members or officers, arising from their being themselves joint owners.1 In Scotland this difficulty did not and does not exist in the case of any lawful union.2

The chief difficulty, however, in enforcing the rights of trade unions and of their members has arisen from the nature of the purposes for which they are formed. At common law every person has a right to perfect freedom in dealing with his own labour or his own means or capital according to his will, and every obstruction to the exercise of this right, so as to cause damage to him, is unlawful, even if it be created by means not otherwise unlawful. Hence, both in England and in Scotland, combinations by workmen for the purpose of raising the rate of wages were held to be punishable as crimes at common law. We have not now however to consider

1 Sir W. Erle, l.c. Remedied by 31 & 32 Vict. c. 116.

2 Hume's Com. ii. 200, etc. Smith v. Lothian, March 21, 1862, 4 Irv. 170. 3 Sir W. Erle, Law of Trade Unions, 12.

4 R. v. Ridgway, 5 B. & Ald. 527. Cases in Hume's Com. i. 493-497. In 1755 the journeymen woolcombers of Aberdeen formed themselves into a society. "Though their seeming view," says the Reporter (Lord Kames), "was to provide for their poor; yet under that pretext several resolutions were made cramping trade, and tending to make them independent of their employers." A complaint by the procu rator-fiscal, brought in the Bailie Court of Aberdeen, was removed by advocation to the Court of Session. It was there held at first, upon a consideration of the original plan of the society and of the still subsisting rules, that such combinations of artificers, whereby they collect money for a common box, inflict penalties, impose oaths, and make other bye-laws, are of a dangerous tendency, subversive of peace and order, and against law," and the Court prohibited the defenders from continuing to act under the combination or society in future, or entering into any new society." On a reclaiming petition, the judgment was adhered to, so far as it finds the society to be of dangerous tendency, and consequently contra bonos mores, but remitted to the Lord Ordinary to hear parties, whether they might not be permitted, under proper regulations, to continue to contribute sums for maintaining their poor."-Procurator-Fiscal v. Woolcombers in Aberdeen, 1762, M. 1961. In the same year, another case of a similar kind occurred, and is also reported by Lord Kames, whose language shows the feeling with which combinations of workmen were then regarded. The effect of it was that, in an advocation, the Court approved of a judgment of the magistrates of Edinburgh, finding "that the defenders, and other journeymen tailors of Edinburgh, are not entitled to an hour of recess for breakfast; that the wages of a journeyman tailor in the said city ought not to exceed one shilling per day; and that if any journeyman tailor not retained or employed shall refuse to work when employed by a master on the foresaid terms, unless for some sufficient cause to be allowed by the magistrates, the offender shall upon conviction be punished in terms of law." This apparently arbitrary proceeding was justified on the ground that "arts and manufactures, which are necessary to the wellbeing of society, must be subjected to rules, otherwise it may be in the power of a few individuals to do much mischief. If the bakers should refuse to make bread, or the brewers to make ale, or the colliers to provide coals, without being subjected to any control, they would be masters of the lives of the inhabitants. To remedy such an evil there must be a power placed somewhere; and accordingly this power has long been exercised by magistrates of burghs and justices of peace, under review of the sovereign court. The tailors by forbearing to work cannot do the mischief so suddenly; but people must be clad, and if there be no remedy against the obstinacy of the tailors, they may compel people to submit to the most exorbitant terms." With regard to the propriety of the regulations, it was observed that the power to fix wages was admitted; and "it is of no purpose to fix wages without also fixing the number of working hours; and it is to no purpose to fix either if the defenders have the privilege to work or not at their pleasure."-Tailors of Edinburgh v. Their Journeymen, 1762, M. 7862. See also Corporation of Master Shoemakers in Edinburgh v.

the character and position of trade unions and their members before the criminal law, except so far as we shall afterwards have to notice how the frauds of office-bearers and others may be punished.

There is a general rule in the law of England, that "all restraints of trade, which the law so much favours, if nothing more appear, are bad" and illegal, and therefore cannot be enforced by any court of law or equity. This rule also obtains in the law of Scotland.2

THE LAW BEFORE 1871.

The applications of this common law doctrine to contracts tending to restrain the freedom of trade in respect to labour have not been numerous, for from an early date statutes were passed for the purpose of regulating the rate of wages, and preventing combinations for the purpose of raising it. In the case of Hilton v. Eckersley3 however, which occurred after the repeal of the combination laws, the common law doctrine was fully discussed, and it was held that a bond into which eighteen master manufacturers had entered to carry on or cease to carry on business according to the resolutions of the majority was illegal and void. It was said, “The bond is framed to enforce a contract by which the obligors agree to carry on their trade not freely, as they ought to do, but in conformity to the will of others; and this not being for a good consideration is contrary to public policy. If a bond of this sort between masters is capable of being enforced at law, an agreement to the same effect amongst workmen must be equally legal and enforceable, and so we should be giving legal effect to combinations of workmen for the purpose of raising wages, and make their strikes capable of being enforced at law. The Legislature have been content to make such strikes not punishable, and certainly never contemplated them as being the subject of enforcement by a suit at law."

