COMBINATIONS; STRIKES, AND CONSPIRACIES.
ANOTHER charge of conspiracy, brought before the Clerkenwell Police-office, brings up the whole subject of the law relating to combinations and their results. No part of the law is more diffi- cult of popular comprehension, and none is more desirable to be popularly understood. All charges of conspiracy are constructive ; and evidence of acts committed, or inferred to be committed, with a view to a common intent and purpose, may, taken singly, be capable of explanation. It is, indeed, not at all clear whether we have any well-defined exposition of the law in existence—nay, the law itself is in so chaotic a state as to be incapable of expo- sition. This is the consequence of the many changes in the sta- tute book and the antagonistic action of the common law, which is assumed by the magistrate to possess the power of punishment for an offence which appears, if not extinguished by statute, to be left in very doubtful existence.
Once, in England, we were so ignorant of political economy as arbitrarily to attempt to settle the rate of wages, and workmen who demanded more, or masters who paid either more or less, committed a breach of statute law. This anomalous state of le- gislation continued, intermittingly, from 1350 to 1813. It is easy to believe that during so long a period, as supply and demand increased or diminished, both workmen and masters would at- tempt to raise and decrease wages. All such attempts were treated as breaches of the law. The offence did not consist in g the statute, 's long period, binations be- all the then laws settling ions to effect e individual, ages ca.ne to e of produc-
e considered -G eorge IV. bject, and its attempting to alter the rate of wages, but • and for that punishment followed. Dur and up to 1824, laws were in existence tween both employers and workmen ; bu combination laws were repealed. It was the rate of wages necessarily produced alteration, such a course being imposs and so the legality of combination being find their level in the market, like every tion.
, Statutes and convictions up to 1825 h with a due regard to the sense and words cap. 120. This is the last act (except one exact phraseology is important in the consideration. The preamble recites the repeal of all the laws relating to combination amongst workmen, and the necessity of providing " for the security and personalfreedoni" of individual workmen in the disposal of their skill and labour, as for the security of the property and persons of masters and employers "; and then enacts the repeal of the 5th of George IV., but reenacts the section of that Act repealing all the previous laws against combinations. Then the following sections come to be considered ; and we quote them entire :—
" And be it further enacted that from and after the passing of this act, (1) if any person shall by violence to the person or _property, or by threats, or by intimidation, or by molesting, or in any way obstructing another, force or endeavour to force any journeyman, manufacturer, workman, or other person hired or employed in any manufacture, trade, or business, to depart from his hiring, employment, or work, or to return his work before the same shall be finished; or prevent or endeavour to prevent any journeyman, &c. pot being hired or employed, from hiring himself to or from accepting work or employment from any person or person ; or (2) if any pefson shall use or employ violence to the person or property of another, or threats or intimida- tion, or shall molest or in any way obstruct another for the purpose of forc- ing or inducing such person to belong to any club or association, or to contri- bute to any common fund, or to pay any fine or penalty, or on account of his not belonging to any particular club or association or not having contributed, or haring refused to contribute to any common und, or to pay any fine or penalty, or on account of his not having complw „ or of his refusing to com- ply with rules, orders, resolutions, or regulations snaek to obtain an advance or to reduce the rate of wages, or to lessen or alter the hours of working, or to decrease or alter the quantity of work, or to regulate the mode of carrying on any manufacture, trade, or business, or the management thereof : or (3) if any person shall by violence to the person or property of another, or by threats or intimidation, or by MOLESTING, OR IN ANY 'WAY OBSTRUCTING ANOTHER, force or endeavour to force any manufacturer or person carrying on any trade or business, to make any alteration in his mode of regulating, managing, conducting or carrying on such manufacture, trade or business, or to limit the number of his apprentices or the number or description of his journeymen, workmen, or servants : every person so offending, or aiding, abetting, or assisting therein, being convicted thereof in manner hereinafter mentioned, shall be imprisoned only, or shall and may be imprisoned, and kept to hard labour, for any time not exceeding three calendar months."
