§ Order for Second Reading read.
§ (2.27.) MR. E. ROBERTSON (Dundee)
In rising, to move the Second Reading of 1224 this Bill, I feel that a certain apology is due from a private Member who invites the House to enter on the difficult subject of the Law of Criminal Conspiracy. Instead of bringing forward a Bill, I would rather have found myself in the position of offering a cordial support to the Law Officers of the Crown—who, I am sorry to say, are not here—in the discharge of the duty of submitting once more to the House the carefully-prepared and complete scheme embracing the Criminal Code, which, at the instance of a Tory Government, a little more than 11 years ago, was framed by a Judicial Commission of the highest character. The Penal Code which was drawn up by that Commission I cannot help comparing to what was done by another still more famous Royal Commission, which I think did not receive very fair treatment. The Criminal Code Commission has not even had the reward of the thanks of this House. and all that was done upon their Report was that the Tory Government of 1880 did commit itself through the late lamented Sir John Holker to the nature of that Criminal Code, for a Bill was, I believe, brought forward in that year, that measure being, with the exception of some particulars into which I need not go, the same as the scheme recommended by the Commissioners. Next to having the whole subject dealt with in that way, I should have preferred to have seen the whole subject of criminal conspiracy dealt with as a whole, but I think it would have been as entirely out of place for me to have made such a proposal as for one in my position to have attempted to alter the whole Criminal Code. If the Law of Conspiracy were to be dealt with in the way I have just suggested, I should not have stood in the way with my Bill on this occasion. I have been led to bring forward the proposals the Bill contains by the practical injustice of the Law of Conspiracy, as far as it is ascertained, and by the boundless possibilities of injustice which may be anticipated as far as it is not ascertained. The Bill is restricted to two points. I propose to amend the Conspiracy and Protection to Property Act of the year 1875 on two points, and two points only. The first of them is this: I propose to 1225 lay down the general principle that, subject to specified exceptions, no combination shall be treated as criminal unless it contemplates a criminal object. That is provided in Clause 3 of the Bill. In the second place, I propose to amend the Act of 1875 as to one word, and one word only, in Section 7 of that Act—the word "intimidates"—by limiting intimidation in the manner proposed in my Bill. As the time available for the discussion of this question, important as I think it is, has now become rather limited, I shall deal as summarily as I possibly can with the two points I have mentioned. In the first place, I propose to lay down a rule, following the Act of 1875, that, subject to certain specified exceptions, an agreement or combination by two or more persons to do or procure to be done, any act shall not be punished as a conspiracy, if when committed by one person it could not be punished as a crime. I have not been convinced that there ought to be anything in the mere act of combination which should import criminality into proceedings which are not in themselves criminal. I cannot admit the absolutely undemocratic principle that one man can do that which a hundred cannot; that a body of tenants cannot, without being guilty of a crime, do that which their landlord may do; that a body of servants may not, without being guilty of a crime, do that which their master may do with impunity. I know there is a great deal to be said on the other side; but in parting with this topic I will just say that, in taking this apparently extreme position, I am fortified by the highest authority—I have been looking at the edition of the Indian Penal Code, published by Mr. Stokes. I imagine it is virtually the same as that drawn by Lord Macaulay, and the best interpretation I can put upon it is this: that outside acts of war, outside revolution, there is nothing recognised in the Indian Penal Code as conspiracy which is not conspiracy to commit a criminal offence. Clause 3 of my Bill starts with the general principle of the Act of 1875. I leave out that which in the Act of 1875 limits the application of the principle to trade disputes. In the next paragraph I embody the exceptions laid down in the Act of 1875, and introduce certain 1226 other exceptions, which are not mentioned in that Act, because conspiracies of that kind, I suppose, may be considered unlikely to occur in trade disputes. But as I have enlarged the principle, I think it right to admit all the exceptions, which are fortified by strong authority. The clause as drawn practically reproduces the recommendations of the Criminal Code Commission of 1879, the effect of which I have stated in the Memorandum prefixed to the Bill. I will read a single paragraph from that Memorandum, which shows the views taken by the Commission of 1879, and, as far as I have been able to discover, adopted, approved, and embodied in a Bill brought before this House by the then Law Officer of the then Tory Government. The Commission says:—We have taken the responsibility of recommending that crimes should no longer be indictable at Common Law, but only under the provisions of the Draft Code, or some other Act in force for the time being…..Section 5 will thus have the effect of preventing indictments at Common Law for conspiracy.That is what I say is brought about by Section 3 of this Bill. Section 5 of the Draft Bill was reproduced as Section 6 of Sir John Holker's Bill, and I am not aware of anything which can relieve the Conservative Party from this, that by their own deliberate action they proposed in 1879 to pass into law the very principle I seek to establish by Clause 3 of my Bill. Why should that general principle, that only criminal combinations should be treated as conspiracies, subject to the recognised exceptions, be limited to trade disputes? That is the first question to which I invite the attention of those hon. Members opposite who have indicated an intention of opposing this Bill. Well, as I have said, I propose to repeat the Act of 1875 without its limitations, but with its exceptions. I have left out the second paragraph of Clause 3 of the Act, which says that the Act is not to apply to conspiracy which is made punishable by law. I do not know that there is any conspiracy of that sort other than, possibly, conspiracies under the Criminal Law Amendment Act for Ireland. If there is any other conspiracy punishable by Act of Parliament and which it is desirable to punish as a 1227 crime, I suggest that it should be brought into the list of exceptions. My list of exceptions may include items that are not necessary. I have put them there because they are in the existing Act and in the report of the Criminal Code Commission. It may be, on the other hand, that the Bill omits some items that ought to be there. As to that, I shall be perfectly prepared, if this measure is allowed to reach the Committee stage, to introduce into the list any exceptions for which a reasonable argument may be put forward. I am desirous on this, as on all other points, to shelter myself under and behind the best authority, and I have taken these exceptions from the Report of Lord Blackburn's Commission and the Report of the Commission of 1870. If they ought to be more completely and correctly defined, let us do it. Let us treat the list in the second paragraph of my Bill simply as a Schedule of exceptions which may be extended or reduced in Committee. May I say that at least in one important case of codification of the Criminal Law the result is precisely the same, even in point of form, as this which. I now propose? A great deal of codification has been going on for a long time in the United States of America. As far as I know, the Criminal Code of New York is the most complete, if not the only complete, instance of penal codification in the United States. That Code, which I suppose is still in force, does almost literally the same thing as I hope to do in this Bill, and I venture respectfully to cite that as a precedent which the House may properly take into consideration in dealing with this part of the measure. I ask the attention not so much of lawyers as of lay Members of the House to this point. I say this is not so much a question of law as one of policy of the highest importance, on which the common sense of Members of this House is worth the judgment of a thousand Judges. The first consideration I ask them to keep in mind is this: that this proposal, or any proposal on similar lines, will at least limit the dangerous vagueness of the Law of Conspiracy. I am not going to enter into a discussion about the present state of that law, but I shall make one or two references to establish 1228 the proposition that the law is vague, and that the vagueness is dangerous. I would refer, in the first place, to a most learned controversy that has been going on for some time past in the Law Quarterly Review. That controversy has been sustained on one side by a learned friend of mine, Mr. Digby. I do not say whether he is right or wrong in his conclusions, but I say that no one can read his articles without seeing that the law is in a state of the greatest vagueness. Again, Mr. Justice Stephen, who was one of the Members of the Criminal Code Commission, speaking of the well-known Judgment in "The Queen against Drewitt"—which, of course, was an extreme case—puts in a graphic way one of the possibilities that may be drawn out of the present state of the law. He says—If this is correctly reported, and is good law, it would follow that if two brothers, having a sister who was about to contract a marriage which they disliked, agreed together to exclude her from their society if she did so, in order by the threat of so doing to prevent the marriage, they would be guilty of an indictable conspiracy.That is a possibility, according to one of the most learned Judges on the Bench, under the present Law of Conspiracy. Again, after laying down the general exceptions to the rule, the learned Commissioners on the Criminal Code say—There is not, perhaps, any distinct authority for the proposition that there are at Common Law any criminal conspiracies other than those referred to, but some degree of obscurity exists on the subject. An agreement to do an unlawful act has been said to be a conspiracy. but as no definition has been found as to what constitutes unlawfulness, it seems to us unsatisfactory that there should be any indictable offence of which the elements should be left in uncertainty and doubt.Surely that is a most weighty deliverance, and it is not right to perplex juries of laymen with such possibilities as this law points to. Surely it is not right to trust even Resident Magistrates, certified though their legal qualifications may be by the Lord Lieutenant, to administer a law in that condition. The hon. and learned Member for Holborn (Mr. Gainsford Bruce) has intimated an intention of moving the rejection of the Bill. I ask my hon. and 1229 learned Friend to answer these two questions: How does he, and how do the Government, propose in this democratic House to justify the distinction which the Act of 1875 establishes between artizans and other classes of Her Majesty's subjects? If they are going to maintain this distinction, how do they propose to justify it in the face of the country? In the second place, I ask, can they point to any substantial difference between the proposals I now make and those contained in the Criminal Code reported by the Commission to Her Majesty, and submitted by Sir John Holker to this House? I now come to the second point on which I propose to amend the Act of 1875. Section 4 of my Bill proposes to amend Clause 7 of the Conspiracy Act by imposing the limitation I set out. I will not trouble the House by reading the whole of Clause 7 of the Act of 1875. It provides, however, that every person who, with the view to compel any person to do or abstain from doing, &c.,Uses violence to or intimidates such other person, or his wife or children, or injures his property,shall be guilty of an offence under the Act. The offence, therefore, consists either (1) in violence to person or property, or (2) in intimidation. What