Prior to 1824 all concerted proceedings on the part of workmen for the purpose of raising the rate of wages were punishable both at common law and under the " Combination Acts," which had been passed both in England and Scotland; and an association for raising funds to support men engaged in a strike, or for any of the ordinary purposes of a Trade Union, was an unlawful association, the unlawfulness of which inhered in the very purpose of its formaMarshall and others, 1799, M. 9573; Hutchison's Justice of Peace, ii. 179; Scott v. Smith, 1796, M. 7625; 1798, 4 Pat. Ap. 17 (Combination of postmasters to raise the rate of hires).

1 Per Willes, C. J., in Master of Gunmakers v. Fell, Willes, 388. Mitchel v. Reynolds, 1 P. W. 181, and 1 Smith's L. C. 356, seqq.

Stalker v. Carmichael, 1735, M. 9455. Watson v. Neuffert, July 14, 1863, 1 Macph. 1110. Bell's Princ. § 40.

36 E. and B. 47, 66: 24 L. J., Q. B. 359.

4 See Corporation of Master Shoemakers, supra.

5 Baron Alderson in delivering the judgment of the Court.

tion. It was therefore not entitled to any protection whatever from the law. In that year the Act 5 Geo. IV. c. 95 exempted from punishment the parties to any such combination not attended with vio

But this Act was repealed in the following year by 6 Geo. IV. c. 129, which was intended to have a more limited operation in regard to the liberties of Trade Unions. It exempted from punishment persons meeting together for consulting upon and determining the rate of wages which the persons present at the meeting or any of them should demand for their work, or the hours during which they should work; and persons entering into any verbal or written agreement among themselves for the purpose of fixing the rate of wages or prices which they or any of them should require or demand for their work, or the time for which they should work. For these purposes Trade Unions could thereafter exist and collect funds by voluntary contributions with impunity. Trade Unions or societies whose purposes and practice did not exceed the limits specified by the Act ceased to be criminal; and it may be said perhaps that they also became entitled to the protection of the criminal law against persons defrauding them or withholding their funds, provided they could overcome the technical difficulties in the way of their prosecuting such persons. This latter point however was never clearly decided, and indeed, as we shall see, the law was generally understood to be to the opposite effect.

But the case of Hilton v. Eckersley shows that this Act did not remove the illegality (in a different sense) of such societies arising from their rules being "in restraint of trade." The members of Trade Unions ceased to be liable to penal consequences, except for the violence, intimidation, and threats and other criminal acts described in the third section of the Act; but they obtained no relief from the civil illegality supposed to depend on grounds of public policy.

Notwithstanding the dissent of Mr. Justice, afterwards Lord Chief-Justice Erle, in Hilton v. Eckersley, and the disapprobation of respected legal authorities, such as Mr. John William Smith,2 that principle received a new application in Hornby v. Close. There a branch of the United Order of Boilermakers and Iron Shipbuilders had deposited its rules with the Registrar of Friendly Societies pursuant to the 44th section of the Friendly Societies' Act, 18 & 19 Vict. c. 63. That section gives to societies established "for any purpose which is not illegal," upon so depositing a copy of their rules, certain of the privileges therein before given to Friendly Societies, and among others that of proceeding in a summary way before Justices against officers or other persons withholding or misapplying their funds, books, or effects. The rules

1 Reg. v. Dodd, 18 L. J., N. S. 89; Reg. v. Stainer, L. R., 1 C. C. 230, 39 L. J., Mag. Ca. 54.

2 Smith's Leading Cases, I. 350.

3 10 Cox C. C. 393; 36 L. J., Mag. Ca. 43; L. R. 4 Q. B. 602.

of the Society contained provisions for benefits to its members of the kind usual in Friendly Societies, but there were also rules prohibiting piece-work, for giving aid to members losing their employment through trade disputes after being sanctioned by the executive of the society, and for other trade purposes. It was held that," although those who become parties to these arrangements may not be criminally responsible, and may obey any such rules and regulations which they think fit to impose upon themselves; yet these rules being in restraint of trade are by the law of the land illegal, and cannot be enforced. The Society is not established for a friendly object within the meaning of the Act, and it cannot be said to be established for a purpose which is not illegal so as to bring it within the terms of section 44."1

2

A similar question arose under the 44th section of the Friendly Societies' Act with regard to the Amalgamated Society of Carpenters and Joiners; and the Court of Queen's Bench was equally divided in opinion as to the effect of the Society's rules. The Lord ChiefJustice (Cockburn) and Mr. Justice Mellor agreed in holding that the Society, "though in the main a Friendly Society, was, with reference to some of its objects, practically a Trade Union," and that it therefore came within the principle of the decision in Hornby v. Close. The rules on which this opinion were founded appeared to these learned Judges, in the light of certain evidence which had been given, to make the funds of the society available for the support of strikes: a purpose, the illegality of which, in the sense of the 44th section of the Friendly Societies' Act, they held to be settled by Hornby v. Close. On the other hand it was held by Hannen and Hayes, JJ., that there was not evidence to show that the funds of the society had been applied for illegal purposes, unless indeed it was to be held that every strike is illegal; and Mr. Justice Hannen was clearly of opinion that strikes are not necessarily illegal.”3 1 Per Cockburn, C.J.