The strain of the inquiry is therefore thrown upon the words of the statute, " by molesting or in any way obstructing another." It is easy, of course, to adopt a very refined definition, and say that a mere conversational expostulation is an obstruction, or that placing the hand upon a workman's arm is technically an assault. But we apprehend that the language of the statute im- plies violence of language, amounting to threats involving per- sonal safety to life or limb, and that mere conversations tending to induce workmen from entering the employment of Mr. Anley the last prosecutor, do not justify the application of punishment under this statute. We can understand violence to person or property ; we can even understand threats and intimidation, nay more, we can comelye of a " molestation " by hustling a man
about, or an "obstruction'_' .hiding or destroying his tools or partially completed work. But it seems to strain the meaning of the statute to the furthest point to say, that because workmen had sent in a demand to their employer, requiring the discharge-of two men who had signed the document, and had "picketed "-the yard to induce other men not to enter the employment of Mr. Anley, therefore a breach of the Act is committed. There was no threat to limit the number of his workmen, for the men themselves only retired from the -employment, as they had a right to do. A demand was only made for the discharge of two persons at the expiration of their weekly contract. This is admitted to be legal. To deny to the accused the right of expostulation with other un- hired workmen, would be to commit a direct assault upon the yet greater liberty involved—the liberty of speech. In Perham's case he was convicted for saying, " If you dare work we shall consider you as blacks, and when we go in we shall strike against you all over London." This is a threat and intimidation op• rating upon the future. But having reference to the exact words of the statute, how can we reasonably allege the language of Per- ham amounted to a "molestation' or " obstruction ?" In the case at Clerkenwell we are left to guess the language used ; per- haps it was very rough, but we cannot extend the laws of good taste by statute. It is conceded by the repealing Act of 1825, and the reenact- ment of the repealing clauses in the Act of 1826, that men may combine, and of course "strike." If that right is granted, does the threat of a combination to strike, amount to an offence P If it does, the Acts repealed are practically revived in their working, because all strikes are preceded by threats, which;if carried out, will cause alterations in employers' modes of doing business. If the Legislature has elaborately repealed laws against combina- tion, it is essential to bear in mind the intention of the statute, That is always borne in mind by lawyers. The intention clearly is to permit combinations ; and if it were not so, the builders would be in a very awkward plight as to the " lock-out " last year. Com- binations and strikes being permitted, it follows that the reasons published for strikes cannot be called " threats," " intimidations,r " molestations," or " obstructions." Bad language forms no rot of the statute, for it was proposed to add the word " insult," but it was rejected and intentionally excluded from the Act. And we have yet to learn that standing in the street and addressing work- men even in a rough manner, like Perham, is other than a strained application amounting to a nullification of the enabling clause of the Act permitting combinations. We do not write from feeling, but after diligent consulta- tion of high authorities. Lord Cranworth:(than whom, as Mr. Baron Rolfe, the common law never had a better exponent) ad- dressing a jury upon a charge under this Act, said :— " A great deal may be said as to the precise words used. What I think you must consider, is not so much the very words, as whether the fair result of it was to intimate to the person to whom it was addressed, that some BoDUS HARM would happen to him."
No bodily harm was threatened by Perham, nor as we have learned in Mr. Anley's case. Lord Cranworth, in another case, expressed his disapproval of indictments for conspiracy against persons conducting a strike. There is, in fact, " no case in the books" at all like Perham's or the present. Previous cases all affect workmen engaged under unexpired contracts ; but in Per- ham's case and the present, the men did not seek to change or violate any unexpired contract, they only sought to affect men whose contracts had not commenced, or would expire within a week, and only at their expiration. The case of Rowland and others in the Wolverhampton strike was founded upon inducements offered to workmen to leave their masters ; not a threat on the part of the accused to leave themselves, or preventing others entering the ser- vice. And so seem to run all the cases. In Perham's case, the man had been hired ; but, in Mr. Anley's case, it does not ap- pear that he had hired any one who was induced to leave. The explanatory Act, 22d Vie., cap. 34, seems to be overlooked by magistrates, for it enacts No-workman or other person, &c. shall, by reason merely of his enter- ing into an agreement with any workman, &c. for the purpose of fixing or endeavouring to fix the rate of wages, &c. or by reason merely of his en- deavouring peaceably and in a reasonable manner, and without threat or in- timidation, direct or indirect, to persuade others to cease or abstain from work, in order to obtain the rate of wages, or the altered hours of labour so fixed or agreed upon, shall be deemed. &a. to be guilty of molestation or obstruction' within the meaning of the said act, and shall not, therefore, be subject or liable to any prosecution or indictment for conspiracy ; provided always that nothing herein contained shall authorize any workman to break or depart from any contract, or authorize any attempt to induce any work- man to break or depart from any contract."
The direct or indirect threat we hold, must comply with Lord Cranworth's condition of " bodily fear," and unless that condi- tion be made out by evidence the prosecution ought to fail. The decisions supporting convictions proceed from the confusion of the law because since the repeal of all the "combination" " sta- tutes,—the judgments pronounced upon the breaches of these laws, have ceased to be applicable to our present state under 6th George 4th, and 22d Viet. We have admitted that political economy is to guide us, but we seem to have forgotten that common sense re- quired 4eedom of speech to follow the freedom of action granted to workmen.
But what is a conspiracy ? It is difficult to say. When lawyers differ, who shall decide ? Yet it ought to be essential that an unlawful act should be intended. A combination to raise wages, or a strike to obtain shorter hours, is not unlawful. It may be said that a common purpose to injure another is a con- spiracy. But what says the late learned Mr. Justice Littledale
If parties conspire to do an unlawful act, or a lawful act by unlaw- _ ful means, this is a conspiracy, for which they may be indicted, but that is not so where the parties ronspire to do a lawful act for the purpose of in- jttrtly another."
Unless, therefore, the letter to Mr. Anley was an unlawful act the case fails. And it would be dangerous to decide that the letter was unlawful, for we might all be punished occasionally for conspiracy. Two auditors agreeing to hiss an actor; two critics to " out up ' an author ; two merchants mutually deciding not to trust a shop- keeper, might also, by the same reasoning, be treated as conspira- tors.
The truth lies on the surface. The law is simply in a state of sulutiiet and confusion. Either the highest tribunal must expound, $f- the Legislature resettle it. " Personal freedom," and liberty of speech are in jeopardy from each other if separated. We can gain no real liberty from men allowed to act without speech ; or allowed to speak without action. Old and exploded doctrines of 1 aw, suited to previous states of society, yet hang about -Westminster Hall. The repealing and enabling clauses of recent wets are not allowed to exercise their full effect ; and we regard it as in the highest degree dangerous to freedom of speech, that, without the intervention of a jury, one magistrate should have the power to convert a decent workman into an associate of felons. •
Previous page