I propose to do is to limit intimidation by the words I have introduced in Clause 4 of my Bill. It is within the knowledge of every Member of this House that Clause 7 has recently received a startling interpretation by one of the Judges of the land—one of the inferior Judges if you like—but, still, one of the Judges who has the liberties of Her Majesty's subjects under his control. Everyone, I presume, has heard of a recent decision by Mr. Bompas, Q.C., a decision which has made the name of Bompas famous. But he is not the only Recorder or the only Judge who has given that decision. I believe a similar interpretation has also been put upon Clause 7 by Mr. Digby Seymour, Q.C., the Recorder of Newcastle. I have not seen any authorised version of those decisions, but I have seen the newspaper reports of the decision of Mr. Bompas, which, obviously, will not be quite accurate. It would seem, however, that he 1230 decided that where officials of a Trade Union order their men to leave work unless their employer consents to dismiss non-Union men, the officials of the Trade Union are guilty of intimidation within the meaning of Section 7. The hon. Member for the Wansbeck Division (Mr. Fenwick), who will second the Motion, will go more fully into these decisions, and will be better able to deal with them than I, as he knows more about them. I will only say that these decisions startled the whole community by the rendering they gave to Clause 7, and that is the reason that induced me to put Clause 4 in the Bill. I would ask the attention of the House whilst I go into the reasons why I have drawn Clause 4 in this shape. I propose to limit intimidation in this way, that it shall mean—Such intimidation as would justify a Justice of the Peace, on complaint made to him, in binding over the persons so intimidating to keep the peace.I do not know whether my hon. and learned Friends on the other side challenge these words. I am not concerned here to vindicate their absolute legal accuracy, because I shall be quite ready to agree to their amendment, if necessary, after the Bill is read a second time, so as to bring the words into such a form as will adequately carry out the limitation I propose. But I want to tell the House—and to this I ask the special attention of the Attorney General—why I have introduced these words I have quoted. I introduced these words because they are the hon. and learned Gentleman's own—or, if not literally his own, those of his predecessor in office. The history of these wordsis well worthy of the attention of the House. They are to be found in an old Act, now repealed, called the Criminal Law Amendment Act, 1871. The offence of intimidation was there set out in the words I have quoted, and this Clause 7 of the Act of 1875 is a corresponding clause to the intimidation section of the Act of 1871. When the Act of 1875 was before the House it contained no reference to the Act of 1871, but ultimately it was considered desirable to repeal the Act of 1871 and reproduce its provisions. That was done, and Sir R. Cross, who was 1231 then Home Secretary, re-drafted it, and the words I have quoted were in the Act of 1875 when it went to the House of Lords. I believe that those words were carefully chosen by the Conservative Government of the day after consultation with certain labour representatives, and that they gave entire satisfaction. They were, I understand, inserted at the suggestion of an extremely high authority. I am not at liberty to state who it was, but if I did I think it would be admitted that the authority was a high one—higher even now than it was 15 years ago. The Bill, which is now the Act of 1875, went to the House of Lords, and came back with the limiting words struck out and the word "intimidate" in all its nakedness, and with all its possibilities of danger. How did this House take this Amendment, effected in one of the most important Bills of the Session by the House of Lords? It was received with strong opposition. It was contested by the labour representatives of that day on precisely the same grounds as those I have taken up to-day, and was only carried by a majority of 12, and with a very faint show of support on the part of the Tory Government. The majority was 52 to 40. The House of Lords' Amendment was resisted by the entire available strength of the then Liberal Party. Since then the Liberal Party has divided itself into two sections, one large, the other comparatively small. I want to show what attitude the representatives of the Liberal Unionist Party now in the House (there is only one present that I can observe, and he did not take part in the Division to which I have referred) took up in regard to this Amendment of the House of Lords. The Marquess of Hartington voted against it, as also Sir Henry Havelock, Sir Henry James, and Mr. Fraser-Mackintosh—a colleague of mine, who was in the House a short time ago when a small question of roads and bridges was under consideration, but who apparently does not think it worth his while to remain here to defend the vote he gave in 1875. But the Division was not the only significant thing on that occasion. There was a Debate as well as a Division, the same question being raised in an Amendment by Mr. Robert Lowe, which was strongly supported by the right hon. and learned 1232 Gentleman who is now the Member for Bury (Sir H. James). I want the House to listen to the words of the Member for Bury, who, I am sorry to say, is not here. He disclaimed the other day being a political prophet, and I am sure it must please him to know that he has turned out, in reference to this matter, to be a legal prophet. Speaking against the House of Lords' Amendment, he said—They ought to make it clearly understood what had been done, not by the Home Secretary or the Government, but by those who had considered this matter in the House of Lords. If the clause stood as it was, workmen would be placed in an infinitely worse position than they were in at present, and the House of Commons would be giving up the fruits of their labours, not to dispassionate and calm consideration on the part of the House of Lords, but to what he must characterise as hasty legislation. Under the Act of 1871 a person, in order to be convicted under this part of the clause, had to threaten or intimidate, another person in such a manner as would justify a Justice of the Peace in binding him over, and that must be done with a view to coerce. If they had a severe law, they inflicted the severe law only upon a guilty person.And then the right hon. and learned Gentleman went on to appealTo Her Majesty's Government not to change their policy but to adhere to it—to adhere to what the House had accepted."— [Hansard, 3rd Series, Vol. 226, page 713.]I have read that extract, not so much with the view of fixing upon the right hon. and learned Gentleman any charge of inconsistency if he should oppose or fail to support this Bill, but to show that the effect which has now been given to these words by the decision of Mr. Bompas, and in a Scotch case only yesterday, was anticipated 16 years ago by a Member of this House, deservedly respected for his high legal attainments and authority. Again, I say, if the wording of the clause is not sufficient, let us have better words. In the meantime, I claim that the words have the authority of this House and of Parliament. They have been enacted by Parliament, and they have been twice approved by this House and a Tory Government. I have made no reference whatever to the possible application of this Bill. I have treated it as embodying a fair abstract principle of legislation. I have said nothing as to how the Bill will 1233 affect Ireland. No doubt the operation of the Coercion Act will be materially affected, but I cannot for a moment suppose that that will be regarded by the Government as any reason for opposing the. Bill. If they stand like their predecessors by the principle of the Bill, if they admit that the late Sir John Holker was right, and that his Government was right in limiting conspiracy, it does not lie in the mouth of the Government to say that they will oppose a Bill because it will affect the operation of the Coercion Act in Ireland. The Government have always insisted that that Act does not change the law. If the Government admit the principle of the Bill, and refuse to give it a Second Reading because of its effect on the Coercion Act in Ireland, they in effect admit that there is one law in Ireland and another in England. That will not be the case if they stand by the colours of Sir J. Holker, and if they are not less liberal than the Tory Government of his day. But if they oppose the Motion for the Second Reading, then they will be in this position—they will be going to impose a bad law on England in order that they may have the benefit of it in Ireland. I hold that both "conspiracy" and "intimidation" are vague terms, and that their vagueness is dangerous, and affects most of all the poor and the artisans of this country. I look with misgiving upon any measure which tends to sunder the people of one part of the Kingdom from the people of another. I look with hope and confident anticipation to anything which serves to unite their interests. This Bill will unite the people of England and Ireland; the artisans of Wales and Scotland are equally interested in its principle, and in their name I appeal to the Government to allow this Bill to pass the Second Reading.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. E. Robertson.)
§ (3.8) MR. FENWICK (Northumberland, Wansbeck)
My hon. and learned Friend, in rising to move the Second Reading, deemed it necessary to apologise to the House for having taken on himself the responsibility of calling attention 1234 to the necessity for reform in the Law of Conspiracy. I think the House will agree with me, after listening to his very able and lucid speech, that his apology was altogether uncalled for. Perhaps I, as a layman, ought to offer some apology for having risen to second the Motion of my hon. and learned Friend. Under ordinary circumstances, I should not have thought of obtruding myself on the attention of the House in a Debate of this kind. I should have been quite content to listen to the legal gentlemen on both sides of the House, who, on a question of such magnitude as this, would have been able to interest the House for the whole of an afternoon sitting; but the House will, I think, agree with me that there are special reasons why I, who may very fairly claim to speak for a large number of people outside the House whose legal position has been very materially challenged by recent decisions in County Courts, should crave the indulgence of the House for a few minutes. My hon. and learned Friend has justly stated that the Law of Conspiracy at present is very vague, and the Judgments of the Recorder of Plymouth and of Mr. Seymour at Newcastle confirm his argument as to the vagueness of the law and its consequent dangers. Formerly Trade Unions in this country were regarded as criminal combinations; their members were brought before the Courts and sent to prison as guilty of conspiracy. That state of the law was considered so unsatisfactory that Parliament felt bound to alter it, and to give working men freedom to combine for the purpose of protecting their capital, which was their labour. The Trade Unions Act of 1871 gave that liberty, but even then there was some vagueness in the law, and the Judges held that, while working men committed no act of illegality in combining, the methods by which their Trade Unions were formed were in themselves illegal methods, and therefore open to punishment in a Court of Law. In 1875 the Conspiracy and Protection of Property Act was brought in by a Conservative Government with the view of remedying that unfair state of things, and of granting to working men, as far as 1235 possible, the power to combine to improve their condition by striking either to obtain better wages or to alter the conditions of their labour, and by putting pressure on their employers to effect what they desired. It has been held by the Tories at General Elections and bye-elections that the Act of 1875 gave working men freedom in that respect. But we have seen it laid down by Mr. Bompas at Plymouth and Mr. Seymour at Newcastle that that view of the law is wrong. I am sorry the Government have not been able to get out in time for this Debate the Judgment of the Recorder of Plymouth.