2 Farrar v. Close, L. R. 4 Q. B. 602; 38 L. J., M. C. 132.

6

3 "A strike is properly defined as a simultaneous cessation of work on the part of the workmen,' and its legality or illegality must depend on the means by which it is enforced, and on its objects. It may be criminal, as if it be part of a combination for the purpose of injuring or molesting either masters or men; or it may be simply illegal, as if it be the result of an agreement depriving those engaged in it of their liberty of action, similar to that by which the employers bound themselves in the case of Hilton v. Eckersley; or it may be perfectly innocent, as if it be the result of the voluntary combination of the men for the purpose only of benefiting themselves by raising their wages, or for the purpose of compelling the fulfilment of an engagement entered into between employers and employed, or any other lawful purpose. On this point, I would refer to the recent memorandum of Sir W. Erle on the law relating to Trade Unions, a work which it would be unbecoming in me to praise ; but which appears to me to contain a complete exposition of the principles of law applicable to this subject. That learned writer says (p. 23), As to combinations, each person has a right to choose whether he will labour or not, and also to choose the terms on which he will consent to labour, if labour be his choice. The power of choice in respect of labour and the terms which one person may exercise and declare singly, many after consultation may exercise jointly, and they may make a simultaneous declaration of their choice, and may lawfully act thereon for the immediate purpose of obtaining the required terms; but they cannot create any mutual obliga

Mr. Justice Hayes substantially agrees, and says very succinctly: "No doubt the trade of an employer is restrained when workmen decline to take the wages which he is willing to give; but it must be remembered that the men are traders as well as the employers, and it would be an odd way of promoting freedom of trade to hold it an illegal purpose on their part to endeavour out of their own savings to put themselves in a better position to get what they think a fair price for their labour."

These two cases established the futility of the attempt to obtain the summary remedies of the Friendly Societies' Act for societies whose main objects were those of Trade Unions, at least when such purposes were disclosed in their rules.1 Their effect however was popularly supposed to be still more extensive, and to deprive such societies of all protection to their property from the criminal law. The judgment on Hornby v. Close certainly does not say so. It only amounts to this, that certain of the rules were illegal in the sense that they could not be enforced in any Court of law. It was not tion having the legal effect of binding each other not to work or not to employ unless upon terms allowed by the combination.' The foregoing passage clearly defines the dividing line between what is legal and what is illegal; and the evidence in this case shows only that the society permits its members to draw upon the funds to which they have contributed in the event of their being out of work for some purpose not shown to be illegal, and which the society considers meritorious, while there is a total absence from the rules and practice of the society of anything tending to impose an obligation or coercion on its members."

The learned Judge said further: " By the expression that a thing is contrary to public policy,' I understand that it is meant that it is opposed to the welfare of the community at large. I can see that the maintenance of strikes may be against the interest of employers, because they may be thereby forced to yield at their own expense a larger share of profits or other advantage to the employed; but I have no means of judicially determining that this is contrary to the interests of the whole community, and I think that in deciding that it is, and therefore that any act done in its furtherance is illegal, we should be basing our judgment not on recognized legal principles, but on the opinions of one of the contending schools of political economists. The cases which were referred to in argument do not appear to me to apply to the present case. In Hilton v. Eckersley it was held that employers could not legally bind themselves to carry on business as a majority of their body should direct. In Hornby v. Close, on the other hand, it was held that the men could not legally bind themselves not to seek work at a shop where disputes connected with the trade had arisen, or not to encourage or to instruct a labourer contrary to the rules of the society, or not to use their influence to procure employment for a non-member; and that a society whose rules were designed to enforce such engagements was established for an illegal purpose. In this case no obligations in restraint of trade are imposed by the rules, and, for the reasons I have given, I think that there is no evidence that the rules are applied in restraint of trade."

This confirms Mr. Smith's remark (L.C. I. 350) upon Hilton v. Eckersley, that it avows the doctrine "that a contract must be void as contrary to public policy, although not violating any rule of law . . . The law upon this subject is, it must be confessed, in an unsatisfactory state, and there seems but too much ground to fear that, unless checked by a firm determination to uphold men's acts when not in violation of some known rule of law, and to treat decided cases having a contrary tendency as exceptional, it may degenerate into the mere private discretion of the majority of the Court as to a subject of all others most open to difference of opinion, and most liable to be affected by changing circumstances.

1 It is an opinion countenanced by Sir W. Erle (pp. 5, 79), that if societies were to remove the illegality which is apparent on their rules, they might, under the decision in Farrar v. Close, still have obtained the benefit of the 44th section of the Friendly Societies' Act. But that case does not clearly bear out that conclusion.