§ MR. VERNON HARCOURT,
in rising to call attention to the Law affecting the contracts of Masters and Servants, and the Law of Conspiracy in connection with the recent conviction of the gas stokers; and to move—That the Common Law of Conspiracy, as declared in the case of the Queen v. Bunn and others, ought tee amended, limited, and defined, and that where Parliament has prescribed limited penalties for particular offences, it is inexpedient that more grievous and indefinite punishments should under the form of indictments for conspiracy be inflicted for agreements to commit the same offences; and that the exceptional laws which enforce the civil contract of service by criminal penalties are unjust in principle and oppressive in their operation and ought to be amended,said, nobody could reflect on the character of the question with which the Motion dealt, without feeling that he undertook a very grave responsibility in addressing himself to it. The House would, no doubt, recollect the ineffectual attempts he had made last year to get the question of the laws affecting labour discussed in the House of Commons, and that he had then been rebuked for bringing it on in an irregular manner. On that occasion, he predicted that mis- 573 chief would occur in consequence of the question not being fairly met in the House of Commons. The Home Secretary replied in effect—"Let us wait to see the law worked out by the Judges and the magistrates of the country?" Well, they had waited, and seen it worked out, and what was the result? The result was, that within six months two important sentences had been passed—one by a Judge and another by a bench of magistrates—sentences of which, wishing to speak with moderation, he would only say that they had not been ratified by the public opinion of the country. That was a condition of things which was dangerous to society, and it justified him in asking the House of Commons to consider the law which resulted in such effects. They had seen batches of men sent to prison, under sentences which a responsible Government had thought it necessary to commute—they had thought it necessary to remit at least two-thirds of the sentences passed by the highest tribunals of the country. The House had also seen what he might describe as a whole village of women sent to prison, under a sentence which had been treated by the right hon. Gentleman the Secretary of State for the Home Department, in a manner of which he need not remind hon. Members; and whatever might be the judgment of the Government on these sentences, the judgment passed by the sentiment, the conscience, and the opinion of the country had been, at least, as severe. There was a very strong feeling among all classes of the people of this country, and, especially, among the class mostly affected by this matter, the existence of which it was idle to deny. Indeed, the meeting in the Park last Monday showed what was thought of the law by the working classes. But with meetings out-of-doors the House had nothing to do; it was in the House of Commons that errors, if they were errors, could be best corrected, and grievances could alone be redressed. He could not follow the course which had been taken by the right hon. Gentleman in endeavouring to shift the responsibility, either from the Government or the House of Commons, to the shoulders of the magistracy. Magistrates were attacked because they were clerical and because they were unpaid. He had always thought that ecclesiastical per- 574 sons should be confined to spiritual functions; but he did not believe for a moment that magistrates, because they were clergymen, were likely to act harshly in administering the law, especially to the humbler members of the community. He was not going to attack the magistracy or Mr. Justice Brett, by whom the sentence most complained of had been pronounced. All those who knew Mr. Justice Brett esteemed him for his high character, respected him for his learning, and knew that on the Bench as elsewhere he would perform his duties according to his conscience. They could not shift the responsibility on Judges of the land which they ought to bear themselves for making bad laws. Legislation of the description he was alluding to commenced shortly after the Commission on Trades Unions. The Trades Unions Act declared that trades unions, unaccompanied by molestation of workmen who did not belong to them, were not in themselves illegal. Before sitting in judgment upon the Judges or they magistrates, who had done their duty according to their lights, the House had better look nearer home and see whether these results were not the natural consequences of what he believed to be rash and inconsiderate legislation. Parliament must not, as King John did to Hubert, and Henry II. to the murderers of A'Beckett, condemn men who had been really only the instruments of their will. The results were due to legislation against which he had often protested—a system of piling up misdemeanour upon misdemeanour and crime upon crime; wanton legislation which established a sort of chaos in the criminal law, and was only tolerable because it was not executed. When, therefore, men who were appointed to execute the law really did execute it, Parliament shrank back, and shuddered at the ferocity of the laws itself had made. To the question—"Why did you do this thing?" the simple answer of the magistrate would be—"Because Parliament bade us do it." He did not intend to meddle with the Master and Servant Act, which was in the able hands of the hon. Member for Sheffield (Mr. Mundella); but he would call attention to the Trades Unions Act, and the Criminal Law Amendment Act of 1871, the object of which was, while providing against unjust menaces, intimidation, and molesta- 575 tion, to declare that combination for trade purposes was not illegal, and that, as long as trades unionists kept clear of menaces, intimidation, and molestation, they should not be subject to criminal offences. Practically, the legislation of 1871 repealed the old Common Law doctrine against persons acting in restraint of trade, and trades unions were legalized, Parliament following in this respect the example set in 1864 by the Emperor Napoleon. The Act which was passed in 1871 was intended to be impartial, giving mutual remedies on either side, but in its operation it had proved to be one-sided. Having called attention to the action and intention of Parliament in that year, he would now refer to the celebrated case of the gas stokers' strike. A certain man named Dilley was dismissed from the employment of one of the gas companies, and the men struck. They declined to continue their services unless he was restored, and the extent of the threats and violence they employed was this, and this only—that they simultaneously announced their intention of leaving. True, they were under contract; but the offence of breach of contract was a separate and different matter from the present question. That there was nothing beyond breach of contract in the conduct of the men was clear from the language of the Judge, who distinctly stated that there were no threats, no molestation, nothing at all, except an intimation of their intention to leave the service of their employers—You may take it for granted," said Mr. Justice Brett, "that whatever was done was not done by threats or by personal violence, either towards their employers, or the manager of the works.Apart then from breach of contract, there was nothing in the course pursued by the men which, according to the principle intended by Parliament in 1871 to be established, ought to have been regarded as illegal. He spoke not with respect to the law, but with respect to the intention of Parliament. Indeed, the determination of the men to leave the service, so expressed, ought to have been regarded as unquestionably legal. Well, what happened? Twenty-five of the men were proceeded against under the Master and Servant Act for breach of contract. Now, the most extreme advocates of trades unions did not justify the 576 conduct the men in breaking their contract. They were summoned under an Act which Parliament had provided to meet such an offence, and they were sentenced to six weeks' imprisonment, just one half of the most extreme sentence that could be possibly passed. The stipendiary magistrates of London—men as competent as could be found anywhere to administer the law—thought that an adequate sentence under the circumstances; and for his part, he should have thought that the sternest capitalist would have regarded it as sufficient to meet the justice of the case, and that it was calculated to reassure the most timid gas consumer. But it was considered that something more than Parliament had determined should be the punishment for breach of contract should be discovered, and accordingly recourse was had to the most ingenious of created beings—a special pleader—and it was thought how the declarations of the Trades Unions Act and the Criminal Law Amendment Act of 1871 that combinations of trades unions should not be illegal, might be evaded and defeated. Accordingly, an indictment was drawn up, taken out of the rusty armoury of the Common Law. They furbished up the old instrument of the ancient common law of conspiracy, which he need not tell any lawyer had long been the scandal of English jurisprudence. In a sentence passed upon it by Mr. Justice Talfourd, he said that it consisted not in the accomplishment of any unlawful or injurious purpose, but in the actual concert of two or more persons to effect something which, owing to such concert, became indictable, and he added that it was not easy to understand on what principle conspiracies had been holden indictable, when the thing to be effected was not regarded by the law as unlawful; and he asked if there were no indictable offence in the means, in the end, or in the concert, in what did the offence consist? Could several circumstances, each in itself lawful, make up an unlawful act? Another authority well known to lawyers, Mr. Roscoe, said—The law of conspiracy leaves so broad a discretion in the hands of the Judges, that it is hardly too much to say that plausible reasons might be found for declaring it to be a wrong to combine to do anything which the Judges might consider to be morally wrong, or politically, or socially dangerous.577 Such was the English law of conspiracy. Under that law two sets of counts were framed. One was founded