*CONSPIRACIES IN RESTRAINT OF TRADE.

[*438

THE law relating to conspiracies in restraint of trade is regulated partly by the common law and partly by statutes. Stated broadly, the result of the authorities appears to be that at common law all • combinations to effect alterations in the rate of wages are illegal conspiracies, those only being excepted which are protected by the express words of certain statutes. Of these statutes there have been four, namely, 5 Geo. 4, c. 96; 6 Geo. 4, c. 129; 34 & 35 Vict. c. 32; and 38 & 39 Vict. c. 86; which last is now in force. The exceptions made to the common law doctrine by the 6 Geo. 4, c. 129, were narrower than those subsequently made, but certain decisions as to the extent of the common law have practically narrowed considerably the importance of the exceptions. The subject will, accordingly, be treated in the following order :

1. The common law as to combinations with relation to wages as it was before the statute 6 Geo. 4, c. 129.

2. The decisions as to the extent to which the common law has been modified by the statute 34 & 35 Vict. c. 32.

3. The statute 38 & 39 Vict. c. 86.

Many decisions took place upon the statute 6 Geo. 4, c. 129, but as they turned for the most part upon the words of the Act, which is now repealed, they are here only referred to. The principal decisions under the repealed statute are R. v. Rowlands, R. v. Duffield, R. v. Selsby, R. v. Hewitt, 5 Cox, C. C. 162, 404, 436, 495; Walsby v. Anley, 30 L. J., M. C. 120; O'Neil v. Longman, 32 L. J., M. C. 259; Skinner v. Kitch, L. R. 2 Q. B. 393; Wood v. Bowron, Id. 21; R. v. Shepherd, 11 Cox, C. C. 325.

1. At common law. The common law appears to be that a purpose to raise or indeed to affect in any way the rate of wages, is one of those purposes which it is unlawful for people to try to effect by combination, though they may lawfully be effected by individual efforts, and that therefore a combination on the part of workmen to raise their wages is an indictable conspiracy.

This doctrine is no doubt harsh, and its prevalence can be explained only by reference to the considerations already stated upon the law of conspiracy. It affords a case in which the judges have availed themselves of the power which that branch of the law confers upon them, of holding that the intent to raise or affect the rate of wages artificially is so mischievous to the public, that a combination for that purpose is a crime. They were no doubt countenanced in this opinion by views of political economy now obsolete, and by the character of a

great mass of legislation now repealed. The doctrine in question rests upon the following authorities :

In 1721, Wise and several other journeyman tailors of Cambridge were indicted for a conspiracy to raise their wages, and were convicted. *In arrest of judgment it was urged that no crime appeared *439] upon the face of the indictment, as it only charged a conspiracy and refusal to work at so much per diem, whereas the defendants were not obliged to work at all by the day, but by the year by 5 Eliz. c. 4 (repealed). The court said, "The indictment, it is true, sets forth that the defendants refused to work under the wages which they demanded; but although these might be more than is directed by the statute, yet it is not for the refusing to work but for conspiring that they are indicted, and a conspiracy of any kind is illegal, although the matter about which they conspired might have been lawful for them or any of them to do, if they had not conspired to do it." R. v. Tailors of Cambridge, 8 Mod. 11.

In 1799, two journeymen shoemakers were indicted for a conspiracy to raise their wages. Evidence was given that a plan for a combination of the journeymen shoemakers had been formed and printed in 1792, regulating their meetings, the subscriptions for their mutual support, and other matters for their mutual government in forwarding their designs. Evidence of this was allowed to be given before the defendants were connected with it, and it seems that upon proof of their being members of the society they were convicted. In the course of the evidence it was stated that the demands of the journeymen had been occasioned by one of the masters giving wages beyond what was usual in the trade, and Lord Kenyon said that the masters should be cautious of conducting themselves in that way, as they were as liable to an indictment for conspiracy as the journeymen. R. v. Hammond and Welch, 2 Esp. 719.

In 1783, seven persons were indicted for conspiring to impoverish one Booth, and to deprive and hinder him from using and exercising the trade of a tailor. The means are not set out in the indictment. Lord Mansfield said on delivering judgment, on a motion in arrest of judgment, "The illegal combination is the gist of the offence. Persons in possession of any articles of trade may sell them at such prices as they individually may please, but if they confederate and agree not to sell them under certain prices it is an indictable offence." R. v. Eccles, 1 Lea. 274.

