Edward III, Mich. Pl. 15; 11 Henry IV, Mich. Pl. 46. 2 Per Moyle, J. Y.B. 9 Edward IV, Mich. P. 1,4. 8 (1410) Y.B. II Henry IV, 4, 47, f. 21. 4 (1620) Cro. Jac. 567. 5 (1707) II East 573. n. 6 II East 571. 7 (1794) Peake, N.P.C. 270. 8 (1868) L.R. 6 Equity 551. 9 Page 558.

another man, it becomes an offence, and this statement, together with the much quoted opinion of Sir William Erle, in his memorandum to the Royal Commission of 1869, that "every person has a right under the law, as between himself and his fellow subjects, to full freedom in disposing of his own labour or his own capital according to his own will," now require considerable qualification, at any rate where the interference arises from legitimate competition (see Mogul Steamship Company v. Macgregor, Gow and Co.).'

3

It is, however, still clear law that the interference with contractual relations without justifications by a third person is unlawful. The leading case on this matter is that of Lumley v. Gye, and a person commits an actionable wrong if, in the words of Erle J., "he knowingly and for his own ends induces another person to commit an actionable wrong to a third." If a person does such a wrongful act calculated, naturally, to produce injury and, in fact, producing it, it is no defence that the natural consequence is an act done by a third person in breach of duty or contract. This was decided in Bowen v. Hall, and is only mentioned here because it disapproves of the case of Vicars v. Willcocks," which is apparently to the contrary. The interference must, however, be a real and intended one (Wolstenholme v. Ariss)."

We have now summarised the principal legal problems which came up for consideration before the Royal Commission of 1869. Curiously

1 [1892] A.C., 25, 36, 42, 52. 2 (1853) 2 E. and B. 217. 3 Page 232. (1881) 6 Q.B.D. 333. 5(1806) 8 East 1. [1920] 2 Ch. 403.

enough, that enquiry, which ultimately resulted in so wide a legal emancipation of trade unions, was originally constituted in order to enquire into various charges against them. A number of crimes at Sheffield, culminating in the explosion of some cans of gunpowder at the houses of unpopular workmen, and a general fear of trade unions-those "fearful engines of mischief ready to riot or assassinate," as Dr. Arnold had called them-caused the Government to announce the appointment of a Royal Commission of Enquiry in 1867. The enquiry was to extend to all outrages in Sheffield and elsewhere and into trade unionism generally.

It was just at this time that the case of Hornby v. Close had decided, in substance, that trade unions had no legal status, and, from the beginning of the sittings of the commission, it was the object of Mr. Frederick Harrison and Professor Beasley, on behalf of the men, to obtain legal recognition for the societies.

The evidence of Robert Applegarth, the general secretary of the Carpenters' Union, helped to satisfy the commission that a broad distinction had to be drawn between trade unions proper and isolated outrages, which distinction was preserved in subsequent civil and criminal legisla

tion.

There were two reports as a result of this enquiry, but the minority one found more favour; the temporary Act of 1869, to protect Trade Union funds, was hastily passed and, in 1871, the Government introduced two measures, the one