upon the breach of contract. The other set, founded upon no breach of contract, but which, according to the learned Judge, were equally good, even supposing there had been no contract at all, in the vituperative jargon of the criminal law, charged the defendants, being evil disposed persons, unlawfully and wickedly contriving to injure and annoy the company, and force it to make alterations in its mode of conducting trade, that they had unlawfully conspired, by divers unlawful means, contrivances, threats, and menaces, to induce the company to alter their mode of conducting their business. The serious part of the matter was that the jury, who possessing a sounder judgment upon the question than was exercised by the learned Judge, declined to convict upon the latter set of counts, had been informed by the learned gentleman that the counts were good in law, and that there was evidence upon which they might convict under them. The effect of that direction was this, that in spite of the Act of 1871, an agreement among any set of men to induce a man in trade to alter his mode of business was an offence punishable by 12 months' imprisonment, with hard labour; and if so, every trade union might be called a conspiracy, for the very essence of such unions was to induce masters to alter their mode of conducting their business, and the ruling of the Judge would in effect repeal the spirit of the legislation of 1871. No man could safely act upon the law of 1871 while that common law of conspiracy remained in force. If men working for 10s. a-week agreed to demand 12s. they would be guilty of that offence, and men who agreed to work eight hours a-day instead of 10 would by such agreement have wickedly conspired to induce their employer to alter his mode of business. That had been declared by one of Her Majesty's Judges to be a conspiracy at common law, and they must get rid of that declaration if they did not wish to repeal the legislation of 1871. He should like to hear the opinion of his right hon. Friend the Secretary of State for the Home Department, and of the hon. and learned Gentlemen the Attorney and Solicitor General on the subject. Were they disposed to say that what Mr. Justice Brett had declared was not 578 the law? For his part he was not prepared to say so, and he thought no person in the country could safely act as if it were not the law. His right hon. Friend, indeed, had been good enough to tell him a few days before, that a decision had been given by another Judge in a somewhat different, if not a contrary sense; but if that were so, it seemed to prove the proposition laid down in the first part of his Resolution—That the Common Law of Conspiracy, as declared in the case of The Queen v. Bunn and others, ought to be amended, limited, and defined,because if two Judges differed in laying down the law, that fact furnished the best of all reasons for amending and defining it. He had not troubled the House with the directions of the learned Judge upon those points; but it was held that there was an improper molestation if anything was done with an improper intent, or which might be thought to be an annoyance or an unjustifiable interference which would have the effect of annoying and interfering with a man in the conduct of his business. Now, if a number of domestic servants went to their master and said that unless he raised their salaries they would leave him, was that, he would ask, to be regarded by the law of England as an offence which was to be punished with a year's imprisonment with hard labour? If that were so, he must, he thought, be held to have established the first part of his Resolution, that the Common Law of Conspiracy required to be amended. He now came to the second part, and with reference to that, he had to observe that 25 men had been punished under the law, the great majority of them with only six weeks' imprisonment. There were five, however, who were in pari delicto, and they were proceeded against not under the Master and Servant Act, but on a count in an indictment for conspiracy, and they were sentenced to 12 months' imprisonment with hard labour. Now, was it not an invidious circumstance, as well as a great anomaly, that by merely varying the form of the indictment a man should get eight times as severe a punishment as was inflicted upon another for the same offence? He did not mean to contend that there might not be cases in which the combination of men to do a thing might not constitute a more aggravated offence, than when a 579 thing was done by a single individual; but it was no good reason because combination might in certain circumstances be more dangerous, that the House should refuse to define the punishment in the way which he proposed. One of the sagacious Acts which the House had recently passed had developed itself within the last few days in a manner which partly entertained and partly shocked the public mind. Under that great Act—he referred to the Parks Regulation Act—it appeared that some people had on Whit Monday been hauled up by the police and punished for skipping; so that skipping on Whit Monday was now one of the crimes and misdemeanours which were punishable in this country. Then there was the dreadful offence of fishing and catching minnows in the Serpentine—whether anybody had been bold enough to take a piece of soap to the bathing-place he did not know. But if the Government were not satisfied with the severity of the punishment which had been inflicted on those who skipped and fished for minnows in the Parks, all they had to do was to lay a common law indictment for conspiring to skip or fish, contrary to the will of the First Commissioner or whoever might be in charge, and then they might succeed in committing the offenders to 12 months' imprisonment with hard labour. The same remark applied to two or three persons conspiring to carry a piece of soap in contravention of the law. It was clear, then, that the time had come when something must be done, and he advised those who thought they understood the law of conspiracy to read the able work on the subject of which Mr. Wright was the author. The fact was, neither lawyers nor anybody else could form an adequate or clear opinion on the subject, and that being so he had, he thought, established the second part of his Resolution—that this loose law of indictment for conspiracy, founded upon a statutable offence, should be dealt with, and codified in a manner in which it had not yet been dealt with. The third part had reference to the law of master and servant, and the Act of 1867 was, no doubt, a great improvement upon the chaos of injustice that previously governed the relations between master and servant. It was conceived in a very different spirit, and Mr. F. Harrison, the able advocate of the cause of trades unions, had ac- 580 knowledged the fairness of that spirit, however much he might have found fault with the results. In 1867 a careful attempt had been made to make the law impartial as between employers and employed, but the result was, nevertheless, in Ms (Mr. Harcourt's) opinion, extremely one-sided. It left, at all events, the remarkable exemption that, out of all civil contracts, one contract alone was enforced by the cruel arm of the criminal law—the contract of master and servant. The same law which was to be found in the Master and Servant Act was applied also to our merchant shipping, and he had read with sorrow—he might almost say with dismay—in the Reports of the Board of Trade, that some convictions had occurred under the law, by which the contracts of sailors enlisting in the merchant service had been enforced, not by a clerical or an unpaid magistrate, but by a stipendiary magistrate at Cardiff, who committed men to prison who afterwards pleaded that they had broken their contract because the ship in which they were to embark was not seaworthy. They had not, however, been in prison many days before they were released, because it had been determined that they had broken their contract to save their lives. It took days and sometimes weeks to examine a ship, and they had a law which kept a seaman in prison under a labour contract until an investigation had proved her to be unseaworthy. In this case, the men were kept in prison during the process of the investigation, and when found innocent, were discharged without any compensation for the false imprisonment they had undergone. One of the things which most shocked him in the tone of opinion now-a-days, was the levity with which they were apt to regard the punishment of imprisonment. It was a saying of Mr. Wilkes', that the worst use they could put a man to was to hang him. In his (Mr. Harcourt's) view, one of the worst things they could do with a man was to put him in prison, because it degraded him both in his own estimation and in that of his fellows. They took one class of contracts out of the whole category—contracts which affected alone one class of individuals, and they enforced their observance by the penalty of imprisonment. The most eminent authorities to whom he had spoken had declared that they could not 581 find any justification for such a law, which was in itself unjust, invidious, and cruel. Legislation of that character became the more odious and the more dangerous when it was remembered that it took its origin in a Parliament which was necessarily a Parliament of employers, and was administered by magistrates who also belonged necessarily to the class of employers, whose interests were adverse to the interests of those against whom that legislation was directed. He might be told that it was necessary for the trade of the country to retain that anomalous and invidious distinction in regard to labour contracts; but he maintained that nothing was good for the trade of the country which left a just sense of dissatisfaction in the minds of that numerous class on whom, after all, the prosperity of our trade so greatly depended. If a man dishonoured a bill of exchange, those whose arrangements were based on that bill of exchange might be ruined; if banks broke; if insurance offices, on whom a man built the future hopes of his family, became insolvent, wide-spread ruin was the result: yet they did not send those who caused those disasters to prison, in the absence of fraud, as they did the workman who was charged with breach of contract. If they took as their test the irreparable nature of the consequences ensuing from a breach