Several magistrates being indicted for a conspiracy to pervert the course of justice, by conspiring to produce in evidence a false certificate, the nature of the crime of conspiracy was much discussed, and a great number of authorities were cited to show that it might be a crime to conspire to do acts which if done by individuals would be lawful. In delivering judgment, Grose, J., said, "In many cases an agreement to do a certain thing has been considered as the subject of an indictment for a conspiracy, though the same act, if done separately by each individual, without any agreement among themselves, would not have been illegal. As in the case of journeymen conspiring to raise their

wages each may insist on raising his wages if he can, but if several meet for the same purpose, it is illegal, and the parties may be indicted for a conspiracy." R. v. Mawbey, 6 T. R. 636.

It must be borne in mind that when these cases were decided, a great number of statutes, collectively known as the combination laws, were in force. Many of them forbad, in express terms, combinations of workmen in particular trades to raise their wages. Others forbad all combinations in general terms and under severe penalties. The first of these was 2 & 3 Edw. 6, c. 15, and the last *39 & 40 Geo. 3, c. 106 (repealed). Others again authorized

magistrates in quarter sessions to fix the rate of wages (see 5 [*440

Eliz. c. 4, and 1 Jac. 1, c. 6, repealed statutes). Thus the decisions above referred to were in strict uniformity, at the time when they were pronounced, both with the spirit and with the practice of the statute law.

Against this is to be set the language of Lord Campbell in Hilton v. Eckersley, 6 E. & B. 62, 88 E. C. L. In that case the defendant was sued on a bond which he and seven other obligors had executed, by which the obligors agreed to carry on their business on certain terms which were said to be illegal and void, as being in restraint of trade. In giving judgment that the bond was void (which was afterwards affirmed in the Exchequer Chamber), Crompton, J., referred to the language of Grose, J., in R. v. Mawbey, supra, as a proof that at common law such conditions were illegal. Lord Campbell agreed that the bond was void, but said: "I am not prepared to say that the combination which has been entered into between the parties to this bond would be illegal at common law, so as to render them liable to an indictment for a conspiracy. Such a doctrine may be deduced from the dictum of Grose, J., in R. v. Mawbey. Other loose expressions may be found in the books to the same effect, and if the matter were doubtful, an argument might be drawn from some of the language of the statutes respecting combinations. But I cannot bring myself to believe, without authority much more cogent, that if two workmen who sincerely believe their wages to be inadequate should meet and agree that they would not work unless their wages were raised, without designing or contemplating violence or any illegal means for gaining their object, they would be guilty of a misdemeanor, and liable to be punished by fine and imprisonment. The object is not illegal, and therefore if no illegal means are to be used, there is no indictable conspiracy. Wages may be unreasonably low or unreasonably high; and I cannot understand why, in the one case, workmen can be considered as guilty of a crime in trying by lawful means to raise them, or masters, in the other, can be considered guilty of a crime in trying by lawful means to lower them."

It is difficult to answer this reasoning upon general grounds, but the authorities quoted above appear to prove that the opinion of Lord Campbell's predecessors as to what sort of conduct was highly injurious to the public interests differed from those of Lord Campbell himself. Surely the judgments referred to above are not adequately de

scribed by the phrase "loose expressions." Of the four cases cited two are decisions of the Court of Queen's Bench, directly upon the very point itself. The dicta of Lord Mansfield and Grose, J., are closely pertinent to the matters then under discussion, and are the more weighty because each of the judges assumes that the illegality of the combinations in question is so clear that it may be used as a proof of matter in itself more obscure. They are certainly as much in the nature of judgments as Lord Campbell's own language in Hilton v. Eckersley; and the language of the now repealed statute of 6 Geo. 4, c. 129, is unintelligible if the legislature did not believe, that the combinations which it expressly permitted would have been crimes in the absence of such express permission. The general result appears to be, that all combinations to effect any alteration in the rate of wages except those which were expressly excepted by 6 Geo. 4, c. 129, ss. 4,5, were indictable conspiracies at common law.