§ MR. FENWICK
Unfortunately I have not had the opportunity of seeing it. I have to rely on the reports in the newspapers, and, according to those reports Mr. Bompas laid it down that it is perfectly legal for workmen to combine with the object of obtaining better wages, or of altering the conditions of labour, but that it is illegal to promote a strike for the purpose of preventing what may be the chief obstacle in the way of the attainment of either of those ends, namely, the employment of non-Unionists. That Judgment gave me, as a Trades Unionist, very great surprise, and was contrary to the opinion of many eminent legal authorities. What are the facts as disclosed in evidence in the Plymouth case? Mr. Treleaven, a local coal merchant, employed four gangs of men to unload his vessels in the port. The members of three of these gangs belonged to some Trade Society, while the members of the fourth did not. Differences having arisen between Mr. Treleaven and one of his workmen of a very minor character, three of the Secretaries of the local Trades Unions waited upon Mr. Treleaven with a view to arrange some amicable settlement of the point in dispute. Mr. Treleaven was not at his office, but his cashier made an appointment for Mr. Treleaven with the deputation for 5 o'clock in the afternoon. On arriving at that hour they found that Mr. Treleaven 1236 had, so to speak, led them into a trap. The Secretary of the Merchants' Association was present, and other gentlemen, and one or more gentlemen of the Press, for the purpose of taking a shorthand note of all that transpired. The interview was of a perfectly frank and friendly nature, and at the close Mr. Treleaven took it upon himself, in the name of the Association, to thank the deputation for the moderate way in which they had placed their views before him, and for the desire they had shown to prevent any dispute between him and his workmen. Yet, Sir, would the House believe that it was on the strength of that private interview that the case was brought into Court, and it was in that interview that it was supposed Secretaries Curran, Matthews, and Shepherd intimidated Mr. Treleaven? It was for this that they were ordered to pay a heavy fine of £20, with an alternative of six weeks' imprisonment. I am sorry there has been found a single man in this country, acting in the capacity of Recorder, who was willing to uphold that Judgment. If the law laid down in that case be correct, I say there are very few employers of labour who are not at this moment open to indictment on charges similar to those brought against these men at Plymouth. Some of us who have a close connection with Trade Organisations know what an extensive use is made of the "character note" by employers in this country. Employers may combine for the purpose of protecting their own interest. When a workman applies for employment the name and address of his previous employer is taken, and immediately a secret inquiry is instituted into the character and antecedents of the man who is seeking work. If, perchance, the workman has offended the good taste of his previous employer in any trivial matter the gates of the factory, or the workshop, or the colliery are closed against him, and he is turned adrift upon the world. Yet it is for doing an act precisely similar to this that these men at Plymouth and the men at Newcastle were ordered to pay heavy fines, or sentenced to long terms of imprisonment. I cannot help thinking that the Recorder of Plymouth and the Recorder of New castle have mixed up the Law of Conspiracy 1237 as laid down in the Conspiracy Act of 1875, and as applicable to this country, with the provisions of the Criminal Law Amendment Act of 1887, which is applicable only to Ireland. Indeed, I find that the Recorder of Newcastle has, in his Judgment, turned expressly to the Criminal Law Amendment (Ireland) Act of 1887 for his definition of intimidation. Speaking of the Irish Act, under which a magisterial inquiry has just been held in Tipperary, he said—That was not an Act binding on England, but he had read its definition of the word 'intimidation,' and he pointed to it as an illustration of how intimidation might be defined. The Act said: 'The expression intimidation includes any words or acts intended and calculated to put any person in fear of any injury or danger to himself or any member of his family, or to put any person in his employment in fear of any injury to or loss of property, business, or employment.' That—Judge Seymour proceeded—is intimidation as defined by statute in Ireland"—
§ MR. GAINSFORD BRUCE (Finsbury, Holborn)
May I ask the hon. Member whether he is quoting from the Charge of the learned Recorder, or from his summing up? I have heard the quotation before.
It is in the Judgment delivered by the Recorder. He went on—That is intimidation as defined by statute in Ireland, but what is true of intimidation by statute in Ireland is also the definition of intimidation in England without statute.It seems to me, therefore, that I am quite justified in holding that both Mr. Bompas and Judge Seymour, in their Judgments on intimidation, have mixed up considerably the Criminal Law Amendment Act, which applies only to Ireland, with the Conspiracy Act of 1875, which applies strictly to England. The Recorder of Newcastle goes on to say—What would have been the result of this man if he had not consented to join the Union? The gates would have been closed against him, and, for aught I know, a placard might have been put up stating: 'This yard enjoys a monopoly of Trades Unionism. Free labour is bound to go elsewhere.'But, with all this, there is no evidence of violence having been threatened against theae men—no evidence to show that 1238 more than what he himself declared to have been a vague threat was offered to them when they were asked to join the Union. Indeed, Judge Seymour, in his Judgment, goes to the extent of declaring that it was a moral intimidation that was used against Connor to induce him to join the Union. But I contend that it would be perfectly legal for workmen to go to their employers and to say, "Unless you do so and so, we on our part will refuse to do so and so." That was all that was contended by the workmen either in the case at Plymouth or in the case that came before Judge Seymour at Newcastle in November. That, I contend—speaking not as a legal man—they have a perfect right to do, and I shall be very much surprised if any legal man gets up in this House and declares that they are bound under any circumstances to work for an employer. It has always been understood since the passing of the Act of 1875 that the workman was free to work for whom he would, or with whom he would, provided that he tendered a legal notice to his employer of his intention to leave his employment at a given time. But in the case at Newcastle, as in the case at Plymouth, the question at issue is not that of breach of contract, because if the charge had been that of breach of contract I venture to say frankly that, in my humble opinion, the men would have found that judgment would have gone against them, and legally gone against them. The charge was not that of breach of contract, and I very much doubt if any Superior Court can be found to uphold the decisions given at Newcastle and at Plymouth. However that may be, I am certain that you could not find 12 men of impartial minds who in such a case would give a verdict in accordance with the Judgments of Mr. Bompas and Judge Seymour. The vague state of the law in relation to intimidation and conspiracy—the dangerously vague state of the law—is calculated to work most injuriously against the interests of the poor and industrial classes of the country, and the time has come when some alteration in the law should be made. I hope the Government will see their way to accept the Second Reading of this Bill. It may be that the provisions of the Bill do not 1239 cover the whole question, but at least it is a step in the right direction. It may be necessary for some of us to move Amendments should the Bill come before Committee of the House, so that it may cover all the points at issue, as they have arisen out of Judgments given especially under the 7th section of the Act of 1875. We reserve our right to move such Amendments; but I think with some degree of assurance I may express a hope that the House will assent to the Second Reading, seeing that the words of the 4th clause were words introduced into a Bill by a previous Tory Government here, and only struck out by the action of the Conservative Party in another place.