of contract; why were they not consistent in extending it to all other cases, and why did they apply it alone to that class of the community who were not there to remonstrate against such a law. In the case of a breach of promise of marriage, accompanied often by seduction, the law did not sentence the offender to imprisonment; but where proved, stopped at a pecuniary penalty, calculated according to the nature of the case and the circumstances of the parties. A poor man made, perhaps, three contracts, and broke them all—one of them a contract for service, and two other contracts; but the law only sent him to prison for a breach of the one. The unfortunate man could not pay in purse; but then the Master and Servant Act was called in in aid of the criminal law, and under it he was thrown into prison. Now, if that was not class legislation, he (Mr. Harcourt) did not know what class legislation was. The gas stokers, it was said, had produced a great public danger and 582 injury to the country, and therefore they deserved to be sent to prison. But suppose that the coal-owners had broken their contract, by refusing to send the usual supplies of coals to the gas companies, and that in consequence the metropolis had been plunged into a state of darkness and confusion, would the law have sent them to prison, in the same way as it had sent a few gas stokers to prison, for endangering by their action the safety and convenience of the inhabitants? But it was said that those who could not pay in purse must pay in person; that was an old and barbarous doctrine, belonging to the ruder ages of civilization. They had abolished imprisonment for debt in all cases, except in those which came within the jurisdiction of the County Court, and those were the poorer classes of society; and with regard to that one, he hoped that his hon. Friend the Member for Derby (Mr. M. T. Bass) would succeed in clearing away from our Statute Book that last remnant of a barbarous law. He thought that when the people became sufficiently intelligent to understand their real condition, they would decline to enter into any contract. If they came to that conclusion, he could not blame them. To tell men that the breach of such a contract involved the sacrifice of their personal freedom, was to strike a heavier blow at those contracts than could be done in any other possible way. To guard himself against possible misconstruction, he admitted that the State was justified in applying to the Army and Navy, rules which could not and ought not to apply to matters which only concerned private gain, because such rules were required for the general security of the country. For the purpose of defence, he would say, that he should have brought in a Bill upon this subject; but everyone knew how impossible it was for a private Member to effect legislation without the active assistance of the Government. For instance, the hon. Member for Brighton (Mr. Fawcett), in respect to his great University Bill, which contained but two clauses, would have found it utterly impossible to carry his measure through Parliament without the co-operation of Her Majesty's Government. He had, therefore, sought to invite the consideration of the Government and the House to the question, because on them the responsibility of 583 the existing state of things must rest. He had no fear for the trade of the country by dealing with the question, neither did he share the alarmist views entertained by many in regard to strikes and other subjects. There had been great strikes in the coal and iron trades; but he was not aware that those industries were on the verge of ruin; indeed, he believed that no class were making larger fortunes than the proprietors of iron and coal mines. It was not the strikes or the trades unions which had raised the price of coal. A large coal-owner had told him that the price of coal within the last 12 months had increased 15s. per ton, while the rate of colliers' wages had increased only 1s. 6d. per ton. That increase of price was owing to other combinations, and to other causes over which the Legislature had not, and could not exercise, any control. Coercive legislation of the character upon which he was commenting would not solve the difficult problem which remained for solution between capital and labour, for all attempts which had been made to regulate those two enormous interests had failed. Capital and labour were two great natural forces which, like the waves of the sea, would not be dammed by such barriers as the legislature could raise. These forces must be allowed to find their natural level; the introduction of irritating influences would not prevent their operation, but only tend to make the political machine extremely hot in its bearings. The solution of these difficult problems could be found only in absolute freedom, rigorously applied without fear of the consequences—freedom between masters and men, freedom, above all, between man and man. If anything was more detestable than the oppression exercised by the superior over the inferior, it was that worst form of tyranny, the tyranny among equals themselves. The speech by Lord Fitzwilliam, reported in The Times that morning, was worthy of the name he bore. Lord Fitzwilliam said he never would, for the purpose of encouraging trade, or for any consideration whatever, be a party to a system which would allow of one man oppressing another for the purpose of pursuing the objects of a combination. In that sentiment he (Mr. Harcourt) cordially concurred. He trusted, in conclusion, the House would not think he had improperly 584 intruded this subject on its attention, and left it to the candid consideration of the Government and the free debate of the House.
§ LORD ELCHO
said, he had listened with great pleasure to the able and temperate statement of his hon and learned Friend the Member for the City of Oxford (Mr. Harcourt), and was sure no part of his speech was more cordially approved by the House than its closing sentiment, which insisted upon the necessity of securing perfect freedom between man and man. Having taken some part in legislation on the subject of contracts between master and servant, as comprised in the Master and Servant Act, he asked permission to make a few remarks, with a view particularly of correcting some misunderstanding and even misrepresentations which were current respecting the intentions of Parliament. The gravamen of the charge against the House of Commons was, that Parliament had acted unfairly and unjustly in the interests of capitalists, and contrary to the freedom and fair interests of labour. That was the sum and substance of the allegations, whether made in Hyde Park or upon public platforms. His hon. and learned Friend had also said, that Parliament was the place to correct misrepresentations, and it was fortunate the subject had been introduced to the notice of the House so soon after the meeting in Hyde Park. Had his hon. and learned Friend made himself acquainted with the evidence upon which the clause he complained of was framed, and had he inquired as to the motives of those who suggested it, he would not have lent the weight of his authority to the error that seemed to have taken possession of the minds of those who represented labour. The Committee which sat upon the question, and upon whose Report the Act was eventually founded, came to an unanimous conclusion, that in aggravated cases of breach of contract causing injury to the person or property of anyone concerned, the magistrate or sheriff, at his discretion, should have power to award the punishment of imprisonment instead of a fine. The Bill was drawn upon that foundation. Imprisonment was applied only to aggravated cases involving injury to persons or to property; but his hon. and learned Friend had not noticed the distinction between those 585 cases and ordinary breaches of contract. He had spoken strongly against the Act, as though it applied the extreme punishment of imprisonment to all breaches of contract alike. That, however, was a distinction the Committee thought it necessary to draw. What had led to the Committee coming to that decision? Was it simply concern for the capitalist? On the contrary, he could state, for he acted as Chairman of the Committee, it was the result of evidence given by workmen themselves. Mr. Newton, Secretary of the Executive Committee of the trades of the United Kingdom appointed to promote an alteration of the law of master and servant, had given evidence before the Committee of the House of Commons. He there expressed a desire that the odious position in which the workman was placed should be improved, and "as nearly as possible approximated to the position of the masters in the matter of fines." Thus by using the words "as nearly as possible," clearly admitting that it was impossible to legislate in such a way as to put the rich and the poor upon an absolute equality in relation to each other, where a money penalty was inflicted. Mr. Newton further went on to say, that there could be no doubt that it would be necessary to protect both the masters and the men from open and wilful violation of contracts on the part of persons knowing that their acts would injure the employer, and, indirectly, their fellow-workmen. He went on to state, that he desired that all the laws which related to masters and servants should be placed in one statute; that masters and servants should be placed upon the same footing as to bringing actions against each other for breach of contract, both of which had since been adopted; and, thirdly, that in certain aggravated cases which could not be defined, it would still be requisite to give power to punish the workmen criminally for neglect of duty. He had however, another witness to bring into Court—into the Court of the House of Commons, where erroneous statements could be easily refuted if made—and that was a witness from the platform in Hyde Park, who had moved the manifesto which had been referred to—namely, Mr. Odger himself. Mr. Odger had stated before the same Committee, that although he had not turned 586 his attention to the point, he was of opinion that if it could be clearly proved that a workman had wilfully broken his contract, or been guilty of misconduct, and had thereby endangered life or property, to the injury of his employer or his fellow-workmen, there could be nothing unjust in enacting that he should be punished criminally; and he