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CHAPTER III.

THE COMBINATION LAWS AND THE CRIMINAL LAW
AMENDMENT ACT, 1871.

THE dissatisfaction felt by workmen with the mode of dealing with breaches of contract under the Master and Servant Act, 1867, was exceeded probably by the distaste for the Criminal Law Amendment Act, 1871; the former act having reference to the relations of master and servant inter se, the latter having reference to the disturbance of those relations from without (a).

In order to comprehend the changes of the law in 1875, it is absolutely necessary that the provisions of the act of 1871 should be understood, and to make them thoroughly intelligible it is essential, in turn, to review concisely the combination laws.

As to combination at common law, 66 each person has a right to choose whether he will labour or not, and also to choose the terms on which he will consent to labour, if labour be his choice. The power of choice in respect of labour and terms, which one person may exercise and declare singly, many after consultation may exercise jointly, and they may make a simultaneous declaration of their choice, and may lawfully act thereon for the immediate purpose of obtaining the required terms; but they cannot create any mutual obligation having the legal effect of binding each other not to work or not to employ unless upon terms allowed by the combination. Any arrangement for that purpose, whatever may be its purport or

(a) See Report of the Royal Commission on Labour Laws, 1875.

form, does not bind as an agreement, but is illegal, though not unlawful, on account of restraint of trade, and therefore void. Every party to it, who chooses to put an end to it, is thenceforward as free to claim his own terms for his own labour, as if such arrangement had never been made; and any attempt to enforce, by unlawful coercion, performance of any such supposed agreement, against a party who chooses to break from it, and labour or contract for labour upon different terms, is an attempt to obstruct him in the lawful exercise of his right to freedom to trade, and is thus a private wrong. It is also a violation of a duty towards the public-that is to say, of the duty to abstain from obstructing the exercise of the right to the free course of trade. A person can neither alienate for a time his freedom to dispose of his own labour, or his own capital, according to his own will (b), nor alienate such freedom generally, and make himself a slave (c); it follows that he cannot transfer it to the governing body of a union" (d).

For many centuries the statute law of England, infringing the common law right of combination, bore unjustly and oppressively on the labouring classes. The labourer was not permitted to take advantage of favourable circumstances which would have enhanced the marketable value of his labour. The rate of wages, and the amount of work to be done to entitle him to such wages, were either settled by statute or fixed by persons invested with statutory authority for that purpose. Of course a legislation framed in such a spirit would not tolerate any combination on the part of the labouring class to improve its condition in either of these respects, and a series of statutes, known

(b) See Hilton v. Eckersley, 6 E. & B. 47.

(c) See the argument of Hargrave in the negro Sommerset's case, 20 State Trials, 23.

(d) Memorandum by Sir William Erle, late Chief Justice of the Com

mon Pleas, on the law relating to trade unions, appended to the Eleventh and Final Report of the Royal Commission on the Organization and Rules of Trade Unions and other Associations. The American jurists take the same general view.

under the name of the Combination Laws, prohibited, under severe penalties, all combinations having for their object either the raising of wages or the interfering with the hours of labour. That the policy on which this legislation was founded was mistaken and unsound is now universally admitted. The interest of the man who desires to employ the labour of others, and that of the man who seeks to dispose of his labour, may be in a certain sense antagonistic, as the interest of the buyer, who seeks to buy at the lowest possible rate, and that of the seller, who seeks to sell at the highest, must necessarily be; but the state has no interest in upholding the one at the expense of the other, but, in the interest of all parties concerned, the community as consumers included, should leave both to adjust the true mean between their conflicting interests with reference to the economic laws by which the value of all marketable commodities, labour included, will, if things are left to themselves, be determined. And, not only does this hold good as to the adjustment of the terms of hiring, but also as to the power of combining on either side to obtain more advantageous terms than might be obtained by individual effort. More especially is this so as regards the labourer, who in any contest as to the terms of hiring, meets the employer at a great disadvantage, arising from the superior means possessed by the latter, whereby he is enabled to wait with comparatively little inconvenience, while the other, living as it were from day to day, and possessing no fund to fall back upon, soon finds his resources exhausted, and has no alternative but to submit. But the case is altogether different when the workman becomes one of an organized body, combined under a constituted government, possessing funds resulting from regular contributions, and acting as a united whole under the guidance and direction of shrewd and intelligent leaders.

So circumstanced, the working man is enabled to meet the employer on equal terms. He is no longer helpless

or without resources. He has the body to which he belongs to uphold him, and the common purse to support him till the employer shall have consented to better and more advantageous terms. That in a free country men should be at liberty to combine for the protection of their common interest, so long as they do not interfere with the rights of others, and are guilty of no breach of the law, ought not to admit of question. But it was not till political economy had become a science, and the laws by which the value of labour, as an element of production, and its relation to capital, had been made apparent, that the unsoundness of the prior legislation was seen, and its repeal resolved on by the legislature.

It is now half a century ago since by the statute of the 5 Geo. 4, c. 95, all the prior acts relative to combinations of workmen or of masters, as to raising or lowering the rate of wages, or altering the hours or quantity of work, or regulating the manner of carrying on business, were at once swept away. After a repeal of all the former statutes it was by the 2nd section expressly provided that "journeymen, workmen, or other persons who shall enter into any combination to obtain an advance, or to fix the rate of wages, or to lessen or alter the hours or duration of the time of working, or to decrease the quantity of work, or to induce another to depart from his service before the end of the time or term for which he is hired, or to quit or return his work before the same shall be finished, or not being hired, to refuse to enter into work or employment, or to regulate the mode of carrying on any manufacture, trade or business, or the management thereof, shall not therefore be subject or liable to any indictment or prosecution for conspiracy, or to any other criminal information or punishment whatever, under the common or the statute law." A corresponding liberty was given by the 3rd section to the employer. however, the liberty thus conceded of combining to induce others to quit work or to refuse to enter employ

Lest,

ment, or to regulate the mode of carrying on business, might be abused by the use of violence or intimidation for the purpose of coercion, two enactments were superadded which were the forerunners of the Criminal Law Amendment Act.

By the 5th section it was enacted "that if any person by violence to the person or property, by threats, or by intimidation, shall unlawfully or maliciously force another to depart from his hiring or work before the end of the time or term for which he is hired, or return his work before the same shall be finished, or damnify, spoil, or destroy any machinery, tools, goods, wares, or work, or prevent any person not being hired from accepting any work or employment; or if any person shall wilfully or maliciously use or employ violence to the person or property, threats, or intimidation towards another on account of his not complying with or conforming to any rules, orders, resolutions, or regulations made to obtain an advance of wages, or to lessen or alter the hours of working, or to decrease the quantity of work, or to regulate the mode of carrying on any manufacture, trade, or business, or the management thereof, or if any person by violence to the person or property, by threats or by intimidation, shall wilfully or maliciously force any master or mistress manufacturer, his or her foreman or agent, to make any alteration in their mode of regulating, managing, conducting, or carrying on their manufacture, trade, or business; every person so offending, or causing, procuring, aiding, abetting, or assisting in such offence, being convicted thereof, in manner hereafter mentioned, shall be imprisoned only, or imprisoned and kept to hard labour, for any term not exceeding two calendar months."

Scarcely, however, had this statute become law when it was found that the liberty granted by the second and third sections was likely to be attended with mischievous consequences. Extensive associations were found to exist with an elaborate and effective organization, the avowed

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