CHAPTER V.

LEGAL QUESTIONS INVOLVED.

The legal questions that have arisen in course of the strike are too numerous and intricate for adequate treatment here. The chief among them may, however, be classified.

Combination. The laws relating to trade combinations in general need not be further referred to than to say that though trade unions still suffer certain disabilities, they are expressly sanctioned by statute. The Acts which comprise the legislation on the subject are the Trade Union Acts, 1871 and 1876 (34 and 35 Vict., c. 31, and 39 and 40 Vict., c. 221). In addition to the Trade Union Acts, the 3rd section of the Conspiracy and Protection of Property Act, 1875 (38 and 39 Vict., c. 86), is generally cited as affording legal authority for combinations for trade purposes. The relative portion of the section is

as follows:

3. An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime.

Picketing. The state of the law on picke ting is sufficiently vague to have produced recently decisions by able lawyers which have run counter to each other in their interpretation of the law. The law on picketing is laid down in the Conspiracy and Protection of Property Act, 1875 (38 and 39 Vict., c. 86).

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7. Penalty for intimidation or annoyance by violence or otherwise : Every person who, with a view to compel any other person to abstain from doing or to do ary act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority

(1) Uses violence to or intimidates such other person or his wife or children or injures his property; or (2), persistently follows such other

(1) For summary of the law relating to trade unions see Fraser, Treatise on Master and Servant, etc., p. 421; also Report on Strikes, etc., Parliamentary Paper C.-5809. (2) E.g., by Mr. Justice Cave at Bristol, March 28th, 1890, and by Mr. Bompas, Q.C., Recorder of Plymouth, January 9th, 1891.

person about from place to place; or (3), hides any tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof; or (4), watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place; or (5), follows such other person with two or more other persons in a disorderly manner in or through any street or road; shall on conviction thereof by a Court of Summary Jurisdiction (in Scotland the Sheriff of the county or any one of his substitutes), or on indictment as hereinafter mentioned, be liable to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not exceeding three months, with or without hard labour.

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.

In a case under this Act in 18761 it was urged for the accused that if the "watching" and "besetting" were done merely for the purpose of persuading the men to quit their employment it would not be illegal. But Baron Huddleston, in delivering judgment, said: "I cannot assent to that view of the law. The statute allows watching or attending near a place for the purpose of obtaining or communicating information, but this is the only exception."

The charge to the grand jury, by Mr. Russell Gurney,* Recorder of Plymouth, in 1875, summarised the law of picketing. His view was that by the Criminal Law Amendment Act, 1871, "conduct that might be accounted for by the desire to ascertain who were the persons working there, and peaceably to persuade any others who were proposing to work there to join their fellow-workmen who were contending for what, rightly or wrongly, they thought was for the interest of the general body" was not punishable. It would appear that, whatever may be the difficulty of defining "intimidation,”

(1) Reg. v. Bauld (1876), 13 Cox Cr. Ca, 282. Cf. Fraser, On Master and Servant, p. 429.

(2) Quoted in Parliamentary Paper C.-5809, P. 14. Mr. Gurney's charge was circulated by Mr. Cross among judges and magistrates in 1875.

(3) The relative section of the Criminal Law Amendment Act, 1871, was repeated in Mr. Cross's Conspiracy Act of 1875, section vii., op. cit.

the intention of the Act of 1875 was to permit "peaceable persuasion." At Glasgow and elsewhere intimidation in several cases was proved to have been exercised during the strike, and was punished. Picketing," however, in the sense of "peaceable persuasion," was extensively carried on without interference.1

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An important decision was given by Mr. Justice Cave' in the spring of 1890. Eight men were accused under the Act of 1875, and pleaded guilty to "a conspiracy to follow in a disorderly manner."

Mr. JUSTICE CAVE said: I am very much inclined to the opinion that the men who are now before me, and who have pleaded guilty to the charge of following in a disorderly manner, were desirous of carrying out the law of 1875, and that, while they did make use of the rights given to them by that law, they were desirous not to overstep its limits. But, where a considerable amount of feeling is aroused- as is generally the case when strikes of this kind take place, and when men assemble in numbers-it is extremely difficult, if not impossible, to restrain them from expressing their feelings, and when they do follow persons who take a different view, and express their feelings, that undoubtedly amounts to a disorderly following which cannot be allowed. The object apparently of the Act is to give the members of the Union-or indeed any class of men, but especially the members of the Union-the right by all lawful means to persuade those of their own class to join with them, and abstain from selling their labour at a price below that which is deemed by the mass of the operatives as being a fair and reasonable price. By the Act of 1875 they are enabled to pursue that object as long as they pursue it in a lawful manner. As I have said, there is danger when numbers of men who feel strongly upon the subject come together that they will express themselvesstrongly, and undoubtedly, if they do express themselves strongly, they are to that extent "endeavouring," or without "endeavouring," they are controlling the minds of other men who take a different view of the subject. It seems to me, therefore, that the law has carefully provided so far as it can against such gatherings, and as I understand the effect of the law it is this: It is not an offence to follow a dissentient workman to his home for the purpose of ascertaining where he lives, provided that that is done in a perfectly orderly manner, that is to say, without any shouts or disturb. ances, and without a crowd, and provided that as soon as that object has