had added in reply to the hon. Member for Brighton (Mr. Fawcett), that it would be only reasonable to extend the same law to the masters. The law, however, was absolutely so in cases when, by neglect of duty, life and limb and property were imperilled. Mr. Odger afterwards qualified one part of his statement, by stating that it was sometimes difficult to draw a distinction between wilful and accidental neglect of duty. He thought that in the face of that evidence, he was justified in saying that the clause had been inserted at the suggestion and in the interests of the working men themselves, and not by the capitalists of that House, in order to oppress their workmen. [Laughter.] He saw a smile on the face of the hon. Member for Nottingham at that statement. The hon. Member appeared to think that no one who sat on the Opposition side of the House had any feeling or wish to benefit the working classes; but he (Lord Elcho) distinctly stated that the object of the Act was to do away with the iniquitous inequality in the law which then existed, and to put masters and servants on a more just footing in relation to each other. That part of the statute which authorized the workman who broke his contract to be punished criminally was drawn up with the view of protection the working man. To show the feeling of the House when in Committee on the Bill he might say that the only difference of opinion manifested in connection with the subject was on the point, whether a summons should be taken out in the first place, or whether a warrant should be at once issued in the case of a workman breaking his contract, and by a large majority it was decided in favour of the first alternative. The Workman's Executive Committee had, however, authorized him to yield on this point sooner than endanger the Bill. That House had been recently denounced as a body of capitalists who were desirous of oppressing the working man, but Mr. Macdonald, the former Presi- 587 dent of the Miners' Association of Great Britain, who had taken up the cause of the working men long before Mr. Applegarth and Mr. Odger and others had attained notoriety, had stated, having had many years' experience on the subject, he had always found Members of both Houses of Parliament willing to take up questions for the benefit of the working classes and likely to tend to the social improvement of the community, and he went on to add that the House of Commons, however it might be constituted, had passed more beneficial laws, such as the Factory Acts, for the improvement of the working classes than any other body of men had done in the same number of years. Therefore, out of the mouth of one of the most able and intelligent working men he believed he had been able to justify that House in the legislation they had adopted, to the condemnation of certain libelous statements which had been made upon the subject. The question of the legislation between masters and men, however, should not be looked at in the light of recent decisions, either of magistrates or Judges, but according to the views held by the public at the time the Act was passed. What was said with reference to the Act, shortly after it passed by the chief organ of public opinion in this country? The Times, in a leading article, said—Among the Bills which received the Royal Assent on Thursday last was one which crowned a long series of measures of remedial legislation. The state of the workman has been improved; the Master and Servant Act puts the employed and the employers on an equal footing before the law.And it went on in the same strain to say that the sound principles of freedom and equality were too powerful to be warped in the interests of master or workman. Soon after that, a public dinner was given to the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) at Edinburgh. At that dinner, the right hon. Gentleman, speaking of the Act, said—In my opinion, a more important and beneficial law, and one which more sensibly improves the condition of the great body of the people, was never introduced and passed through Parliament.The executive committee of the society, moreover, which represented the operative classes of the United Kingdom, in a presentation address, referring to this 588 Act said, the previous law "has been replaced by one which puts the employer and the employed on an equal footing." He thought from that, he had shown by the evidence of working men that the Act did credit to the heart and head of the House that passed it. His hon. and learned Friend in a precipitate manner asked an unlearned House of Commons to swallow a Resolution dealing with legal matters, and by a vote to decide that the law of conspiracy ought to be altered, and that the criminal part of the Master and Servant Act ought to be rescinded. What was the history of that Resolution? The ink with which it was written was scarcely dry. His hon. and learned Friend, between 1 and 2 o'clock that morning, laid before the Clerk at the Table that Resolution which was to alter the law of conspiracy and to repeal a most important statute which was passed after careful consideration. That was one of the most monstrous propositions he (Lord Elcho) had heard since he became a Member of the House. He offered no opinion on the question of conspiracy at common law, or how it should be dealt with; but he found fault with the form of the Motion that had been submitted to them, and that it should have been brought forward at a time when by the forms of the House no division could be taken upon it. He also complained that the terms of the Motion were not known until that morning It was much too grave a question to be dealt with in that way; but if it was to be dealt with, it should be by the Government. Whatever defects were to be found in the Common Law of England, it was the law of a free people; and it was alike, in a great measure, the product of that freedom and its shield. If the Government dealt with it, they must be very careful how they repealed it, in part or in whole; more especially when it was to be done at the instigation of combinations which, whatever else they might be, or profess to be, were absolutely and knowingly intended to repress individual freedom both of will and action.
§ MR. OSBORNE
thought that, whatever strictures might be passed upon his hon. and learned Friend the Member for the City of Oxford (Mr. Harcourt), he had done useful service in submitting to Parliament a question which was looked upon as of the utmost importance 589 by the great body of the working men in this country; and at the same time he was sorry to see the House manifest so little concern upon the subject as it did. The noble Lord opposite (Lord Elcho) was labouring under a delusion, for nothing could have been further from the intention of his hon. and learned Friend (Mr. Harcourt) than to make any attack upon the noble Lord, or to question the excellent motives by which the noble Lord had always been influenced in his endeavours to reconcile the interests of labour and capital, and more especially in the great and successful effort he made in the Act of 1867. Nothing could be more odious than the old system, under which trades unions and combinations of any sort among the working classes were looked upon, not only as illegal, but as positively criminal. The legislation initiated by the noble Lord, and by Lord Lichfield in "another place," had been most useful to the country and honourable to themselves. He thought his hon. and learned Friend was fully justified in bringing forward the question, and did not see how he could be blamed for bringing it forward at the time he had. Truly, he (Mr. Osborne) might ask, Quis vituper avit? There could be no doubt that this question of the gas stokers had given a very great shock to public opinion in this country. It was a peculiar question, because with regard to them, no man defended their conduct, but everybody deprecated the extreme severity of the sentence passed upon them; and though he was no sympathizer with persons who set class against class, he thought the House was bound to endeavour to rectify any defects there might be in the law. These men were tried upon two distinct charges. The first was illegal molestation, and the second conspiracy, by simultaneous agreement, to break their contract. They were not found guilty upon the first, but convicted upon the second; and, according to the Master and Servant Act of 1867, a conviction on the second charge would have carried with it a sentence of three months; whereas, in the present case, the sentence was 12 months' imprisonment. During his absence from the House he understood that the right hon. Gentleman the Secretary of State for the Home Department had, in answering a Question, reflected severely upon the clerical 590 magistrates in the Chipping Norton case. For his own part, though he wished to say nothing derogatory to those gentlemen, yet he thought it was unfortunate that anyone in clerical orders should occupy the position of a magistrate, because it was one which placed them in antagonism with people towards whom they should act as advisers and consolers. Nor had he anything to say against one of the ablest Judges on the Bench, though the decision of Judge Brett had produced an unfortunate shock on the public mind—a decision which was evidently a wrong one, since the right hon. Gentleman had remitted the sentence. It was only natural that on the eve of an election a little exaggeration should be indulged in, and appeals made to the public against the House of Commons; but a residuum of wrong existed, and he was glad that his hon. and learned Friend had taken up the matter. In that view, the proposal of his hon. and learned Friend to do away with all imprisonment for breaches of contract was a very fair subject for consideration. He did not, however, agree with him that the man imprisoned for breach of contract felt himself degraded, for the gas stokers on leaving prison were feted and caressed, and the tendency of that legislation was to bring the law into contempt by making men feel themselves martyrs. He would remind the House, or rather the skeleton of the House, that the Act of 1867 was renewable from year to year, and the Government having done little enough this Session, might make themselves useful by abolishing imprisonment for breach of contract, and dealing with the law of conspiracy, thereby blunting the weapons of agitators.