§ (3.34.) MR. GAINSFORD BRUCE
I feel the difficulty which always attends one who opposes a Bill professing to be an amendment of the law, but it is not every alteration of the law that is an amendment. I can assure my hon. and learned Friend the Member for Dundee (Mr. Robertson) that I am quite as anxious as he is to preserve the free course of trade in labour; but I oppose the Bill, because I conceive it will not effect that object. My hon. Friend proposes to break down the fence that the law has established to protect individuals against the combination of many, but he provides no efficient substitute. The protection which the existing provisions of the law afford is necessary for the whole community, as necessary for the tenant as for the landlord, for the servant as for the master. This Bill I conceive to be framed on wrong lines. No doubt the Law of Conspiracy is a far-reaching law. It has been said that it is a wide net, and in the course of history cases of particular hardship have arisen from the application of the law. But we find that when cases of hardship have arisen and legislation has been thought necessary, the Legislature has thought it wise not to obliterate and do away with the general law, but to introduce express provisions dealing with the particular cases. That was the course which the Conservative Government adopted in 1875, when they exempted Trades 1240 Unions. That Government did wisely in recognising the way in which Trades Unions were managed, recognised them as large assemblies of men of great intelligence, of loyalty to the country; men, on the whole, willing and anxious to obey the law, men under the control of able leaders who were friends and upholders of the law. The Conservative Government thought that exception might be made for persons of this particular class. That is the reason why, in 1875, a Conservative Government thought fit to sanction the change then made, because they thought that the time had come when confidence might be placed in Trades Unions. If my hon. and learned Friend had found or known of any other class like this class of Trades Unionists—of law-abiding, peace-loving men—on whom the Law of Conspiracy pressed with undue hardship, then he might have followed the precedent of previous legislation, and proposed to make an exception in favour of that class. He has not done so. He knows that there is no class on behalf of which he could appeal, that there is no hardship which he can specify as needing relief, and so he adopts another method altogether, and seeks to sweep away the Common Law of Conspiracy in order that conspirators in general may be unrestrained. But, unless you are to encourage absolute lawlessness you cannot do away with a general law, unless you are prepared to substitute exact definitions containing the criteria of criminal acts. My hon. and learned Friend has not done that; he proposes to obliterate, but he fails to substitute. I fully recognise the great ability and industry of my hon. and learned Friend. He might, indeed, with infinite pains with reference to amyriad of precedents, have carried out an attempt to define in precise language offences he thought should be included in the Law of Conspiracy, but he would have found it a difficult and unthankful task. My hon. and learned Friend has referred to the Report of the Royal Commission, and he has affixed to his Bill a Memorandum containing an extract from the Report of that Commission. The practice which has of late grown up of affixing a Memorandum to a Bill is, no doubt, in many cases a convenient 1241 practice; but I am afraid that in many instances the Memorandum does not give a very accurate representation of the contents of the Bill. It does not do so in this instance. The Memorandum states that the 3rd section of the Bill declares the law in the terms proposed by the Criminal Code Bill Commissioners. Now, it is true that the Commissioners recommended that crimes should no longer be indictable at Common Law; but, at the same time, they introduced into their Draft Code a vast number of minute provisions, which they thought provided for the general rule they proposed to do away with. I look at the provisions of the Code my hon. and learned Friend is so anxious to impose upon the country. In the 102nd section of the Draft Code I find this definition—A seditions conspiracy is an agreement between two or more persons to carry into execution a seditious intention.Now, what is a seditious intention?A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of Her Majesty, or the Government and Constitution of the United Kingdom, or of any part of it as by law established, or either House of Parliament or the administration of justice, or to raise discontent or disaffection amongst Her Majesty's subjects, or to promote feelings if ill-will and hostility between different classes of such subjects.["Hear, hear!"] I am glad to hear that hon. Gentlemen opposite approve of this definition of the law; but if they think that it should be a criminal offence for two or more persons to agree to set class against class, why is the clause I have read not inserted in the Bill now before the House? I must say that I think if hon. Gentlemen opposite were to adopt a code of law defined as the Commissioners proposed to define it, that it would not be less oppressive than the present law. I think they will find, on reflection, that the freedom of political life would not be advanced by the change proposed by the Commissioners, and I beg to observe that I have referred only to one of the many clauses in the Draft Code dealing with conspiracy in its various forms. In reference to this Memorandum, I think that my hon. and 1242 learned Friend has hardly given sufficient consideration to the Report the Commissioners made. It seems to me he has given but very scant attention to the recommendations of the Commissioners, because while he cites a passage from their Report he stops at the end of a sentence which runs in this way:—The sections of the Draft Code which deal with the subject of conspiracy comprise treasonable conspiracies, seditious conspiracies, conspiracies to bring false accusations, conspiracies to prevent justice, to defile women, to murder, to defraud, to commit indictable offences, and conspiracies to prevent by force the collection of rates and taxes.There my hon. and learned Friend stops; but, by inadvertence no doubt, he has left out the passage immediately following:—The law as to trade conspiracies we have left untouched; and to make it clear that we have done so, we have added a few words at the end of the clauses relating to conspiracies.I do not know why, if the hon. and learned Gentleman appeals to the Criminal Code Report, he should not abide by that; and when I find that the definitions in that Code tend in no respect to relax the law, and expressly preserve the existing law as to trade conspiracies, I do not understand what benefit the people of this country are to get by adopting the definitions contained in the Code. I do not wish to detain the House by discussing general principles; but certainly I cannot assent to the principle that it follows, as a matter of course, that what one man may do with impunity 50 men may do with impunity. It is a small matter to me if one man walks across my field; it becomes an important matter to me if 50 men do so. It is a small matter to me if one man defames my character, using words that are not actionable, but if 50 men go about among my friends reiterating the slander, then it may become a serious matter to me. I must be admitted that, to a large extent, the character of a wrong is altered when a large number of persons join in committing it. There is a most able and judicious argument on this point in a book published by the late 1243 Sir W. Erle, Chief Justice of the Common Pleas. He discusses, in a masterly manner, the question why an act becomes a crime when done by several persons which is but a private wrong when committed by one. The distinction between a private wrong and a crime is that whereas a wrong is an injury to the individual, a crime is an injury to the community. No definite line can be drawn between the nature of an act constituting a private wrong and an act which is a public crime. The true distinction lies in the effect of the act upon the public wellbeing. Sir William Erie says—It may be said that wrongs become crimes by reference to the importance of the public right violated thereby…. There seems also to be authority for saying that a combination to violate a private right, in which the public has a sufficient interest, is a crime, such a violation being an actionable wrong. In Berenger's case (3 M. & S., 67), if I understand it aright, is an example. He combined with others to spread at the Stock Exchange a false report of the death of Buonaparte, for the purpose of raising the price of Stocks and selling at the rise. In my opinion, he violated by the use of falsehood the private right of the purchasers in the market to buy at the price settled by competition; and the Court decided that the public has an interest in, the security of the public funds sufficient to make such a combination to effect a private wrong a crime.The book I quote from was published in 1869, but I am dealing with principles which hold good now as then. It is not right to say that if the public have no interest in what one man does they have no interest in the same thing when 50 or 500 men do it. The law is founded on good sense and practical experience. It is idle to seek to abolish that law in the way suggested by the present Bill. If the hon. Member for Dundee wishes to make an earnest effort to amend the law, let him adopt all the clauses relating to conspiracy recommended by the Commissioners. But even if he should attempt that task, let me warn him that it is likely that his efforts will meet with the same failure as attended their efforts. No doubt the result of the inquiry of the Commissioners is looked upon as a great monument of learning and industry, but their Bill has not passed into law, it has 1244 not been found to meet the practical necessities of the community. Now I come to the other part of the Bill, which deals with the 7th section of the Act of 1875. In 1875, it is important to remember, you had, as it has been said, a Tory Government in Office, and measures were passed of great importance to the working classes, and, so far as I know, from 1875 to the present time there has arisen no difficulty until quite recently in the administration of the law. My hon. and learned Friend wants to go back to the law of 1871. Now, in reference to the operation of the Act of 1875, allow me to refer to a work of great interest by the hon. Member for Bethnal Green (Mr. Howell)—Conflicts of Capital and Labour. In this he says—The legislation of 1875 has produced the happiest results in the interests of law and order, for a good deal of the irritation of the past was caused by the repressive laws by which workmen were tried and punished.Now I desire to preserve the beneficial legislation of 1875, but my hon. and learned Friend desires to go back to that of 1871—["No, no!"]—I understand him to say his definition comes from the Act of 1871, and I also know what that Act contains, and that his definition does come from that Act. Now, not only does the hon. Member for Bethnal Green bear testimony to the admirable results of the Act of 1875, but like testimony comes from the Labour Correspondent of the Board of Trade. In his Report on the labour disputes of 1888, issued in 1889, he says—Really the Act of 1875 conceded all for which workmen had so long contended, and since it came into operation there have been few complaints as to its interpretation by the Judges, nor, indeed, have many cases been brought before them.He then refers to Judgments given by Baron Huddleston at Maidstone, and Baron Bram well at Manchester, and goes on to say—Since 1875 the industries of the nation have passed through two periods of intense trade depression, during which strikes have been large, prolonged, and frequent. There may have in a few instances been breaches of the law, but there has been no approach whatever to the secrecy and violence of the time when the Combination Laws were still in force. 