THE LABOUR-LAW COMMISSIONERS ON 'THE LAW OF CONSPIRACY.
THE Report of the Royal Commission to inquire into the Labour Laws has been awaited with a good deal of interest by many different classes, by employers and workmen, and by lawyers, who, of course, expected to find some authoritative decision upon many debatable questions to which the matter gives rise. It is only a week or two since the necessity of an authoritative declaration of the present state of the law and definite recom- mendations for the future were again shown by the decision of Mr. Knox, the stipendiary magistrate at Marlborough Street,
in the case of the Cabinet-makers charged with conspiracy. The simple fact was that Mr. Knox could not make up his mind by
the aid of existing legal authorities whether for workmen to say that certain fellow-workmen should in certain contingencies be considered "black sheep" was coercion,—a question which of course depended upon the penalties which would follow from coming under this category. The Report of the Commissioners will have done but little to make this matter clearer. The first two heads into which they divide the law of conspiracy are clear cases of legal conspiracy, viz., when the end for which the persons com- bine is criminal ; and where the end to be accomplished is lawful, but the means criminal But the rest of the question is involved in much greater uncertainty, an uncertainty which is too promi- nently apparent in the Report itself. "The third case," say the Commissioners, "is when, with a malicious design to do an injury, the purpose is to effect a wrong, though not such a wrong as when perpetrated by a single individual would amount to an offence under the criminal law." But in a subsequent place the Commissioners call attention to a point which might very well be termed a fourth case. They say that Baron Pollock is reported to have said, in his charge to the jury at Leeds in the summer of 1874 (as a matter of fact, for "Leeds" the Com- missioners should have said Manchester), "That if several workmen combined not to work with a particular person, and refused to work for an employer unless he dismissed that workman, this would amount to a conspiracy at common law. We abstain," say the Commissioners, "from expressing any opinion as to the cor- rectness of the law as reported to have been thus laid down ; we content ourselves with saying that, assuming the law to be as thus stated, we are of opinion that it requires amendment." Surely any one may very reasonably ask, was it not one of the primary duties of the Commissioners to discover, if it were possible to do so, the actual state of the Law of Conspiracy, and not to recom- mend upon assumptions which they have not verified ? If the law is as so stated, it is unjust, and should be altered ; if it is not, what need is there of any recommendation upon the subject? But Baron Pollock, as the Commissioners might easily have found out, did charge the jury in this form, and he further gave this example. If A, having a dislike to the proprietors of a blue omnibus, de- termines to ride only by a red omnibus, he is doing an innocent act ; but if A, B, C, and many others plot together not to ride by the blue omnibus, and try to prevent them and others from doing so in order to injure their proprietors, they are guilty of a common-law conspiracy. Again, in 1867, in Druitt's case, Baron Bramwell ruled that "if any set of men agreed among themselves to coerce that liberty of mind and thought [sc., the liberty of a man's mind to say how he would bestow himself and his means, his talents and his industry] by compulsion and re- straint, they would be guilty of a criminal offence, namely, that of conspiring against the liberty of mind and freedom of will of those towards whom they 80 conducted themselves. He was re- futing to coercion or compulsion, to something that was unpleasant or annoying to the mind operated upon, and he laid it down as dear and undoubted law that if two or more persons agreed that they would by such means co-operate together against that liberty, they would be guilty of an indictable offence." This ruling has been approved by Barons Amphlett and Pollock in recent conspiracy cases, and it is difficult to imagine, first of all, why this state of the law was not actually investigated and commented upon ; and
secondly, why, since it is more or less generally known, it coukt not have been assumed as certain. It will, however, henceforth be rendered impossible to make such acts as we have com- mented upon constitute a conspiracy, since the Commissioners expressly recommend that legislative provision should be made. against it.
This brings us to the Commissioners' third and important point upon which they consider that the law should remain unchanged.. That is, when an act committed by a single individual affords ground for a civil action, or a quasi-civil action, under the Master and Servants' Act, 1867, if a number of individuals combine to do this act, or induce others to do it, they shall come within the pale of the Criminal Law, and be liable to be indicted for conspiracy. There is, of course, no other dividing-line between many civil and criminal offences than that of public policy. A man may maintain action against another for libel ; and if it be an exceedingly gross one the libeller may be criminally prosecuted. But there is not in all English law one instance to be found where both a criminal and civil action will lie for a breach of contract ; in every case they arise from injury to a man's person- or property, in which, in cases where they are not sufficiently heinous to come under the cognisance of the State, they are left to an individual's private and legal powers of redress. It is on this principle, say the Commissioners, that a violation of private rights which, if done by one, would only be the subject of civil remedy, but is constituted a crime when done by several. This is the dictum of the Commissioners ; but if, as we assert, the civil action and criminal actions, are only interchangeable in cases of injury to person or property, and not to breaches of contract, then the argument of the Commissioners totally fails. They, therefore, recommend that a combination to break a civil contract shall be a. criminal offence, when the combination comes to pass through the intentional co-operation of several individuals.
Is there any necessity for keeping up this crime of what may be termed civil or contract conspiracy ? In other words, are the ordinary remedies by action or under the present or an amended' Masters and Servants' Act not sufficiently strong to protect individuals or the public against breaches of contract of so exceptional a kind that they must be looked upon as criminal? The Commissioners seem to consider that two reasons are- sufficient to maintain their ground,—one, that it is in itself a wrong act ; another, that it may, as in the case of the Gas Stokers, cause public annoyance or injury. The amount of public annoy- ance or injury which may be caused by a strike of workmen who- leave their employers in the middle of a week, thereby breaking a contract, is not greater, or only inappreciably greater, than if they- left at the end of a week, when they had a right to go, or after a week's notice. Take the instance which the Commissioners give, of a railway ; if the men all refused to come to work on a Thursday morning great inconvenience would be caused, and all public- sympathy would be taken from the side of the men ; if they give notice on the Thursday and leave legally on the following Monday
morning, the inconvenience to the public would be almost ai great, but the sympathies of the public would be more likely to be with the men. As to the first reason, that it is a wrongful action, if this be ground for a criminal action, every buyer or purchaser- who refuses, because the market is rising or falling, to fulfil his. contract, should be placed in the criminal dock. We have no' sympathy whatever for men who enter into and break their con- tracts. All the objects of strikes can be obtained by lawful means, but we feel quite sure that the reasons against an ex- ceptional criminal law, which, as a matter of fact, only acts against one class, namely, the workmen, are adequate, for it is impolitic to foster feelings of injustice and soreness, which must. often result in new strife. Moreover, the law as it is, is practically inefficient, for Judges nearly always lot the men off with a slight sentence or warning, and it makes the men feel that they do not con- tend on fair terms with their employers. Further, in nine cases out of ten the men will be tried after the mischief is done. The Com-. missioners seem to assume also that the contracts broken always, concern the public convenience ; this seems to be unwarranted by facts. On the whole, therefore, the legal analogy between breaches of contract and injuries to persons or property is- wrong; the argument of a wrong requiring criminal punishment is- also wrong, and the argument of expediency is insufficient, because, after all, the final test is on which side the balance of convenience rests ; and this tolls in favour of the repeal of a most exceptional law. Justice and policy alike point to the propriety of abolishing the Law of Conspiracy, except in cases of combination to do criminal acts or to do lawful acts by criminal means.
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