§ MR. AUBERON HERBERT
said, that unless he was satisfied that the law left him no alternative, he must still think that the sentence passed by Mr. Justice Brett was excessive and unjust. It was unjust for the reason that the jury had found the verdict entirely on the counts of the indictment based on the statute, and had refused a verdict on the common law counts. The Master and Servant Act imposed imprisonment for breach of contract of an aggravated character, and for default in paying a fine; but it had been interpreted by magistrates as if any ordinary breach of contract was to be visited with im- 591 prisonment. A trustworthy authority had called his attention to two cases. A man unable to read, and therefore not thoroughly acquainted with the engagement to which he had affixed his mark, asked for 11s. a-week instead of 10s., and unfortunately used some threats to the policeman who arrested him. He was sentenced by the magistrates at Farringdon to six weeks' hard labour, not under the Master and Servant Act, but for the use of threats. Another labourer who, after a dispute about overtime, left in the middle of the day without notice, was last year sentenced to a months' hard labour. He was, however, liberated after a fortnight's detention, and the hard-labour part of the sentence was not enforced. Now, even for gross breaches of contract, imprisonment would be an unequal punishment; for a man who by lavishly contracting debts caused suffering, and, perhaps, ruin; a contractor who, entering on an undertaking beyond his ability, broke down, causing loss and inconvenience; and a barrister who, by failing to appear in a case, exposed his client to defeat and injury, were not punished by imprisonment. There were many breaches of contract in this country, but only one which the law enforced by the penalty of imprisonment, and if this exception were continued great mischief must constantly arise. His hon. and learned Friend the Member for Oxford (Mr. Harcourt) had called attention to the bad effects which arose from this state of things under the Merchant Shipping Act. A man engaged to go on board a vessel for a voyage, he thereupon got an advance note, which some disreputable person cashed for him, relying on the immense powers in the hands of the shipowners to enforce the contract. The man was then, perhaps, kept drunk until the vessel sailed, and often was put on board in a state of drunkenness. He believed that a large portion of the evils of which we had heard so much was owing to the excessive powers conferred on shipowners over the men who signed the articles. The relations between capital and labour were in a very unsatisfactory state, and the great problem of the day was how to bring them into a better condition. If the present law were continued, the members of trades unions would not make any contract at all, and they would thus destroy long 592 engagements, which he always regarded as very excellent and satisfactory things. It was said that they must suit the penalty to the person; but if they acted on that principle, when a rich man was brought into Court charged with a common assault, they ought to fine him not £5, but £500, or £5,000, according to his wealth. Once the law interfered in a harsh and violent manner, no one could foresee what evils might be produced. The evil burrowed under ground and appeared in unexpected places. The noble Lord the Member for Haddingtonshire (Lord Elcho) quoted the evidence of Mr. Odger before the Committee, to show that Mr. Odger was a consenting party to the obnoxious clause. But, if he was not mistaken, Mr. Odger guarded himself tolerably clearly from any such consent. For instance, Mr. Odger was asked—"In cases of wilful misconduct, do you think power ought not be given to deal exceptionally with them?" Mr. Odger's answer was—"I think not. The number of such cases is so few as to be scarcely worth mentioning." And in reply to another question Mr. Odger gave a similar answer. He hoped something would be done in this matter before the General Election. He had seen personally how strongly working men felt on this matter. Last year at the congress of the trade societies there were present representatives of only 260,000 persons; but this year so strong was the feeling excited by the case of the gas stokers and one or two others that representatives of 600,000 men attended. [An hon. MEMBER: 700,000 attended.] Well, then, with the strong feeling that existed in the country, would it be wise for either party to let a General Election be held, which would entirely turn, as he ventured to say the next would if nothing was done in the meantime, upon this question? If the question was not dealt with, he would say with confidence that we should have a more bitter tone imported into the next General Election than had prevailed at any election for years.
THE ATTORNEY GENERAL
said, he was anxious to take some part in the discussion initiated by his hon. and learned Friend the Member for the City of Oxford (Mr. Harcourt), although he was tempted to be sorry that no practical, definite, or tangible result could arise from it. Indeed, a moderate ex- 593 amination of the topics discussed with the ability and eloquence which always distinguished his hon. and learned Friend would satisfy the House that there was no foundation for many of the accusations which, in strong terms, he cast upon that House and the recent legislation to which they had all been parties. It was a somewhat unfortunate peculiarity of his hon. and learned Friend that, while fully coinciding with him in objects he professed to have in view, they often found themselves utterly repelled and unable to follow him to his conclusion, because—he did not like to say of the reckless—but of the extravagant misstatements with which he enveloped the case which he took in hand. On the main subject they were entirely at one with him. That was a matter which it became the Legislature to deal with. There was material for observation in the subject, he quite admitted—wise, temperate, sustainable, consistent statement. The speech of his hon. and learned Friend, however, had been, no doubt, marked by ability, but deformed by much damaging and mischievous mis-representation. He was extremely strong in his denunciation of the House of Commons, which, in his opinion, had been guilty of what he called rash and inconsiderate legislation. His hon. and learned Friend hardly ever addressed the House without administering a lecture on rashness and inconsideration, leaving it, of course, to be inferred that his own wisdom, his own calm and temperate view of matters were above all suspicion and beyond all praise, leaving them to imagine that he alone stood the one faithful soul true to his trust, who had warned, but, like Cassandra, had warned in vain, the House of Commons not to proceed on a course of legislation which experience had shown could only lead to contempt. More than that, his hon. and learned Friend must excuse him for pointing out that he was guilty of inconsistency in these matters. Describing the legislation of the House of Commons to which he took exception, he said they had passed these two Bills, which had heaped up crime upon crime, misdemeanour upon misdemeanour, and he did not complain of the justices or Judges, who had only discharged the unwelcome functions which Parliament imposed upon them. Then he proceeded in a more temperate, candid, and rea- 594 sonable mode to do justice to the efforts of his noble Friend opposite the Member for Haddingtonshire (Lord Elcho), and those who passed the Master and Servant Act—poor souls, they wandered in darkness, they erred, but they meant well; not doing what they should have done, but doing their best under the circumstances. With regard to the other Bill—the Criminal Law Amendment Bill—he said the Government should never have passed it; but he admitted they did not believe such desperate results would have followed it which they had now to deplore. He said he did not complain of the justices in the Chipping Norton case, or of the Judge in the case of the gas stokers, but of the Acts of Parliament which forced on them the functions which they had to perform. Now, it was remarkable that his hon. and learned Friend had not taken the trouble to state those cases correctly. The conviction of the gas stokers and the judgment of Mr. Justice Brett did not turn on the Criminal Law Amendment Act at all, and the punishment would have been exactly the same if that Act had never been passed. Mr. Justice Brett carefully explained in his judgment, and the jury carefully placed their verdict, not on the Act of Parliament, but on what they could not help finding, under the direction of the Judge, a breach of the old common law of conspiracy.
§ MR. VERNON HARCOURT
must remind his hon. and learned Friend that the jury rejected the direction of the Judge on the general law, and founded their verdict of Guilty exclusively on the counts framed upon the Act of Parliament.
THE ATTORNEY GENERAL
said, he had before him the authentic report of the case before Mr. Justice Brett, and the indictment, the summing-up, and the verdict of the jury all turned, not on the Act of Parliament, but on what had been, with more or less accuracy, but certainly with great force, described as the old common law of conspiracy. The Act of Parliament would have limited the penalty for any breach of it to a much less punishment than had been inflicted under an indictment for conspiracy. The gas-stokers were indicted, not so much for having done anything, as for having conspired and confederated to do certain things with certain intent. In the Chip- 595 ping Norton case also, it was inaccurate to say that the judgment of the magistrates was in any degree dictated by that House. In passing the Criminal Law Amendment Act, the House of Commons had reduced the number of offences for which workmen could be prosecuted for offences against their employers, and had left to the Judges and to the magistrates the discretionary power of punishing the offenders by imprisonment, with or without hard labour, or by a pecuniary penalty. In both of the cases to which reference had been made, the judgments had been arrived at freely and independently, upon a consideration of all the circumstances of the respective cases. Under the circumstances, there was no foundation whatever for the statement of his hon. and learned Friend that, in passing this Act, the House of Commons had been attempting to pile crime on crime, and misdemeanour on misdemeanour. The effect of the Act was to put an end to many offences and to reduce the punishment on those that remained, while it did not create a single new offence. Had his hon. and learned Friend really read the Act? If so, he would find that it repealed two highly penal statutes of George IV., without substituting anything