The result, however, cannot be regarded as free from doubt, and it *would be difficult to find a stronger illustration of the uncer*441] tainty produced by the absence of precise and universally binding definitions of crimes than is supplied by this branch of the law. The whole matter is discussed in full detail by Mr. Wright. (Law of Criminal Conspiracies, pp. 43—62.)

Decisions as the effect of 34 & 35 Vict. c. 32 (repealed statute) on common law. It must be borne in mind that neither this statute nor the statute 6 Geo. 4, c. 129, which it repealed, did away with the common law as to conspiring to coerce, which has been treated in two cases as a distinct head of the offence of conspiracy. The law upon this subject is thus stated by Bramwell, B., in R. v. Druitt and others, 10 Cox, 600: "There is no right in this country under our laws so sacred as the right of personal liberty. No right of property or capital, about which there has been so much declamation, is so sacred or so carefully guarded by the law of this land as that of personal liberty. The jury are quite aware of the pains taken by the common law, by the writ of habeas corpus, as it is called, and supplemented by statute, to secure to every man his personal freedom-that he shall not be put to prison without lawful excuse, and that if he is, he shall be brought before a competent magistrate within a given time, and be set at liberty or undergo punishment. But that liberty is not liberty of the body only. It is also a liberty of the mind and will; and the liberty of a man's mind and will, to say how he shall bestow himself and his means, his talents and his industry, is as much a subject of the law's protection as is that of his body. Generally speaking, the way in which people have endeavored to control the operation of the minds of men is by putting restraints on their bodies, and therefore we have not so many instances in which the liberty of the mind has been vindicated as we have with respect to the liberty of the body. Still if any set of men agree among themselves to coerce that liberty of mind and thought by compulsion and restraint, they will be guilty of a criminal offence, namely, that of conspiring against the liberty of mind and freedom

of will of those towards whom they so conduct themselves." He referred to coercion or compulsion-something that was unpleasant and annoying to the mind operated upon; and he laid it down as clear and undoubted law that if two or more persons agreed that they would by such means co-operate together against that liberty, they would be guilty of an indictable offence.

In Reg. v. Bunn and others, 12 Cox, C. C. 316, 339-40, Brett, J., in the course of summing up, said as follows: "Now I shall first ask you this: Was there an agreement or combination, which is practically the same thing, between the defendants, or between the defendants and others, or by some of them, to force Mr. Trewby, or the Gas Company, to conduct the business of the company contrary to their own will by an improper threat, or improper molestation; and I tell you that there is improper molestation if there is anything done with an improper intent, which you shall think is an annoyance or an unjustifiable interference, and which in your judgment would have the effect of annoying or interfering with the minds of the persons carrying on such a business as this Gas Company was conducting. It is not necessary, in order that there should be a conspiracy to molest, that any one should be personally molested. It is enough if you should think that a molestation was designed *and agreed upon with an improper intent, and which in your judgment would be an annoyance and an unjustifiable interfer[*442 ence, and would in your belief be likely to have a deterring effect upon the minds of the employers-that is to say, of Mr. Trewby or the Gas Company. I tell you that the mere fact of these men being members of a trade union is not illegal, and ought not to be pressed against them in the least. The mere fact of their leaving their workalthough they were bound by contract, and although they broke their contract-I say the mere fact of their leaving their work and breaking their contract is not a sufficient ground for you to find them guilty upon this indictment. This would be of no consequence of itself, but only as evidence of something else. But if there was an agreement among the defendants by improper molestation to control the will of the employers, then I tell you that that would be an illegal conspiracy at common law, and that such an offence is not abrogated by the Criminal Law Amendment Act, which you have heard referred to. This is a charge of conspiracy at common law, and if you think that there was an agreement and combination between the defendants, or some of them, and others, to interfere with the masters by molesting them, so as to control their will; and if you think that the molestation which was so agreed upon was such as would be likely, in the minds of men of ordinary nerve, to deter them from carrying on their business according to their own will, then I say this is an illegal conspiracy, for which these defendants are liable." See also R. v. Hibbert, 13 Cox, C. C. 82.

The above statute repealed the 24 & 25 Vict. c. 100, s. 41, relating to assaults in pursuance of any conspiracy to raise wages, etc., and the law now relating to such offences is contained in 38 & 39 Vict. c. 86.