dealing with civil, the other with criminal

matters.

As regards the latter, the Criminal Law Amendment Act, 1871, it repealed the Act of 1859 and the Act of 1825 also. In place thereof it provided that it was a criminal offence to intimidate any person in such a manner as would justify a Justice of the Peace binding over the person who intimidated in order to coerce the other person to dismiss a workman or quit his employment or to belong or not to belong to any organization or to alter his method of carrying on business or the number or description of his employees. There followed a new definition of the old vexed words "molestation and obstruction," which were now confined to cases of persistently following a person from place to place, hiding tools or clothes or watching or besetting the house or place where such person is, or following him with two or more persons in a disorderly manner through any road.

Although this Act provided that no person should be liable to punishment for doing or conspiring to do any act on the ground only that such act restrains the free course of trade, unless the act was one of coercion as in the Act defined, there was great opposition to the section dealing with watching and besetting which, it was thought, would prevent all picketing.

The decisions which followed this statute certainly had the effect of restricting rather than increasing the legal freedom of industrial action. In 1871, seven women were imprisoned in South Wales for saying "Bah!" to a "blackleg," and there

D

were numerous convictions for bad language which was construed as coercion; but the most important decision of all, one which, according to Sir James Stephen, caused the amendment of the Act in 1875, was the case of R. v. Bunn, generally known as the Gas-stokers' case, in which Mr. Justice Brett, afterwards Lord Esher, decided that, for a number of workmen to strike in breach of contract to procure the reinstatement of a dismissed employee, without using any specific threat or violence, was an improper molestation of the employers' right to employ whom he would within the Act, and was therefore criminal. This was followed, in R. v. Hibbert, by a decision of Baron Cleasby that picketing would become unlawful if it caused the employer" a dread of loss," for instance, "suppose it was proved that there was a confederacy which rendered it impossible for the employers to continue their business for want of workpeople ---carried out by waylaying and offering money to their workmen and men seeking employment from them-this would be an indictable offence."

2

Finally, in 1875, the Criminal Law Amendment Act of 1871 was repealed and its rigour much mitigated by the Conspiracy and Protection of Property Act, 1875, which is still unrepealed and constitutes, together with the Trades Disputes Act, 1906, the present principal statutory law affecting trade unions in their criminal and tortious aspects.

1 (1872) 12 Cox. C.C. 316. 2(1875)3 Cox C.C. 82. 3 38 and 39 Vict., c. 86.

$ 5.-LEGALIZATION.

The recommendations of the Royal Commission of 1869 as to the legal status and civil liabilities of trade unions were adopted almost in their entirety. Unlike the Criminal Law Amendment Act, which has just been discussed, the Trade Union Act of 1871' has never been repealed or even seriously amended. It remains to this day the principal Act dealing with trade unions on their civil side, and round it most of the judicial decisions affecting the contractual or personal status of trade unions have gathered. Lord Farwell points out, in Osborne v. The Amalgamated Society of Railway Servants, that "prior to the passing of the Act of 1871, a trade union, as such, had no legal status. It was, speaking generally, an association of wage earners for the purpose of improving or maintaining the conditions of employment. It combined the objects of a friendly society with those of a trade guild. In the former (4

capacity it gave relief to its members when out of work from sickness or accident, that is dispute and unemployed benefit; and in the latter capacity it bargained with employers on behalf of all its members, and, with influence of a united body, for higher wages, shorter hours and the like. These and such as these were the proper functions of a trade union in 1871."*

It will be observed that, by the 1871 Act, the legislature did not distinguish, as did the judges in Hornby v. Close, between the benevolent and trade purposes of a trade union, but frankly legal

1 34 and 35 Vict., c. 31. 2 [1909], I Ch. 163, at p. 188.

(3)

ized a society even though it were in restraint of trade at common law. Lord Macnaghten in Osborne's case, after pointing out the normal dualism of object in a trade union says, “When the struggle began which led to the Act of 1871, those who managed the case on the part of trade unions insisted that the benevolent purposes of a trade union were to be regarded as secondary and subordinate to its trade purposes. They objected to any separation of funds as being calculated to paralyse the efficacy of the institution and tantamount to a proposal to suppress unionism by statute. Hence it comes that the benevolent purposes of a trade union, though referred to in the Trade Union Act, 1871, are not mentioned in the definition of a trade union.”1

This definition, referred to by the learned Lord, which has been the subject of much judicial comment, is as follows: "The term Trade Union means such combination, whether temporary or permanent, for regulating the relations between workmen and workmen, or between workmen and masters, or between masters and masters, or for imposing restrictive conditions on the conduct of any trade or business, as would, if this Act had not been passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade."

It will be observed that the term is expressly confined to combinations unlawful at common law.

A trade union type of society which might have some few of its objects in restraint of

1 [1910] A.C. 87, at p. 95.

trade, but yet might be predominantly a lawful friendly society, would therefore have been excluded from the definition of a trade union under the 1871 Act. This omission, as we shall see, was dealt with in the Act of 1876, and is referred to by Lord Alverstone in the case of Chamberlain's Wharf Ltd. v. Smith.'

Nevertheless, as was said by Lord Justice Fletcher Moulton in Osborne's case," "the legislature did not create the name for the purpose of the Trade Union Acts. It was at that time a wellknown term, connoting combinations of a wellknown type formed for objects and purposes which were well recognized." Lord Cockburn in Hornby v. Close had discussed the term "Trade Union," and, although the word "Society " was first used in preference to "Trade Union" to indicate an industrial organization, the terms “Union" and "Trade Union" are used as early as the beginning of the nineteenth century.'

Turning to the 1871 Act itself, section 2 provides that the purposes of any trade union shall not, by reason merely that they are in restraint of trade, be deemed to be unlawful, so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise. This section should be read in connection with the Criminal Law Amendment Act of 1871 which made a similar provision, it will be remembered, coupled with specific liability for certain stated illegal acts.

Section 3 of the 1871 Act provides that the

1 [1900], 2 Ch. 605, at p. 611. 2 [1909], I Ch. 163, at p. 184. See Trade Unionism, 2nd Ed., Slesser (Methuen), Chs. I and 2.

(7)