(1) On interpretation of "intimidation" see Appeal Case Agnew v. Munro, Justiciary Appeal Court Feb. 2. Report. -Scotsman, February 3, 1891.

(2) In the case of Westlake, Walters, and others, Bristol Spring Assizes, 28th March, 1890..

been attained (which it is when it is known where he lives) he is not followed about any more. If he is followed about after that, the offence of persistent following is committed, but as long as one man, or even two men, follow a dissentient operative to his house solely for the purpose of ascertaining where he lives, and carefully abstain from in any way insulting, or annoying, or jeering at him, there is nothing in my mind in the Act of Parliament which makes that at all criminal; unfortunately, in this case that was not adhered to. Numbers did follow these men, and the usual danger which arises from numbers following did arise in this case, that they were tempted to express their feelings by opprobrious epithets, and thus degenerated into a disorderly following. I now come to the question of "watching or besetting." That undoubtedly is a difficult question, because the language of the Act is somewhat obscure upon the subject: By-sec. 7, sub-sec. 4, "Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do, or abstain from doing wrongfully, and with. out legal authority, watches, or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place, or follows such other person with two or more persons in a disorderly manner, in or through any street or road," the man who does that is liable on conviction to either a pecuniary penalty or imprisonment, "provided always that 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 to be a watching or besetting within the meaning of this section." Now the watching or besetting against which the section is directed is watching or besetting with a view to compel another person to do something which he does not wish to do, or to abstain from doing something which he does wish to do, and the Legislature goes further and says that watching with a view to obtain or communicate information does not come within that provision. Therefore, in every case where there is a watching of a house, it becomes important to ascertain, in order to see if it is criminal or not, what is the object with which the watching takes place, and the first question one would be inclined to ask would be-what were the numbers that were employed? Where one or two men are employed, there is not the same ground for assuming that the watching or besetting is for a criminal purpose, as where large numbers of men are employed. Further again, one must see what is done by the men who are so engaged in watching. If they simply communicate to persons who are about to go into the house that a strike is going on, and peaceably and quietly ask them not to go to work-and of course, by peaceably and quietly, I mean it must be without the slightest attempt to annoy or intimidate, or anything of that sort-if that is all that is done, that is

not in my judgment within the Act of Parliament. But if they are there for some other purpose; if a crowd collects at the time when the persons working are expected to leave, and if the crowd follows those men in a disorderly manner, then I consider that that would be a watching or besetting of the house within the meaning of the Act of Parliament, and would be punishable. So again, if numbers of men are employed so as to render access to the house difficult, that men cannot get there without having to push through a crowd, which, without displaying any hostility, is certainly not a friendly crowd, that, again, I should consider to be a watching or besetting within the meaning of the Act of Parliament. In point of fact, beyond having two men for the purpose of communicating or obtaining information, anything further would undoubtedly prima facie look like a watching or besetting, which was contrary to the intention of the Act, and I hope that in the future that will be borne in mind, and that while operatives use the rights which the law has given them, and which, of course, they are entitled to use, they will take the greatest care not to go beyond those rights, and not by unnecessarily sending a large body of men, or even a considerable body of men, give rise to the suspicion that they are seeking something more than merely to obtain or communicate information, because those objects may undoubtedly be attained under ordinary circumstances by one or two men at the outside, and if more go than that number, then the parties who send them, and those who go, must not be surprised if a jury or the magistrates come to the opinion that there is a watching or besetting which is forbidden by the Act.

A judgment which affects the subject of picketing in a very serious manner was given on 9th January, 1891, by Mr. Bompas, Q.C., Recorder of Plymouth. Mr. Bompas said :"To put the matter in popular language, I am of opinion that "a strike by the members of a trade union for the purpose "of increasing their wages, or altering the conditions of their "employment, is lawful, unless accompanied by violence or "intimidation ; but that a strike for the purpose of "compelling employers not to employ other persons, or to "alter the terms of the employment of such other persons, is 'illegal, and renders all persons in it liable to proceedings "under this section."1

This decision appears to open up questions far beyond section 7 of the Conspiracy Act, 1875, under which the pro

(1) Cf. Times, 12th January, 1891.