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called strike pay were also receiving wages from the employers; but the more important object that the watchers had in view was to inform all comers, who, for instance, might have been brought by advertisement, of the existence of the strike, and to endeavor to persuade them to join in it. All that was lawful so long as it was done peaceably, and without any interference with the perfect exercise of free will by those who otherwise would have been willing to work on the terms proposed by the prosecutors. The sort of questions which the grand jury would have to ask themselves was, whether the evidence showed that the defendants were guilty of obstructing and rendering difficult the access to the prosecutors' place of business, or whether there was anything in their conduct calculated to deter or intimidate those who were passing to and fro, or whether there was an exhibition of force calenlated to produce fear in the minds of ordinary men, and whether the defendants or any of them combined for that purpose? If they thought that was proved, it would be their duty to find a true bill, but if they thought their conduct might be accounted for by the desire to ascertain who were the persons working there, and peaceably to persuade them or 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 interests of the general body, then they would ignore the bill."
COMBINATIONS MADE LEGAL.
Emphasis must be laid on the important addition made by the act of 1575 to that of 1871, which was not repealed by later legislation, but became amplified. Practically the picketing clauses of the act of 1871 were retained in the new law, but the important addition made by Mr. Cross was contained in the first paragraph of section 3, reading as follows:
An agreement or combination of two or more persons to do, or to procure to be done, any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be punishable as a conspiracy if such act as aforesaid, when committed by one person, would not be punishable as a crime.
Had this law been in operation in 1872 the Beckton gas stokers could not have been convicted of conspiracy, and had they been convicted under the new law, instead of being sentenced to 12 months' imprisonment the maximum punishment would have been 3 months, as provided for by section 4, as follows:
Where a person employed by a municipal authority or by any company or contractor upon whom is imposed by act of Parliament the duty, or who have otherwise assumed the duty of supplying any city, borough, town, or place, or any part thereof, with gas or water, willfully and maliciously breaks a contract of service with that authority or company or contractor, knowing, or having reasonable cause to believe, that the probable consequences of his so doing, either alone or in combination with others, will be to deprive the inhabitants of the city, borough, town, or place, or part, wholly, or to a great extent, of their supply of gas or water, he shall, on conviction thereof by a court of summary jurisdiction or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding £20 ($97.33] or to be imprisoned for a term not exceeding 3 months, with or without hard labor.
One other citation must be made from Mr. Burnett's report before dismissing this branch of the subject. He says:
In a striking passage, summarizing his general history of all the changes in the laws affecting labor disputes, Sir James Stephen says: "It is one of the most characteristic and interesting passages in the whole history of the criminal law. First, there is no law at all, either written or unwritten. Then a long series of statutes aim at regulating the wages of labor, and ends in general provisions preventing and punishing as far as possible all combinations to raise wages. During the latter part of this period an opinion grows up that to combine for the purpose of raising wages is an indictable conspiracy at common law. In 1825 the statute law is put upon an entirely new basis, and all the old statutes are repealed, but in such a way as to countenance the doc- . trine about conspiracies in restraint of trade at common law. From 1825 to 1871 a series of cases are decided which give form to the doctrine of conspiracy in restraint of trade at common law, and carry it so far as to say that any agreement between two people to compelany one to do anything he does not like is an indictable conspiracy independently of statute. In 1871 the old doctrine as to agreements in restraint of trade being criminal conspiracies is repealed by statute. But the common law expands as the statute law is narrowed, and the doctrine of a conspiracy to coerce or injure is so interpreted as to diminish greatly the protection supposed to be afforded by the act of 1871. Thereupon the act of 1875 specifically protects all combinations in contemplation or furtherance of trade disputes, and, with respect to such questions at least, provides positively that no agreement shall be treated as an indictable conspiracy unless the act agreed upon would be criminal if done by a single person.
In a legal point of view no part of the whole story is so remarkable as the part played by the judges in defining, and, indeed, in a sense creating, the offense of conspiracy. They defined it, I think, too widely; but that their definition was substantially right is proved by the fact that the act of 1875 has made provision for punishing practically all the acts which they declared to be offenses at common law."
EFFECT OF THE ACT OF 1875.
The passage of the act of 1875 was hailed by the workmen with great satisfaction. It was regarded by them as conceding all for which they had so long contended—the right to enter into a legal combination to thwart or restrict the efforts of their employers; to more narrowly define their rights, and to lighten the punishment which they might incur in case of any violation of the law. The employers did not regard the law without apprehension.
How far these hopes on the one side and fears on the other have been realized is a striking commentary on the effect of judicial inter
pretation of statute law. Dealing for the time being with the law as viewed from the standpoint of the employer, the fact stands forth in bold relief that the law which the employers dreaded twenty-five years ago they would not to-day repeal had they the power. This is not the opinion of a single employer. It is the composite opinion of what may fairly be termed the representative employers of labor in the United Kingdom, men speaking for the basic industries on which must rest all commercial prosperity. The reason given by employers why they are satisfied with the existing law is that it is easier now to prosecute and conviet men endeavoring to interfere with their business or their employees than it was prior to the passage of the act, and that the rights of both parties being more narrowly defined, both know precisely what they may or may not be permitted to do, and generally endeavor to keep within those limitations.