1245 Workmen are now better educated and intelligent than they used to be. The laws affecting strikes are much simpler and better known than they were a generation ago. Comparatively short enactments now show how strikes may legally be entered upon, and how, having been commenced, they may be conducted without infringement of the law. With increased liberty has come increased knowledge, and growing wisdom attends on both.Now, I submit this testimony is enough to show that the law of 1875 has been sufficient, that it has been satisfactory to the working classes of this country, and until two recent decisions there was no complaint of this Act. Why alter this beneficial state of things I want to know? I gather from what has been said the only reason proposed for alteration is, that two Recorders have taken a view of the law which has surprised many of those who have given attention to these matters. Now, I do not wish to speak with any disrespect of the Judgments of Recorders; but the Legislature is not in the habit of altering a law until well satisfied that the alteration is required. Suppose, in giving judgment, a Judge of the Superior Court granted a case for a Court of Criminal Appeal, would you have us legislate in reference to that case before the Court of Criminal Appeal could give its decision? That is what we are asked to do now. I confess I never heard of the Newcastle Judgment until now; but the decision of the Recorder of Plymouth we have all heard of, and that Judgment is under appeal. Well, if the only reason for altering the law is that the Recorder of Plymouth has given a Judgment which has occasioned much surprise, and which, I understand, the hon. Member for Wansbeck (Mr. Fenwick) firmly believes—and he may be justified in his belief for all I know—will be reversed; why before the decision of the Appeal Court is given proceed to alter the law? I submit it is not, the ordinary way in which this House proceeds, to alter a law pending an appeal to a Superior Court, especially an Act which over many years and during many strikes has never until now been called in question. I certainly think it is undesirable for this House at any time to criticise judicial decisions. We are 1246 not a Court of Appeal and, when a Judgment is under appeal it is an extremely inconvenient course for this House to attempt to anticipate the ultimate decision. At the best we have a very imperfect knowledge of the facts, and the House will be departing from its proper province in attempting to constitute itself a Court of Appeal for the review of judicial decisions. It is said you should not make intimidation a crime unless, as I understand, that intimidation is of such a character as to put a person in bodily fear. Now, I do not see the reason of that. If you protect a man against threats of bodily violence; if you protect him against kicks and cuffs, why should you refuse to protect him against other and far more serious forms of intimidation? I do not think that is consistent with the view of those who understand Trades Unionism. Let me quote again from the hon. Member for Bethnal Green—This view was ultimately adopted by the Legislature in 1875 by the repeal of the Criminal Law Amendment Act, which was a special enactment against a class, and by the institution of a law general in its character…. The Legislature in this case was but fulfilling one of its most obvious functions, namely, providing for the liberty and freedom of every individual in the State, and the prevention of every species of molestation and tyranny in so far as it is possible to do so by Act of Parliament. Every right-thinking man, whatever his political or social creed, will aid in maintaining such laws against the lawless few who might seek to evade them.I do not believe that Trades Unions want to intimidate by any means. They are opposed to every species of molestation and tyranny. I do not think there is any ground for suggesting that Trades Unions wish to intimidate by other means than personal violence; it is a slur upon Trades Unions to suggest it. Remember there are two kinds of Trades Unions—that with which we have been long acquainted, where men combine lawfully together to get the best price they can for their labour; and then there is another form of Union with which we are beginning to be acquainted, a combination and organisation of employers. There is the same law for both. 1247 There is the same law for the servant as for the master; and if these syndicates of masters intimidate, I am sure it will not be by threats of personal violence but by intimidation, more extensive in its operation and more effectual to effect its purpose, and I say in the interests of the men that it would be dangerous to their freedom to abolish the law which now gives them protection against the possible intimidation of the great unions of capitalists, which are now springing up and which may exercise such enormous power. I believe that the alteration suggested will not advance the interests of any class, but that it will produce such confusion in the law that no one will benefit by the change. I move that the Bill be read a second time this day six months.
§ Amendment proposed, to leave out the word "now," and at the end of the Question, to add the words "upon this day six months."—(Mr. Bruce.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ (4.2.) MR. DARLING (Deptford)
I beg to second the Amendment that the Bill be read a second time this day six months. I think that a mistake will be made if, upon the 3rd clause of this Bill, too much stress is laid on Trade Unions and the law regarding them. The 3rd clause of the Bill does not affect Trade Unions in any degree whatever. Hon. Members who represent the Trade Unions in this House have nothing to do so far as they represent Trade Unions with the change in the law proposed by the 3rd clause. They have nothing to complain of, therefore, in what the law has given them by Statute. They would not have complained for themselves in any way had it not been for a recent decision, which it is not yet certain will be upheld. The Law of Conspiracy has been modified in their favour, and with that modification they are entirely satisfied, except with regard to a point raised by a later clause of the Bill. The hon. Member who has moved the Bill asks why other people should not be put in precisely the same position as persons mho are engaged in carrying on a Trade 1248 Union, and who have been exempted from the ordinary Law of Conspiracy by Act of Parliament. The first reason why the Legislature in 1871 and 1875 interfered specially by name on behalf of those who conduct Trade Unions is because up to that time Trade Unions and those who joined them had not been treated by the Legislature with anything like the same indulgence as other people had been treated. Since the time of Edward III. there have been special Statutes aimed against combinations of workmen, even preventing them from leaving the parishes in which they lived, in order to seek for work elsewhere. Parliament from time to time had to consider the violence and the riots which were brought about owing to the pressure of this law on the working classes: and the question was first fully dealt with in consequence of a Bill introduced by Joseph Hume in 1824—a Bill and an occasion, which I venture to say even the right hon. Gentleman the Member for Mid Lothian (Mr. W. E. Gladstone) will hardly recall. That Bill was referred to a Select Committee, and their Report was the foundation of the legislation which has since been initiated. But the House has always, down to the Act of 1875, taken care to guard the concession made to the working classes by special provisions and restrictions, against one of which, as interpreted by Mr. Bompas, this Bill is now directed. The Bill, in the first instance, proposes to sweep away any kind of restriction which may at present remain in the Law of Conspiracy—to say, practically, that conspiracy is favoured by the Legislature—that we hope to see more of it, that it may permeate unrestricted through all classes and sections of English society. What does this Bill propose? Why, that any act committed by two or more persons which would not be a crime if committed by one person should not be punishable as a crime. You are lo be allowed not only to do anything that is not punishable as a crime, but you are to have the right—no matter whether for the advancement of your own trade or not, and no matter whether to gratify private malice or not—to combine to do anything for which one person could not be punished as a criminal. How would hon. Members who represent the 1249 special interests of the working classes like this? Twenty, fifty, or a hundred persons might combine together to slander a man as to his skill as a workman. They might combine together purposely to ruin a man by going about from office to office in a town such as Sheffield, and slandering a workman with the view of preventing his getting employment. So long as those persons do not write down their slander they would, under the Bill, be safe, and by it such slander would be legalised. Does the House desire that kind of thing? Is it so admirable from any point of view that persons should be able to go about, and by oral slander with respect to a man in his business prevent him from being able to get work? Does the House wish to interfere so that this may be done with impunity? Beyond this, there are cases where the law interferes to preserve public order and decorum. It is not an offence for a person to go to a place of worship and sneeze and cough, but if a number of persons were to organise themselves into a body and go to a church and behave in a similar manner the law can step in and punish them. If this Bill were passed, however, the House might go in sections to its least favourite place of worship, and it might evince all those tokens of disapprobation without liability to punishment. In the interests of civil and religious liberty is it desirable to pass a Bill for that object? Is it right that people who object to religious services of a particular class should be able to combine together by noises to interrupt them? Is it to legalise that that it is sought to pass this Bill? What is it this Bill is really intended to do—and that has been kept quietly in the back ground? The hon. Member who introduced the Bill slipped out a word about "Resident Magistrates," and then took credit for not having referred to Ireland. Why is it proposed to pass this Bill? Is it the intention of the supporters of the Bill to make it legal to boycott the cattle of Irish farmers when they arrive at Liver-pool? Though lately a good many complaints about certain Judgments have been made, no complaint has been made of the Judgment given with regard to the case of the two conspirators who followed a farmer to Liverpool from 1250 Ireland, and openly warned people in the market-place not to buy his cattle. Even right hon. Gentlemen on the Front Opposition Bench ought to feel it a matter for congratulation that the law of England has proved strong enough to reach this case and to enable an Irish farmer to get the best price for his cattle. No friend of the Irish tenantry would wish to see a man compelled to sell his cattle for £10 when he can get £12 for them if unmolested. Yet, if the Bill before the House becomes law, the Irish conspirator will be able to follow the cattle dealer to England, and will be able to warn people with impunity not to buy his cattle, and yet cannot be convicted of conspiracy. I am not going into the question of what the effect of the Bill would be in Ireland, but as to its effect in England. I challenge the hon. and learned Member for Hackney (Sir C. Russell) to say that this will not be the case. In fact, this is the very contemplated and purposed effect on the Bill. I venture to say that the reason why Ireland was not alluded to was that it was hoped that this afternoon we should be apt to forget this. Is what I have pointed out a result which it is so desirable to produce in this country that the House should be asked to pass the Bill? Who complains of the Law of Conspiracy? Is there a decent, respectable man in the country upon whom it presses? What do men want to do that they may not already do without the measure before the House? It is true that people are not allowed to prevent a man from getting the best price possible for his cattle; but they ought not to ho allowed to prevent him. I ask myself, should I oppose this Bill or not? If it only contained this one clause, I should feel myself bound to oppose it. If it did not contain more than the one clause, I do not think it would receive the support of hon. Gentlemen opposite who represent the labour classes. They see what the effect of it would be and how it would press on legitimate business, and, I believe that, actuated as they are by the love of freedom, if it did not contain more, they would vote against it. And now, I come to Clause 4, and it is here that the interest of the Bill centres for Trade Unionists. The hon. Member 1251 for Dundee complains that the law of conspiracy wants altering because it is vague. I like it for its vagueness. [Opposition cheers.] Yes, and I will tell you why. The Legislature, with all your ingenuity, with all your pens, ink, and paper, with all the assistance you may have got from Sir FitzJames Stephen and Sir John Holker, can never be a match for the criminal classes in the matter of definitions. You can never make definitions which will catch all criminals. As soon as you have made a definition it is the business of the criminal to evade it and to make a new crime. Men know, roughly, what they may do and what they may not do—what they ought to do and what they ought not to do—but try to put into an Act of Parliament every conceivable thing that a man ought not to do and you will find you still have left hundreds and thousands of cases outside the Act. As it stands the Law of Conspiracy is consonant with justice, and no single instance has been adduced in which a prosecution under that law has worked any injustice whatever. I have not heard that there has been any attempt to show that the Law of Conspiracy has convicted anyone who ought not to have been convicted, and if that law ought not to be altered let us see if this Clause 4 is one that should be passed. It was introduced admittedly because of a certain decision, given by Mr. Bompas, in regard to the word "intimidation" in the Trade Unions' Act, 1875. It is said that the law wants altering, because Mr. Bompas has held that for men who belong to a Union to go to the master who has other men in his employ who do not belong to the Union and tell him that if he does not discharge those men—and discharge them before his contract with them has terminated—they, the Union men, will turn out, is to commit an act of intimidation. Mr. Bompas may be right or he may be wrong. I have looked into the matter, and I cannot find that intimidation is anywhere defined in the law. It is proposed to define intimidation as—Only such intimidation as would justify a a Justice of the Peace on complaint made to him in binding over the person so intimidating to keep the peace.I cannot find in the law that a Justice 1252 of the Peace may bind a person over for intimidation at all. The clause in his Commission of the Peace merely gives the power to bind over in cases of threatened personal violence or threatened burning of houses. The Act of 1871 limited the intimidation for which a person could be bound over to keep the peace before a magistrate, but the words used were unscientific, and nowhere in the Commission of the Peace will you find power to bind over for intimidation in those terms. Why a man's house should have been particularly selected I do not know, as the house a man lives in may not be his own, or may be insured, and I can conceive of nothing more calculated to aggravate the British bourgeois than interference with his business. The hon. Member for the Wansbeck Division said the Unions do not call on any one to do what is illegal. The hon. Member for the Wansbeck Division (Mr. Fenwick) has said that the Trade Union in the Plymouth case did not call upon the men to do what was illegal, and he further stated that—If the Union had called on the men to do what was illegal, then the Unionists would concur in Mr. Bompas' decision.Does he really mean to say that if the men were called on to do what was illegal the Trades Unions would not concur in that, or would they approve of the Trade Union calling on the men to do what was illegal?