in their place. The words of his hon. and learned Friend were most important in their effect out of that House. His utterances would be read by large numbers of people tomorrow, and those who believed in him would assume them to be true. Either his hon. and learned Friend was not aware of the real state of the case—and he (the Attorney General) need scarcely say that he should have made himself thoroughly acquainted with it before delivering his speech—or else he was aware of it, in which case he left it to the eloquence of his hon. and learned Friend to extricate himself from the dilemma in which he was placed. After what had fallen from the noble Lord the Member for Haddingtonshire, he need scarcely take the trouble to vindicate that House against the charge which had been brought against it by his hon. and learned Friend that this Act was a piece of class legislation. It was a remarkable fact, however, that the provisions of the Act were applicable equally to both employers and employed, and that the words "masters and servants" did not appear in the clause 596 now objected to. He fully admitted that one class of persons might be more likely to commit that particular offence provided against by an Act of Parliament than another class would be; but the statute passed to repress that offence could not be described as an instance of class legislation. Therefore, he denied that the Act could be fairly so described. Turning from the general question to the consideration of the terms of his hon. and learned Friend's Motion as it stood upon the Paper, he found that the first part of it was to the effect—That the Common Law of Conspiracy, as declared in the case of the Queen v. Bunn and others, ought to be amended, limited, and defined.It would be difficult to find any great objection to that proposition. The law of conspiracy was almost entirely a Judge-made law, and it was natural and perhaps inevitable, that it should not be merely elastic, which might be a good thing, but very vague and indefinite, which was a very bad thing. It was a very difficult thing to convey with accuracy to the mind of a layman a real and intelligible account of the law of conspiracy. In the case of the gas stokers, it was assumed that two propositions were true—first, that it was an offence against the Common Law of England for a number of persons to combine to compel a person to conduct his business in a way to overbear his will. That seemed to be the view taken by Mr. Justice Brett. The second proposition was, that for a number of operatives to conspire or combine to break a civil contract was also an offence against the law of England. He must honestly say that he was unable to perceive that that was otherwise than a new doctrine. It was no breach of confidence to say that the attention of the Government having been turned to this subject very early after the charge of Mr. Justice Brett, the opinion of the Law Officers was taken. He lead therefore had an opportunity of considering the subject. In his opinion, these two propositions, if true, were at all events new, and unless they were questioned they might pass into the textbooks and become accepted points in the law of conspiracy as laid down by Judges of eminence. He was not going to say in the House of Commons that the law of conspiracy was in a state which did not demand some at- 597 tention. That was new law, and it was high time, if Parliament thought it undesirable law, that the Legislature should interfere to limit and define it. It was only fair, however, to Mr. Justice Brett to add that there was nothing in his charge which was not warranted, or which was not a fair logical development of other dicta of other learned Judges. One or two cases decided by the present Lord Chief Justice of England, if fairly and candidly considered, went far to warrant the conclusion at which Mr. Justice Brett had arrived. That being so, it was for Parliament to consider whether the statement of the law of conspiracy had not gone beyond what was reasonable, and whether it was not time for Parliament to step in and declare the law. Let him, however, warn the House that if they entered upon a definition of the law of conspiracy, they would tread a thorny path which it would be much easier to enter than to escape from. It ought also to be mentioned that in another case almost contemporaneous, and like that of the gas stokers, Mr. Justice Lush had laid down the law in a directly opposite sense. Mr. Justice Lush ruled, that it was not a criminal offence for a man to refuse to work or to dictate any terms as to his work, provided that those terms were not criminal, and that he did not use any means inconsistent with the 34 & 35 Vict. His hon. and learned Friend in his Resolution went on to say thatwhere Parliament has prescribed limited penalties for particular offences, it is expedient that more grievous and indefinite punishments should under the form of indictments for conspiracy be inflicted for agreements to commit the same offences.Agreeing in substance with the first proposition, he was unable to concur altogether in the second. In the case of the gas stokers, for instance, if a single man broke his contract that offence might be satisfied by the infliction of a fine of 10s. or 20s.; but if 500 combined to throw the whole trade into confusion, to bring desolation upon families, and infinite danger and distress upon great numbers of persons, that combination was far more dangerous and deserving of punishment. It was therefore legitimate and right to hold that combination to effect a thing should be punished with a higher penalty than an offence committed by an isolated individual in an 598 isolated manner. His hon. and learned Friend said that 25 stokers who were brought up before the police magistrates were sentenced only to six weeks' imprisonment, though they were just as guilty as the five stokers who were sentenced to 12 months' imprisonment; but it must be remembered, that Courts of Law had to consider not the offence which a man had committed, but the offence for which he was indicted. If prosecutors chose to waive the superior and proceed only for the inferior offence, the Court could not go beyond the indictment. An offence which a man committed singly might justify this leniency; but in cases of combination, the law might properly award a much graver penalty. So if those 25 men had been indicted for the conspiracy, they would have been properly punished more severely than they were, being proceeded against only as isolated offenders. Again, it was not true that questions of conspiracy arose solely between masters and workmen. A case of this nature had arisen under the Copyright Acts, upon the piracy of a valuable engraving. Had it been a mere individual attempt at piracy, the offence might have been suitably met by a fine under £10. But several persons were indicted before Mr. Russell Gurney for conspiring to destroy the value of the copyright by concerting to put about pirated copies of the engraving, and that being a far more serious offence it was punished—he did not know whether also by a fine, but certainly by imprisonment. He had admitted that the law of conspiracy, as laid down by eminent Judges, was in some respects unsatisfactory and required amending. So far as he had seen the cases, the inconvenience had been chiefly felt in that class of cases which might be defined as cases between masters and workmen; but in other cases it had not been found to work unjustly. He did, however, admit that in the case of masters and workmen, it had been found to lead to some hardship. That was not a view which he now expressed for the first time, and he should be glad if he could give effect to it by legislation. His hon. and learned Friend asked why Government did not carry a Bill. Two things were necessary for that purpose—to prepare or bring it in, and afterwards to conduct it through the House. For the earlier portion of the process the 599 Government had no peculiar advantages. No one, indeed, was fitter for them than his hon. and learned Friend himself—his accuracy, his love of detail, his ability to devote time in a spirit of self-sacrifice to a difficult and intricate subject were recognized by all; and he had in his speech that night shown an acquaintance with the matter which fitted him better than any man in England to prepare such a Bill. He (the Attorney General) might not next year hold the office he now filled; perhaps his hon. and learned Friend himself might fill it; therefore, if he prepared a Bill, he might be able to carry it, when he became Attorney General. In any case, he hoped his hon. and learned Friend would give to that or any future Government the benefit of his experience, and not wrap himself in his virtue, as though he had now done all that could be done in the matter. With regard to the third proposition of his hon. and learned Friend, there were many cases where a breach of civil contract occurred under such circumstances, that it deserved to be made a criminal instead of a civil offence; but the proposal did not go in that direction. A contract was sometimes broken from the most nefarious motives, yet the law of the country in such cases gave a most imperfect civil remedy. If an amendment in the law were proposed in this direction, much might be said for it. He hoped he felt as much as his hon. and learned Friend did for the workman; but he must use his common sense in this matter, and he could not fail to see that there were cases of breach of civil obligation in which a civil remedy would virtually be no remedy at all—in which an amount of damage was done, and intentionally done, by a breach of civil contract for which no civil remedy could afford anything like adequate compensation. These were, he admitted, exceptional cases, but they should be dealt with by common sense and plain argument, and not by rhetoric. A man by breach of contract might flood a mine, and what remedy for such an offence, committed with a criminal intention, could be obtained by civil action? An offence of that kind ought to be regarded and be made punishable criminally. Did his hon. and learned Friend reflect that a contract to serve in the Army was a civil contract, or how far 600 the Minister for War could obtain a remedy for breach of that contract by civil action? These were all cases in which there was nothing but contract between employer and employed, but where, there being no adequate civil remedy, the law inflicted criminal punishment. He could not, therefore, agree with the proposition that a prosecution for breach of contract to serve was unjust in principle or oppressive in operation. He trusted he had given conclusive reasons to show that it was not, and had sufficiently indicated the extent to which alone, in his opinion, the Motion of his hon. and learned Friend was well founded.
