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private estate bills which confer on certain law-agents rights and privileges which are in defiance of all economic laws. These clauses would never have been consented to by Parliament, but the bill being a private one, it was no person's business to confine it to its own proper scope.
A certain clause which has become so popular that it has been inserted in every Summary Procedure Act passed within the last thirty years, must be well known to the profession. We mean the
clause limiting the right of appeal except on the ground of malice or oppression or the like on the part of the judge. This is a matter which calls loudly for reform. We hold it is the right of every subject of this realm to have his cause heard and determined by the highest legal intellects of the country. Surely the fact that a man's property is of inconsiderable value is no reason why he should be exposed to the risk of being deprived of it by the sentence of an inferior judge. Poor and wretched must be the condition of that country which cannot afford to do equal justice to all its citizens irrespective of rank or fortune. The inferior judge must be quite as fallible on a question of £12 as he is in a question of £13; yet we act on the theory that in the former case he cannot be stupid, although he may be malicious or oppressive, and that in the latter he may be merely stupid. Now, if one were to take a careful note of all the judges that have had their decisions overturned on these grounds of malice and oppression, we rather think that he would have no great respect for the purity of our inferior judges. Scarcely one of them but has been found to have acted in this highly improper manner, and yet no person has suggested that they are not upright and honourable men. The truth is that now and then such palpable errors in judgment have been committed that the Supreme Court has felt itself compelled to give remeid of law. New and highly interesting definitions of malice and oppression have been introduced, so diverse in their terms that after more than a quarter of a century of interpretation, this clause has been so luminously expounded as to be rendered perfectly unintelligible. But nature always rebels against false principles and absurd theories. Under this clause at present one judge will break all bounds, and we presume on some such vague principle as eternal justice, give redress in an iniquitous case, while another in similar circumstances will regret that he cannot interfere. The result is, the people are at the mercy of the caprices and idiosyncrasies of judges, a thing that may in itself be right and proper, but which is not in accordance with the principles of our Constitution.
We have therefore to suggest that this clause should be repealed, and that some cheap and expeditious appeal should be substituted. Another reform which we venture to recommend is the institution of a Criminal Court of Appeal. In the most trifling civil cases tried by jury, the party has no end of remedies against the bad law of the judge or the stupidity of the jury; but if it is merely human life that is in debate, there is no remedy at all. This is scarcely
creditable to our civilisation, for it lays us open to the charge that we do not allow appeals in such cases, because it is chiefly the poorer classes who suffer in consequence. The cases are now and then certified to the High Court; but that is an imperfect remedy, for it can only be had recourse to where the judge has doubts as to the course to be followed, and the parties have no right to demand it. It never is granted to bring the verdict of a jury under review, and scarcely ever in questions of competency arising at the trial. Now, it must be evident that there is as great a risk of miscarriage in the Criminal Court, as in the civil, and that as things are there must be now and then a miscarriage of justice. Juries have their idiosyncrasies strongly developed from local and personal causes. At Glasgow, a person charged with theft can be convicted on what we should consider extremely doubtful evidence, since the juries there believe in the protection of the too much exposed contents of their shops; but crimes against the person are not so easily proved there, because the power of the police is such that the juryman has not much fear that his daughter will be insulted in the public streets or he himself knocked down behind a counter. It is said that in Argyleshire a person charged with sheep-stealing has no chance, while murder is looked upon as almost incapable of proof. It is not necessary to go more minutely into these matters, since it cannot be pretended that the present system can be justified.
THE SHERIFF-SUBSTITUTES ON TRADE UNIONS. THE learned Sheriffs at Airdrie and Perth recently came to opposite conclusions upon a question which is not more interesting to the lawyer than important to the working classes of this country. That question was whether a workman of good character, who has been dismissed from employment in consequence of the joint. refusal of his fellow-workmen to go on working with him, can sue these fellow-workmen for loss of wages. In neither case was any contract broken by the dismissal, but in both cases, had it not been for the combination, the employment of the obnoxious workman would have been continued. In one case, the object of the combination was to recover certain arrears of fines and subscriptions which were due to the union: in the other, the object was to exclude from employment certain workmen who were not members of the union. In the latter case, Dr. Barclay very properly held that the loss sustained by the dismissed workmen was damnum absque injuria, the right of several men to refuse to work except certain conditions being indistinguishable from the right of one man to do so. In the former case, the late Sheriff Logie held that the joint refusal, being intended to coerce the employer into discharging the obnoxious workman, must be illegal, and that reparation was therefore due for its injurious consequences. Neither judge makes any reference to the good or bad tendency of the rules which
the unionists were thus endeavouring to enforce: that is clearly irrelevant. And it was not suggested in either case that the behaviour of the unionist workmen was anything but orderly and respectful.