§ MR. FENWICK
I said nothing of the kind. What I said was that if the charge had been one of breach of contract I would myself have concluded that that charge would have been sustained, and justly sustained, against the men.
§ MR. DARLING
I am obliged to the hon. Member. That will answer my purpose equally well. Mr. Bompas, in giving judgment, on p. 7 of that Judgment used these words—Now it is hardly disputed that in calling upon the Union men to come out before their contracts had expired they were acting illegally.1253 Now, to call on the men to come out before their contracts had expired was to call on the men to break their contracts. Mr. Bompas finds as a fact that the Union did call on the men to break their contract, and the hon. Member for the Wansbeck Division has told us that if the Union did call on the men to break their contracts, even Trade Unionists would say that that conduct was not to be approved of.
§ MR. DARLING
Yes. Mr. Bompas said—Now it is hardly disputed that in calling on the Union men to come out before their contract had expired they were acting illegally. This was decided in the case of Lumley v. Gay and Bowen v. Hall, and I think on this ground the conviction must be upheld. But if I rested my decision upon this alone it would be of little service as a guide to the future conduct of the parties, since the defendant's objects would have been equally obtained by inducing the members of the Unions not to work for Mr. Treleaven in the future after the unloading of the vessels in port had been completed.
§ MR. DARLING
The hon. Member cheers that, I hope he will be equally gratified at what I am going to say next. Mr. Bompas says in effect—"On that ground I affirm the conviction, namely, that the intimidation is wide enough to cover the inducing the men to break their contract before it was finished, and to leave their employment at the beck of the person who so induced them." I must say that down to this point it seems to me probable that Mr. Bompas' Judgment is good. But Mr. Bompas goes on to say—"It would be of little good to Trades Unionists if I did not go further." And he proceeds to hold—"That if they had only tried by calling out the Union men to get the employer to promise not to employ Trades Unionists in the future that also would have been intimidation." Now, I do not think it would, and with the 1254 rest of Mr. Bompas' remarks I cannot concur. Of course it matters little whether I concur or not, but perhaps it does matter, when I find that the hon. Member opposite and myself are at one in thinking that the Unionists convicted by Mr. Bompas on this state of facts ought to have been so convicted, because the hon. Member has said that if the Unionists had tried to make the master break the contract they would have done wrong. Well, Sir, Mr. Bompas convicted them of that, and although my approval of Mr. Bompas' action in this respect is immaterial, the approval of the hon. Gentlemen opposite is of much importance.
§ MR. FENWICK
I do not like to interrupt the hon. Member, but I must repudiate the attempts he is making to put into my mouth words which I never used. What I did say was that I claimed that the men had a legal right in their Union to use arguments and moral suasion to induce the employer to discharge the non-Union men, always assuming that they kept within the legality of their contracts.
§ MR. DARLING
What I am trying to point out is that they did not keep within their contract. Mr. Treleaven engaged certain men to unload certain vessels for which he would pay them when the work was done. The contract was not concluded until the vessel was unloaded. Before it was unloaded certain men came and said to him, break your contract and discharge the non-Union men, do not let them unload the ships, but send them away, if you do not, our Union men will leave work before their contract is fulfilled. Mr. Bompas finds that they did this, and he also finds that if they had endeavoured to induce the master to discharge the men after the contract was completed that would have been intimidation. I do not agree with Mr. Bompas in that. I need not give my reasons for this, but I do not concur with him. I think that if Mr. Bompas were right on the latter point the liberty given to the Trades Unions by the Acts of 1871 and 1875 1255 would to a large extent be taken away from them, and I do not think the Legislature contemplated such a state of things when those Acts were passed. Nor do I think that the whole course of conduct, and the course of public opinion and feeling since those Acts were passed would have been what they have been, and still are, if that were so. Therefore, I say, that even if Mr. Bompas is right down to the point of the conviction of these men, I do think he was right in obiter dicta which he proceeded to enunciate from that point. This is all that I desire to say. It does not seem to me that the change proposed by this Bill is necessary. Mr. Bompas has not held what hon. Members seems to think he has held, that the refusal to work in the future with nonunion men comes within the definition of intimidation at all.
§ MR. DARLING
I do not think so, and I say this, speaking as a lawyer, that, after the point on which he convicted the defendants, all Mr. Bompas says is not to be regarded as judicial decision, but as mere obiter dicta.
§ MR. FENWICK
Will the hon. Member allow me to put this point. Mr. Bompas distinctly says he is of opinion that a strike of members of a Trades Union for the purpose of increasing their wages or altering the conditions of their employment is legal, unless accompanied by violence or intimidation—But that a strike for the purpose of compelling employers not to employ other persons, or to alter the terms of the employment of such other persons, is illegal.
§ MR. DARLING
No doubt this is what Mr. Bompas said after he had given his decision on the facts of the case. But he went on to add, what I think was very foolish, namely, to advise the men as to what they should do in the future, which might very well have been left to the Bishops and Clergy of all denominations. This is what we lawyers call obiter dicta when in the Courts, but in the privacy of our chambers we sometimes call it nonsense. 1256 I certainly can see no reason for inserting this clause for the protection of Trades Unions merely because of an incorrect interpretation on a particular point. Therefore, I shall not vote for his clause in the interests of Trades Unions, because I do not think those interests are affected in any way. Nor shall I vote for it in the interests of the boycotters of Liverpool and Manchester. I have no doubt that those boycotters are interested in this matter. No doubt the freedom to injure anybody is exceedingly dear to them; but, at the same time, the right of a man to do what he likes with his own property is of some value, even to an Irish cattle-dealer; and I am not inclined to assist in giving greater facilities for boycotting than exist at the present moment. I do not feel inclined to enlarge the existing opportunities for boycotting, nor to help that work in this country. If we did this, and so enlarged the area of crime, we should have to appoint additional Magistrates in different parts of the kingdom, and, as I am not inclined to alter the law of England for the sake of the boycotters of Ireland, I say that, in the interests of Trades Unions and of all who are not boycotters or patriots by profession, I offer my strenuous opposition to this Bill.