§ DR. BALL
said, he had been much struck by one observation made by the hon. Member for Nottingham (Mr. Auberon Herbert), to the effect that at the approaching Dissolution of Parliament and General Election inquiry would be made as to the tone of the present debate. He had always entertained the opinion that nothing could be more undesirable or unsafe than discussions in that House in reference to cases which had been decided in Courts of Law and the conduct of Her Majesty's Judges in trying them. If he wanted an illustration of the utter unsuitableness of that tribunal to examine such matters, it was afforded by the fact that the hon. and learned Member for the City of Oxford (Mr. Harcourt) and the hon. and learned Gentleman the Attorney General were unable to agree upon the principle on which the case to which they had referred was decided. The hon. and learned Member for Oxford said that Mr. Justice Brett and the magistrates had not erred, but that the law had. The hon. and learned Gentleman the Attorney General, on the other hand, said that what he cavilled at was, the law as laid down on the two occasions as not representing accurately what the law was, or as being a new view of it. [The ATTORNEY GENERAL dissented.] The hon. and learned Gentleman certainly used the remarkable expression that the law as laid down was a departure from, or new view of it—qualifying the expressing by adding that other Judges had thrown out dicta in the same direction. All that showed that the House was totally unfit to exercise an appellate jurisdiction. The hon. and learned Gentleman then alluded to an 601 authority much higher than any which could be produced in that House—that of the Lord Chief Justice of England, and plainly threw out, that in his judgment there were some points as to which were he in the same position, he would probably have taken a different view. The law was a subject as to which the greatest men differed. In the same Court, there were frequently differences of opinion; and, probably, the ultimate decision of a question would be arrived at by a narrow majority of one. The system of examining and criticizing the conduct of Her Majesty's Judges by the Law Officers—as if they descended from some higher region to lay down the law for the Judges—had commenced in the case of the Irish Judges. The judgment of the Court of Common Pleas in an Election case had been discussed, the conduct of Mr. Justice Keogh had been debated; but he took that opportunity of saying, that that was not one of those erroneous principles which they sent over to Ireland that did not return and roost in England again. The Judges should not sit and discharge those high duties under the influence of terror, or any other influence than the criticisms of the counsel who practise before them—certainly not of comments in that House by some Law Officers who had their feet on the Bench and were ready to take their places there. If such a course were adopted, the Judges could not be said to be free from external pressure. With respect to sentences pronounced, he was himself of opinion that they were often too severe; but it should be remembered that the object of a sentence was to deter others, not to punish the individual. The duty of the Judge was to enforce the law in such a manner as to repress crime. The whole excuse for punishment was its deterrent effect, and its influence—through prevention of crime—upon the welfare of society. As to conspiracy, it might consist in the use of legal means to effect an illegal end, or the use of illegal means to effect a legal end. The former class was illustrated by the case of Edward Gibbon Wakefield and others, who were convicted of conspiring to procure his marriage by fraud and deception; and he remembered a similar case, in which a girl of 16 was induced by deception and fraud to contract marriage before a Registrar, in which case there was also 602 a conviction. The latter class might be illustrated by persons coercing an old gentleman into signing a deed giving them £10,000. The law of conspiracy was not applicable to trifling cases, and it should not have been introduced in a case of this character. That, however, the Judge could not prevent, and the evil lay in allowing private individuals to put in force a powerful engine for the prevention of crime, and for dealing with cases which the positive law did not reach. In Ireland such misapplication was prevented by control over all prosecutions being vested in the Attorney General. In England, all that a Judge could do, if the law was improperly exerted, was to take care in passing sentence that injustice was not inflicted. That, however, was a different thing from altering the law, and he challenged the Attorney General and all the legal Members of the House to frame a Bill defining and limiting the common law of conspiracy. The hon. and learned Member for the City of Oxford had shown his consciousness of that by confining himself to a vague declaration, that something unsatisfactory had occurred, and that some action was necessary. As to the Master and Servant Act, that, of course, could be modified or repealed; but deterrent legislation was necessary in cases where the lives and welfare of the community were at stake. It would not do to let sailors understand that if at a critical moment they struck work, they were only liable to a civil action; but he admitted that stringent provisions, requisite for extreme cases, should not be applied in every case; and here again it would be well to institute a control over prosecutions. At present the only control of the kind rested with the grand jury, and they were fettered by the direction that they were bound to find a true bill if there was a primâ facie case; and had nothing to do with the policy or wisdom of the law involved. There should be in England, as there was already in Ireland, a control over prosecutions vested in the Attorney General as representing the Crown; and the Judges, of course, should take care that injustice was not done by bringing the great machinery of the conspiracy law to apply to trifling cases. It appeared to him that it was requisite now especially, considering the complicated system 603 which was growing up in England, that a great, grave, and wise adviser should be acknowledged—one who would be at the command of the Government—who would not pander to the passions or feelings of individuals, but who would be an adviser of measures for the welfare of the community—who would have power to control, withdraw, or rigidly put in force prosecutions, and be able in his wisdom to meet the exigences of each particular case. If such a functionary could be established, he believed much benefit would arise, and the interests of all classes would be maintained.
THE SOLICITOR GENERAL,
in challenging the statement of the right hon. and learned Gentleman the Member for the University of Dublin (Dr. Ball), that Parliament had no right to examine propositions laid down by Judges, said, he was prepared to assert the right of every hon. Member to that same liberty of speech inside the House which every individual outside of it possessed. He understood the law to be that while proceedings were going on persons were not at liberty to make any comments which might influence the decision; but that when judgment was given, they could express the opinion they had formed upon the case. He should like to know how they could convince the House of the necessity of legislative action on any subject, if they were not to be at liberty to comment not only upon the law itself, but upon the decisions of those persons who had to administer it. If hon. Members were to be at liberty to laud the ability, the learning, and impartiality of the Judges, why should they not have the same liberty of criticizing, or of censuring their conduct? The Law Officers of the Crown, moreover, had sometimes, as a part of their official duty, to examine judgments, in order to see whether the law had been rightly stated, and the sentence pronounced should be carried, and also sometimes to see whether any amendment of the law was necessary. If, however, the argument of the right hon. and learned Gentleman were carried out, it would be impossible to make any alteration in the law to obviate evils which became apparent in consequence of anything which was done by the Bench. He also wished to enter his humble protest against the lavish and in- 604 discriminate praise of individual Judges which was becoming common in this House. He had heard that night to his surprise and mortification, several Judges named individually, and lauded for their abilities, their learning, and their conduct on the Bench. What would that lead to? They could not possibly have it all on the side of praise. When one hon. Member had extolled a Judge for his ability, his learning, and his impartiality, another hon. Member would get up and say on the contrary he had always been of opinion that that particular Judge was very ignorant, anything but impartial, was actuated by class feelings, and his conduct had been such as deserved censure, and the only reason why he did not bring forward a Vote of Censure was, because his conduct had not been quite so censurable as would warrant their asking for his removal from the Bench. That would be very prejudicial to the administration of justice. Again, if by the courtesy of the House they could only speak in terms of praise of a Judge, that praise would have small value, and would become worth about as much as the epithets "gallant" and "learned" applied to hon. Members of that House. He hoped, therefore, they had heard the last of the praise of individual Judges for their individual qualities. With respect to the subject-matter before the House, he agreed with his right hon. and learned Friend opposite in the opinion that the law of conspiracy was a very difficult subject, but he differed from him in the definition which he gave of conspiracy. If hon. Members would only read a book called Russell on Crime, they would see the difficulty of defining many offences, especially that with the definitions of which he believed most of them thought they were conversant—namely, murder. With reference to that crime he would also remark that two bodies of lawyers, at least, had tried to amend its definition, but had been so convinced of their failure, that they desisted from proposing a measure to the House with that object. That difficulty was particularly great in the case of the law of conspiracy, a very useful law, which comprised three very different things. It comprised a combination to commit an act criminal in itself, either as a means or an end; a combination of several persons by means not crimi- 605 nal, to commit an act not criminal but illegal, such as a breach of contract; and, in addition, it comprised a combination by the use of means not criminal to effect a purpose which was not itself criminal in the eye of the law but only immoral—seduction, for instance. The hon. and learned Gentleman the Member for the City of Oxford thought it monstrous to assign a heavier punishment for conspiracy to do an act than for the act itself when committed; but the very combination to do the act was an offence and aggravated the principal offence itself. To rob on the highway, for example, was punishable with a few years' penal servitude, but a combination to commit that crime was punishable with penal servitude for life. [Mr. HARCOURT explained that he had said the punishment for combination ought to be defined.] The punishment was limited to a fixed term of imprisonment, and, therefore, it was wrong to say it was arbitrary or undefined. He demurred to the assertion that the law which enforced contracts for service were exceptional. It was a mere delusion to use the words "criminal" or "civil" in that connection. Every civil contract had been enforced in this country by imprisonment. Formerly every ordinary debt was exigible in that way. If a man was ordered to do a thing by the Court of Chancery and disobeyed, he was sent to prison. He should like to know what means would exist of enforcing fines in a criminal court if imprisonment wore taken away? The hon. and learned Gentleman proposed that there should be a civil remedy only in the case of service. But would he bring an action against a recruit who deserted from his regiment or against a marine who ran away from his ship? [Mr. HARCOURT dissented.] No; his hon. and learned Friend admitted that there must be some exceptional instances; and what became, then, of the general proposition that that was unjust in principle? He only objected to its application to the particular class of workmen, whom he wished to conciliate. The law, as it stood, applied to both the parties to the contract, and if an employer were found guilty of exaggerated misconduct, such as brought the employed within the provisions of the Act, there were plenty of workmen and associations of workmen who were 606 well able to set the law in motion against him. That was not class legislation. Some of the "roughs" of London were much addicted to larceny; and they might as well say—"You make a law against larceny, but you do not send Members of Parliament to prison under it. How unjust and exceptional, therefore, your legislation is! You certainly prohibit them from committing the offence; but it is only a sham law, because you know they are not going to commit larceny. But we like the offence; we find it useful; and we demand that in justice you should repeal your class legislation, the law against larceny." With regard to the case of the gas stokers and the law of conspiracy, he must say he dissented from the law as laid clown by Mr. Justice Brett in the case of "The Queen v. Bunn." It was contrary to a charge by Mr. Justice Lush in a similar case and he should not be guilty of disrespect to the former learned Judge if he said he preferred the law as subsequently laid clown by Mr. Justice Lush in a similar case, and not the less so because it was delivered with a full knowledge of the previous charge. Both charges could not be well founded. He would, however, recommend the House to wait before legislating. In both cases the men were acquitted of this particular charge, and there was therefore no opportunity of carrying the case before the Court of Criminal Appeal. That Court could give an authoritative decision upon the two conflicting charges, and if it turned out that the Law Officers of the Crown were mistaken, it would then be time enough to amend the law. [Mr. HARCOURT: But meanwhile the men will remain in prison.] He did not know that that would necessarily be the case. The Commission on Trades Unions had recommended the Legislature that no alteration should be made in the existing law respecting combinations to do acts which involved breaches of contract. It was intended by the recent Act, that the first proposition laid down by Mr. Justice Brett in his charge should no longer be the law of the land, and if there had been an accident or miscarriage it would be time enough to amend the law when an authoritative decision had been obtained upon appeal. If his hon. and learned Friend felt inclined to try so difficult a task as to define and amend 607 the law of conspiracy in general, no one was better fitted for the task by his ability and the extent of leisure at his command. In that case, he could only wish him the success he would so well deserve.