The right of workmen to do in combination that which they might do legally as individuals, feared by the employers at the time of the passage of the act and hailed by the workmen as placing a powerful weapon in their hands, has in practice not been either so dangerous or as beneficial as was imagined at the time. That men can strike, either as individuals or in combination, and do other things in combination which would have been illegal under previous laws, does not apparently cause the employers much concern. So long as men go on strike and do not by intimidation or violence prevent other men from taking their places, employers feel able to cope with the situation. It is in dealing with this question that employers believe they have been distinct gainers by the passage of the Conspiracy and Protection of Property Act.
PENALTY FOR INTIMIDATION.
The penalty for intimidation, annoyance, and violence is set forth in section 7 in these words:
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 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 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 (+) 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, or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding £20 [$97.33] or to be imprisoned for a term not exceeding 3 months, with or without hard labor.
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.
Under the above section many prosecutions have been brought. What constitutes “intimidation” or “ violence," how far a person may “communicate information” and yet not be deemed guilty of “watching or besetting," are questions which have provided much material for the lawyers and given rise to numerous judicial decisions, generally more satisfactory to the employer than to the employee.
As a general thing it may be said that the courts have given a broad construction to the act and have been inclined to protect workmen against “intimidation,” even when that method of coercion has not been attended by violence. A few decisions of recent years are quoted to show the trend of judicial opinion. In all cases, except where otherwise stated, these decisions have been abridged from the Labor Gazette, the official publication of the labor department of the Board of Trade, and therefore are to be regarded as official. The prosecutions were brought under the act of 1875.
In July, 1896, a carpenter was sentenced by the Portsmouth quarter sessions to 21 days' imprisonment with hard labor for having “unlawfully, wrongfully, and without legal authority followed another carpenter with a view to compel him to abstain from doing a certain act.” During a carpenters' strike the defendant collected a crowd of persons on three different occasions and followed the defendant about from place to place. There was no violence offered, but the evidence showed that the conduct of the crowd was disorderly and calculated to result in a breach of the
peace. The court of queen's bench devoted 3 days to the hearing of a case in July, 1896, in which a pianoforte maker and his foreman sued three trade societies and six other defendants for damages and an injunction to restrain the defendants from watching or besetting the house where the plaintiffs resided or carried on their business, and from illegally interfering with the business of the plaintiffs, whether by intimidation, the publication of a blacklist, or otherwise. The facts showed that a foreman had been dismissed and another man engaged in his place. In consequence plaintiffs' premises were picketed. The name of the foreman had been blacklisted. The defense claimed that they were acting within their legal rights. In summing up the judge said that what the defendants had done was illegal unless merely for the purpose of obtaining or imparting information. He further added: “If the persuasion be used for the indirect purpose of injuring the plaintiffs, it is a malicious act, which is in law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act, if injury ensues from it.” A verdict was rendered for the plaintiffs. Damages were awarded to the pianoforte maker in the sum of £300 ($1,460); to the foreman in the sum of £20 ($97.33). An injunction was also granted.
In the sheriff's summary court, Edinburgh, November 1, 1897, two engineers were sentenced to 14 days' imprisonment for having with a large crowd of other persons followed three iron turners with a view to compel them to abstain from working for a certain firm.
CASE OF ALLEN v, FLOOD.
Attention must now be called to one of the most important decisions in English jurisprudence. It is quoted by every employer and every representative laboring man; it is constantly referred to by lawyers; it has governed all subsequent decisions, and, curiously enough, like other things connected with this law, regarded at the time as a great victory for labor, it has since then been relied upon by employers to support their contentions. The case was deemed of so much importance that when it came up on appeal before the House of Lords, the court consisting of Lord Chancellor Halsbury and Lords Watson, Ashbourne, Herschell, Macnaghten, Morris, Shand, Davey, and James of Hereford, their lordships did a thing done once in a generation, viz, requested the attendance of eight of the most eminent judges-Hawkins, Mathew, Cave, North, Wills, Grantham, Lawrance, and Wrightto give their opinion on questions of law, and Parliament ordered these opinions to be printed as a parliamentary paper. The case is officially known as "Allen r. Flood and Another.” The abstract foļlowing is briefed from the parliamentary paper referred to, the Law Journal Reports (Vol. LXVII, Feb., 1898), and the Law Times (Vol. CIV, No. 2863, Feb. 12, 1898). The case was originally heard in the court of queen's bench, appealed to the court of appeal, and thence appealed to the House of Lords, the court of last resort. The substantial facts of the case are as follows:
Flood and Taylor were shipwrights working for the Glengall Iron Company. They were employed by the day, but the particular job on which they were then engaged was expected to last about a fortnight, and there was every reason to suppose that they would be retained until its completion. These two men had previously served an apprenticeship with the Glengall Iron Company. They had been taught to work both in wood and iron, but at the time were employed on woodwork only. They were men of excellent character, had always behaved themselves, and had done their work properly and satisfactorily. There had been no collision between these men and the other men