§ (4.45.) SIR W. HARCOURT (Derby)
I will not follow the example of the hon. and learned Gentleman who has just sat down, at all events, in the length of the speech he has delivered. I do not propose to argue this question at any length. What is far more important to the people affected by this question is to know what Her Majesty's Government are going to do. This is, probably a question which more largely affects the masses of the population of this country—every class of it, and not merely Trades Unions alone—than any question that has been brought forward in this House. The material point to ascertain is what course the responsible Government are 1257 going to take. There are only two points in the speech of the hon. and learned Gentleman of which I shall have to take notice. First, he talked of the boycotters in Liverpool. There is nothing in this Bill which will touch the question. The Act of 1875, so far as it was used as the basis of those convictions, will remain unaltered; that I will confidently assert. I understand these convictions were upon provisions which are not altered in this Bill. That is a complete answer to the hon. and learned Gentleman's first point. Now the hon. and learned Gentleman endeavoured to get my hon. and learned Friend behind me into a sort of trap on the question of breach of contract. I am here to affirm that the question of breach of contract makes no difference whatever. I will read from the authority of one who, in former days, was my learned Friend and colleague when we fought together the Bill of 1875—my friend, Mr. Wright, who, I am happy to say, is now placed in a position he so well deserves to possess. He says—Agreement for breaches of contract for services in cases to which no penalty can apply seem never to have been determined to be criminal.The true distinction is this: an Agreement for breach of contract is not punishable unless the breach of contract itself is criminally punishable. Take an example. If a family induce a man to break off a contract of marriage, is that a criminal conspiracy? If the son or the daughter is going to make a marriage they do not approve of, and the father and mother and brothers and sisters stand under an agreement to boycott, if you like, the son or daughter, if he or she make the marriage, is there any one so absurd as to say that the combination is a criminal conspiracy? The true distinction is that unless the breach of contract is in itself criminal, the agreement is nothing of the kind. Now here is an indictment brought before the Queen's Bench, one of the counts of which is— 1258By divers subtle means and devices, and wicked arts and practices to injure and oppress R.P. and G.P. in their business as manufacturers, and to induce the workmen of R.P. and G.P. to stop their work with R. P. and G.P., before the period of their agreement with R.P. and G.P. is completed,and the Court of Queen's Bench would not sustain that count. That disposes of the argument of the hon. and learned Gentleman, on which he wasted so much time, as to the question of agreement to act. These seem to me to be the only two points raised in either of the speeches against this Bill. Now, I think I can in a very few minutes sum up all the questions I want to put to Her Majesty's Government. This Bill has several objects. To my mind, the main and most useful is to abolish the Common Law of Conspiracy, and to substitute for it a definite Statute Law of Conspiracy, so that every man may know what is and what is not an offence under the name of conspiracy. There is no head of Common Law which has been so abused as the Law of Conspiracy. It was hardly heard of, for the purposes for which it has recently been used, until the end of the last century. And then the Judges began to import their own social and political notions, and to declare that about conspiracy which they thought to be inconvenient and wrong; and so this dangerous and vague law. The hon. and learned Gentleman says he likes the vagueness of the Law of Conspiracy. That is a very good and profitable doctrine for the lawyer, but it is a very bad doctrine for the subject, who likes the law not to be vague but to be clear and distinct, that he may not be caught in this net of conspiracy. Therefore, I plead the cause of the people of this country against the hon. Member, who wishes to bring them all under the harrow of this vague law. And if there ever was a reason for carrying on this Bill it is the argument of the hon. and learned Gentleman for Deptford. This is the first question we have to ask Her Majesty's Government, Their predecessors in the year 1879–80 adopted the Report of the learned Judges of that time. A gentleman 1259 we all remember with respect, Sir John Holker, introduced a Bill, of which the 6th, almost the earliest clause, contained the declaration that there should no longer be any Common Law of Conspiracy in this country. It used the words, "shall not be proceeded against in England at Common Law." That was the basis of the Code. It then proceeded to reserve certain heads in which the Law of Conspiracy could subsist, and in which it was defined. My hon. and learned Friend in his Bill has reserved every one of those heads, and every head of conspiracy reserved in the Code is reserved in this Bill. The hon. and learned Member (Mr. Bruce) read the article on the subject of breach of the peace and sedition. That is expressly reserved in this Bill, and it will remain exactly as it is now. And so with every head of the Law of Conspiracy which the Commission thought ought to be reserved. We leave the whole law in that respect untouched. I ask the Government are they going to depart from the principles which they adopted in 1880? If so, why? We must have an answer to that question. I now come to the Act of 1875, for the protection of Trades Unions. This Bill proposes a certain alteration in that Act, not because we desire to pass from any doctrine that a Tory Government professed, but because we wish to restore the Act of 1875 to the condition in which it was introduced by Sir Richard Cross, in which it was supported by the Tory Government, and in which it was, according to the unhappy tradition of this country, mutilated and destroyed by the House of Lords. It was against the will of the House, and even a Tory Government, that the House of Lords set to work to mutilate the Trades Union Bill of 1875. My right hon. and learned Friend the Member for Bury, forseeing the use that would be made of that mutilation, protested against the Amendments of the House of Lords. He was supported by my right hon. Friend the Member for Rossendale. Ah! they are not here to-night to support this Bill. Their sympathy for these questions has disappeared with other things. If they were here to-night I should ask them to do as they did on the 6th of August, 1875, that is, to restore the Act of 1875 1260 into the position in which it was when introduced first by the Tory Government, and before it was mutilated in the House of Lords. Now, that is my second question. I ask you, firstly: Why did you not act on the principle of your own Code? Secondly, why will you not amend the Act of 1875 and bring it back exactly to the condition in which it was introduced and carried through this House? Then, with reference to this judgment of Mr. Bompas. On all points I think that judgment was wrong, and it could not have been passed had not the Act of 1875 been mutilated by the House of Lords. The judgment of Mr. Bompas is a direct consequence of the mutilation by the House of Lords of the Act of 1875, and of the Tory Government acquiescing in the mutilation without protest. I have risen to put these questions to the Government, and I ask them what course they intend to take? The Bill is founded in every part on a principle to which the Government have themselves been parties, founded on their own code, in respect to the application of the Common Law of conspiracy; it saves all that the Code saves, it replaces the law as they said it ought to be, and as it would have been in the original Bill of 1875. I cannot help hoping the Government will accept the Second Reading, leaving oversights to be remedied in Committee. It is a matter of immense importance. I will venture to say it more largely affects the interests of masses of people of all classes than any that could be brought forward.
§ (5.1.) THE SOLICITOR GENERAL (Sir E. CLARKE, Plymouth)
I do not deny the interest of the subject to which the Bill refers, and am aware of its importance, but I do deny that it has any such dimensions and importance in its results as the right hon. Gentleman has suggested. We did not need the solemn tone of exhortation adopted by the right hon. Gentleman to give our advice to the House that the Second Reading of this Bill should not be accepted I will discuss it at no great length, but with the respect due to the views expressed, and the arguments used in its favour. First, 1261 I wish, to point out to the House that there are two separate and distinct questions raised by the Bill, and the question in which Trade Unions are deeply interested, is dealt with in the fourth clause. The rest of the Bill does not refer to or interest Trade Unions at all, because it proposes to deal with a law from which, so far as their action in trade disputes is concerned, they are completely exempted by the Act of 1875. The question of conspiracy dealt with in other clauses is one as to the importance of which I shall say a word presently, but I should like at once and finally to get rid of the question of the interest that Trades Unions have in the Bill, and to point out why it is unreasonable to ask the House of Commons to accept this fourth clause. The Act of 1875 has now been in operation for 15 years, and from 1875 until a few months ago there has been no decision of which the Trade Unionists have anything to complain. If hon. Gentlemen below the Gangway opposite had had to speak in September last year of the administration of the Act they would have had no fault to find. There is no single decision to be found from 1875 until November 1890 of which Trades Unionists in the country have any reason to complain, nor has there been any challenge in this House or elsewhere, so far as I am aware, of decisions given under that Act. Two recent decisions have no doubt attracted a good deal of attention in Trade Union circles—the decision of Judge Dig by Seymour in November and the decision of the Recorder of Plymouth in the early part of the present month. There is much force in the observations of the hon. Member for Deptford with regard to the latter judgment; but that judgment ought not now to be discussed. I express no opinion on that judgment for this reason—the learned Recorder has granted a case, and the judgment will come up for review before a superior tribunal. What the decision of the superior tribunal may be I will not pretend to forecast. The right hon. 1262 Gentleman has ventured to say the judgment was wrong throughout. Well, Sir, by and bye a decision of the High Court will be pronounced upon it, and if the decision should be against the judgment from end to end, we will then congratulate the right hon. Gentleman on the unepxected accuracy of his law.
§ SIR W. HARCOURT
When I said the Judgment was wrong from beginning to end, I said it was wrong according to those principles upon which we proceeded in 1875, upon principles for which we are arguing the Bill now. I spoke as a Member of the House of Commons. I say the Judgment given is one that ought not to be allowed to prevail, and I spoke in support of a Bill that would make that impossible.