§ MR. JAMES
said, he had no sympathy with those who had the General Election in view in expressing their opinions on this subject. The matter was legitimately brought under the notice of the House as a grievance on the question of going into Committee of Supply, and he would remind the House that no censure was cast upon any Judge, but that it was the law itself which was being criticized. Working men complained that the law of conspiracy pressed peculiarly in its uncertainty upon them. In punishing what the law called conspiracy, we were punishing what working men called combination. They were bound to combine, and their experience was, that without combination all attempts to improve their condition were hopeless. The gas stokers were punished because, admitting their right to combine, they had combined to break a contract, and because, under Section 14 of the Master and Servant Act, that was a criminal offence. It would not have been criminal on the part of any other subject of the realm; but it was criminal in them. Was there not good ground for complaint on that score? If they took the Master and Servant Act, and applied it to the law of conspiracy they would raise upon it a superstructure of great and manifest injustice. In the same way, if they took the Criminal Law Amendment Act and applied to it the law of conspiracy, they would find that even greater injustice would be done than by its application to the Master and Servant Act. The noble Lord the Member for Haddingtonshire (Lord Elcho) maintained that the Master and Servant Act gave the working men exactly what they asked for and what they wanted. Now, everybody recognized the noble Lord's sincere desire to act charitably towards the working classes. [Lord ELCHO: Justly.] But he thought the working classes would like a little more justice. There was a little too much of the odi profanurn vulgus about the noble Lord; he did not quite appreciate the position of the working classes, and some of them would perhaps say to him— 608Add not unto your cruel hateYour still more cruel love.It was said that the Act applied to masters as well as workmen, and that the former might be imprisoned as well as the latter; in words, no doubt, it did apply, but in effect it did not, and could never do so. The Home Secretary was in possession of Returns on this subject. Had any masters suffered imprisonment under the Act, and how many workmen? It was admitted by the Attorney General that an inequality existed with reference to this Act. Ought not something then to be done? With regard to the Motion of his hon. and learned Friend the Member for the City of Oxford (Mr. Harcourt), the noble Lord had complained of its terms; but he (Mr. James) did not see in what other way it could be framed. Whether a General Election was pending or not, it was better to be wise in time, and to do justice where it was imperatively demanded. [Laughter.] He had himself no sympathy with itinerant agitators; but if hon. Members treated with contempt a demand for redress of a serious grievance of this kind, they would place in the hands of that class a power which they might have cause to deeply regret. He could not help thinking that if hon. Members combined to refuse the alteration of a law which had proved to be unequal and unjust, they would be guilty of a worse combination than that which had been charged against those men under the Act in question.
said, he would admit, if the law laid down by Mr. Justice Brett were correct, it would be the duty of the Government to introduce an amending Act. But it was because they were satisfied, after full examination, that that was not the case, that they did not think it necessary to bring in a Bill to amend the Act of 1871. Another reason why Government did not introduce an amending Bill was that they wished to give the Act a further trial. If, however, it should prove that the intention of the Government had been defeated, it would be their duty to deal with the matter. As to the 14th section of the Master and Servant Act, he understood that an objection was made to the amount of punishment. The question was not whether the law was improper, but whether the punishment was excessive. On the main question, all he 609 could say was that it was the desire of the Government that the workmen should have every facility of combining together for promoting what they believed to be their own interest, provided they would not resort to threats and intimidation to prevent others from working, such as were prohibited by the Act. It was wrong to suppose that these breaches of contract only injured the masters, whereas, in truth, the interests of the workmen were just as often injuriously affected by them. With respect to the Master and Servant Act, although he was not one of its authors, he remembered that he worked with the noble Lord the Member for Haddingtonshire (Lord Elcho), by whom it was introduced, in passing it through the House, in the belief that its provisions were desired by the workmen themselves. In certain cases, the remedy supplied by civil action would be plainly insufficient, and they were, therefore, prepared to see such breaches of contract severely punished; and he held in his hand copies of an address which had been presented to the noble Lord by the executive committee of the working classes, expressive of their approval of the Act and of his Lordship's exertions in the matter. The Master and Servant Act was, in fact, as much meant for the protection of workmen as of employers. Take, for instance, a colliery. It was in the power of a few men to stop the whole working, and to throw others out of employment, by which they lost their wages. If a man in charge of an engine left it without notice, all the workmen who depended upon that engine being kept at work were thrown idle. Again, in the case of the Fire Brigade, if the men when called on to proceed to a fire were to say they would not go till their wages were raised, would not such a breach of contract warrant severe punishment? His hon. Friend the Member for Nottingham (Mr. Auberon Herbert) said that although a beneficial change was wrought by the Master and Servant Act, inasmuch as the vast majority of breaches of contract would be merely civil offences, yet the tendency of magistrates was to bring slight cases under the operation of the 14th section. Now, a Return had been laid that day on the Table of the House, showing the number of persons who had been proceeded against, convicted, and imprisoned under 610 the Master and Servant Act of 1867. In 1866 the number of persons proceeded against under the previous Act was 12,345, of whom 7,557 were convicted and 1,658 imprisoned. In 1871 the number of persons proceeded against was 10,810, and of these 6,390 were convicted and only 494 imprisoned. In 1872, a year of extraordinary agitation, the number of persons proceeded against was 17,082; 10,359 were convicted, and 742 imprisoned. Thus, in 1866, the year before the existing Act passed, one in seven of the persons proceeded against was imprisoned; whereas in 1872, the proportion was only one in 27. If anything could demonstrate the beneficial results of that Act, he thought those figures did, and he indignantly repudiated the allegation that the present Government had treated the working classes with contempt. If any cases of hardship, or of harshness in the administration of the law occurred, the public attention should be called to them, and the Government would be ready to consider them, and he trusted that the offences against which these statutes were directed would become less and less frequent, till the statutes themselves should become unnecessary.
§ Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.
§ SUPPLY—considered in Committee.
§ House resumed.
§ Committee report Progress; to sit again upon Monday next.