Now, there is probably a limit, which we shall afterwards point out, to the doctrine laid down by Dr. Barclay: but it may well be asked, What principle can support the decision at Airdrie? The decision professes to rest upon the "Act to Amend the Criminal Law relating to Violence, Threats, and Molestation" (34 and 35 Vict. c. 32). By that Act certain statutory offences are created, which consist in (1) violence, (2) threats, and (3) molestation, provided these deeds be done with the intention, inter alia, of coercing a master to dismiss a workman, or to alter the number or description of any persons employed by him. It was not alleged in the Airdrie case that the acts said to be wrongful amounted to an offence under this Statute, and therefore we need not examine the stringent definition of molestation which Lord Cairns inserted in the Act, and which the trade unions hope very shortly to have repealed. But the Sheriff, finding that coercion by certain means was thus an illegal purpose, seems to have somewhat rashly inferred that the attempt by lawful means to coerce a master must also be illegal, and therefore an invasion of the rights of the workman who was dismissed at the dictation of the unionists. This is quite wrong. The word "coerce” is used in the Statute merely because it is appropriate in connexion with the criminal acts which had previously been enumerated. But the facts proved both at Airdrie and at Perth disclosed no coercion in the ordinary sense of the word. The masters might have dismissed the unionists, but they had jobs to finish within a certain time, and they could not afford to part with so many men. They chose the cheaper way, and dismissed the "knobsticks." The masters made their calculation, they were not intimidated. Unless the Sheriff can decide on what grounds it is lawful for one man to refuse to work with another, he cannot decide what is, or is not, a fair alternative to offer to the masters. But the Trade Union Acts of 1869 and 1871, in declaring that the purposes of unions, though in restraint of trade, are not illegal to certain effects, have practically declared that the workmen are to be the judges of their own interest in this matter. They may be very foolish to threaten a strike for the sake of bringing all qualified workmen within their union, but the law has learned that it is still more foolish to call such a combination of workmen a criminal conspiracy, or to deny to their funds the ordinary protection against embezzlement. The history of the Combination Laws, of their repeal, and of the gradual recognition of trade unions by the law, is a tempting subject, on which we cannot expatiate. It is sufficient to indicate that the repression of these combinations to regulate the conditions of labour belongs really to that period of our history when it was in the jurisdiction of the local magistrates to fix the rate of wages in nearly every trade. This jurisdiction was of course incompatible with the modern "haute industrie," in which capitalists
and workmen have taken the place of masters and journeymen; and we recommend for study as a piece of curious history, in this matter, the preamble of the Act 6 Geo. IV. cap. 129. That Act, while it repealed the Combination Laws of 1800 and subsequent years, together with many Acts minutely regulating the chief industries of the country, legalized meetings and agreements of masters or of workmen, for the two purposes of fixing the rate of wages and the hours of labour. It defined at the same time certain acts of violence, intimidation, and molestation substantially the same as those in the Act of 1871, which, if performed for certain objects, were to be punishable as crimes. These objects were "to force any journeyman, manufacturer, workman, or other person hired or employed in any manufacture, &c., to depart from his work, or to return his work before the same shall be finished, or to prevent, or endeavour to prevent, any journeyman or workman, not being hired or employed, from hiring himself to or from accepting work from any person; or for the purpose of forcing or inducing such person to belong to any club or association, or to contribute to any common fund, or to pay any fine or penalty, or on account of his not belonging to any club or association, or of his not having complied or of his refusing to comply with any rules, orders, resolutions, or regulations made 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, &c., or to limit the number of apprentices, or the number or description of journeymen, workmen, or servants.'
Under this Statute the English Judges appear at first to have held that every combination for a purpose other than the alteration of wages and hours was not merely illegal, but a conspiracy indictable at common law. Whatever the repealing Act did not expressly permit was held to be illegal, as in restraint of trade. Thus, a common law which had grown up under a system of statutory restraints of trade, prohibited the voluntary organisation of labour. To certain agreements of trade unions the taint of illegality still attaches. That is to say, under the Act of 1871 the union cannot sue for the enforcement, or for damages for the breach of, an agreement between itself and another union, or to apply the funds in benefits to members, or in contributions to non-members for acting in conformity with the union rules, or in discharging any fine imposed by a Court of Justice, and in fact of every agreement among members as to the conditions of labour. But under the Statute of 1826, not content with its language, the Judges began to include under intimidation and molestation, certain acts in themselves perfectly harmless, because they were done for purposes in restraint of trade. This was the converse of the reasoning of Sheriff Logie, and it made necessary the Statute 22 Vict. cap. 34, which, after reciting that different decisions had been given on the Act of 1826, provides "That no workman or other person, whether actually in employment or not, shall by reason merely of his
entering into an agreement with any workman or workmen, or other person or persons, for the purpose of fixing or endeavouring to fix the rate of wages or remuneration at which they or any of them shall work, or by reason merely of his endeavouring peaceably and in a reasonable manner, and without threat or intimidation, 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 or to be agreed upon, shall be deemed or taken 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 workman to break or depart from any contract."
Latterly the Judges took a more lenient view of these combinations, and there are expressions in the cases decided before 1867, from which one might infer that, so long as the workmen did not combine for an injury to their employer or to other workmen, their combinations were quite legal. Combined action, unaccompanied by any criminal acts, was held to be legal, whatever might be its immediate object, the discharge of an obnoxious workman or the reduction in the number of apprentices. Threats indeed might be implied from words, but it was held by Cockburn, C.J., in Walsby v. Anley, that "the workmen have a perfect right to the exercise of their discretion, and to put the alternative to the employer of either retaining their services by discharging the obnoxious workmen, or of retaining the latter, and thus losing the others' services." This doctrine, which of course does not apply to the case where any of the workmen are under contract, was however received with an important limitation, to which Dr. Barclay does not refer in his judgment. It was said that the alternative must be put to the master fairly, that is, apparently, he must have a reasonable time to consider the alternatives. All this time, however, the Court reserved to itself the power of pronouncing certain rules of trade unions, e.g. that providing for the support of members on strike in circumstances satisfactory to the executive, and for the conveyance of unemployed workmen out of the district under strike, to be in restraint of trade, and therefore illegal. It was on this account that particular unions, being unable to obtain registration under the Friendly Societies Act, lost the benefits of such registration, and especially the protection it affords to funds in trust. Several cases of embezzlement forced on Mr. Roebuck's Commission of 1867, and the Act of 1869, which permitted registration under the Friendly Societies Acts, up to 1870, when a new and independent system of registration was introduced. It is very difficult to reconcile the decisions and dicta in England as to the meaning of the words "in restraint of trade." But so long as the trade union is a purely voluntary association, supported and operating only by lawful means, it is quite impossible to see how their success