§ SIR E. CLARKE
I make no comment on this interruption. As I have said, I feel debarred from debating the accuracy of the Judgment given; but I do say this, that it is not right and fair to the House of Commons when a decision is actually pending as to the meaning of an Act passed 16 years ago, and a question as to its interpretation has only arisen within the last month or two. There is no justification, I say, for a sudden attempt to ask the House of Commons to tread a second time a Bill which assumes that the decision given is the correct one. If the decision is incorrect, then it is going to be corrected, and there is no reason for this Bill on the Table; no reason to ask the House of Commons to read a Bill, which assumes that the interpretation challenged is the correct one. That is an unreasonable proposal to make. Now, with the other part of the Bill Trades Unionists have no sort of concern, I agree with the right hon. Gentleman that the Law of Conspiracy is an important and interesting matter, but I dissent altogether from the extravagant terms in which he has spoken of its importance. He has referred to it as 1263 "more largely affecting the mass of the people of this country of every class, than any other question that can be raised." This is the right hon. Gentleman's estimate of the grievance. Now, I will give him this challenge. No one can produce instances of persons convicted and punished for conspiracy within late years, say since 1875, with regard to whom it can be contended they were not properly punished for the offence committed. That is a large challenge, and I make it broadly. The law has been in a somewhat undefined and doubtful condition, and the hon. Gentleman opposite has read from the well-known book by Mr. Justice Wright some very technical cases in which indictments were preferred—for instance, the Row lands case in 1851. In that case the charge was intimidating people to induce them to depart from service before the term of their agreement had expired, and it has been said the Court expressed no final Judgment, but these were the 16th, 17th, and 19th counts in a long series of counts, many of which were good, and upon these three it was not necessary that the Court should express its Judgment. So far as the decisions or the Law of Conspiracy have gone, vague and indistinct as it may be in definition the administration has been useful and effective. I do not know of a case in which a person has been indicted and punished, with regard to whom any Member of this House will contend such person was not a proper object of criminal prosecution. Now, the right hon. Gentleman asks are the Government going back to the provisions of their own Code? It was not the Code of the Government but a Code proposed by the Commissioners. I know my dear friend the late Sir John Holker had accepted that Code and was anxious to pass it into law, but there is a difference between the proposal made by the Commissioners and the proposal now made. No doubt the Commissioners who inquired into this subject reported that it was unwise to 1264 leave the Law of Conspiracy undefined, and they proceeded to substitute for the undefined Common Law of Conspiracy a certain number of sections of a proposed Code. I am bound to say I do not think; these sections were a sufficient substitute, and I think the provisions of the Code would have to be considerably enlarged before the law would be adequate to the many useful purposes it was intended to serve. The hon. and learned Gentleman says the main and most important object of his Bill is to abolish the Common Law of Conspiracy, and substitute for it defined and explicit provisions. But this Bill does nothing of the kind. So far from abolishing the Common Law of Conspiracy, the Bill leaves the law untouched in regard to large and undefined areas of the Criminal Law. It provides that—Nothing in this Act shall affect the law relating to riot, unlawful assembly, breach of the peace, or sedition, or any offence against the State or the Sovereign, or to conspiracies to bring false accusations, conspiracies to pervert justice, conspiracies to defile women, conspiracies to defraud, or conspiracies to prevent by force the collection of rates and taxes.But each of these conspiracies is left undefined, and therefore it is that I assert that this Bill proposes to leave large, undefined areas untouched. I think I have shown that we are not going back from the decision of the Government of 1880. We are not departing from their proposals with regard to a Code. I confess that to me the attractions of codification grow less as years go on. When one is young there is a great fascination in the vision of a complete code where everything is comprehensively set down and which people may readily read and easily understand, but as time goes on one finds that there are not only great difficulties about the process of codification, but one has reason to see in the experience of other countries grave reason to doubt whether the codification of the law is of great advantage to a country. I do not say that I have abandoned my idea that branches of the law should from time to time be codified, but it is a disputable 1265 point whether it is desirable to codify the law with regard to all offences, and there is a great deal to be said in favour of the proposition that the uncertainty of the Law of Conspiracy is in itself useful in deterring people from doing that which is injurious to their fellows. If any definition of indictable conspiracy is to be given it should be much larger than that in the code of 1879. If there is an intention to do an injury to a person, and combined action for the purpose of carrying that intention into effect, then, in whatever form, and for whatever purpose, the injury is intended to be inflicted, I think that should constitute a criminal offence and be punishable as such. Whether that be too large a definition or not, the one advantage of codification, if it is to be of popular benefit, is absent from this Bill. The question raised by my hon. and learned Friend the Member for Deptford (Mr. Darling) has not been fairly met. He contended that if this Bill passes there would disappear the law which enables the indictment of boycotters of cattle at Liverpool or Manchester. There is no answer to that. You cannot find in any of the excepted cases contained in Clause 3 that which would enable you to apply the law of conspiracy to boycotters, where you find a combined intention and action to prevent a man from freely going about his business and disposing of his goods or labour, or conducting the ordinary business of life. The right hon. Gentleman opposite has endeavoured to put the Government in a dilemma with regard to this matter, by appealing to what took place in 1875 with regard to Trade Unions, and to what took place in 1880 with regard to a Criminal Code, and he concludes that the Government are in a manner pledged to assent to this Bill. It is not a question simply whether it would, or would not, be desirable to substitute for Common Law Conspiracy a series of definitions which would cover the whole of the matters with which we all desire to deal. If the House of Commons were in a position, in regard to business, to make it desirable to do so, and if circumstances had occurred to show that the Common Law was wrested to purposes to which it should not be applied, and used 1266 in inflicting penalties on persons who ought not to suffer, there would be good reason to ask the House of Commons to consider and put in force so much of the Code of 1880 as would be applicable to the matter. It is a great advantage to have such carefully considered proposals as are contained in the Code, to refer to them if necessity arises for legislation upon a subject like this. But when we point out that the frame work of the Bill is entirely different from what it would be if we were going to substitute the Code for the existing law; when we point out that only part of the Bill deals with the law at present in dispute, and that with regard to the part dealing with the law as to which any acute controversy is raised, the Bill does not afford even the framework of a measure for its Amendment in a proper way, then it is the duty of the Government to ask the House to reject the Second Reading of the Bill. We do ask the House to reject it, upon the ground, first, that there is no mischief under the existing law and its administration that requires the interposition of the House; and, secondly, that if there were such a mischief, and the House desired to interpose, it would be necessary to interpose with a very different measure—a measure containing in itself large and adequate provisions for dealing with the mischief the Criminal Law ought to check. I doubt very much if we were framing such a Bill, and had to deal with the definition of conspiracy, with the sincere desire of making it clear that every combined action with the intention to injure other persons ought to be checked and punished by law. I doubt if we could do that without introducing words so large in defining the crime as would expose us for a very long time, at least until the words received judicial construction, to at least as much doubt and difficulty as it has been suggested exists at the present time. When my hon. and learned Friend (Mr. Darling) spoke of the advantages of vagueness, the right hon. Gentleman opposite, with sarcasm which sounded like a sneer, said that lawyers, of course, liked the law to be vague. Well, it is not the vagueness of the law which causes litigation. If you sought how to reduce into terms and put into sections 1267 of a Code the whole Law of Conspiracy as you desire it to exist, and be effectual in this country, you would be compelled to resort to phrases on which no judicial interpretation has ever been put, phrases that would, therefore, involve a long course of judicial interpretation before they could be accepted as satisfying the desire of people to have a clear definition of the law. I hope I have answered the questions put by the right hon. Gentleman. I hope I have given the reasons why we desire the House to refuse a Second Reading to this Bill, I hope the House is satisfied that no real mischief exists the Bill pretends to correct; and that if such mischief were proved to exist, it would have to be met by a very different measure to this.
§ (5.26.) SIR CHARLES RUSSELL (Hackney, S.)
I regret that there is so short a time left for the debate of the very important questions raised. I regret it for two reasons—first, because I should have desired some opportunity of exposing the fallacies (as I conceive) underlying the speeches made from the opposite side of the House; and, secondly, because, looking to the course which the Government have lately pursued, and especially in reference to their Solicitor General, I am by no means sure that if the Debate were protracted a little longer we might not find the leader of the House assenting to the Second Reading of the Bill. We recollect the course pursued by the Government last Session on the question of Breach of Privilege, and the course taken by them last night, when the Solicitor General was put up to make and did make, a very effective no-surrender speech. But after he had shown the serious consequences that would flow from the effacement of a Resolution arrived at by this House, we had the leader of the House meekly submitting. The Solicitor General said, or insinuated, that my right hon. Friend was rash or wrong in his statements of law. But I 1268 think the Solicitor General, of all men, should be cautious how he indulges in twittings of this kind. I am not aware that my right hon. Friend has been found guilty by the Superior Courts of the land of expressing any legal opinion which has proved to be erroneous, whereas the Solicitor General, on a celebrated occasion in relation to the Licensing Laws, did express an opinion, as many lawyers have in their day, that was found to be not in accordance with law. The Solicitor General has pointed out with considerable force I admit, that there is no definition of the crime of conspiracy in the Bill. That is true; but it is equally true that a step in that direction is taken, because there is a narrowing of the area over which the subject matter of conspiracies can extend.
§ (5.29.) Mr. EDMUND ROBERTSON rose in his place, and claimed to move, "That the Question be now put."
§ Question, "That the Question be now put," put, and agreed to.
§ Question put accordingly, "That the word 'now' stand part of the Question."
§ (5.30.) The House divided:—Ayes 143; Noes 179.—(Div. List, No. 20.)
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Second Reading put off for six months.